Petition for Writ of Certiorari — Boise Cascade Corp. v. Oregon ex rel. Oregon State Board of Forestry

qy merceste

OFFICE OF Tic Ven,

No.

aie the Muted Bintes.

October Term, 2000

BOISE CASCADE CORPORATION, a Delaware

corporation,

Petitioner,

Vv.

STATE OF OREGON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE OREGON COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

Phillip D. Chadsey*

Charles F. Adams

James N. Westwood

Scott E. Crawford

*Counsel of Record

STOEL RIVES up

900 SW Fifth Avenue, Suite 2600

Portland, OR 97204-1268

(503) 294-9376

Counsel for Petitioner

January 25, 2001

i

QUESTIONS PRESENTED

A Whether respondent’s regulatory order forcing

petitioner to submit to the physical occupation of its timberland

by northern spotted owls constituted a physical taking of

petitioner’s property for which just compensation is due.

a Whether petitioner’s regulatory takings claim,

which arose when respondent issued a self-described “Final

Order” denying petitioner’s application for a timber harvesting

permit, was rendered “unripe” merely because petitioner did not

seek a completely different kind of permit from a separate

federal agency that lacked authority to authorize the harvesting

under state law.

\ i

PARTIES TO THE PROCEEDING

The caption contains the names of all parties to this

proceeding.

CORPORATE DISCLOSURE STATEMENT

Petitioner Boise Cascade Corporation is a Delaware

corporation that is a publicly traded company on the New York

Stock Exchange. There is no parent or publicly held company

owning 10% or more of the corporation’s stock.

iV

TABLE OF CONTENTS

Page

Cn I 6 kk on pea poe tbe aeede i

PARTIES TO THE PROCEEDING ................. ii

CORPORATE DISCLOSURE STATEMENT .......... iii

pe re ee er erie iv

pe PTC P ORT TT e reer eT eee vi

TABLE OF AUTHORITIES 2... cece seccascs Vii

PETITION FOR WRIT OF CERTIORARI ............ 1

SE 6 5506 0.44 ee eda eee eee 1

STATEMENT OF JURISDICTION ................: 2

CONSTITUTIONAL PROVISIONS INVOLVED ........ 3

STATUTORY AND ADMINISTRATIVE

POV RITeE PUTED oc ctw etcewdoeess 4

ee Or re rrr 6

A. PR 0k cede cence es 6

B. SE 5 0.55 0 ae eee ee eee 8

REASONS FOR GRANTING THE PETITION ......... 11

I. This Case Involves Two Important

Constitutional Questions That Should Be

Resolved Gy Ties Commt .........0008s 11

A. Under a Physical Occupation

Theory the Test Is Whether the

Landowner Has the Right to

Exclude Wildlife, Not Whether

the State Has Control Over It. ..... 12

B. A State May Not Require a

Landowner to Obtain a Permit

from a Federal Agency in Order

to Satisfy “Ripeness,” When It

Is Under No Obligation to Issue

Its Own Permit, Even if the

Federal Permit Is Granted. ....... 14

II. The Petition Should Be Granted Because the

Decision Below Conflicts with Decisions of

This Court and Other Federal and State

CN he Pr ae ee ee ee ore eS 20

CAPER AMOOE ue Vis TENE enero Sk oh Sh we 22

TABLE OF APPENDICES

Appendix § Document

Boise Cascade Corp. v. State ex rel. Oregon

State Board of Forestry, 991 P.2d 563 (Or. App.

1999).

Order of Oregon Court of Appeals dated

March 15, 2000, in Boise Cascade Corp. v.

Board of Forestry (CA A100855), denying

reconsideration of its prior decision reported at

991 P.2d 563.

Order of the Oregon Supreme Court dated

October 24, 2000, in Boise Cascade Corp. v.

Board of Forestry, __ P.2d___ (SC 47459),

denying petition for review.

Letter Opinion dated October 16, 1997, of the

Clatsop County Circuit Court (No. 93-2018)

denying Petitioner summary judgment on its

possessory takings claim, and granting summary

judgment on the issue of liability on Petitioner's

regulatory takings claim.

Jury Verdict dated November 21, 1997, in Boise

Cascade Corp. v. Board of Forestry (Clatsop

County Circuit Court No. 93-2018), finding the

State liable on Petitioner’s Loretto claim and

making findings on the compensation issues.

Judgment of the Clatsop County Circuit Court in

Boise Cascade Corp. v. Board of Forestry,

No. 93-2018, entered on April 30, 1993.

Boise Cascade Corp. v. Board of Forestry, 886

P.2d 1033 (Or. App. 1994).

vii

Boise Cascade Corp. v. Board of Forestry, 935

P.2d 411 (Or. 1997).

