Coast Range Conifers, LLC v. State

• Decision Date: 24 September 2003
• Citation: 189 Or. App. 531,76 P.3d 1148
• Parties: COAST RANGE CONIFERS, LLC, an Oregon Limited Liability Company, Appellant, v. STATE of Oregon, by and through the Oregon State Board of Forestry, Respondent.
• Court: Oregon Court of Appeals

76 P.3d 1148

189 Or. App. 531

COAST RANGE CONIFERS, LLC, an Oregon Limited Liability Company, Appellant, v.STATE of Oregon, by and through the Oregon State Board of Forestry, Respondent.

011423; A117769.

Court of Appeals of Oregon.

Argued and Submitted March 12, 2003.

Decided September 24, 2003.

Phillip D. Chadsey argued the cause for appellant.With him on the opening brief were James N. Westwood, Portland, Scott E. Crawford, and Stoel Rives LLP.With him on the reply brief was Charles F. Adams.

David F. Coursen, Assistant Attorney General, argued the cause for respondent.With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Bart A. Brush, Portland, filed the brief amicus curiae for Audubon Society of Portland, Institute for Fisheries Resources, Oregon Trout, Inc., and Pacific Coast Federation of Fisherman's Associations.

Before LANDAU, Presiding Judge, and ARMSTRONG and WOLLHEIM, Judges.

LANDAU, P.J.

In this inverse condemnation action, plaintiffCoast Range Conifers, LLC(CRC), contends that the state has taken its property without compensation by refusing to permit CRC to log timberland identified as a nesting site for bald eagles.CRC's complaint alleges regulatory takings claims based on both the state and the federal constitutions.The parties filed cross-motions for summary judgment.The trial court denied CRC's motion, granted the state's motion, and entered judgment dismissing CRC's claims.On appeal, CRC argues that the trial court should have granted its motion and denied the state's.We conclude that the trial court erred in granting the state's motion for summary judgment on the state takings claim and reverse and remand without addressing the disposition of the federal claim.

I.FACTUAL BACKGROUND

The relevant facts are not in dispute.CRC acquired a 40 acre parcel of forested land known as the "Beaver Tract."In the spring of 1998, an Oregon Department of Fish and Wildlife(ODFW) employee reported seeing two adult bald eagles at a nest site in the Beaver Tract.The following month, a United States Fish and Wildlife Service (USFWS) employee observed an unoccupied bald eagle nest on the Beaver Tract.

Bald eagles are listed as "threatened" under the Endangered Species Act. 16 USC § 1533(2000);50 CFR § 17.11(2002).Among other things, that means that, before engaging in any logging that will damage the eagle nesting site, CRC was required to obtain a permit from ODFW.SeeOAR 629-605-0170; OAR 629-665-0020(2); OAR 629-665-0220.

On July 31, 1998, CRC submitted a written plan to log portions of the Beaver Tract within 330 feet of the bald eagle nest.The State Forester rejected the plan on the ground that it provided inadequate protection for the nesting site.The State Forester recommended a modified plan that provided a larger buffer for the nesting site.

On August 26, 1998, CRC submitted a revised written plan for the Beaver Tract.CRC proposed to harvest no closer than 400 feet from the bald eagle nest and to preserve 50 percent of the live trees between 400 and 500 feet from the nest.The State Forester approved that plan.CRC then harvested the timber on the approximately 31 acres located outside the protected area.

Following the annual bald eagle nesting season, CRC observed that the bald eagle nest on the Beaver Tract apparently was no longer occupied.On October 14, 1998, it then submitted a third written plan proposing to harvest the timber on the remaining nine acres of the 40-acre parcel.The State Forester denied the written plan.

CRC requested, and obtained, a hearing.The Board of Forestry(board) ultimately issued a final order upholding the denial.CRC then initiated this action for inverse condemnation.CRC's complaint alleges two claims, one for an uncompensated taking of property in violation of Article I, section 18, of the Oregon Constitution and the other for an uncompensated taking in violation of the Fifth Amendment to the United States Constitution.CRC broke down the second claim into four separate counts, one for each of four different takings theories under the federal constitution.

