Thomas Creek Lumber v. Dept. of Forestry

309

Argued and submitted March 1, affirmed September 27, 2023

THOMAS CREEK LUMBER AND LOG CO.,

an Oregon corporation,

Plaintiff-Appellant,

v.

STATE OF OREGON,

Oregon Department of Forestry,

Defendant-Respondent.

Marion County Circuit Court

15CV32928; A167397

537 P3d 615

Plaintiff appeals from a judgment denying its petition for a statutory way of

necessity over state-owned land. Plaintiff assigns error to the trial court’s deter-

mination that plaintiff had not met its burden of establishing the requirements

for a way of necessity and that the state did not unreasonably withhold its con-

sent to the petition. Plaintiff also asserts that the trial court abused its discre-

tion by awarding an unreasonable attorney fee to the state. Held: The Court of

Appeals declined plaintiff’s request to exercise de novo review and concluded that

the trial court did not err in concluding that the state did not unreasonably with-

hold consent to plaintiff’s petition. Evidence in the record regarding the state’s

concerns about long-term maintenance and erosion, in addition to the state’s

mandate to manage state lands for the benefit of all Oregonians, supported the

trial court’s conclusion that the state did not act arbitrarily and capriciously. The

court also concluded that the trial court did not abuse its discretion in determin-

ing the amount of attorney fees to award.

Affirmed.

Audrey J. Broyles, Judge.

Michael T. Stone argued the cause for appellant. Also on

the opening brief was Brisbee & Stockton LLC. Also on the

reply brief were Brisbee & Stockton LLC and Hood Stone

Stockton.

Peenesh Shah, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Shorr, Presiding Judge, and Pagán, Judge, and

DeVore, Senior Judge.

310 Thomas Creek Lumber v. Dept. of Forestry

SHORR, P. J.

Affirmed.

DeVore, S. J., concurring in part, dissenting in part.

Cite as 328 Or App 309 (2023) 311

SHORR, P. J.

Plaintiff appeals from a judgment denying its peti-

tion for a statutory way of necessity over state-owned land

and awarding defendant Oregon Department of Forestry

$45,094.30 in attorney fees.1 Plaintiff is the owner of a

160-acre parcel of timber land in Marion County. The par-

cel is bordered on three sides by federal land, and to the

east by defendant’s state forestlands. In 1999, plaintiff was

issued a six-month special use permit for a road through

defendant’s land in order to access the parcel for harvesting

timber; however, the road was decommissioned by defen-

dant in 2006. In 2015, plaintiff filed a petition pursuant to

ORS 376.155 to establish a way of necessity, due to being

landlocked. Following a two-day hearing, the trial court

found that plaintiff had not met its burden of establishing

the requirements for a way of necessity and concluded that

defendant did not unreasonably withhold its consent to the

petition. On appeal, plaintiff challenges both of those deter-

minations. Plaintiff additionally argues that the trial court

abused its discretion by awarding an unreasonable attorney

fee to defendant. For the reasons explained below, we con-

clude that the trial court did not err and we affirm.

Standard of review. Plaintiff urges us to exercise

de novo review pursuant to ORS 19.415(3).2 Plaintiff asserts

that this is an equitable action and that it qualifies as

an “exceptional case” under ORAP 5.40(8) because of the

important public policy issues at stake and the trial court’s

findings not comporting with uncontroverted evidence in the

record, and argues that the denial of de novo review would

violate the privileges and immunities clause of the Oregon

Constitution. Assuming, without deciding, that a petition

1

The statute at issue contemplates a “petitioner” rather than a “plaintiff.”

However, we refer to the parties consistent with the caption to this case.

2

ORS 19.415(3) states:

“Upon an appeal in an equitable action or proceeding, review by the

Court of Appeals shall be as follows:

“* * * * *

“(b) Upon an appeal in an equitable action or proceeding other than

an appeal from a judgment in a proceeding for the termination of parental

rights, the Court of Appeals, acting in its sole discretion, may try the cause

anew upon the record or make one or more factual findings anew upon the

record.”

312 Thomas Creek Lumber v. Dept. of Forestry

for a way of necessity is an equitable case in which we have

discretion to exercise de novo review, we decline to do so.

Plaintiff asserts that the trial court’s decision is

contrary to public policy, particularly the priority of full uti-

lization of land and the disfavoring of landlocked parcels,

thus justifying de novo review. Without commenting on the

prioritization of various competing policy issues, we note

that plaintiff’s argument would arguably result in all deni-

als of petitions for a way of necessity being reviewed de novo.

