Cascadia Wildlands v. Dept. of State Lands

750

Argued and submitted June 4; decision of Court of Appeals affirmed, judgment

of circuit court reversed, and case remanded to circuit court for further

proceedings November 27, 2019; petition for reconsideration denied

January 16, 2020

CASCADIA WILDLANDS,

an Oregon nonprofit corporation;

Audubon Society of Portland,

an Oregon nonprofit corporation;

The Center for Biological Diversity,

a California corporation; and

Joshua Laughlin,

Respondents on Review,

v.

OREGON DEPARTMENT OF STATE LANDS,

an administrative agency of the State of Oregon,

Petitioner on Review,

and

SENECA JONES TIMBER COMPANY, LLC,

an Oregon limited liability company,

Petitioner on Review.

(CC 62-14-07847) (CA A159061) (SC S066223)

452 P3d 938

The State Land Board voted to sell a parcel of the Elliott State Forest to

Seneca Jones Timber Company, LLC. Cascadia Wildlands and others challenged

the sale on the ground that the land in question was part of common school lands

that the federal government had granted to the state and was prohibited from

being sold under ORS 530.450. That statute indefinitely removed from sale any

national forest land transferred to the state for the purpose of establishing a state

forest. Seneca Jones and the Department of State Lands, which administered the

sale, challenged the constitutionality of ORS 530.450. Held: ORS 530.450 is not

inconsistent with Article VIII, section 5, of the Oregon Constitution, as originally

enacted and as amended, and it does not violate the constitutional separation of

powers doctrine.

The decision of the Court of Appeals is affirmed. The judgment of the cir-

cuit court is reversed, and the case is remanded to the circuit court for further

proceedings.

En Banc

Cite as 365 Or 750 (2019) 751

On review from the Court of Appeals.*

Carson L. Whitehead, Assistant Attorney General,

Salem, argued the cause and filed the briefs for petitioner

on review Oregon Department of State Lands. Also on the

briefs were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

Michael E. Haglund, Haglund Kelley LLP, Portland,

argued the cause and filed the briefs for petitioner on review

Seneca Jones Timber Company, LLC. Also on the briefs was

Dominic M. Carollo, Roseburg.

Daniel Kruse, Kruse & Saint Marie, Attorneys at Law,

LLC, Eugene, argued the cause and filed the brief for respon-

dents on review.

NAKAMOTO, J.

The decision of the Court of Appeals is affirmed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

______________

* On appeal from Lane County Circuit Court, Karsten H. Rasmussen, Judge.

293 Or App 127, 427 P3d 1091 (2018).

752 Cascadia Wildlands v. Dept. of State Lands

NAKAMOTO, J.

What is now known as the State Land Board was

created by Article VIII, section 5, of the Oregon Constitution

(1857) “for [among other things] the sale of school, and uni-

versity lands” that had been granted to the state by the fed-

eral government when Oregon was admitted to the Union.

This case arose when the State Land Board voted to sell a

parcel of the Elliott State Forest, part of the common school

lands granted to the state. The circuit court dismissed the

petition for judicial review of the order of sale brought by

Cascadia Wildlands and three other petitioners, based on

their lack of standing. The Court of Appeals concluded that

there was standing and decided the issue presented on

review. Cascadia Wildlands v. Dept. of State Lands, 293 Or

App 127, 427 P3d 1091 (2018). That issue is whether ORS

530.450—which prohibits the State Land Board from sell-

ing a part of the school and university lands, including the

parcel of the Elliott State Forest that was subject to sale—

unconstitutionally restricts the power of the State Land

Board to carry out its constitutional duty and, thus, has

been void since enactment. For reasons set forth below, we

affirm the decision of the Court of Appeals upholding the

constitutionality of ORS 530.450 and reverse and remand

the judgment of the circuit court.

I. BACKGROUND

A. Common School Lands

The facts related to the parcel of the Elliott State

Forest subject to sale and its status as “common school

lands” are undisputed. Oregon was admitted into the Union

in 1859, under the Oregon Admission Act. Act of Feb 14,

1859, ch 33, 11 Stat 383. Under that Act, the United States

agreed to provide certain federal land to Oregon “for the use

of schools”:

“That the following propositions be, and the same are

hereby, offered to the said people of Oregon for their free

acceptance or rejection, which, if accepted, shall be oblig-

atory on the United States and upon the said State of

Oregon, to wit: First, That sections numbered sixteen and

thirty-six in every township of public lands in said State,

and where either of said sections, or any part thereof, has

Cite as 365 Or 750 (2019) 753

been sold or otherwise been disposed of, other lands equiva-

lent thereto, and as contiguous as may be, shall be granted

to said State for the use of schools.”

