Coast Range Conifers v. Board of Forestry

• Decision Date: 11 August 2005
• Docket Number: (CC 011423; A117769; SC S51342).
• Citation: 117 P.3d 990,339 Or. 136
• Parties: COAST RANGE CONIFERS, LLC, an Oregon Limited Liability Company, Respondent on Review, v. STATE of Oregon, by and through the OREGON STATE BOARD OF FORESTRY, Petitioner on Review.
• Court: Oregon Supreme Court

Page 990

117 P.3d 990

339 Or. 136

COAST RANGE CONIFERS, LLC, an Oregon Limited Liability Company, Respondent on Review, v. STATE of Oregon, by and through the OREGON STATE BOARD OF FORESTRY, Petitioner on Review.

(CC 011423; A117769; SC S51342).

Supreme Court of Oregon, En Banc.

Argued and Submitted January 7, 2005.

Decided August 11, 2005.

On review from the Court of Appeals.^*

Denise Fjordbeck, Assistant Attorney General, Salem, argued the cause for petitioner on review. With her on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Phillip D. Chadsey, of Stoel Rives LLP, Portland, argued the cause and filed the brief for respondent on review.

Edward J. Sullivan, of Garvey Schubert Barer, Portland, filed the brief for amici curiae 1000 Friends of Oregon, The American Planning Association, and its Oregon Chapter.

Gary K. Kahn, of Reeves, Kahn & Hennessy, Portland, filed the briefs for amicus curiae City of West Linn.

Margaret S. Olney, of Smith, Diamond & Olney, Portland, filed the brief for amicus curiae Oregon AFL-CIO.

Jeffrey B. Litwak, White Salmon, Washington, filed the brief for amicus curiae Columbia River Gorge Commission.

Bart A. Brush, Portland, and Nathan Baker, Portland, filed the briefs for amici curiae Audubon Society of Portland, Friends of the Columbia Gorge, Inc., Institute for Fisheries Resources, League of Women Voters of Oregon, Pacific Coast Federal of Fishermen's Associations, and Oregon Trout, Inc. With them on the briefs was John D. Echeverria, Washington, D.C.

Christy K. Monson, Salem, filed the briefs for amici curiae League of Oregon Cities, Multnomah County, National League of Cities, and International Municipal Lawyers Association. With her on the briefs was Timothy J. Dowling, Washington, D.C.

Michael G. Neff, of Haglund Kelley Horngren & Jones LLP, Portland, filed the brief for amici curiae Neil Westfall, SDS Co. LLC, and Senate President Pro Tem Ted Ferrioli.

James S. Burling, of Pacific Legal Foundation, Sacramento, California, and John M. Groen, of Groen Stephens & Klinge, LLP, Bellevue, Washington, filed the brief for amicus curiae Pacific Legal Foundation.

KISTLER, J.

A state wildlife regulation prevents plaintiff from logging approximately nine acres of a 40-acre parcel that it owns. Plaintiff brought this action claiming that the regulation amounted to a "taking" of its property without just compensation in violation of the state and federal constitutions. The Court of Appeals agreed with plaintiff. It reasoned that, in determining whether the regulation deprived plaintiff of all economically beneficial use of the property and thus took the property, it should focus on the nine-acre parcel that the regulation affected rather than the 40-acre parcel that plaintiff owns. Coast Range Conifers v. Board of Forestry, 189 Or.App. 531, 550, 76 P.3d 1148 (2003), adh'd to on recons., 192 Or.App. 126, 83 P.3d 966 (2004). Because the regulation deprived plaintiff of all economically viable use of the nine acres, the Court of Appeals held that the state had taken that part of plaintiff's property in violation of the state constitution. Id. We hold that the correct test is more comprehensive than the Court of Appeals perceived and that, under the correct test, the state did not take plaintiff's property under either the state or the federal constitution.

Plaintiff is a limited liability company in the business of logging timber. In 1996, plaintiff acquired a 40-acre parcel of timber in the Coast Range as part of a land exchange with the United States Forest Service. On May 1, 1998, an employee of the Oregon Department of Fish and Wildlife saw two adult bald eagles at a nest within the 40-acre tract. A month later, an employee of the United States Fish and Wildlife Service observed the nest from a helicopter.