We decline to create such an additional sweeping category of

cases subject to de novo review. Specific to this case, and as

discussed further below, we do not agree with plaintiff that

the trial court’s decision fails to comport with the uncon-

troverted evidence in the record, as was the situation in

the cases cited by plaintiff in its reply brief. See Dept. of

Human Services v. M. E., 255 Or App 296, 299, 307-08, 297

P3d 17 (2013) (exercising de novo review in a dependency

case when the trial court mischaracterized an expert’s tes-

timony about the threat a father posed to his biological chil-

dren versus his stepchildren when the expert had actually

stated that the father did not present a risk to any of the

children); State v. S. N. R., 260 Or App 728, 733-34, 320 P3d

569 (2014) (exercising de novo review when the transcription

of the adjudicated youth’s statement “contained a significant

error on which the juvenile court relied to support its deci-

sion to take jurisdiction”). No such striking error is present

in the matter before us.

We further reject plaintiff’s argument regarding

the privileges and immunities clause. ORS 376.155 contem-

plates a petition for a way of necessity being filed with the rel-

evant county’s governing body; however, ORS 376.200 allows

a county governing body to remove itself from jurisdiction,

thus vesting jurisdiction in the circuit court for the county.

Marion County has adopted such an ordinance. Marion

County Code 11.60.020. Plaintiff asserts that, absent such

an ordinance, a petition for a way of necessity is initially

heard and adjudicated by the county’s governing body and

is then subject to intermediate de novo review by the circuit

court. By the county transferring jurisdiction to the circuit

court, plaintiff asserts that petitioners in Marion County

Cite as 328 Or App 309 (2023) 313

are deprived of an intermediate de novo review, and thus

are treated disparately from petitioners in counties which

have not transferred jurisdiction, in violation of the priv-

ileges and immunities clause of the Oregon Constitution.3

Plaintiff urges us to take de novo review to avoid such dis-

parate treatment.

We decline to do so. Plaintiff has not identified a

“class of citizens” within the meaning of Article I, section

20, that has been disparately impacted. Classifications that

are created by the statute challenged are not entitled to spe-

cial protection. State ex rel Huddleston v. Sawyer, 324 Or

597, 610, 932 P2d 1145, cert den, 522 US 994 (1997); see also

Barrett v. Williams, 247 Or App 309, 314-15, 270 P3d 285

(2011), rev den, 352 Or 25 (2012) (“ ‘Inmates’ are not a true

class in this instance for purposes of Article I, section 20,

that is, a group that consists of individuals who would be

considered as belonging to a distinctive group even if the

statute that burdens them did not exist. If the group does

not fit that definition, then Article I, section 20, simply does

not apply.” (Internal citations omitted.)). The class of people

consisting of “petitioners for a way of necessity who must

file in Marion County” is not a true class. We conclude that

plaintiff’s lack of access to an earlier preliminary decision

by the county governing body does not implicate a violation

of the privileges and immunities clause.4

3

“No law shall be passed granting to any citizen or class of citizens privi-

leges, or immunities, which, upon the same terms, shall not equally belong to all

citizens.” Or Const, Art I, § 20.

4

We additionally note that plaintiff’s characterization of circuit court pro-

ceedings following a county decision as “de novo review” is not necessarily consis-

tent with the way that term is used in this court. ORS 376.175(5) provides that

“[a]ny party to the action for a way of necessity may contest any part of the order

of the county governing body in an appeal filed with the circuit court[.]” Such a

proceeding would involve the creation of a record before the circuit court and

the circuit court not being bound by the county governing body’s factual find-

ings. Contrarily, while de novo review before this court allows us to make factual

findings anew on the record, the record is established and not subject to further

development, and we defer to certain lower court findings, particularly relating

to the credibility of witnesses. Union Cemetery Assn. of Crawfordsville v. Coyer,

214 Or App 24, 34, 162 P3d 1072, rev den, 343 Or 691 (2007). We therefore do not

accept plaintiff’s premise that an “intermediate de novo review” by the circuit

court is equivalent to de novo review in this court. However, it is not necessary

for us to conclusively decide that issue.

314 Thomas Creek Lumber v. Dept. of Forestry

Absent de novo review, the parties agree that we

review the trial court’s factual findings for any evidence

in the record to support them, and its legal conclusions for

errors of law. Allco Enterprises v. Goldstein Family Living

Trust, 183 Or App 328, 330, 51 P3d 1275 (2002). “In our

review of the record, we view the evidence in the light most

favorable to the prevailing party, which is entitled to the ben-

efit of every reasonable inference that may be drawn from

the evidence.” Coast 2 Coast Logistics v. Badger Auctioneers,

323 Or App 374, 387, 524 P3d 555 (2022).

Merits of plaintiff’s petition. A petitioner who seeks

a way of necessity bears the burden of proving by a prepon-

derance of the evidence that the twelve conditions for estab-

lishing a way of necessity, enumerated in ORS 376.180,

have been met. Bradley v. Dept. of Forestry, 262 Or App 78,

83, 324 P3d 504, rev den, 355 Or 879 (2014). A petitioner

who seeks a way of necessity over state-owned land can-

not receive access unless the state grants permission. ORS

376.180(11). In turn, ORS 376.185 provides that the state

“shall not unreasonably withhold” consent to the petition.