Id. § 4.1

The foregoing passage recognized that certain

parts of the land granted to the state might be unavailable.

As the United States Supreme Court explained, to address

that problem, Congress permitted states to select other pub-

lic lands in lieu of the unavailable sections. United States v.

Morrison, 240 US 192, 199, 36 S Ct 326, 60 L Ed 599 (1916).

That selection of other lands happened in Oregon.

As pertinent here, in 1853, Congress enacted a statute

authorizing the Legislative Assembly of the Territory of

Oregon,

“in all cases where the sixteen or thirty-six sections, or any

part thereof, shall be taken and occupied under the law

making donations of land to actual settlers, * * * to select,

in lieu thereof, an equal quantity of any unoccupied land in

sections, or fractional sections, as the case may be.”

Act of Jan 7, 1853, ch 6, § 1, 10 Stat 150. Congress further

provided that, “when selections are made in pursuance of

the provisions of the first section of this act, said lands so

1

Beginning in 1802, the Acts of Congress admitting new states into the

Union included grants of designated sections of federal lands for the support of

public schools. Andrus v. Utah, 446 US 500, 506, 100 S Ct 1803, 64 L Ed 2d 458

(1980), reh’g den, 448 US 907, 100 S Ct 3051, 65 L Ed 2d 1137 (1980). As Justice

Powell explained in his dissent in Andrus, that action addressed an inequity that

existed between the original 13 states and the newly admitted states:

“When the first 13 States formed the Union, each State had sovereign

authority over the lands within its borders. These lands provided a tax base

for the support of education and other governmental functions. When settlers

sought to carve the State of Ohio from the Northwest Territory in 1802, they

encountered a different situation. Vast tracts within the boundaries of the

proposed State belonged to the Federal Government. Thus, the new State’s

potential revenue base would be restricted severely unless the Federal

Government waived its immunity from taxation. In order to place Ohio on

an equal footing with the original States, Congress enacted a compromise

drawn from the Land Ordinance of 1785 and the Northwest Ordinance of

1787. The compromise set a pattern followed in the admission of virtually

every other State. Specific details varied from State to State, but the basic

plan persisted. As consideration for each new State’s pledge not to tax federal

lands, Congress granted the State a fixed proportion of the lands within its

borders for the support of public education.”

Id. at 522-23 (Powell, J., dissenting; footnotes omitted).

754 Cascadia Wildlands v. Dept. of State Lands

selected, and their proceeds, shall be forever inviolably set

apart for the benefit of common schools.” Id. § 2. The lands

granted to the state under the Admission Act, or in lieu

thereof, are referred to as the “common school lands.”

The Oregon Constitution, adopted by Oregon vot-

ers in 1857, addressed the management of common school

lands in Article VIII. That original provision directed that

proceeds from the management and sale of common school

lands be set apart in a “common school fund” for the benefit

of schools:

“The proceeds of all the lands which have been, or here-

after may be granted to this state, for educational purposes

(excepting the lands heretofore granted to, and in the estab-

lishment of a university) all the moneys, and clear proceeds

of all property which may accrue to the state by escheat,

or forfeiture, all moneys which may be paid as exemption

from military duty, the proceeds of all gifts, devises, and

bequests, made by any person to the state for common

school purposes, the proceeds of all property granted to the

state, when the purposes of such grant shall not be stated,

all the proceeds of the five hundred thousand acres of land

to which this state is entitled by provisions of an act of con-

gress, entitled ‘An act to appropriate the proceeds of the

sales of the public lands, and to grant preemption rights,

approved the fourth of September, 1841’, and also the five

per centum of the net proceeds of the sales of the public

lands, to which this state shall become entitled on her

admission into the union (if congress shall consent to such

appropriation of the two grants last mentioned) shall be set

apart as a separate, and irreducible fund to be called the

common school fund, the interest of which together with

all other revenues derived from the school lands mentioned

in this section shall be exclusively applied to the support,

and maintenance of common schools in each school dis-

trict, and the purchase of suitable libraries, and apparatus

therefore.”

Or Const, Art VIII, § 2 (1857).

