Clackamas board stays in timber lawsuit
But county commissioners propose recovery of state forest land, not money, if western Oregon counties prevail against the state.
Clackamas County commissioners have opted to stay in a lawsuit led by Linn County that seeks to recover up to $1.4 billion from the state in past losses and future proceeds from timber sales on state forests.
But the commissioners also decided that should the ultimate judgment go against the state, Clackamas County is interested in recovering state lands — not money — to complement those already under its own management.
"I don't want the money," Chairman Jim Bernard told county Democrats on Thursday (Jan. 19), two days after the board discussion. "I would like to have the land back."
Clackamas County is one of 15 represented by the Council of Forest Trust Land Counties. They, plus about 130 other local governments within the counties, 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.
"If we opt out, that means we are not at the table — and I think we should be involved with the state," Bernard said.
However, Clackamas County's share of state forest lands is small — about 6,000-7,000 of around 700,000 acres — and its total proceeds from timber sales in the year ending in mid-2015 were $287,354.
Commissioners in Clatsop County, the largest recipient of those sales, voted 3-2 to opt out. Commissioners in third-ranking Washington County, which contains part of the Tillamook State Forest, have scheduled a closed-door discussion Jan. 24.
Although no roll call was taken after a public discussion Tuesday, Jan. 17, none of the three other commissioners responded when Bernard asked whether anyone supported an opt-out.
"Opting out does not solve any problems," Commissioner Ken Humberston said. "It certainly does not stop the lawsuit, which will continue to go forward."
Their discussion took place two days before conservation groups in the North Coast State Forest Coalition made their case for an opt-out at the board's business meeting Thursday.
The board endorsed a suggestion by Humberston that if the counties prevail in the lawsuit, Clackamas County would propose acquiring the state land to add to about 4,000 acres that a county forester already oversees.
"It takes the state off the hook when it comes to money, because we know the state is not exactly flush right now," he said. "We are one of two counties that has a forester and does sustainable forestry — and our standards exceed what the state does. It seems to put us in a position to make the argument that if the state wants to hand off the lands, at least let us manage the lands."
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.
Conservation groups have banded together as the North Coast State Forest Coalition to urge counties and others to opt out.
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.
"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."
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.
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.
"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.
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 (lawsuit) 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.