Coast Range Conifers v. Board of Forestry

• Decision Date: 11 February 2004
• Citation: 83 P.3d 966,192 Or. App. 126
• 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

83 P.3d 966

192 Or. App. 126

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.

Petition for Reconsideration November 5, 2003.

Petition for Reconsideration November 11, 2003.

Decided February 11, 2004.

Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General, and David F. Coursen, Assistant Attorney General, for petition.

Phillip D. Chadsey, Charles F. Adams, and Stoel Rives LLP contra.

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

On Respondent's Petition for Reconsideration November 5, 2003.

Appellant's Response to Petition for Reconsideration November 11, 2003.

LANDAU, P.J.

The state petitions for reconsideration of our opinion, in which we concluded that the trial court erred in granting the state's motion for summary judgment and in denying the summary judgment motion of Coast Range Conifers, LLC (CRC), on the issue of liability in this inverse condemnation case. Coast Range Conifers v. Board of Forestry, 189 Or.App. 531, 550, 76 P.3d 1148 (2003). The state asserts two grounds for its petition: (1) CRC's inverse condemnation claim is not ripe; and (2) even if the claim is ripe, our disposition of the appeal should be modified to reverse the entry of summary judgment only, not to order the entry of summary judgment in favor of CRC as well. We allow the petition and adhere to our decision for the following reasons.

We begin with the state's argument that CRC's claim is not ripe. The state acknowledges that it neglected to raise that argument at trial; it asserted that the trial court lacked jurisdiction on other grounds-grounds that it later conceded were not well taken-but it did not contend to the trial court that CRC's claim was not ripe. Nor did the state raise that argument on appeal, either in its briefing or at oral argument. It nevertheless contends that, because ripeness is an aspect of justiciability, the matter may be raised at any time, even for the first time in a petition for reconsideration after this court has issued an opinion. According to the state, although the Board of Forestry denied CRC's application to log its nine-acre parcel, the order should not be understood to have prohibited CRC from all use of the parcel. Indeed, the state argues, there may well be "approvable alternatives" if only CRC would submit additional applications.

CRC complains that ripeness is not a jurisdictional issue and that it may not be raised at this late juncture. CRC argues that what the state fashions as a "ripeness" argument is actually an assertion that CRC failed to establish an element of its regulatory takings claim, that is, that it has been denied all economically productive use of the relevant parcel. As such, CRC argues, the argument amounts to an assertion that it has failed to state a claim, an assertion that cannot be raised for the first time on appeal, much less in a petition for reconsideration after an opinion on appeal has been issued. In any event, CRC argues, the Department of Forestry (department) did not suggest that there might be "approvable alternatives," only that it might deny logging within a slightly smaller radius of the bald eagle nest site; thus, CRC argues, there remains a live, nonhypothetical regulatory takings claim. The term "ripeness" tends to be used somewhat loosely. Sometimes, it is used to refer to an aspect of the doctrine of justiciability, specifically, the requirement that there be an actual, as opposed to a hypothetical, injury to the individual invoking the judicial power. See, e.g., McIntire v. Forbes, 322 Or. 426, 434, 909 P.2d 846 (1996) (holding that, for a claim to be ripe, "`[t]he controversy must involve present facts as opposed to a dispute which is based on future events of a hypothetical issue'") (quoting Brown v. Oregon State Bar, 293 Or. 446, 449, 648 P.2d 1289 (1982)). In that sense, ripeness is an issue that is jurisdictional in nature and may be raised at any time. Id. at 433-45, 909 P.2d 846.

Sometimes, the term is used more broadly to assert that the complaining party has failed to allege or prove an element of the particular claim involved. In Boise Cascade Corp. v. Board of Forestry, 186 Or.App. 291, 297, 63 P.3d 598, rev. den., 335 Or. 578, 74 P.3d 112, cert. den., ___ U.S. ___, 124 S.Ct. 940, 157 L.Ed.2d 746 (2003), the state asserted for the first time on appeal that the plaintiff's Fifth Amendment regulatory takings claim was not "ripe" because the plaintiff had failed to establish that Article I, section 18, of the state constitution did not afford it a remedy. We concluded that the argument was, "in essence, a defense of failure to...