In addition, Article VIII, section 5 (1857), created

a “board of commissioners,” made up of the Governor, the

Secretary of State, and the State Treasurer, “for the sale of

school, and university lands, and for the investment of the

funds arising there from[.]” Or Const, Art VIII, § 5 (1857).

Cite as 365 Or 750 (2019) 755

Section 5 also provided that the board’s “powers, and duties,

shall be such as may be prescribed by law.” Id. In 1968,

Article VIII was amended by referendum. Or Laws 1969,

p 6 (recording passage at May 28, 1968, special election).

Thereafter, the board of commissioners initially described

in Article VIII, section 5 (1857), was denominated the State

Land Board. For ease of reference, we refer to the board

of commissioners created by Article VIII, section 5, as the

State Land Board.

In the years immediately following Oregon’s admis-

sion to the Union, the state had a policy of disposing of com-

mon school lands, with the result that, by 1913, only a com-

paratively small part of the land originally transferred to

the state “for the use of schools” remained. The Twenty-fifth

Annual Report of the State Forester of the State of Oregon to

the Governor 49 (1935). Many of the tracts that remained at

that time were located within the boundaries of the national

forests and were scattered and isolated, and, for that rea-

son, their value to the state was rather small. Id.

In 1913, State Forester Francis Elliott began nego-

tiating an agreement under which the remaining common

school lands would be exchanged for a solid block of national

forest land, with the ultimate objective of establishing a

state forest. Id. Congress dictated that any national forest

land granted to the state for school purposes must be with-

drawn from sale for a period of 50 years. 32 Op Atty Gen

100 (1964) (quoting The Twenty-fifth Annual Report of the

State Forester at 49). In preparation for such an agreement,

and in compliance with the federal precondition for any such

exchange, the Oregon Legislature enacted a statute that

prohibited for 50 years the sale of any national forest lands

granted by the federal government to the state for school

purposes. Id.; Or Laws 1913, ch 124, § 1. In a preamble to

that statute, the legislature stated that “it is the desire that

said tract be set aside as a State forest and administered for

the permanent good of the State and its educational institu-

tions[.]” Or Laws 1913, ch 124.

In 1927, by presidential proclamation, the federal

government transferred to the state approximately 70,000

acres of the Siuslaw National Forest in Coos and Douglas

756 Cascadia Wildlands v. Dept. of State Lands

Counties. Those 70,000 acres were partly in exchange for

certain common school lands that had been transferred to

the state at the time of admission and partly comprised

land granted to the state in lieu of common school lands

that were unavailable at the time of statehood. State of Or.

v. Bureau of Land Management, 876 F2d 1419, 1423 (9th Cir

1989); Presidential Proclamation of April 28, 1927, 45 Stat

2907.

The 50-year withdrawal from sale of common

school lands that was enacted by statute in 1913 would have

expired in 1963. In 1957, however, the legislature enacted

ORS 530.450, which indefinitely withdrew from sale any of

the national forest lands transferred to the state for a state

forest. That statute also named the state forest that had

been created through the exchange of lands the Elliott State

Forest, after the state forester who had been instrumental

in its creation.2 The Elliott State Forest is, thus, part of the

common school lands that the State Land Board is directed

by the constitution to manage for the benefit of schools.

B. Litigation Over the Sale of Part of the Elliott State Forest

Over the years, the State Land Board managed the

Elliott State Forest and generated revenue for the common

school fund through timber sales, among other things. But

in 2013, for the first time, the cost of managing the Elliott

State Forest exceeded revenue. For that reason, the State

Land Board voted to sell a part of the Elliott State Forest,

known as the East Hakki Ridge parcel.

The Oregon Department of State Lands (ODSL),

the administrative arm of the State Land Board, offered

the East Hakki Ridge parcel for sale through an open bid-

ding process. Seneca Jones Timber Company, LLC (Seneca

Jones) was the sole bidder. The state accepted the bid, and

the sale was memorialized in a purchase and sale agree-

ment in April 2014.

2

ORS 530.450 provides:

“Any lands in the national forests on February 25, 1913, selected by,

and patented to, the State of Oregon, for the purpose of establishing a state

forest, hereby are withdrawn from sale except as provided in ORS 530.510

[permitting the exchange of Elliott State Forest land or timber under certain

conditions]. The state forest shall be known as the Elliott State Forest.”