Appellate Judgment in Boise Cascade Corp. v.

Board of Forestry, (CA A78968, A79458,

SC $47459), entered on December 15, 2000.

Oregon Administrative Rule 629-665-0210

(2000), formerly numbered 629-024-0809.

Oregon Administrative Rule 629-680-000 (2000),

formerly numbered 629-056-0010.

Oregon Administrative Rule 629-680-0010(5)

(2000), formerly numbered 629-056-0020(5).

Oregon Administrative Rule 629-680-0100(1)

(2000), formerly numbered 629-056-0100(1).

Oregon Administrative Rule 629-680-0220

(2000), formerly numbered 629-056-0220.

USF&WS Procedures Leading to Endangered

Species Act Compliance for the Northern Spotted

Owl (“Guidelines”), dated July 1990.

USF&WS Memorandum issued October 2, 1991,

rescinding Guidelines.

Memorandum Order of the U.S. District Court

for the District of Columbia dated February 27,

1992, regarding USF&WS’s recission of the

Guidelines.

Final Order of Bureau of Forestry (“BOF”) dated

January 19, 1993, affirming the State Forester’s

denial of Boise Cascade’s amended plan for

timber harvest.

vill

Letter dated October 15, 1997, from the Oregon

Department of Forestry to counsel for Boise

Cascade.

Judgment entered by Clatsop County Circuit

Court on December 24, 1997, in favor of Boise

Cascade in the amount of $1,820,059, plus

prejudgment interest.

Letter from the BOF’s counsel to the USF&WS

dated June 16, 1992, and cited in the BOF’s

Final Order (App. R) as indicating that Oregon

law would not be satisfied if the USF&WS were

to issue a decision finding that an Incidental Take

Permit (“ITP”) under the Endangered Species

Act was not required.

Order of Oregon Court of Appeals in Boise

Cascade Corp. v. Board of Forestry

(CA A100855) dated January 6, 2000, granting

in part Boise Cascade’s Motion for

Reconsideration.

Injunction Order dated July 28, 1997, in United

States v. Coast Forest Res. Lid. P’ship,

U.S.D.C. Or. Civil No. 96-1575-HO, 2000 WL

298707 enjoining another timber owner because

there was a spotted owl activity center

approximately one mile away from the harvest

site.

Complaint filed in State of Oregon v. Int'l Paper

Co., U.S.D.C. Or. Civil No. 93-6223-HO, dated

July 1993.

AA

ix

Letter dated December 10, 1997, from the

federal government to counsel for Boise Cascade

suggesting that Petitioner should apply for an

ITP.

Decree and Judgment entered on October 15,

1998, by the United States District Court for the

District of Oregon in Boise Cascade Corporation

v. Michael J. Spear, No. 97-1810-JO, granting

the federal government an injunction prohibiting

Petitioner from cutting any trees on its property

unless it first obtained an ITP.

Letter from the federal government's counsel to

Boise Cascade dated July 30, 1999, concluding

that the site had been abandoned by the owls, and

notifying Boise Cascade that the government

would not oppose dissolving the existing

injunction.

xX

TABLE OF AUTHORITIES

Page

CASES

Babbitt v. Sweet Home, 515 U.S. 687 (1995) ........ 15, 18

Bailey v. Holland, 126 F.2d 317 (4th Cir. 1942)......... 21

Boise Cascade Corp. v. Board of Forestry, 886 P.2d

ok a Se re eee eee ee 2, 6-8

Boise Cascade Corp. v. Board of Forestry,

oe me TO eC, re ee hy ie

Boise Cascade Corp. v. State ex rel. Oregon State

Board of Forestry, 991 P.2d

in hn os CRs 1, 3, 9, 10

Boise Cascade Corp. v. Board of Forestry,

331 Or. 244, P.3d (Or. Oct. 24, 2000) .... 10

Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988), cert.

denied, 490 U.S. 1114 (1989) ............ 12, 21

City of Monterey v. Del Monte Dunes of Monterey, Lid..,

Pee as EE ier eee Be ba eee es 15

Defenders of Wildlife v. Bernal, 204 F.3d 920

Cl Ces aa Bee Ne le eS Es 15

First English Evangelical Lutheran Church v. County

of Los Angeles, Cal., 482 U.S. 304 (1987) .... 15, 20

Fla. Game & Fresh Water Fish Comm'n v. Flotilla, Inc.,

636 So. 2d 761 (Fla. Dist. Ct. App.), review

denied, 645 So. 2d 452 (Fla. 1994) ......... 12, 21

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ... 11, 12

xi

Page

Loretto v. Teleprompter Manhattan CATV Corp.,

ee a SPREE hte oe aed at can kee 1, 12

Lucas v. South Carolina Coastal Council, 505 U.S.

