Deadline looms Jan. 25 for timber lawsuit participation

Published 12:00 am Friday, January 13, 2017

Commissioners in Washington and Clackamas counties may soon get caught up in the political tug-of-war over state forests between advocates of timber production and supporters of outdoor recreation and environmental protection.

If they do not act within the next couple of weeks, they will have chosen a side.

The counties are among the 15 represented by the Council of Forest Trust Land Counties — and Linn County has taken the lead in a class-action lawsuit that seeks to recover up to $1.4 billion from the state in past losses and future proceeds from timber sales.

Washington County is the most populous of the group and third-largest recipient of state timber proceeds, mostly from the Tillamook State Forest. Clackamas County has little state forest acreage.

The counties, plus about 130 other local governments, have until Jan. 25 to opt out of the suit pending in Linn County Circuit Court. If they do not act, they remain participants in the lawsuit.

Washington County commissioners have scheduled a closed-door discussion on the litigation Jan. 24. Clackamas County commissioners decided Tuesday (Jan. 17) to stay in but will offer an alternative.

Two Washington County commissioners took opposing sides last fall in separate interviews with Pamplin Media Group, although the full board has not yet discussed it.

Chairman Andy Duyck said the Oregon Board of Forestry can regulate logging simultaneously with protection for watersheds, fish and wildlife habitat, and public recreation — although he added that there should be a balance.

But Commissioner Dick Schouten said Linn County’s lawsuit is aimed at boosting timber sales at the expense of those other interests — particularly recreational opportunities within easy reach of Oregon’s second most populous county.

“The less Washington County residents understand what is at stake, and the less they understand what ‘greatest permanent value’ means, there will not be a cost for Andy Duyck” and other commissioners, said Bob Rees, who spoke for the Association of Northwest Steelheaders, one of the groups pressing the counties to opt out.

A long history

The state acquired most of these 700,000 acres from counties after widespread foreclosures triggered by the Great Depression 80 years ago. After a series of fires over two decades collectively known as the Tillamook Burn, the lands — mostly in the Coast Range — were replanted.

“One component was that the lands would be managed so as to secure the ‘greatest permanent value’ of the lands to the state,” subject to an obligation to the counties that deeded the lands, said John DiLorenzo, a Portland lawyer who represents Linn County and other plaintiffs in the case.

Although “greatest permanent value” was set as the goal in a 1941 state law, it was only in 1998 that the Board of Forestry defined it. DiLorenzo said while neither set timber production as the dominant use, “the primary goal (of the law) was revenue production” through timber sales, grazing leases and recreation fees.

The board adopted multiple-use management plans starting in 2000.

Nearly 80 percent of the $55 million in net proceeds from state timber sales, after deductions for state operating expenses, went to just three counties in the year ending in mid-2015: Clatsop, Tillamook, and Washington. Clatsop and Tillamook state forests are in those counties.

Conservation groups claimed a victory Jan. 11 when commissioners in Clatsop County, the largest recipient at $18.1 million, voted 3-2 to opt out of the lawsuit.

The groups are the Association of Northwest Steelheaders, Native Fish Society, Northwest Guides & Anglers Association, Oregon Council of Trout Unlimited, Pacific Rivers, Sierra Club Oregon Chapter, and Wild Salmon Center. They have banded together as the North Coast State Forest Coalition.

“State fisheries and recreation are better served by having a balanced plan that helps conserve fisheries and provide recreation while it keeps a steady (timber) harvest going,” said Bob Van Dyk for the Wild Salmon Center. “None of us has a complaint about harvest. It’s just where it is in the priority of values.”

Tillamook County officials have said they will stay in.

Tillamook County was at $13 million in proceeds, Washington County at $12.5 million, and Linn County fourth at $3.7 million. Clackamas County was No. 11 at $287,354.

According to more recent data from the Washington County budget office, the county distributed $9.1 million in proceeds for the budget year ending in mid-2016. Of that total, $2.2 million went to county government itself, $6.2 million to education, and about $650,000 to rural fire protection districts.

Of the education share, $1.8 million went to the county school fund, which is distributed to all districts based on student enrollment, and $4.3 million was split among the five school districts (Forest Grove, Banks, Hillsboro, Vernonia and Gaston) where trees were cut.

“But we also believe that we must act in our enlightened self-interest with the long term in mind,” the coalition letter said. “The way to address these problems is not through a timber-sponsored lawsuit to maximize timber harvest from state lands in the short term.”

Washington County is home to Stimson Lumber and Hampton Associates, the principal buyers of timber from state forests. The companies funded preliminary research by DiLorenzo and others that led to the filing of the lawsuit in 2015.

Pro and con

Circuit Judge Daniel Murphy of Linn County has excluded environmental groups from participation in the case. He also has ruled that the counties have standing to sue the state.

DiLorenzo said federal requirements for protection of endangered species and clean water apply equally to private timberland owners and state forests.

“But what we are saying is that a private landowner who managed timber would have produced a lot more return than the state is. The state rules go above and beyond what all those federal overlays require,” he said.

“What we are saying is that the state breached our contract and is allowed to. We’re not saying it has to correct what it has done, but it owes us a check.”

DiLorenzo said counties that opt out of the lawsuit cannot bind other local governments, and they would have no further say-so in the proceedings.

Although the initial estimate sought by the counties was for $1.4 billion, DiLorenzo said the total is likely to be about $1.1 billion because prejudgment interest will not apply.

The contingency fee earned by DiLorenzo is a maximum of 15 percent of the judgment, although the exact amount would be set only if the counties prevail in court.

Any judgment of damages and legal fees would be years away, however, even though the trial judge is pushing to complete proceedings within a year or so. Any appeal would go to the Oregon Court of Appeals, or directly to the Supreme Court.

DiLorenzo said nothing in the lawsuit would compel the state to change forest management policies — an argument disputed by conservation groups.

“Under the expectations of the counties, ‘greatest permanent value’ means maximization of timber (sales) for the counties,” Van Dyk said.

Barrett Brown of North Plains, a volunteer trail builder, said he disagrees with criticism by conservation groups of state forest management policies they consider insufficient to protect watersheds and fisheries. He said he thinks the agency has done a good job.

“But we share a belief this is just misguided,” Brown said of the counties’ lawsuit.

Brown said management plans have been changed a couple of times in recent years to reflect a desire for greater timber production in state forests.

“They have gone as far as they can go without bumping into threatened and endangered species protection, high-hazard landslide areas, and all the other things that are restrictions in forests,” Brown said.

He said if the lawsuit results in the agency maximizing logging, the public is likely to react negatively.

pwong@pamplinmedia.com

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