CRC moved for summary judgment as to liability on the state claim and on two counts of its federal claim.CRC supported its motion with an affidavit stating that it had been denied all economically productive use of the nine-acre tract that the state would not permit it to log.The state moved for summary judgment on all claims.The state argued that (1) by applying for, and receiving, approval of the August 26, 1998, written plan that proposed logging only 31 acres, CRC either had waived or was estopped from complaining that it could not log the balance of the Beaver Tract; (2) because CRC should have sought review of the board's decision by petitioning for review in the Court of Appeals, the trial court lacked jurisdiction; (3) CRC's inverse condemnation claim was barred by issue and claim preclusion based on the board's final order; (4) the two counts of CRC's federal constitutional claim failed on the merits, as a matter of law.The trial court agreed with the state on all points and entered a judgment dismissing CRC's claims.

II.DISPOSITION OF THE MERITS

On appeal, CRC advances 14 assignments of error.In the first four assignments, CRC argues that the trial court erred in concluding that the state was entitled to judgment on certain procedural grounds, namely, lack of jurisdiction and preclusion.In the balance of the assignments, CRC argues that the trial court erred in various other ways, principally, in agreeing with the state on the merits.In response, the state concedes the first four assignments of error and agrees that the trial court erred in concluding that CRC's claims are barred by lack of jurisdiction and preclusion.The state insists that the trial court's entry of judgment nevertheless may be upheld on other grounds, specifically, that CRC waived or is estopped from asserting its claims or that each of CRC's claims fails on the merits as a matter of law.

At the outset, we note that the parties should have framed their arguments in rather fewer than 14 different assignments of error.CRC devotes a separate assignment of error to each of the trial court's alternate rationales for entering summary judgment on CRC's two claims.Assignments of error should target rulings, not reasons for rulings.SeeORAP 5.45(3)(assignments of error must identify the "ruling" that is being challenged).

That said, we address each of the "assignments" as such for ease of reference to the parties' arguments.

A.Assignments One and Two: Subject Matter Jurisdiction

CRC begins by arguing that the trial court erred in granting the state's summary judgment motion and in denying CRC's motion on the ground that it lacked subject matter jurisdiction because CRC should have sought judicial review of the board's final order in this court.As we have noted, the state concedes that the trial court erred in that regard.We accept the concession.Boise Cascade Corp. v. Board of Forestry (S42159),325 Or. 185, 196, 935 P.2d 411(1997)("we hold that plaintiff's [inverse condemnation claim] properly was before the circuit court, because the circuit court and the Board share concurrent jurisdiction").

B.Assignments Three and Four: Issue and Claim Preclusion

CRC next argues that the trial court erred in granting the state's summary judgment motion and in denying CRC's summary judgment motion on the ground that CRC's claims were subject to issue and claim preclusion.The state again concedes that the trial court erred in that regard, and we again accept the concession.

C.Assignments Five and Six: Waiver and Estoppel

CRC argues that the trial court erred in granting the state's summary judgment motion and in denying CRC's summary judgment motion on the ground that CRC had either waived or is estopped from challenging the denial of the third written plan.CRC argues that it has done nothing that would support the conclusion that it affirmatively waived its right to assert a takings claim or that would subject it to an estoppel defense in asserting such a claim.The state responds that, by successfully obtaining a permit to cut timber on 31 of the 40 acres in the Beaver Tract, CRC waived its right to complain about the state's refusal to permit cutting the remaining nine acres.Similarly, the state contends that, by "agreeing" to the 31 acre permit, CRC effectively lulled the state into granting the permit and so should be estopped from now arguing for more.In support, the state cites L.A. Development v. City of Sherwood,159 Or.App. 125, 977 P.2d 392(1999).

We begin with waiver.The Oregon Supreme Court has explained that waiver is "the intentional relinquishment of a known right" that is "manifested in some unequivocal manner."Waterway Terminals v. P.S. Lord,242 Or. 1, 26, 406 P.2d 556(1965).

The undisputed record shows that, when confronted with evidence that there was an active bald eagle nest on the Beaver Tract, CRC applied for a permit consistently with the rules then in existence regarding logging in the vicinity of a bald eagle nest.SeeOAR 629-665-0220.Following the end of the nesting season, when CRC had reason to believe that the nest was no longer active, it applied for permission to cut the rest of the timber.The state does not explain—and we do not understand—how CRC's response to that new information was somehow foreclosed by its prior application.The state cites nothing in the record suggesting that, when CRC submitted its second written plan, it unequivocally manifested an intention to relinquish the right in the future to seek permission to cut the remaining nine acres, much less that it intended to relinquish the right to assert a takings claim.Certainly, nothing in the written plan itself or the state's written approval of the plan says anything like that.We reject the state's argument that CRC...