oct | SOE Whe eA ies ide ge 1, 15, 20

MacDonald, Sommer & Frates v. Yolo County,

Gel Bs SR eas AK GS PS A 15

Moerman v. State, 21 Cal. Rptr. 2d 329

es ee es EE Ped oe Sh eo ee Nees 21

North Dakota v. United States, 460 U.S. 300 (1983) ... 11, 13

Palazzolo v. State ex rel. Tavares, 746 A.2d 707 (R.I.

2000), cert. granted, 69 U.S.L.W. 3257

ee SS Heeb rek Gee oo wees i eke 22

Shelinut v. Ark. State Game & Fish Comm'n, 258 S.W.

SUE IS SE See eC gle et wie 21

Sierra Club v. State Bd. Of Forestry,

Pe ea ROE bo aes a en hao ek 12

Sierra Club v. Department of Forestry & Fire Protection,

26 Cal. Rptr. 2d 338 (Cal. Ct. App. 1993) .... 12, 21

Southview Associates, Ltd. v. Bongartz, 980 F.2d 84

ee ee ius ra see eee 13, 21

State of Oregon v. Int’l Paper Co., U.S.D.C. Or.

UO so ewes Fst ee hc ae 17

State v. Herwig, 117 N.W.2d 335 (Wis. 1962) .......... 21

Suitum v. Tahoe Reg’! Planning Agency, 520 U.S. 725

CES Saeki a Wi ia oe so cle kh Oe ee 19, 20

xii

Page

United States v. Coast Forest Res. Ltd. P’ship, U.S.D.C.

Or. Civil No. 96-1575-HO, 2000 WL 298707 ..... 17

Williamson County Reg’! Planning Comm’n v. Hamilton

mae, 413 VS. TFG Ce 8 nw 14, 15

Yee v. City of Escondido, 503 U.S. 519 (1992) ....... i,

STATUTES AND RULES

16 U.S.C.A. § 1531 et. seq.

West 1985 & Supp. 2000) .. . 3, 5, 6, 9, 12, 15, 17, 18

28 U.3.0-.A. § 1ZR A CO IFN) 6 a eee em cee 2

28 U.S.C.A. § 2101(c) (West 1994)............000- io

Se GO I ee Aa ARs vee oe eee 3,4

WD. OM RY onc a ic ine egavtas es a

SE. SN OR ea as 5 URS Ae ee ee es 2

Sapna Ge Te 6. wa kn. + tren ei ee a ee 11

OG CA TIE PE 6 aw ha i ees A Oe 11

Or. Rev. Stat. §§ 271.715(1), 271.725(1) (1999) ........ 12

Oregon Administrative Rule 629-665-0210

oo Bee te errs ee 4, 6, 7, 10, 3, 15, 16, 20

Oregon Administrative Rule 629-680-0000 (2000) ........ 5

Oregon Administrative Rule 629-680-0010 (2000) ........ 5

Oregon Administrative Rule 629-680-0100 (2000) ........ 5

xiii

Oregon Adiministrative Rule 629-680-0220 (2000) ........ 5

SS a he bss dp os 5 te see ae es 8

OTHER AUTHORITIES

Barton H. Thompson, Jr., The Endangered Species Act:

A Case Study in Takings & Incentives, 49

a a 16

Daniel A. \Hall, Using Habitat Conservation Plans to

Implement the Endangered Species Act in

Paicific Coast Forests: Common Problems &

Priomising Precedents, 27 Envtl. L. 803 (1997) .... 16

Endangerecd & Threatened Wildlife & Plants, 55 Fed.

Reg. 26,114 (Fish & Wildlife Serv. June 26,

pe eee. 6

Proceduress Leading to Endangered Species Act Compliance

for the Northern Spotted Owl ........... 6, 7, 17

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Boise Cascade Corporation (“Petitioner” or

“Boise Cascade”) respectfully petitions for a writ of certiorari to

review a judgment on the decision of the Oregon Court of

Appeals, reversing a jury verdict and judgment entered in

Petitioner’s favor in the Circuit Court for Clatsop County before

the Honorable Paula J. Brownhill, Judge.

