# Cascadia Wildlands v. Dept. of State Lands

> Oregon Supreme Court · November 27, 2019 · 365 Or. 750

URL: https://www.frixlaw.com/law-library/cases/10627293

## Case

- **Court:** Oregon Supreme Court
- **Decided:** November 27, 2019
- **Citations:** 365 Or. 750
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Nakamoto
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10627293

## How later opinions describe it (automated extraction)

- noting that Courtney states the standard for finding a separation of powers violation

## Opinion text

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inconsistent with Article VIII, section 5, of the Oregon Constitution, as originally
enacted and as amended, and it does not violate the constitutional separation of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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10627293. Public record. Not legal advice.