Bradley v. State

• Decision Date: 02 April 2014
• Docket Number: 092063,A144951.
• Citation: 262 Or.App. 78,324 P.3d 504
• Parties: Carrell F. BRADLEY, Trustee of the Carrell F. Bradley Trust, created September 16, 1992, Plaintiff–Appellant, v. STATE of Oregon, by and through its DEPARTMENT OF FORESTRY, by and through its State Forester, Defendant–Respondent.
• Court: Oregon Court of Appeals

262 Or.App. 78

324 P.3d 504

Carrell F. BRADLEY, Trustee of the Carrell F. Bradley Trust, created September 16, 1992, Plaintiff–Appellant,

v.STATE of Oregon, by and through its DEPARTMENT OF FORESTRY, by and through its State Forester, Defendant–Respondent.

092063; A144951.

Court of Appeals of Oregon.

Argued and submitted Dec. 11, 2012.

Decided April 2, 2014.

Larry A. Brisbee argued the cause for appellant. On the briefs was Michael T. Stone.

Stephanie L. Striffler, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before WOLLHEIM, Presiding Judge, and NAKAMOTO, Judge, and SCHUMAN, Senior Judge.

NAKAMOTO, J.

Plaintiffs¹ filed a petition for a way of necessity to acquire road access to their landlocked property over state land owned by the Oregon Department of Forestry (ODF) near the coast in Clatsop County. A plaintiff who seeks a way of necessity over state-owned land cannot receive road access unless the state grants permission for the way of necessity under ORS 376.185. ORS 376.180(11). In turn, ORS 376.185 provides that the state “shall not unreasonably withhold” the required consent for a way of necessity. ODF denied plaintiffs its consent due to its concerns that the access road would harm the nesting habitat of the marbled murrelet, a sea bird that is protected under state and federal statutes concerning endangered species. Plaintiffs argued that the proposed road would not harm nesting habitat and that ODF unreasonably withheld its consent. The circuit court determined that ODF's consent was not unreasonably withheld and entered a judgment denying the way of necessity. In a supplemental judgment, the circuit court awarded ODF its attorney fees and costs in the amount of $45,698.12. Plaintiffs challenge both judgments on appeal. For the following reasons, we affirm.

I. BACKGROUND

Because it is helpful to an understanding of the dispute, we first provide some background information concerning the protections in effect for the marbled murrelet, general policies for management of state forest lands, and the nature of a way-of-necessity proceeding. We then relate the history of plaintiffs' and the previous owner's attempts to obtain road access through ODF's property and the procedural facts leading to this appeal. We later supplement the facts as we discuss the assignments of error.

A. Marbled murrelet protections

The marbled murrelet ( Brachyramphus marmoratus ) is a sea bird that has declined in population over the past century. In 1992, the marbled murrelet was listed as a “threatened” species under the federal Endangered Species Act (ESA), 16 USC §§ 1531–1544. 57 Fed. Reg. 45328 (Oct 1, 1992); 50 CFR § 17.11 (1993). The marbled murrelet is also afforded protections by state law, ORS 496.171 to 496.192. Generally, the marbled murrelet nests in old-growth coastal coniferous forests and younger stands with “platforms” along the Oregon coast. To avoid predators, the marbled murrelet seeks nesting sites that provide cover in the middle of the live crown of old-growth trees.

ODF manages its forest lands “to secure the greatest permanent value of those lands to the state[.]” ORS 530.050. Pursuant to that directive, ODF may sell forest products and enter into timber sale contracts. ORS 530.050(2), (3). In addition, ODF may permit the use of its lands for other purposes so long as those uses are not detrimental to the best interest of state, including protecting fish and wildlife. ORS 530.050(4).

ODF has adopted rules governing the management of state forest lands, see OAR chapter 629, division 35, and it defines the phrase “greatest permanent value” in ORS 530.050 to mean “healthy, productive, and sustainable forest ecosystems that over time and across the landscape provide a full range of social, economic, and environmental benefits.” OAR 629–035–0020(1). The State Forester is required to actively manage state forest lands to provide sustainable timber harvest and revenues in a way that “[p]rotects, maintains, and enhances native wildlife habitats[.]” OAR 629–035–0020(2), (2)(b). ODF has adopted policies to protect threatened and endangered species, including a set of policies specifically concerning marbled murrelets.