OPINIONS BELOW

The decision of the Oregon Court of Appeals of Boise

Cascade Corp. v. State ex rel. Oregon State Board of Forestry,

is reported in 991 P.2d 563 (Or. App. 1999), and is reproduced

as Appendix A (“App. A”). A copy of that court’s March 15,

2000 order (CA A100855) denying reconsideration and affirming

its prior decision is reproduced as Appendix B (“App. B”). The

Oregon Supreme Court’s October 24, 2000 order denying

Petitioner's petition for review (SC S47459) is reproduced as

Appendix C (“App. C”). The letter opinion of the Clatsop

County Circuit Court (No. 93-2018) denying Petitioner summary

judgment on its possessory takings claim, based on Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 424

(1982), and granting summary judgment on the issue of liability

on its regulatory takings claim based on Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992), is reproduced as

Appendix D (“App. D”). The jury verdict finding State of

Oregon (“the State”) liable on Petitioner’s Loretto claim and

making findings on the compensation issues is reproduced as

2

Appendix E (“App. E”). The circuit court’s judgment is

reproduced as Appendix F (“App. F”).

Prior to the trial, there was another set of appeals after

the case originally had been dismissed by the Clatsop County

Circuit Court. The Oregon Court of Appeals’ opinion on the

prior appeal, which reversed the trial court, is reported in Boise

Cascade Corp. v. Board of Forestry, 886 P.2d 1033 (Or. App.

1994) and is reproduced as Appendix G (“App. G”). In that

instance, at the State’s request, the Oregon Supreme Court

granted review and affirmed in part and reversed in part the

court of appeals. The Oregon Supreme Court’s opinion is

reported in 935 P.2d 411 (Or. 1997) and is reproduced as

Appendix H (“App. H”).

STATEMENT OF JURISDICTION

The order of the Oregon Supreme Court denying

Petitioner’s petition for review of the decision of the Oregon

Court of Appeals was issued on October 24, 2000. (App. C.)

The appellate judgment was entered on December 15, 2000, and

is reproduced as Appendix I (“App. I”). This petition is being

timely filed within 90 days of entry of that judgment.

28 U.S.C.A. § 2101(c) (West 1994). The Court has jurisdiction

in this matter pursuant to 28 U.S.C.A. § 1257(a) (West 1993),

because the Oregon regulatory scheme as enforced by the Oregon

court is repugnant to the Supremacy Clause and the Fifth and

Fourteenth Amendments to the U.S. Constitution.

3

The Oregon Court of Appeals vacated a judgment based

upon a jury verdict which found that Petitioner’s rights under the

Takings Clause had been violated because a state regulation

required Petitioner to submit to an occupation of its property as a

spotted owl nesting site. In vacating this judgment, the court of

appeals ruled as a matter of law that this Court’s decision in

Loretto did not apply because “[t]he state has no control over

where spotted owls choose to nest.” (App. A; 991 P.2d at 570.)

The Oregon Court of Appeals also overturned the circuit court’s

ruling that Petitioner was entitled to summary judgment on its

Lucas claim. The appellate court held that the Lucas claim was

not “ripe” for adjudication because Petitioner had not attempted

to obtain an Incidental Take Permit (“ITP”) pursuant to the

Endangered Species Act of 1973 (“ESA”), 16 U.S.C.A. § 1531,

et seq. (West 1985 & Supp. 2000) from the U.S. Fish &

Wildlife Service (“USF&WS”), which, if granted, would have

given the Oregon Board of Forestry (“BOF”) discretion to

approve Boise Cascade harvesting its timber. 991 P.2d at

572-73.

CONSTITUTIONAL PROVISIONS INVOLVED

The federal constitutional provisions at issue in this case

are the Takings or Just Compensation Clause of the Fifth

Amendment, which provides: “[N]or shall private property be

taken for public use, without just compensation.” U.S. Const.

amend. V.

4

It is made applicable to the states through the Due

Process Clause of the Fourteenth Amendment, which provides:

“[N]or shall any State deprive any person of life, liberty, or

property, without due process of law .. . .” U.S. Const.

amend. XIV, § 1.

STATUTORY AND ADMINISTRATIVE

PROVISIONS INVOLVED

The Petitioner was prohibited from harvesting timber on

its property based upon Oregon Administrative Rule

629-665-0210 (2000), formerly numbered 629-024-0809, the

pertinent parts of which provide:

(1) Whenever the State Forester determines that

an operation will conflict with protection of a

nesting site of the northern spotted owl (Strix

occidentalis caurina), the operator must obtain

the State Forester’s approval of a written plan

before commencing the operation. The written

plan, at a minimum, must address how the

operation will be conducted to provide for the

following:

(a) A 70 acre area of suitable spotted owl

habitat encompassing the nest site, to be

maintained as suitable spotted owl habitat;

(b) Prevention of disturbances resulting

from operation activities which cause owls to

flush from the nesting site. . . .

we a0 pea wnenet tine

5 art

(2) For the purposes of this rule, nesting

site means and includes the tree, when known,

containing a spotted owl nest; or when not

specifically known, includes an activity center of

a pair of adult spotted owls. An activity center is

a location determined by the State forester to

have been reliably identified as being occupied

by an adult pair of spotted owls, capable of

breeding ....

