Boise Cascade Corp. v. Board of Forestry, 932018; A126743.

• Decision Date: 05 December 2007
• Docket Number: 932018; A126743.
• Citation: 174 P.3d 587,216 Or. App. 338
• Parties: BOISE CASCADE CORPORATION, a Delaware corporation, Plaintiff-Appellant Cross-Respondent, v. STATE of Oregon, by and through BOARD OF FORESTRY, Defendant-Respondent Cross-Appellant.
• Court: Oregon Court of Appeals

174 P.3d 587

216 Or. App. 338

BOISE CASCADE CORPORATION, a Delaware corporation, Plaintiff-Appellant Cross-Respondent, v. STATE of Oregon, by and through BOARD OF FORESTRY, Defendant-Respondent Cross-Appellant.

932018; A126743.

Court of Appeals of Oregon.

Argued and Submitted January 4, 2007.

Decided December 5, 2007.

Philip D. Chadsey argued the cause for appellant-cross-respondent. With him on the opening brief were Charles F. Adams and Stoel Rives LLP. With them on the reply brief was Michael B. Hallinan, Portland.

Denise G. Fjordbeck, Senior Assistant Attorney General, argued the cause for respondent-cross appellant. With her on the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Brendan C. Dunn, Assistant Attorney General.

Before EDMONDS, Presiding Judge, and BREWER, Chief Judge,^* and CARSON, Senior Judge.

BREWER, C.J.

This inverse condemnation case comes to us with a substantial procedural history, an account of which is set out below. Following trial after the latest remand, a jury determined that the state had taken Boise Cascade Corporation's property in violation of the Fifth Amendment by temporarily prohibiting logging and that Boise should be compensated in the amount of $25. Boise appeals and the Oregon Board of Forestry (the state) cross-appeals. Because we agree with the state's arguments on cross-appeal, we reverse.

I. BACKGROUND

The historical and procedural facts relevant to our decision, which we take from the record and from the numerous opinions in earlier iterations of this case, are undisputed. Boise owns an approximately 65-acre parcel of timberland in Clatsop County known as the "Walker Creek Unit." Old growth timber of the kind found on the Walker Creek Unit is considered to be the best suitable habitat for northern spotted owls. In 1990, a pair of spotted owls was found nesting in a tree within the Walker Creek Unit. Also in 1990, the state adopted an administrative rule that required protection of a 70-acre core area of suitable habitat encompassing such nest sites.

In February 1992, Boise filed a proposal with the Department of Forestry to log the Walker Creek Unit; it filed an amended plan in May 1992. The state ultimately denied Boise's plan to harvest timber from a 56-acre portion of the Walker Creek Unit, but advised Boise that it could log—albeit with a temporal restriction—approximately eight acres of the unit. Boise initiated this action for inverse condemnation in early 1993, alleging that, by failing to approve its proposed plan, the state had "taken" the timber on the regulated 56 acres in violation of Article I, section 18, of the Oregon Constitution and the Fifth Amendment to the United States Constitution. The trial court dismissed Boise's claims on the ground that it lacked subject matter jurisdiction and that Boise's complaint failed to state a claim. Boise petitioned for judicial review of the order disapproving the timber harvest and appealed the trial court's dismissal of its inverse condemnation claim.

In the administrative review case, we rejected Boise's arguments concerning the validity of the administrative rule upon which the board based its decision and affirmed the order. Boise Cascade Corp. v. Board of Forestry (A78968), 131 Or.App. 552, 886 P.2d 1041 (1994), aff'd, 325 Or. 203, 935 P.2d 422 (1997) (Boise I). In the inverse condemnation case, we held that the trial court had erred in concluding that it lacked jurisdiction, and further held that Boise's then-operative complaint did state a claim under both Article I, section 18, and the Fifth Amendment. Boise Cascade Corp. v. Board of Forestry (A79626), 131 Or.App. 538, 886 P.2d 1033 (1994) (Boise II). On review of that decision, the Oregon Supreme Court agreed with this court that the trial court had jurisdiction and that Boise had stated a claim for a regulatory taking. Boise Cascade Corp. v. Board of Forestry (S42159), 325 Or. 185, 935 P.2d 411 (1997) (Boise III).

On remand, Boise dismissed its claim under Article I, section 18, of the Oregon Constitution, choosing to pursue only its federal claim; that choice had important consequences, as will be seen below. The trial court granted Boise partial summary judgment, ruling as a matter of law that a regulatory taking under the Fifth Amendment had occurred. Around that time, one of the nesting owls died, the other left the Walker Creek Unit, and the board therefore lifted its restriction on Boise's logging of the site. Boise accordingly transformed its claim into a claim for a "temporary" taking. The issue of damages was tried to a jury, as was the question of whether a taking by "physical occupation" had occurred.¹ After a jury verdict in Boise's favor, awarding nearly $2 million in compensation, the state appealed.