We have previously held that the state acts “unreasonably”

if it “arbitrarily and capriciously” withholds its consent.

Bradley, 262 Or App at 94.

The trial court concluded that plaintiff had not met

its burden in establishing the statutory requirements, and

further concluded that defendant’s withholding of consent

was not unreasonable.5 The trial court did not make explicit

factual findings in reaching those conclusions. On appeal,

plaintiff asserts that those conclusions were not supported

by competent evidence and were thus erroneous as a mat-

ter of law. It argues that it presented evidence that satis-

fied each of the twelve requirements of ORS 376.180 and

5

The trial court’s letter opinion states: “[T]he court does not find that peti-

tioner has met its burden in establishing the twelve requirements as set forth

in ORS 375.155.” The parties acknowledge that this is a misstatement, or at

minimum a confusing ruling. The 12 criteria are actually contained in ORS

376.180. ORS 376.155 contains a list of information that must be contained in a

petition for a way of necessity. The Oregon Revised Statutes do not have a chapter

375. Plaintiff assumes that the court misspoke and intended to reference ORS

376.180. Like the parties, we also presume the court intended to reference the 12

requirements of ORS 376.180. Given our conclusion below, the court’s mistaken

statement does not affect our analysis.

Cite as 328 Or App 309 (2023) 315

proved that the state’s withholding of consent was unrea-

sonable, and that defendant did not present competent evi-

dence to the contrary. Defendant asserts that plaintiff failed

to meet its burden to establish at least four of the require-

ments. Because it is dispositive, we only address the issue

of whether defendant’s withholding of consent to plaintiff’s

petition was unreasonable.

In Bradley, we examined the legislative history of

ORS 376.185 and concluded that the issue of whether the

state unreasonably withheld consent to a way of necessity

was a matter of whether the state acted arbitrarily and

capriciously in so doing. Bradley, 262 Or App at 91-94. The

arbitrary and capricious standard is highly deferential to

agency action:

“ ‘The terms “arbitrary and capricious action,” when

used in a matter like the instant one, must mean willful

and unreasoning action, without consideration and in dis-

regard of the facts and circumstances of the case. On the

other hand, where there is room for two opinions, action

is not arbitrary or capricious when exercised honestly and

upon due consideration, even though it may be believed

that an erroneous conclusion had been reached.’ ”

Id. at 94 (quoting Jehovah’s Witnesses v. Mullen et al, 214

Or 281, 296, 330 P2d 5 (1958), cert den, 359 US 436 (1959)).

A court is not to substitute its own judgment for that of the

state agency but must determine if the agency “examined

relevant data and articulated a satisfactory explanation for

its decision” that includes a rational connection between the

facts and the decision. Id. at 94-95.

In its answer to plaintiff’s petition, defendant

asserted a number of reasons for opposing the proposed

way of necessity, including detrimental impact to natural

resources, unstable soils on the slope causing environmen-

tal and safety concerns, interference with the land’s great-

est permanent value, and detrimental impact on the state’s

financial interests due to liability concerns. Before the trial

court, defendant presented multiple witnesses who testified

regarding those various concerns.

Plaintiff asserts that the concerns regarding envi-

ronmental impact and safety are unfounded based on the

316 Thomas Creek Lumber v. Dept. of Forestry

state’s willingness to grant plaintiff a new special use per-

mit that would allow a road in the same proposed location.

Plaintiff essentially argues that if the road would be allowed

under a special use permit, then the environmental and

safety concerns must not actually be valid and are being

used unreasonably to deny the way of necessity. However,

viewing the evidence in the light most favorable to defen-

dant, the state, and drawing reasonable inferences, we con-

clude that the trial court could reasonably conclude that

defendant did not act arbitrarily and capriciously.

The record contains no evidence that defendant

did in fact approve a new special use permit for plaintiff to

re-establish the road in the same location. Defendant’s wit-

nesses indicated that the environmental concerns surround-

ing watershed and owl habitats would have to be investi-

gated completely before any permits would be issued.