(5) Exceptions to the requirements for

protecting northern spotted owl nesting sites may

be approved by the State Forester if the operator

has obtained an incidental take permit from

federal authorities under the federal Endangered

Species Act.

This Rule is reproduced in its entirety as Appendix J

(“App. J ”). Also involved are Oregon Administrative Rules

629-680-0000 (2000), formerly 629-056-0010; 629-680-0010(5)

(2000), formerly 629-056-0020(5); 629-680-0100(1) (2000),

formerly 629-056-0100(1); and 629-680-0220 (2000), formerly

629-056-0220, which declare, define and together provide for the

protection of such sites as public resources. Each of these rules

is reproduced in Appendices K through N, respectively (“App.

K,” “App. L,” “App. M,” “App. N”).

6

The USF&WS is authorized to issue an ITP for the

“taking” of a threatened species under section 9 of the ESA,

16 U.S.C.A. § 1539 (West 1985 & Supp. 2000).

STATEMENT OF THE CASE

A. Procedural History.

In June 1990, the USF&WS indicated it intended to list

the northern spotted owl as a threatened species under the ESA.

On July 23, 1990, that listing took effect. Endangered &

Threatened Wildlife & Plants, 55 Fed. Reg. 26,114 (Fish &

Wildlife Serv. June 26, 1990). At the same time, the USF&WS

issued Procedures Leading to Endangered Species Act

Compliance for the Northern Spotted Owl (“Guidelines”),

requiring the preservation of 70 acres of timber around the

northern spotted owl nest sites. A copy of the Guidelines is

reproduced as Appendix O (“App. O”).

Based on those Guidelines, the BOF adopted the former

Oregon Administrative Rule 629-024-0809(1) and (2)

(renumbered now at 629-665-0210(1) and (2) (2000) (see

App. J)), requiring private landowners to also protect a 70-acre

area around a nest site or an activity center to be “occupied by

an adult pair of spotted owls, capable of breeding.” Or. Admin.

Rule 629-665-0210.

Prior to the time the owls were listed, Petitioner had in ‘i

1988 acquired a 65-acre parcel of timber as a part of a land trade

with another forest products company. That parcel is known as

the Walker Creek Unit (the “Unit”). (App. G; 886 P.2d at

a

7

1035.) In 1989, Petitioner cleared a road into the Unit in

anticipation of full-scale logging of the timber the following

year. However, when the owls were listed in 1990, Petitioner

stopped cutting trees in the Unit.

In October 1991, the USF&WS rescinded its Guidelines

as the result of a legal action challenging them. A copy of the

memorandum rescinding the Guidelines is reproduced as

Appendix P (“App. P”), and the Memorandum Order of the U.S.

District Court for the District of Columbia pertaining to the

recission of the Guidelines is reproduced as Appendix Q

(“App. Q”).

In February 1992, Boise Cascade filed in compliance

with Oregon law a written plan with the Oregon State Forester

(“State Forester”) seeking permission to harvest the subject

timber. (App. G; 886 P.2d at 1036.) That plan was denied by

the State Forester based on Or. Admin. Rule 629-665-0210. The

Forester indicated that Petitioner needed to protect approximately

56 acres of timber on its land as spotted owl nesting habitat (the

other 14 acres comprising the core area were on adjacent lands

owned by the State and another private landowner). On May 5,

1992, Boise Cascade submitted an amended plan that was also

denied, because it refused to acquiesce in designating 56 acres of

its land as a public resource as a nesting site for the owls. 886

P.2d at 1036. It then appealed that denial to the BOF, which

affirmed the State Forester’s denial of the plan in a “Final

Order” on January 19, 1993, a copy of which is reproduced as

Appendix R (“App. R”). Boise Cascade then sought review of

8

the agency’s order by the Oregon Court of Appeals, which

affirmed the BOF’s Final Order on December 7, 1994. (App. G;

886 P.2d at 1041.) That order was then also affirmed by the

Oregon Supreme Court on April 10, 1997. (App. H; 935 P.2d

411.)