Cite as 365 Or 750 (2019) 757

Cascadia Wildlands, the Audubon Society of Portland,

the Center for Biological Diversity, and Joshua Laughlin

(collectively, Cascadia Wildlands) petitioned the Lane

County Circuit Court for judicial review of ODSL’s purchase

and sale agreement selling the East Hakki Ridge parcel to

Seneca Jones. Cascadia Wildlands sought a declaration that

ODSL was required under ORS 530.450 to withdraw the

East Hakki Ridge parcel from sale, and it sought an injunc-

tion preventing or setting aside the sale. After determin-

ing that the agreement constituted ODSL’s final order in

other than a contested case, the circuit court concluded that

Cascadia Wildlands lacked standing to challenge ODSL’s

sale of the East Hakki Ridge parcel. Consequently, the court

dismissed the petition for judicial review without reaching

the merits of Cascadia Wildlands’ arguments.

Cascadia Wildlands appealed, and the Court of

Appeals reversed the judgment of the circuit court. The

Court of Appeals held, as an initial matter, that Cascadia

Wildlands had standing to bring its challenges to the sale of

the East Hakki Ridge parcel. Cascadia Wildlands, 293 Or

App at 138. Turning to the merits, the court explained that

Article VIII, section 5 (1857), of the Oregon Constitution,

in providing that the State Land Board had such “powers,

and duties * * * as may be prescribed by law,” expressly con-

templated that the legislature would have the authority to

determine how the State Land Board exercises its powers

and duties with respect to the sale of school lands, includ-

ing the authority to direct the State Land Board not to

sell certain land—namely, the Elliott State Forest—except

under circumstances not applicable here. Id. at 144-45.

Additionally, for similar reasons, the Court of Appeals held

that ORS 530.450 did not violate the separation of powers

doctrine. That is, the court held that ORS 530.450 does not

unduly burden the State Land Board’s “core function”—to

“dispose of and manage [common school lands] to achieve

the greatest benefit to the public”—nor does it usurp that

core function, because the constitution itself subjects the

State Land Board’s core function to legislative direction.

Id. at 146. The court explained that ORS 530.450 “merely

directs how the State Land Board is to exercise its power

to sell certain school lands; it does not operate to place

758 Cascadia Wildlands v. Dept. of State Lands

that power with the legislature.” Id. at 147 (emphasis in

original).

Ultimately, the Court of Appeals concluded that

ORS 530.450 is constitutional and that ODSL violated that

statute when it sold the East Hakki Ridge parcel to Seneca

Jones. Id. We allowed the separate petitions for review filed

by ODSL and by Seneca Jones.

II. ANALYSIS

On review, ODSL and Seneca Jones maintain that

ORS 530.450 is void and has been so since its enactment in

1957, because the statute (1) directly conflicts with Article

VIII, section 5, in its original form and as amended, and

(2) violates the separation of powers doctrine by unduly bur-

dening the State Land Board’s core constitutional function.

We conclude that neither of those arguments is well taken.

A. Article VIII, Section 5

Under the Admission Act, the state is the trustee

of the lands granted to it by the federal government, with

the obligation to hold the lands granted to it “for the use

of schools.” That Act provided that the terms under which

the land was granted, “if accepted, shall be obligatory on

the United States and upon the said State of Oregon.” And,

as we have discussed, upon ratification in 1857, the Oregon

Constitution created the State Land Board to sell com-

mon school lands for the state and to manage the proceeds

therefrom:

“The Governor, Secretary of State, and State Treasurer

shall constitute a board of commissioners for the sale of

school, and university lands, and for the investment of the

funds arising there from, and their powers, and duties,

shall be such as may be prescribed by law.”

Or Const, Art VIII, § 5 (1857) (emphasis added).

ODSL and Seneca Jones premise their first argu-

ment challenging the constitutionality of ORS 530.450 on

their understanding that that constitutional provision con-

ferred on the State Land Board the constitutional “power”

to sell common school lands and manage the proceeds, and

that that power cannot be limited by the legislature, even

Cite as 365 Or 750 (2019) 759

though the provision also states that the State Land Board’s

powers and duties “shall be such as may be prescribed by

law.” The plain meaning of that provision suggests that

ODSL and Seneca Jones overstate their point.

The first clause of section 5 merely creates the

board and states its purpose: the three state officials “shall

constitute a board of commissioners for the sale of [common

school lands] and for the investment of [the proceeds][.]” The

wording is not directive. That is, it makes the board the

body responsible for selling the lands (and managing any

proceeds) if land is to be sold; it gives the board the author-

ity to sell the lands and manage the proceeds. It does not

directly give the board the power to decide whether to sell

land or what land to sell, nor does it confer any other powers

or duties on the board.