Regardless, the record does contain evidence

regarding the state’s legitimate concerns about mainte-

nance and erosion in the long term, and the statutory man-

date to achieve the greatest permanent value and manage

forests for the benefit of all Oregonians. Defendant’s witness

Loffelmacher testified that current road-building practices

favor roads on ridges rather than mid-slope, due to better soil

stability and less long-term maintenance. Another witness,

Cone, testified that he had concerns about the proposed loca-

tion for the way of necessity, based on the steepness of the

side slopes and the potential for slope failure. There was evi-

dence that the slopes off the side of the road are mostly over

60-percent grade. Although plaintiff would have to maintain

the road under ORS 376.190(1) and Walker (the president

and majority shareholder of Thomas Creek Lumber) testi-

fied that he would seek to ensure long-term maintenance of

the road by subsequent owners of his landlocked property,

the state, which ultimately would own the road and the area

surrounding it, has a legitimate long-term interest in not

ultimately taking on the liability for the maintenance and

safety of a road built onto the side of a steeply-sloped hill

should plaintiff and its successors not maintain the road.

See Bradley, 262 Or App at 82 (noting that a successful peti-

tion for a way of necessity creates public access to landlocked

Cite as 328 Or App 309 (2023) 317

property over a road “determined, owned, and controlled” by

the government). Of course, even if a private business has

the legal responsibility to maintain a road, businesses can

fail, disappear, or not pay for their liability; it is ultimately

the state that owns the road on the steeply sloped hill and

the land around it. It is the state that has the ultimate

responsibility for its land.

Further, Dent, the Division Chief of state forests

for the Oregon Department of Forestry, testified that per-

manent easements across state land have the potential to

affect the value of the state land and commit the state lands

to a future use that may or may not align with state man-

dates for land management. She testified that creating such

an easement for the benefit of a private landowner would

not create the greatest permanent value for all Oregonians.

Based on the record, the trial court could reasonably con-

clude that defendant articulated a reasoned explanation for

withholding consent to the petition, and thus did not act

arbitrarily and capriciously as a matter of law.6

The dissent views the record differently, offering a

reasonable interpretation of the evidence, noting the general

nature of the state’s concerns and finding them insufficient

to constitute a reasonable basis for withholding consent.

However, given our standard of review for any evidence to

support the trial court’s factual determinations, we conclude

that the two different reasoned conclusions demonstrate

that the state’s position was not arbitrary and capricious. As

noted above, “where there is room for two opinions, action

is not arbitrary or capricious when exercised honestly and

upon due consideration[.]” Bradley, 262 Or App at 94.7

Our conclusion renders a discussion of the remain-

ing twelve requirements under ORS 376.180 unnecessary.

6

Plaintiff asserts that the testimony from Cone, Dent, and another state

employee, Cate, does not constitute competent evidence because there is no indi-

cation that any of those individuals were involved in the process of deciding

whether to consent to the way of necessity, and there is no evidence that any of

the concerns expressed by those witnesses were communicated to the individu-

als who were involved in the decision-making. Plaintiff did not raise any such

objections before the trial court. We therefore do not consider those arguments on

appeal.

7

We agree with the dissent that if this was not the standard intended by the

legislature, amendment of the way of necessity statutes may be warranted.

318 Thomas Creek Lumber v. Dept. of Forestry

Attorney fees. Plaintiff additionally assigns error

to the court’s award of attorney fees to defendant in the

amount of $45,094.30. Pursuant to ORS 376.175(2)(e), the

petitioner is responsible for “costs and reasonable attorney

fees incurred by each owner of land whose land was subject

to the petitioner’s action for a way of necessity,” regardless of

the outcome of the petition. We review the trial court’s award

of attorney fees for an abuse of discretion. ORS 20.075(3). We

conclude that the trial court did not abuse its discretion.

Affirmed.

DeVORE, S. J., concurring in part, dissenting in

part.

I write separately to offer a different view of the

merits concerning whether the state’s refusal to consent to

the way of necessity was unreasonable.

I concur that plaintiff (Thomas Creek) has not suf-

fered a violation of the Privileges and Immunities Clause of

Article I, section 20, of the Oregon Constitution.

I believe that the underlying proceeding was equi-

table in nature, and I reject the state’s argument to the

contrary. See Petroff v. Williams, 240 Or App 201, 203 n 1,

246 P3d 39 (2010) (treating a statutory way of necessity as

an equity case). I believe that this court could exercise its

discretion to try the cause anew on the record under ORS

19.415(3)(b), because the trial court made no express factual

findings, and the presumed findings, which are implicit in

its legal conclusions, should be said to be unsupported by

the record on a critical point. See Dept. of Human Services v.

B. B., 248 Or App 715, 718, 274 P3d 242, adh’d to on recons,

250 Or App 566, 281 P3d 653 (2012) (observing that we do

exercise discretion to take de novo review where the trial

court’s most important factual findings do not comport with

the uncontroverted evidence in the record or are inconsis-

tent with other factual findings); see also State v. S. N. R.,

260 Or App 728, 733, 320 P3d 569 (2014) (“We have in prior

cases concluded that a case is exceptional, and deserving

of de novo review, when a crucial finding supporting the

lower court’s decisions does not comport with the evidence

in the record.”). Even when we choose not to exercise de novo

Cite as 328 Or App 309 (2023) 319

review, we still review for legal error and substantial evi-

dence in the record to support the trial court’s conclusions.