B. The Case.

After the BOF issued its Final Order, Boise Cascade

commenced an inverse condemnation action against the State in

Clatsop County Circuit Court alleging a “taking” of its timber

under the Fifth Amendment to the U.S. Constitution and a

similar provision in the Oregon Constitution. The State then

filed a motion to dismiss on various grounds, including that

Petitioner had failed to allege facts sufficient to state a claim

under the Fifth Amendment. The circuit court granted the

State’s motion on all grounds, and Petitioner appealed to the

Oregon Court of Appeals.

The court of appeals reversed on all grounds, holding

that valid takings claims were alleged under both the Fifth

Amendment and the Oregon Constitution. (App. G; 886 P.2d

1033.) The State then sought review by the Oregon Supreme

Court, which was granted. The Oregon Supreme Court affirmed

that Petitioner had alleged a valid takings claim for the 56 acres

of timber it had been prevented from logging. The court

reversed as to a temporary takings claim, involving another four

acres located outside the protected nesting site, that Petitioner

had been delayed in harvesting because of a temporal restriction.

9

(App. H; 935 P.2d at 411, 420 n.14.) The court remanded the

case to the circuit court for trial. (App. H.)

After remand, Petitioner filed an amended complaint that

separated its claim based on the Fifth Amendment into two

counts. The first was a physical occupation theory based on

Loretto, and the second was a regulatory takings theory based on

Lucas. Petitioner then moved for summary judgment as to the

issue of liability on both counts of its federal claim. (App. A;

991 P.2d at 563 and 569.)

On October 15, 1997, the Oregon Department of

Forestry informed Boise Cascade by letter that “of the pair that

previously occupied the Walker Creek site, the female was found

dead last winter, and the male was recently observed at [another]

site more than eight miles away.” The letter is reproduced as

Appendix S (“App. S”). See also 991 P.2d at 565. The letter

went on to inform Petitioner that the State considered the nest

site to be no longer protected under Oregon law, but suggested

Petitioner consult with the USF&WS because that agency might

consider the site to still be protected under the ESA. (App. S.)

The following day, the circuit court issued a letter opinion

granting Petitioner summary judgment on its Lucas count and

denying its summary judgment on its Loretto count. See 991 P2d

at 565.

Petitioner then filed a Supplemental Complaint alleging a

temporary taking for the almost five years that it had been denied

the right to harvest the 56 acres of timber because of the Oregon

regulation. At the conclusion of the trial, the circuit court

10

submitted the issue of liability as to Petitioner’s Loretto count to

the jury. A unanimous jury found that “plaintiff Boise Cascade

Corporation [was] required to submit to a physical occupation of

its property as a result of the Board of Forestry’s Order.”

(App. E.) It also made findings as to the fair market value of the

timber both at the time the Final Order was entered denying

Petitioner the right to harvest the timber and the date the State

declared the site to have been abandoned by the owls. (/d.) Asa

result of those findings, a judgment was entered in the amount of

$1,820,059, including interest from the date of the taking (the

court of appeals’ opinion incorrectly states that the judgment was

for $2,279,223). (App. A; 991 P.2d at 565.) A copy of that

judgment is reproduced as Appendix T (“App. T”).

The State appealed. The Oregon Court of Appeals

reversed the judgment, holding that Petitioner could not state a

claim for the occupation of its land, based upon Loretto, because

“[t]he State has no control over where spotted owls chose to

nest.” (App. A; 991 P.2d at 570.) It also reversed the summary

judgment on the count based on Lucas. The court held that

Petitioner’s regulatory takings claim was not “ripe” for

adjudication because there was the possibility that if Boise

Cascade had applied to the USF&WS for an ITP and one had

been granted, the BOF could have exercised its discretion under

Or. Admin. Rule 629-665-0210(5) (2000) to approve Petitioner’s

logging plan. The Oregon Supreme Court then denied review.

331 Or. 244, P.3d_ (Or. Oct. 24, 2000).

11

REASONS FOR GRANTING THE PETITION

Supreme Court Rule 10(b) lists among the considerations

governing review on certiorari the circumstance in which a state

court of last resort has decided a federal question in a way that

conflicts with the decision of a federal court of appeals. In this

case the decision was rendered by a lower appellate court and the

state court of last resort refused to grant review. (App. C.)

Under Rule 10(c), a ground for review exists when a state court

has decided an important question of federal law that has not

been, but should be, settled by this Court or has decided a

federal question in a way that conflicts with applicable decisions

of this Court. All of these grounds for review are present in this

case.

I. This Case Involves Two Important Constitutional

Questions That Should Be Resolved by This Court.

The precedent established below is the latest in a

growing number of cases arising out of government regulations

that require property owners to leave their land in its natural

condition so that it can be occupied as wildlife habitat and, at the

same time, denies the property owner compensation for the

imposition of a wildlife servitude. Cf. Kaiser Aetna v. United

States, 444 U.S. 164 (1979) (involving a navigational servitude.)