Instead, the second clause expressly gives the leg-

islature the authority to prescribe the board’s powers and

duties. Over a century ago, this court explained the govern-

ing role of the legislature with respect to the State Land

Board:

“The board is the State’s instrumentality for the sale and

disposition of school lands. Although constituted a part of

the administrative department of the government under

the constitution, it is nevertheless governed and controlled

in the exercise of its functions by the legislature and the

laws emanating therefrom[.]”

Robertson v. Low, 44 Or 587, 594, 77 P 744 (1904). In a sim-

ilar vein, several years later, this court again stated that

the legislature could prescribe the powers and duties of the

State Land Board:

“By the terms of the Constitution the governor, secre-

tary of state and state treasurer are made a board of com-

missioners for the sale of school lands and for the invest-

ment of the funds arising from such lands; and the powers

and duties of the board ‘shall be such as may be prescribed

by law.’ The legislature has given the board a name by call-

ing it the State Land Board and, acting on the authority of

the Constitution, has prescribed the powers and duties of

the board. Every power conferred upon the board and every

duty imposed upon it, whether conferred or imposed by the

760 Cascadia Wildlands v. Dept. of State Lands

Constitution or legislative enactment, is for the direct ben-

efit of the state. The state land board exists for the sole

purpose of serving the state. Every attribute given to it

and every function performed by it is for the benefit of the

commonwealth.”

State Land Board v. Lee, 84 Or 431, 439, 165 P 372 (1917)

(quoting Or Const, Art VIII, § 5 (1857)).

Two additional cases lend further support to our

understanding of the respective roles of the legislature and

the State Land Board under the Oregon Constitution. The

first is State v. Warner Valley Stock Co., 56 Or 283, 106 P 780,

reh’g den, 56 Or 308, 108 P 861 (1910). That case arose out of

the federal government’s grant to the state of certain swamp

land, which the State Land Board also was responsible for

managing and selling. Id. at 287-88. The legislature had

passed various laws directing certain procedures that had

to be followed before the swamp land could be sold, includ-

ing, among other things, selecting, describing, and survey-

ing the land. The State Land Board had not performed any

of those acts. Id. at 291-93. Nevertheless, it accepted appli-

cations for the purchase of the land, and it issued deeds to

the swamp land to one of the defendants. Id. at 289-90. The

state then sued that defendant, his successor, and settlers

on the land to cancel the deeds. Id. at 287.

This court held that the deeds were void. In so

holding, the court rejected the defendant’s argument that,

because the State Land Board had jurisdiction over the

swamp land under statutes enacted after the land was

granted to the state by the federal government, there was

a presumption in favor of the validity of the deeds, and, if

they had been issued improperly, they were merely voidable,

not void. Id. at 297. The court emphasized that the powers of

the State Land Board were limited to those prescribed and

conferred by the legislature:

“Counsel for defendant bases much of his argument

upon the assertion that the board had the right to sell

swamp land, but, if he means original authority, this is an

erroneous assumption, even as to school lands, which, by

the constitution, are placed exclusively in the hands of the

board. Its powers are limited to such as shall be prescribed

by law, and, as to the swamp land, it has no authority other

Cite as 365 Or 750 (2019) 761

than such as the legislature has conferred, and for every

act of the board in relation thereto statutory authority must

exist.”

Id. (emphasis added).

The second case is State ex rel. [Thomas] v. Holman,

142 Or 339, 20 P2d 430 (1933). In Thomas, the court addressed

the authority of the State Treasurer, which Article VI, sec-

tion 4, of the Oregon Constitution defines using wording

that is identical to that used to define the authority of the

State Land Board: “The powers, and duties of the treasurer

of state shall be such as may be prescribed by law.” 142 Or at

342. Treasurer Holman challenged the constitutionality of

a statute that required the Treasurer to pay state warrants

or else to endorse them in certain circumstances, arguing

that that statute was an unconstitutional limitation of the

Treasurer’s powers and duties. Thomas, 142 Or at 341-42.