M. S. v. Burns, 245 Or App 35, 36, 261 P3d 54 (2011). When

we reach the critical point—whether the state’s refusal to

grant consent was unreasonably refused—the state’s ratio-

nale and the trial court’s conclusion fail as a matter of law

and undisputed fact. The trial court’s conclusion fails under

either approach to review.

As I understand it, the majority opinion does not

center on the state’s arguments about the impact of the

requested way on trees, fish, or owls. The uncontroverted

record is that the requested road is already constructed, and

no reforestation or replanting has occurred on its course.

The dispute involves a section of road 0.6 mile in length,

which the state decommissioned by removing two or three

culverts and moving some gravel from the outside shoulder

of the road to the inside, uphill bank.

The court-appointed expert, Stuntzner Engineering,

was chosen by both parties. Its report described the soils as

very rocky and explained that erosion in the stream chan-

nels had not been a problem, so replacing the culverts would

not impact the streams. When engineer Stuntzner inspected

the road, he saw that one stream channel had a little water

and two channels were dry. Vegetation grew in the middle

of the channels, indicating that there is not a lot of storm

water running through the channels. The channels are a

“small type” and are not themselves fish-bearing; instead,

they eventually feed into fish-bearing streams below.

Stuntzner’s forester, Barnhart, testified that the

requested way is within an “owl circle” but the requested way

is further away from the center of the circle than an alter-

nate, unconstructed, access route through old-growth timber.

The circles have different areas—core areas and habitat for

foraging. He explained that there are seasonal restrictions

on how close operations can be to the nesting area. The

requested way does not go through a core area. Restoration of

the road would allow travel through a previously harvested

area of younger timber that is not nesting habitat.

320 Thomas Creek Lumber v. Dept. of Forestry

The state’s witness, Loffelmacher, testified that,

after study, the state was “likely” to grant Thomas Creek

a temporary use permit for access to conduct logging, but

only a temporary permit.1 For perspective, I note that a way

of necessity affords a permanent right of access to land-

locked land. ORS 376.150; ORS 376.175; ORS 376.180; ORS

376.190(2). And, an order for such a way can provide that it

be gated to limit its use to those uses for which it is granted,

thus preventing general public access. See ORS 376.180(2), (4)

(allowing for gating and restricting use). Thomas Creek

observed that any concern about the passing effect of equip-

ment on an existing roadbed already cut through a half-mile

of young timber was little different regardless whether that

passing disturbance happens under a temporary permit or

a way of necessity. Given the location and past use, it is no

surprise that the issue of the reasonableness of the state’s

refusal does not center on trees, fish, or owls.

For a pair of reasons, the majority concludes that

the state’s refusal to consent to a way of necessity is not

unreasonable. 328 Or App at 315-17. As the majority rec-

ognizes, ORS 376.180(11) provides that a way of necessity

shall not be established “over land owned by the state or

a political subdivision of the state unless permission is

granted for the way of necessity under ORS 376.185.” In

turn, ORS 376.185(1) provides, in relevant part, “The gov-

erning body of a political subdivision of this state and any

agency of the state shall not unreasonably withhold consent

required under this subsection.” In essence, refusal cannot

be arbitrary or capricious. Bradley v. Dept. of Forestry, 262

Or App 78, 94, 324 P3d 504, rev den, 355 Or 879 (2014). We

have quoted the Supreme Court to explain:

“ ‘The terms “arbitrary and capricious action” when

used in a matter like the instant one, must mean willful

and unreasoning action, without consideration and in dis-

regard of the facts and circumstances of the case.’ ”

Id. (quoting Jehovah’s Witnesses v. Mullen et al, 214 Or 281,

296, 330 P2d 5 (1958), cert den, 359 US 436 (1959)).

1

Thomas Creek wants permanent access in order to be assured of its ability

to visit for spraying, brush-control, commercial thinning, or, presumably, incre-

mental logging, as it had done before.

Cite as 328 Or App 309 (2023) 321

The majority first relies on the state’s concern for

long-term maintenance of the road. Loffelmacher, a forestry

supervisor, testified to concern about roads built on mid-

slope, rather than along ridges, due to risks of soil instabil-

ity and long-term maintenance costs. Forest engineer Cone

testified that standard practice is to avoid building side-cast

ballast roads to avoid the risk of slope failures. The major-

ity acknowledges that Thomas Creek would be required to

maintain the road, but concludes that “it is ultimately the

state that owns the road * * * and the land around it,” so “[i]t

is the state that has the ultimate responsibility for its land.”