These are the same type of wildlife servitudes that the federal

government regularly acquires by eminent domain. See North

Dakota v. United States, 460 U.S. 300 (1983). Oregon law does

12

not authorize the state to use its power of eminent domain for

that purpose. Or. Rev. Stat. §§ 271.715(i), 271.725(1) (1999).

A. Under a Physical Occupation Theory the Test

Is Whether the Landowner Has the Right to

Exclude Wildlife, Not Whether the State Has

Control Over It.

The court below shifted the focus of this Court’s physical

takings jurisprudence from the issue of whether there had been a

forced occupation authorized by government, to whether

government had control over the occupant, which this Court has

never deemed to be the determining factor. Loretto, 458 U.S. at

432 n.9; Yee v. City of Escondido, 503 U.S. 519, 522 (1992). In

a physical takings case, the key issue is whether the landowner

has the right to exclude the government-authorized occupant and

has been forced to acquiesce to the occupation. 503 U.S. at 527;

Kaiser Aetna, 444 U.S. at 176. Due to the ESA and state

regulations that impose similar wildlife servitudes, there are a

growing number of cases in which government has imposed

wildlife servitudes. Courts have refused to find a taking and

award compensation. Christy v. Hodel, 857 F.2d 1324 (9th Cir.

1988), cert. denied, 490 U.S. 1114 (1989) (see opinion of Justice

White dissenting); Fla. Game & Fresh Water Fish Comm'n v.

Flotilla, Inc., 636 So. 2d 761 (Fla. Dist. Ct. App.), review

denied, 645 So. 2d 452 (Fla. 1994). In Sierra Club v.

Department of Forestry & Fire Protection, 26 Cal. Rptr. 2d 338

(Cal. Ct. App. 1993), the California Supreme Court affirmed the

lower court, 876 P.2d 505 (Cal. 1994), but omitted any

13

discussion of the takings issue and took the extraordinary step of

directing tthat the lower court’s opinion not be published in the

official repsorts. No. S037820, 1994 Cal. LEXIS 1388 (Cal.

Mar. 18, 11994).

Heere, the subject regulation goes beyond merely

regulating tthe use of Petitioner’s land by requiring that Petitioner

use it for oynly one purpose. Yee, 503 U.S. at 522-23. It

prohibits Peetitioner from conducting any activity on its property

that “causep[s the] owls to flush from the nesting site.”

Or. Admina. Rule 629-665-0210(1)(b) (2000). Petitioner had no

choice undéer the subject regulation but to acquiesce to the

occupation ; of its timber as a nesting site. 503 U.S. at 527 (“The

governmentt effects a physical taking only where it requires the

landowner {to submit to the physical occupation of his land.”

(emphasis ijn original)). In Southview Associates, Ltd. v.

Bongartz, 9980 F.2d 84, 94 (2d Cir. 1992), the Second Circuit

held that thaere had been no taking because the landowner could

exclude fronm its property the wildlife (deer) that the state sought

to protect aand log “the entire 44 acres of critical softwood in the

deeryard.” By contrast, Petitioner was prevented by the subject

regulation ffrom harvesting its timber or doing anything that

could causes the birds to “flush from the nesting site.” The State

consequentl]y exerted as much control over Petitioner’s property

-_ as if it had < acquired a formal easement. Or. Admin. Rule

629-665-02)10(1)(b); of. North Dakota, 460 U.S. 300.. Petitioner |

was preventited from excluding the owls from its property.

14

B. A State May Not Require a Landowner to

Obtain a Permit from a Federai Agency in

Order to Satisfy “Ripeness,” When It Is Under

No Obligation to Issue Its Own Permit, Even if

the Federal Permit Is Granted.

The second important issue involves satisfying the

ripeness requirement before adjudicating a regulatory takings

claim. If the decision below is left to stand, a state

administrative agency could avoid making a final decision

satisfying ripeness, by unfairly requiring the landowner to pursue

a collateral approval from a federal agency that has no authority

to either approve or disapprove the petitioner’s logging plan. In

this case, even if Petitioner had obtained an ITP from the

USF&WS, the state agency was under no obligation under

Oregon law to exercise its discretion so as to approve

Petitioner’s logging plan.