In that appeal, the state argued that the trial court erred in failing to dismiss Boise's claim, in granting partial summary judgment, in striking the state's ripeness defense, and in numerous other respects. Boise Cascade Corp. v. Board of Forestry, 164 Or.App. 114, 116-18, 991 P.2d 563 (1999), rev. den., 331 Or. 244, 18 P.3d 1099 (2000), cert. den., 532 U.S. 923, 121 S.Ct. 1363, 149 L.Ed.2d 291 (2001) (Boise IV). In Boise IV, we agreed with the state on two of its arguments. First, we agreed that the trial court had erred in submitting to the jury Boise's taking by "physical occupation" theory.² 164 Or. App. at 126, 991 P.2d 563. Second, we agreed that the trial court had erred in striking the state's defense that Boise's claim was not ripe because it had neither attempted to obtain an "incidental take permit" (ITP) from the federal government nor shown that attempting to obtain such a permit would have been futile. Id. at 128-32, 991 P.2d 563.³ We also rejected Boise's argument that its trial exhibits demonstrated that it would have been futile to try to obtain an ITP. Id. at 133, 991 P.2d 563. We thus reversed the judgment in favor of Boise and remanded the case. Id.

On remand, both parties sought summary judgment on the question of ripeness and futility. Most of Boise's arguments in support of summary judgment were to the effect that this court's decision concerning ripeness and futility in Boise IV was wrong. The trial court rejected those arguments. Boise also argued in its motion for summary judgment, however, that it was entitled to judgment as a matter of law on the question of futility. The state, in its motion for summary judgment, asserted that it was too late, as a matter of law, for Boise to be able to demonstrate futility. The trial court granted the state's motion and denied Boise's motion. Once more, Boise appealed.

In that appeal, we addressed whether the trial court had correctly granted the state's summary judgment motion on the issue of ripeness. Boise Cascade Corp. v. Board of Forestry, 186 Or.App. 291, 63 P.3d 598, rev. den., 335 Or. 578, 74 P.3d 112, cert. den., 540 U.S. 1075, 124 S.Ct. 940, 157 L.Ed.2d 746 (2003) (Boise V). The state conceded that it was not entitled to summary judgment on the theory of ripeness on which the trial court had relied. It argued, however, that Boise's claim was not ripe because "Boise, having dropped its claim under Article I, section 18, of the Oregon Constitution, cannot, as a matter of law, establish a violation of the Fifth Amendment to the United States Constitution. See generally Suess Builders Co. v. City of Beaverton, 294 Or. 254, 656 P.2d 306 (1982) (a federal takings claim does not ripen until the claim under Article I, section 18[,] has been decided)."

Boise V, 186 Or.App. at 296-97, 63 P.3d 598. We refused to address that argument, however, on the ground that it had not been preserved in the trial court. Id. at 297, 63 P.3d 598. We ultimately concluded in Boise V that Boise was not entitled to summary judgment on the state's ripeness defense and that, as discussed above, the state also was not entitled to summary judgment. Id. at 304, 63 P.3d 598. After generating five appellate opinions, the case was remanded for a third time.

Before the case went to trial on the most recent remand, the state moved for "a plenary re-trial of all jury questions, including liability and damages issues." The trial court granted the motion. Boise then filed alternative motions asking the trial court to reinstate its Article I, section 18, claim or to allow it to file an amended complaint (actually, what it called a "third supplemental amended complaint") including that claim. The trial court denied both motions, and the case went to trial.

After Boise rested, the state moved for a directed verdict; it also sought a directed verdict after it rested its own case. The trial court denied both motions. Ultimately, the jury, by special verdict, found that "it would have been futile for Boise Cascade Corporation to seek an incidental take permit from the U.S. Fish & Wildlife Service prior to February 1, 1993." That is, the jury rejected the state's ripeness defense by finding that it would have been futile for Boise to seek an ITP. The jury awarded $25 as compensation for the temporary taking of Boise's property. The state moved for a judgment notwithstanding the verdict, while Boise moved to reinstate the earlier nearly $2 million verdict from 1997. The trial court denied both motions, and this appeal and cross-appeal followed.

On appeal, Boise makes three arguments presented as four assignments of error. It argues first that the trial court should not have allowed a plenary retrial of all issues after our most recent remand. More specifically, Boise asserts that the trial court erred in granting the state's motion for a plenary retrial and in denying Boise's post-trial motion to reinstate the 1997 jury verdict. Next, Boise argues that the trial court erred in not awarding simple interest at the rate of nine percent from 1993 on the fair market value of the timber that it claims was taken. Finally, Boise assigns error to the trial court's...