328 Or App at 317. For that first of two reasons, the majority

concludes that the state was not unreasonable in refusing

consent to the way of necessity.

I respectfully disagree. My reasons are founded on

uncontested facts about the state’s practical responsibility

for the road and undisputed law about the state’s legal lia-

bility for its maintenance. To begin, a look at the record is

necessary. The state’s witnesses spoke in broad terms about

general road-building practices, but they did not testify to

any signs of fractures, subgrade cracking, or slumping on

this road’s slope. Although the decommissioned road has

existed since the early 1970s, affording over forty years of

history, the state offered no evidence of landslides on this

particular slope. Moreover, the state witnesses did not out-

line a ridgeline-route to the Thomas Creek property that

could avoid climbing a mid-slope. The primary alternate

route still requires climbing slopes, plus felling mature

trees and traveling through the core nesting area of north-

ern spotted owl. A second alternate route would be worse.

The court-appointed engineer Stuntzner testified

that he inspected the decommissioned road, its banks, and

its slopes. He testified that he did not see any subgrade

cracking or slumping. He described the location as stable,

concluding that the road is “in a good location.” Likewise, his

forester Barnhart looked for stability issues, fractures, or

evidence of past landslides, below and above the cut slopes.

In his report to the court, he concluded that there was no

sign of solid-mass movement or landslide problems at the

location, and that the “rocky soils appear to be very stable.”

322 Thomas Creek Lumber v. Dept. of Forestry

Seen together, there was no conflicting evidence. Rather, the

state witnesses spoke of sensible but generalized practices

without pointing to observed problems at this location, while

experts Stuntzner and Barnhart described the specific road

as stable. The parties’ witnesses did not necessarily dis-

agree; rather, they talked past each other.

Nonetheless, I understand that the majority finds

some evidence in the generalities of the state witnesses’ tes-

timony to support a concern that this existing road might

experience slope problems in the long-term. I do not view

the record that way, given what was said, but our difference

of opinion does not matter to a proper conclusion in the end.

The majority determines that the state’s refusal to consent

was not unreasonable, because the state is thought to have

“ultimate responsibility” for “the land.” As a matter of law,

of course, the state does not have responsibility for the road.

That is because ORS 376.190(1) provides, in relevant part:

“A way of necessity that is established under ORS

376.150 to 376.200 shall be maintained and kept passable

by the person owning the land for which the way of necessity

is established.”

(Emphasis added.) Thomas Creek, and only Thomas Creek,

must maintain its way of necessity. The state has no legal

liability to maintain the road.

The same is true as a matter of fact when we con-

sider practical “responsibility.” In these circumstances, the

uncontroverted record is that the state did not and does

not want this road. The record shows that the state has

refused consent to the way of necessity. And earlier, after

the road had been used for a timber harvest under a tempo-

rary use permit in 1999, the state decommissioned the road

and removed culverts so as to make the road impassible.

Consequently, if the road did fail at some time in the future

and if Thomas Creek or its successors did not perform their

lawful duty of repair, the practical circumstances do not

leave the state with a road to repair. In that circumstance,

the road would return to the same impassible condition that

the state declares that it wants. Any practical responsibility

is imaginary; indeed, the state has already demonstrated

that it disclaims the road. As a result, there is no legal

Cite as 328 Or App 309 (2023) 323

liability or practical risk to the state that makes reasonable

its refusal to allow Thomas Creek permanent access to its

property.

The majority adds a further reason to support its

determination. Dent, a division chief in the Department of

Forestry, testified, “generally speaking,” that “permanent

easements” across state lands affect value and “make com-

mitments” to a “future use and practice” that “may or may

not align with how [the department is] mandated to manage

the land.” Dent testified, again generally, that a permanent

easement to benefit an adjacent private landowner would

not create the greatest permanent value for Oregonians.

She did not testify, in general or in particular, how closing

or reopening the road affected or committed the lands of the

state or Thomas Creek contrary to achieving the greatest

value for Oregonians.