Through its Marbled Murrelet Operational Policies, ODF seeks to “[m]inimize the disruption of [the marbled murrelet's] reproductive activities” and to “maintain habitat suitable for successful nesting” in marbled murrelet occupied sites. Marbled Murrelet Operational Policies 1.1.2.0. In addition, ODF will use reasonable measures to “avoid direct take of marbled murrelets” and to “minimize the risk of any potential take incidental to [its] management practices.” ² Marbled Murrelet Operational Policies 1.1.1.0 (emphasis added). Pursuant to those policies, ODF establishes Marbled Murrelet Management Areas (MMMAs) in locations that ODF determines are occupied by marbled murrelets.

In 2003, the marbled murrelet was detected in the Hug Point Beach area. In 2005, ODF designated that area as an MMMA, known as the Hug Point Beach MMMA, for the protection of marbled murrelet nesting habitat. Some of ODF's land over which plaintiffs seek a way of necessity lies within the Hug Point Beach MMMA or its “buffer zone.” Marbled murrelets have been sighted on ODF's property in the past.

B. Statutory way of necessity

When a landowner has no means of vehicle access to a public road from his or her property, the landowner may petition for a way of necessity across another's property to gain road access pursuant to ORS 376.150 to 376.200. That is the case here. Plaintiffs' property consists of a square parcel with a small “panhandle” at the northwest corner. ODF's land lies south and west of plaintiffs' property. Campbell Group, LLC, a timber company, owns property north and east of plaintiff s' property, and private property lies west of the panhandle of plaintiffs' property. All of the properties are forested, and plaintiffs' property is “landlocked” without access to a public road. To gain road access to their property, plaintiffs filed for a way of necessity, proposing the construction of a road over ODF's land, which ODF opposed.

Unlike an easement, which provides a nonpossessory interest in another's private right of way, “a successful petition for a way of necessity creates public access to landlocked property through a route determined, owned and controlled by the county.” Nice v. Priday, 149 Or.App. 667, 673, 945 P.2d 559 (1997), rev. den.,327 Or. 82, 961 P.2d 216 (1998). To obtain a way of necessity, the landowner petitions the governing body in the county in which the land is located. ORS 376.155(1). Once served with a petition, the county may transfer jurisdiction over the establishment of the proposed way of necessity to the circuit court in that county if the county has adopted an ordinance allowing jurisdiction. ORS 376.200(1). When a circuit court has jurisdiction over the establishment of the way of necessity, as in this case, the court must appoint an investigator to submit a written report addressing whether the conditions for the way of necessity have been met, recommending possible alternative routes, and making a recommendation for a specific road access location. ORS 376.200(5); ORS 376.160(2).

In a way-of-necessity proceeding, the petitioner or plaintiff has the burden to show, by a preponderance of the evidence, that the 12 conditions for establishing a way of necessity enumerated in ORS 376.180 have been met. Tyska v. Prest, 163 Or.App. 219, 224, 988 P.2d 392 (1999) (citing Witten v. Murphy, 71 Or.App. 511, 516, 692 P.2d 715 (1984), rev. den.,298 Or. 773, 697 P.2d 556 (1985)). One of those conditions, ORS 376.180(11), is at the heart of the dispute in this case. That provision provides as follows:

“A way of necessity established under ORS 376.150 to 376.200 shall:

“ * * * * *

“(11) Not be established over land owned by the state or a political subdivision of the state unless permission is granted for the way of necessity under ORS 376.185[.]”

In addition, the court must direct the plaintiff to pay reasonable attorney fees and costs incurred by each landowner whose land was subject to the action for the way of necessity. ORS 376.175(2)(e). If the court grants the way of necessity, it must also direct the plaintiff to pay the “amount of compensation due to any owner of land across which” the way of necessity has been established. ORS 376.175(2)(f).

C. Requests for easements across ODF's property denied

Plaintiffs acquired their property from Nordgren, who offered his property to plaintiffs as security for a loan. In 2007, when Nordgren could not pay back his loan, plaintiffs accepted conveyance of the property. At the time of the conveyance, plaintiffs were aware that there had been litigation involving the property but did not know the extent of the property's road access problem. The original plat for the property shows seven different platted roads that connect to the property, but those roads cross deep valleys or steep ridges, which makes access impractical, if not impossible. The nearest public access or roadway to plaintiffs' property is Shannon Lane, which connects to Highway 101. The Hug Point Beach MMMA on ODF's property lies west of plaintiffs' property and separates plaintiffs' property from Shannon Lane. The MMMA's buffer zone lies directly south of plaintiffs' property.

Nordgren and plaintiffs variously approached ODF and made three different requests for an easement over ODF's property before plaintiffs sought a way of necessity, but ODF denied all of them due to concerns about, among other things, the negative impact to the marbled murrelet habitat. Before Nordgren conveyed the property to plaintiffs, he made two separate requests for an easement. First, in 2004, Nordgren requested an easement that started on Shannon Lane and then went east...