In rejecting that argument, the court quoted Article VI, sec-

tion 4, and stated,

“It will thus be seen that the powers and duties of the

Treasurer are such as may be prescribed by law and not

otherwise. It will also be seen that the [challenged statu-

tory] provision * * * merely defines the powers and duties

of the State Treasurer, all of which were within the leg-

islative control and did not in any way infringe upon any

constitutional right or power conferred upon such officer.”

Id. at 342.

As this court stated with respect to the State Land

Board in Warner Valley Stock Co. and with respect to the

State Treasurer in Thomas, the State Land Board’s partic-

ular powers and duties are those conferred by the legisla-

ture. That is, the powers and duties of the State Land Board

are “such as may be prescribed by law and not otherwise.”

Thomas, 142 Or at 342; accord Warner Valley Stock Co., 56

Or at 297.

Indeed, as ODSL acknowledges, from virtually the

beginning of statehood, the legislature has enacted legisla-

tion effectively dictating how the State Land Board was to

carry out its authority to sell common school lands and man-

age the proceeds therefrom. In one early example, an 1866

statute governing sales of common school lands provided

762 Cascadia Wildlands v. Dept. of State Lands

to whom the lands could be sold and in what amounts,

the price per acre, and financing conditions. That statute

“authorized and required” the State Land Board to sell com-

mon school lands “to actual settlers,” up to 320 acres, for

the price of $1.25 per acre if the settler already occupied the

land. General Laws of Oregon, Misc Laws, ch XXIX, title II,

§ 9, p 631 (Deady & Lane 1843-1872). When a settler sought

to purchase school lands, the legislature authorized the pur-

chaser to pay a third of the price in advance and to pay the

remainder over time, at an annual interest rate of ten per-

cent. Id. § 10, p 632. Notably, that statute also required the

board to sell selected common school lands “as fast as such

selections shall be approved.” Id. at § 9, p 631.

In the only case called to the court’s attention

addressing the constitutionality of such legislation directing

the State Land Board’s powers and duties, Kubli v. Martin,

5 Or 436 (1875), this court upheld the legislature’s authority

to dictate how the State Land Board performed its duties,

so long as the legislature did not take over the performance

of those duties itself. In Kubli, the court addressed an 1865

statute that “required” county treasurers to lend common

school funds under certain conditions aimed at increasing

the likelihood of repayment, such as on one-year terms and

with security by mortgage on real estate. General Laws of

Oregon, Misc Laws, ch XXIX, title II, § 18, p 633 (Deady &

Lane 1843-1872). That statute contained the further proviso

that “[n]othing in this chapter shall be so construed as to

deprive this state of the right to control the common school

fund created by the sale of school lands.” Id.

The appellants challenged the constitutionality of

that statute under Article VIII, section 5, contending that it

effectively granted county treasurers control over common

school funds. Kubli, 5 Or at 437-38. This court stated that, if

the statute “operates to take away the control of the common

school fund from the Board,” then “it must be regarded as

unconstitutional[.]” Id. at 438. And if not, then “it must, of

course, be declared an effective law.” Id. The court concluded

that the statute was constitutional, because the statutory

proviso that the state maintained the right to control the

common school fund created by the sale of state lands made

clear that

Cite as 365 Or 750 (2019) 763

“the Legislative Assembly did not intend by the act to take

away the control of the ‘separate and irreducible fund’ from

the Board of Commissioners. The act, in effect, makes

the county treasurers, in their respective counties, mere

agents, subject to the control, direction, and authority of

the Board.”

Id.

The primary authorities and this court’s case law

thus confirm that, under the original text of Article VIII,

section 5, the State Land Board is the body that conducts

the sale of common school lands and that manages the pro-

ceeds therefrom, but its particular powers and duties are

only those that the legislature prescribes. That is, the State

Land Board exists to serve the state in carrying out its

duties as trustee of common school lands held in trust for

the people of Oregon in accordance with the Admission Act.

The same holds true under the current text of Article

VIII, section 5.3 In 1968, the voters approved amendments

to Article VIII, section 2, and Article VIII, section 5. As this

court explained in Johnson v. Dept. of Revenue, 292 Or 373,

382, 639 P2d 128 (1982), section 5 as amended “calls for the

formation of the State Land Board to dispose of and man-

age lands described in section 2, and also lands owned by

the state placed under the State Land Board’s jurisdiction

by law.” Thus, “there was no longer a requirement that pro-

ceeds of common school lands be used ‘exclusively’ for educa-

tional purposes.” Johnson, 292 Or at 382. As ODSL correctly

states, “[n]othing in the text of the 1968 amendments or the

contemporaneous materials suggests that voters intended

to limit the State Land Board’s constitutional power to sell

common school land.” The purpose of the 1968 amendments

3

For their argument that the current version of ORS 530.450 has been void

since its enactment in 1957, ODSL and Seneca Jones focus most of their atten-

tion on the original version of Article VIII, section 5. They then add that voters

in 1968 did not change anything material to the State Land Board’s power to

sell common school lands and conclude that voters did not revive the statute or

validate its constitutionality through ratification of amendments to Article VIII.

