Supporters of Oregon’s
successful Measure 37, which requires compensation for any
government land-use regulation that diminishes the value of
property, have introduced a radical concept that overturns decades
of settled law on what constitutes the “taking” of private
property.
Now, the Oregon Supreme Court has delivered a
stinging rebuke to the legal theory underpinning takings law. In
the case of Coast Range Conifers v. the Board of Forestry, the
Oregon Supreme Court unanimously delivered the message: “Oregon
ain’t goin’ there.”
The facts are not in
dispute. In 1998, a logging company named Coast Range Conifers
acquired 40 acres of timber known as the Beaver Tract.
Subsequently, a U.S. Fish and Wildlife Service employee observed
two bald eagles in the area and a nest on a 31-acre portion of the
site that the company wanted to log. The bald eagle is listed as
threatened under the Endangered Species Act. Coast Range Conifers
offered a logging plan that prohibited logging within 400 feet of
the nest, leaving 50 percent of the neighboring trees, and received
a logging permit from the Oregon Department of Forestry. The
company logged the 31 acres.
Following the bald eagle
nesting season, the company observed the nest was no longer
occupied and offered a revised logging plan for the remaining nine
acres of the Beaver Tract with larger buffer strips around the
nest. The state forester denied the permit. Coast Range Conifers
filed suit, complaining the government had taken its property by
regulation and demanding compensation.
Lincoln County
Circuit Judge Robert J. Huckleberry denied the claim, ruling the
regulation did not take private property. He noted that the company
made its money on the 31 acres it logged.
The Oregon
Court of Appeals effectively reversed Huckleberry, ruling the
regulation did deprive Coast Range Conifers of its property on the
remaining nine acres of the Beaver Tract by prohibiting further
logging.
In a unanimous decision, the Oregon Supreme
Court reversed the judicial adventurism of the Court of Appeals and
held the Department of Forestry’s regulation did not require
compensation. The Oregon Supreme Court relied on long-established,
well-settled legal principles. It was the plaintiffs and their
lawyers who sought to overturn settled legal traditions.
For decades, Oregon courts have held that government only “takes”
private property if it takes title to it, grants public access to
private property or deprives the owner of “substantial beneficial
use” of property.
It is the last phrase that created this
dispute.
There are decades of case law that define the
phrase “substantial beneficial use,” and the cases include the
value of all the property involved in the dispute — not just
part of it.
The supporters of Measure 37, some of whom
helped pay the bills for Coast Range Conifers’ lawsuit, are
enthralled by a radical legal theory popularized by law professors
such as Richard Epstein of the University of Chicago and some of
his judicial and academic followers in the Federalist Society.
They argue that the “takings clause” in the U.S.
Constitution is meant to require compensation for any regulations
that “interfere” with the profits of an individual or corporation,
including regulations that promote the health and safety of
individuals. Under this theory, even minimum wage laws could
require compensation for lost profits — real or imagined.
The Oregon Supreme Court served unambiguous notice that
it ain’t buyin’. The unanimous opinion held that any
decision about whether Coast Range Conifers was deprived of the
value of its land must be based on the economics of the entire
40-acre parcel, of which the company logged 31 acres, and not the
nine remaining acres where logging was prohibited because of the
bald eagle and its status under the Endangered Species Act.
The Oregon Supreme Court’s opinion also raised an
issue systematically ignored by takings advocates. This is the
long-settled issue that wildlife belonging to the state — in
this case the bald eagle — are held in trust for the public.
The Court’s unanimous opinion held that the state
has a right to protect its property rights in the eagle, without
incurring liability under the takings clause. That’s not what
developers, the timber industry and radical lawyers want to hear.
In its own quiet way, the Oregon Supreme Court has
weighed in on the debate over Measure 37 and its change in what
triggers constitutionally required compensation for the routine
regulation of private property in the public interest. Lawyers will
appreciate the significance of this exchange of opinions between
the Oregon Court of Appeals and the Oregon Supreme Court. Perhaps
taxpayers will also appreciate how the court is protecting their
wallets.
Russell Sadler is a contributor to
Writers on the Range, a service of High Country
News (hcn.org). He writes in Ashland,
Oregon.
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