I believe the state’s refusal to consent cannot be

found reasonable under the further rationale. As noted at

the outset, we review the record for any substantial evidence

that is critical to a trial court’s conclusion, whether or not

reviewing de novo. It is no coincidence that, when examin-

ing an agency’s decision in contested cases, we also review

for substantial evidence. ORS 183.482(8)(c) (judicial review

of agency decisions). That review necessitates a review

for substantial reason. See WaterWatch of Oregon v. Water

Resources Dept., 268 Or App 187, 212, 342 P3d 712 (2014)

(“As part of our substantial evidence review, we also look

at whether the findings provide ‘substantial reason’ to sup-

port the legal conclusion reached by the agency.” (Internal

quotation marks and brackets omitted.)). “Substantial rea-

son” requires a “reasoned explanation” between the “what”

and the “how” in order to “connect the dots” between conclu-

sions and the facts at hand. Id. at 222-23; see also id. at 212

(Agencies “ ‘are required to demonstrate in their opinions

the reasoning that leads the agency from the facts that it

has found to the conclusions that it draws from those facts.’ ”

(Quoting Warkentin v. Employment Dept., 245 Or App 128,

134, 261 P3d 72 (2011) (emphasis in Warkentin).)). The failure

to make that connection means a lack of substantial reason

or evidence. See id. at 224-25 (reversing and remanding).

324 Thomas Creek Lumber v. Dept. of Forestry

The further rationale—that consent is contrary

to state goals—fails the standard of substantial reason.

Division chief Dent did not testify what in particular was

the highest and best use of the of state lands astride the

half-mile section of closed road. Nor did she testify exactly

how closure and refusal to reopen the road served to max-

imize value for all Oregonians.2 She did not “connect the

dots” between the facts and agency refusal. At best, Dent

concurred in the testimony of other state witnesses who

similarly spoke in generalities rather than specifics.

The uncontroverted record shows that the purpose

of these lands—those of Thomas Creek, neighboring own-

ers, and the state—have already been determined. If we rec-

ognize, as Dent suggested, that creating a road can deter-

mine the purposes of lands, then we must recognize that

the record shows that the Mt. Horeb locale is already served

by a network of roads belonging to a county, the U.S. Forest

Service, the Bureau of Land Management, Weyerhaeuser,

Thomas Creek, and the State of Oregon. Whatever vari-

ous purposes those roads serve, those roads have already

determined the uses of the lands and committed the land

to those purposes. Indeed, the sale of 160 acres to a private

owner who preceded Thomas Creek already determined

the use of that land, while that sale simultaneously deter-

mined at least one related purpose—that of the neighboring

state land providing access to the Thomas Creek acreage.

That purpose was confirmed by the timber harvests on the

Thomas Creek acreage in the 1970s and the small harvest

around 1999. Together, the network of roads in the area, the

sale of land to a private owner, and the half-mile portion

of roadbed necessary to reach the private property already

decided the multi-use character of these lands. Those unde-

niable facts preempt any reasonable reliance on a worthy

but abstract goal about maximum benefit of state lands for

Oregonians—whatever that might mean in another, partic-

ular location.

2

Dent did testify that the department had rules on “potential liability expo-

sure on its roads,” there is broad public access for multiple uses like recreation,

and that public safety was paramount. That abstract testimony, however, did not

explain how the state is responsible for this road for which it would not be legally

or practically responsible to maintain—particularly when it can be gated against

public access and limited to a way of necessity.

Cite as 328 Or App 309 (2023) 325

In this case, the underlying problem is that the

state is changing its mind. The state does so despite the

commitment that it should recognize had already happened

when land was sold to a private owner and a road was built

to provide access to that land. The state changed its mind

when it decommissioned a half-mile section of road and

land-locked the Thomas Creek acreage. That change makes

painful the need for substantial reason to explain why the

state changed the already established purpose of its short

section of land that was committed to providing access to

the Thomas Creek acreage. The need for that explanation

is inseparable from the mandate that consent shall not be

unreasonably refused.

When Walker, the manager and co-owner of Thomas

Creek, learned of the road closure around 2006, he called

the Oregon Department of Forestry and asked why. Walker

testified that “they said they took that road out because

there was nobody back there.” He suggested that they check

their map and files, because “we were indeed back there.”

The state’s testimony at trial was not more illumi-

nating. When speaking of general goals for land use, divi-

sion chief Dent did not explain why the state had decided to

change the land use to which the land was already commit-

ted.3 Dent said, without specifics, that the decision to vacate

the road would have gone through a review process as part

of an annual operating plan, while Loffelmacher said that

she did not know whether anyone consulted about the clo-

sure with regard to fish or owls. In short, the state did not

explain, in terms of state goals, exactly why it changed its

3

Without speaking in terms of goals, Dent agreed with the concerns of prior

state witnesses and testified to two personal concerns. First, she said that the

division has a long history of collaborative relationships with private landown-

ers and federal neighbors; and second, that the state is under intense public

scrutiny involving environmental concern such as avoiding channeling streams

or delivering sediment to fish-bearing streams. Neither concern, I believe, is a

reasoned explanation in terms of a change in land-use goals, here. First, land-

locking Thomas Creek was not collaborative. Thomas Creek’s co-owner, Walker,

complained that he had a verbal agreement that the state would leave the road

in or at least tell him, if it were to be otherwise. Second, installing just culverts

no more channelizes a stream than the short, existing, open crossings already do;

and no one disputed the expert testimony that these channels were rocky, vege-

tation grew in the channel beds, and there was no threat to fish-bearing streams

below. Dent had not seen the property personally.