Because bald eagles are listed as a threatened species under the Endangered Species Act, 16 U.S.C. § 1533 (2000), state regulations required plaintiff to file a written plan with the State Forester before engaging in any logging activities that might damage the nest site. See OAR 629-605-0170(1)(d) (State Forester approval required to log within 300 feet of protected species' nesting site); OAR 629-665-0020 (State Forester approval of written plan required before undertaking forest practice that conflicts with resource site); OAR 629-665-0220(1) (bald eagle resource site includes active nest tree). On July 31, 1998, plaintiff submitted a plan to log within 330 feet of the bald eagle nest site. The State Forester rejected that plan because, in the State Forester's view, the plan did not provide the site with sufficient protection. The State Forester recommended that plaintiff modify its plan to provide, among other things, a 400-foot buffer of standing trees (approximately nine acres) around the nest. On August 26, 1998, plaintiff submitted a modified plan that incorporated the State Forester's recommendations and the State Forester approved the plan.

By September 1998, plaintiff had logged approximately 31 of the 40 acres in a manner consistent with the modified plan. One month later, following the end of the bald eagle nesting season, plaintiff submitted a new plan to log the remaining nine acres. The State Forester denied that plan because he found, among other things, that the area was an active resource site, that bald eagles were likely to use the nest site in the future, and that plaintiff's plan failed to provide any protection for the nesting site. Plaintiff sought a contested case hearing. After that hearing, the Board of Forestry issued a final order upholding the State Forester's ruling.

Plaintiff then filed this action against the State of Oregon and Board of Forestry (collectively the "state"), alleging that the state's refusal to let it log the remaining nine acres took that property in violation of Article I, section 18, of the Oregon Constitution and the Fifth Amendment to the United States Constitution.¹ Plaintiff filed a motion for partial summary judgment, and the state filed a cross-motion for summary judgment. In support of its motion, plaintiff submitted an affidavit stating that "[t]he Subject Timber [on the nine-acre tract] has no economic value unless it can be logged." The state did not dispute that statement in its response. Rather, it argued that, in determining whether the regulation deprived plaintiff of all economically viable use of its property, the proper focus was the 40-acre parcel that plaintiff had acquired in the land exchange. The state contended that the fact that the regulation prevented plaintiff from using part of its property did not mean that the property, as a whole, had no economically viable use.²

The trial court agreed with the state, granted its summary judgment motion, and denied plaintiff's motion for partial summary judgment. The Court of Appeals reversed. The court began by recognizing that, under the federal constitution, the United States Supreme Court has applied the "whole parcel rule" in determining whether a regulation denies an owner any economically beneficial use of his or her property; that is, under the federal constitution, a court does not "`divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated.'" Coast Range Conifers, 189 Or.App. at 546, 76 P.3d 1148 (quoting Penn Central Transp. Co. v. New York City, 438 U.S. 104, 130-31, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978)).

Citing two of this court's cases, the Court of Appeals concluded that this court had "effectively rejected" the whole parcel rule under the state constitution. Id. at 546-49, 76 P.3d 1148. The Court of Appeals noted that, in determining whether a regulation effected a taking, this court had focused on the owner's ability to use the part of the property that the regulation affected; it had not focused on the owner's ability to use the property as a whole. Id. at 547-49, 76 P.3d 1148. Following that perceived lead, the Court of Appeals held that, because plaintiff did not have any economically viable use of the nine acres affected by the wildlife regulation, the state had taken that part of plaintiff's property in violation of Article I, section 18, of the Oregon Constitution. Id. at 550, 76 P.3d 1148. We allowed the state's petition for review and now reverse.

On review, the state argues that Article I, section 18, does not apply to regulations that merely limit the uses to which property may be put and that, if it does, we should look at the 40-acre parcel that plaintiff acquired rather than the nine acres of timber that the regulation affects in determining whether the regulation takes plaintiff's property.

Plaintiff raises two state constitutional arguments in response.³ Initially, it advances a unified theory of state takings law that attempts to draw a single set of principles from the separate strands of this court's takings cases. Alternatively, plaintiff argues that this court implicitly has rejected the whole parcel rule and urges us to determine whether a taking occurred by looking only at the specific property interest that the regulation affects. Plaintiff also advances a series of arguments under the federal Takings Clause.

We begin with the state's argument that Article I, section 18, applies only to physical appropriations of property and has no application to regulations that limit the uses to which an owner may put his or her property. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (addressing state constitutional claims first). In analyzing that argument, we consider the text of Article I, section 18, its history, and the cases interpreting it. See Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992) (stating methodology). Our goal in undertaking that inquiry is to identify the historical principles embodied in the constitutional text and to apply those principles...