We review the 1968 amendment of Article VIII from a different angle, given that

we have concluded that the statute was not void upon enactment in 1957. We

examine the 1968 amendment of Article VIII to determine whether it altered the

legislature’s authority to prescribe the State Land Board’s powers and duties as

originally provided by Article VIII, section 5 (1857).

764 Cascadia Wildlands v. Dept. of State Lands

to Article VIII was “to authorize the State Land Board to

expend moneys in the common school fund to carry out its

land management activities.” Id. at 381. But, contrary to

the position of ODSL and Seneca Jones that the State Land

Board’s authority to sell common school lands trumps any

legislative determination regarding the best use of those

lands for the state, this court explained that Article VIII,

section 5, as amended in 1968, still provided for legislative

determinations of the State Land Board’s powers and duties

and the best uses of common school funds:

“The powers and duties of the Land Board were and are to

be prescribed by law. Section 5(2) contains the requirement

that such lands be managed with the object of obtaining

the greatest benefit for the people of Oregon. Reading this

provision according to its most plain and practical mean-

ing, and consistently with the legislative history, the deter-

mination of the proper use of common school funds is a leg-

islative one, subject to the overall requirement that the use

have as its goal the greater public benefit.”

Johnson, 292 Or at 382 (emphasis added).

In sum, in enacting ORS 530.450, the legislature

defined the powers and duties of the State Land Board with

respect to the Elliott State Forest; it did not infringe on any

constitutional right or power conferred upon the State Land

Board. We therefore hold that ORS 530.450 was not incon-

sistent with Article VIII, section 5 (1857); was not void at

the time of its enactment in 1957; and is not inconsistent

with Article VIII, section 5, now.

B. Separation of Powers Doctrine

ODSL and Seneca Jones also contend that ORS

530.450 violates the separation of powers doctrine, because

the statute burdens or usurps the State Land Board’s core

constitutional function. Article III, section 1, of the Oregon

Constitution requires the three branches of state govern-

ment to exercise their functions separately and exclusively:

“The powers of the Government shall be divided into

three separate branches, the Legislative, the Executive,

including the administrative, and the Judicial; and no per-

son charged with official duties under one of these branches,

Cite as 365 Or 750 (2019) 765

shall exercise any of the functions of another, except as in

this Constitution expressly provided.”

The legislative power is vested in the legislature, and the

executive power is vested in the Governor. Or Const, Art IV,

§ 1; Or Const, Art V, § 1. The State Land Board is part of the

executive branch and is a “co-ordinate department of state

government.” Lee, 84 Or at 439. According to ODSL and

Seneca Jones, the legislative branch overstepped its author-

ity and infringed on the functions of the executive branch by

enacting ORS 530.450.

Specifically, ODSL and Seneca Jones contend that

the legislature violated the separation of powers doctrine

because ORS 530.450 unduly burdens the capacity of the

State Land Board, a department of the executive branch,

to perform its core function. See State ex rel Metropolitan

Public Defender v. Courtney, 335 Or 236, 241, 64 P3d 1138

(2003) (stating that standard for finding a separation of

powers violation). That core function, they contend—under

both Article VIII, section 5 (1857), and Article VIII, section

5, as amended—is to “use lands dedicated to the common

school fund in such a way as to derive the greatest net profit

for the people of this state.” Johnson, 292 Or at 382.

Thus, both ODSL and Seneca Jones assume that

the Oregon Constitution invests the State Land Board with

a specific financial core function. Additionally, Seneca Jones

invokes the Admission Act as a source of the State Land

Board’s duty to maximize net revenue, which Seneca Jones

again describes as a core function. We are not persuaded

that the State Land Board’s core function is to use the com-

mon school lands to generate the greatest net profit possible

for the state.