326 Thomas Creek Lumber v. Dept. of Forestry

mind about a land-use at this location—that is, providing

access—to which it had already committed.

Ordinarily, Oregon statutes would afford relief by

allowing Thomas Creek a way of necessity.4 See ORS 376.150

to 376.200 (way of necessity provisions). However, that has

changed. As recounted in Bradley, the early version of the

statutes allowed a private owner a way of necessity with-

out state consent and without any consideration of the

state’s interest. 262 Or App at 92-93 (referring to former

ORS 376.125, repealed by Or Laws 1979, ch 862, § 12). That

meant that private owners, who proved the need for a way of

necessity, got ones whenever they wanted. Id. In reaction, a

legislative amendment in 1979 introduced the need for the

state’s consent, but with the limitation that consent shall not

be unreasonably denied. ORS 376.180(11); ORS 376.185(1);

Or Laws 1979, ch 862, §§ 6, 7.

Today, the meaning of this case is that the state

can decommission an existing road, landlock a neighbor,

and leave the neighbor without recourse through a way of

necessity, when the state has changed its mind about the

commitment to the established use of its land that has pro-

vided access. That is, the state may do so, when cloaked in

“reasonable refusal,” without connecting the dots by specify-

ing which particular goal is served, without explaining how

that goal is applied to a particular road and location, and

without explaining why it has chosen to change the goals to

be served, despite the neighbor’s need.5 If that triple failure

4

Pragmatically, a way of necessity is a poor remedy of last resort, because,

win or lose, the petitioner (plaintiff) must pay the other side’s legal fees. ORS

376.175(2)(e) (the court must “[d]irect the petitioner to pay costs and reasonable

attorney fees incurred by each owner of land whose land was subject to the peti-

tioner’s action for a way of necessity under ORS 376.150 to 376.200”); Brookshire

v. Johnson, 274 Or 19, 23-24, 544 P2d 164 (1976) (landowner subject to way of

necessity was entitled to attorney fees); see also Morgan v. Hart, 325 Or 348, 355-

56, 937 P2d 1024 (1997) (the plaintiff was required to pay attorney fee of land-

owners whose land was made subject to action by surveyor’s report, even though

the plaintiff did not ask for way of necessity across their property and agreed

that way of necessity should not be established over that land). Thomas Creek

estimated its cost of restoring the road to be $20,000 to $25,000. The state’s attor-

ney fees, costs, and disbursement, awarded after trial, are $45,927.30—roughly

double the cost of reopening the road. Thomas Creek’s added debt owed to the

state, for the state’s fees on appeal, is yet to be awarded.

5

The court cannot “fill in the blanks” for an agency based on generalized

worries about roads crossing slopes where stability ultimately does not matter,

Cite as 328 Or App 309 (2023) 327

is to be the result here, then the law, like a pendulum, has

swung from one extreme before 1979 to another today. If so,

legislative intervention will again be needed—this time to

explicitly define the prohibition on unreasonably withhold-

ing consent as requiring an explanation that is founded in

substantial evidence and substantial reason. That really

should not be necessary, because, I believe a proper conclu-

sion should be that there was a failure of substantial reason

here. Without substantial reason, there is no substantial

evidence on a critical point of fact for decision. Without sub-

stantial reason, refusal to consent cannot be a reasonable

refusal.

To borrow from Bradley, because the state’s deci-

sion is “willful and unreasoning,” is “without consideration,”

and is “in disregard of the facts and circumstances of the

case,” it is arbitrary and capricious. Bradley, 262 Or App

at 94. Surely, a refusal to consent is arbitrary and capri-

cious, when it is based on a misunderstanding that the state

would be stuck maintaining a road—a road that it is free to

allow to fall into disuse, just as the state wishes. Surely, a

refusal to consent is arbitrary and capricious, when it relies

on an abstract goal—the maximum benefit for all—that is

not concretely explained or applied and when contradicted

by a record showing uses have already been decided by sale

of private land and construction of a roadbed. Surely, revers-

ing committed uses without a cogent explanation is arbi-

trary and capricious.

The statutory term “unreasonably withhold” must

have some enforceable meaning. If that term is not enforced

in this case, then the legislature’s term, plainly expressed

in ORS 376.185(1), is meaningless. Assuming that the term

should have meaning, I conclude that the state unreason-

ably withheld consent and that the trial court erred in con-

cluding otherwise. Therefore, on the merits, I respectfully

dissent.

because the state has no legal liability to maintain the road and the state has no

interest in repairing the road if the slope fails.