As an initial matter, we reject Seneca Jones’s argu-

ment about the core function of the State Land Board based

on the Admission Act. The Admission Act granted the fed-

eral lands to the state in trust “for school purposes.” The

Admission Act does not have anything to say about the

powers or duties of the State Land Board. Moreover, the

Admission Act does not require the state to sell all its com-

mon school lands, nor does it prohibit the state, through the

legislature, from deciding that retaining certain common

766 Cascadia Wildlands v. Dept. of State Lands

school lands as state forest land will provide long-term ben-

efits to education.

We also disagree with the argument advanced by

ODSL and Seneca Jones that the State Land Board is con-

stitutionally required—and has a core function—to manage

the common school lands so as to derive the “greatest net

profit” for the state, regardless of the legislature’s determi-

nations about the best use of common school lands. That

obligation does not appear as a core function in Article VIII,

as originally ratified or as amended.

At the time ORS 530.450 was enacted, the State

Land Board was charged with the responsibility to manage

the common school fund for the exclusive benefit of public

schools, as provided in Article VIII, section 2 (1857). That

provision stated that the proceeds from the sale of common

school lands were to be set aside in

“a separate, and irreducible fund to be called the common

school fund, the interest of which together with all other

revenues derived from the school lands mentioned in this

section shall be exclusively applied to the support, and

maintenance of common schools in each school district, and

the purchase of suitable libraries, and apparatus therefore.”

And Article VIII, section 5, then provided that the State

Land Board’s function was to sell common school lands and

invest the proceeds arising therefrom.

Now, Article VIII, section 2, no longer provides that

the common school fund must be used exclusively for edu-

cation purposes. Johnson, 292 Or at 382. And Article VIII,

section 5(2), now directs the State Land Board to “manage

lands under its jurisdiction with the object of obtaining the

greatest benefit for the people of this state, consistent with

the conservation of this resource under sound techniques of

land management.” (Emphasis added.)

In some circumstances, the “greatest benefit” man-

date may require the State Land Board to maximize net

profit, for example, by obtaining the best price for the autho-

rized sale of timber on common school lands. But authority

to “manage” common school lands for “the greatest benefit

for the people of this state” does not mean that the State

Cite as 365 Or 750 (2019) 767

Land Board can disregard legislation reflecting the legis-

lature’s determination about the best use of some common

school lands in keeping with the state’s trust obligation. In

the early years of statehood, the state, through the legisla-

ture, determined that the best use of selected common school

lands was to sell them “as fast as such selections shall be

approved.” General Laws of Oregon, Misc. Laws, ch XXIX,

Title II, § 9, p 631 (Deady & Lane 1843-1872). In 1957, the

legislature determined that the best use of some other com-

mon school lands was to maintain them in perpetuity as the

Elliott State Forest, enacting ORS 530.450 in accordance

with its constitutional authority.

In addition to rejecting the “generation of greatest

net profit as core function” aspect of their argument sup-

porting the sale of the East Hakki Ridge parcel, we also

reject ODSL’s and Seneca Jones’s conclusions that ORS

530.450 violates the separation of powers doctrine set out

in Article III, section 1. Article VIII, section 5 (1857), pro-

vided that the State Land Board’s function was to sell com-

mon school lands and invest the proceeds arising there-

from. Article VIII, section 5, now authorizes the State Land

Board to manage common school lands. The statute does

not directly infringe on those functions—ORS 530.450 does

not vest the power to sell common school lands, to manage

proceeds of such sales, or to manage common school lands

in the legislature or any other actor. As this court explained

in Kubli, such an overt usurpation of the State Land Board’s

duties would be unconstitutional. 5 Or at 436.

At the same time, Article VIII, section 5, both orig-

inally and as amended, expressly provides that the legis-

lature prescribes the powers and duties of the State Land

Board. The statute was enacted under that constitutional

authority, and its provisions constitute an exercise of the

state’s overarching duty as trustee of the common school

lands. Thus, ORS 530.450 does not unduly burden the State

Land Board’s core function to sell common school lands and

manage the proceeds, as originally provided in Article VIII,

or to manage those lands to achieve the greatest benefit to

the public, as provided in Article VIII as amended, because,

as the Court of Appeals correctly noted, to the extent it does

768 Cascadia Wildlands v. Dept. of State Lands

so, the constitution itself subjects the State Land Board’s

core function to legislative direction. Cascadia Wildlands,

293 Or App at 146. As a result, we conclude that ORS

530.450 is not unconstitutional and is not void.

The decision of the Court of Appeals is affirmed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.