“Ripeness” is satisfied when “the initial decision-maker

has arrived at a definitive position on the issue that inflicts an

actual, concrete injury.” Williamson County Reg’l Planning

Comm'n v. Ha:nilton Bank, 473 U.S. 172, 193 (1985). The

BOF’s Final Order certainly did that. Under the BOF’s own

regulation, it had no discretion but to deny Petitioner the right to

harvest 56 acres of merchantable timber, unless Petitioner

obtained an ITP for the owls from the USF&WS. Moreover, the

BOF did not base its decision on the possibility that it might, in

the future, approve Petitioner’s logging plan, if Boise Cascade

obtained an ITP. In fact, the BOF’s Final Order (App. R) cites

a letter from its counsel to the USF&WS, reproduced as

a---

Appendix U (“App. U”), indicating that Oregon law would not

be satisfied if the USF&WS were to issue a decision finding that

an ITP was not required. Likewise, potential future exercise of

discretion by the BOF allowing Petitioner to log its timber based

upon an ITP from the USF&WS would not bar a temporary

takings claim based on the BOF’s Final Order. Until that Final

Order was reversed, a taking was occurring. Lucas, 505 U.S.

at 1012-13; First English Evangelical Lutheran Church v. County

of Los Angeles, Cal., 482 U.S. 304 (1987). The granting of an

ITP, and a waiver based upon it, would have merely turned a

permanent taking into a temporary one.

Under Williamson County, a landowner is not required to

seek review from another agency that does not have the authority

to participate in the decision-making process. 473 U.S. at 193.

The USF&WS had no authority to authorize logging; its only

concern under the ESA is to prevent the owls from being

harmed. Babbitt v. Sweet Home, 515 U.S. 687 (1995). By

requiring Petitioner to apply for an ITP under the ESA, the State

was imposing a requirement as a condition for its approval that

does not exist under federal law. Defenders of Wildlife v.

Bernal, 204 F.3d 920, 927 (9th Cir. 2000).

Nor, as this Court subsequently stated in MacDonald,

Sommer & Frates v. Yolo County, 477 U.S. 340, 350 n.7 (1986),

can government require “unfair procedures in order to” satisfy

ripeness. Trying to obtain an ITP from the USF&WS under the

exception provision in Or. Admin. Rule 629-665-0210(5) would

have been both unfair and an exercise in futility. City of

16

Monterey v. Del Monte Dunes of Monterey, Ltd., 526 U.S. 687,

698-99 (1999).

It would have been unfair because the ITP process would

likely have added years to the administrative process and

required conservation measures far broader than those needed for

the owls nesting in Petitioner’s timber. See Barton H.

Thompson, Jr., The Endangered Species Act: A Case Study in

Takings & Incentives, 49 Stan. L. Rev. 305, 326, 335 (1997)

(“Property owners repeatedly voice dismay over their almost

Kafkaesque inability to reach closure under the ESA.”); and

Daniel A. Hall, Using Habitat Conservation Plans to Implement

the Endangered Species Act in Pacific Coast Forests: Common

Problems & Promising Precedents, 27 Envtl. L. 803, 805 (1997)

(The USF&WS requires as a part of a Habitat Conservation Plan

that is part of the ITP process that landowners not only protect

habitat for the subject species of the ITP, but for “all species

which might ever reside on the property”). Likewise, even if an

ITP were issued, the BOF was not required to approve

Petitioner’s logging plan. There is no reason to believe the BOF

would have waived protecting the site so long as the owls

occupied the site. Or. Admin. Rule 629-665-0210(5); (App. J).

It would have been an exercise in futility, because the

record on appeal clearly indicates that if Petitioner had sought an

ITP from the USF&WS in 1993, before the BOF’s Final Order,

the USF&WS would not have issued an ITP.

After the Oregon Court of Appeals issued its opinion

reversing the judgment in Petitioner’s favor, Boise Cascade

17

moved for reconsideration. In asking the court to reconsider its

holding that Petitioner’s regulatory takings claim was not “ripe,”

Boise Cascade moved to supplement the record concerning what

had occurred after the BOF had issued its Final Order and the

case had been pending in the courts for over six years. That

motion was granted in part in an order reproduced as

Appendix V (“App. V”).

That record shows that shortly before the State deemed

the Boise Cascade nest site to have been abandoned, the :

USF&WS obtained an injunction against another timber owner |

because there was a spotted owl activity center approximately

one mile away from the harvest site (a mile’s distance is well

beyond the 70-acre core area protected under state law). United

States v. Coast Forest Res. Lid. Pship, U.S.D.C. Or. Civil

No. 96-1575-HO, 2000 WL 298707 (Order dated July 28, 1997

at 1). A copy of that order is reproduced as Appendix W

(“App. W”). That injunction was not lifted until almost three

years later when, after monitoring the owls’ movements by

radiotelemetry, the USF&WS failed to prove that logging the

subject timber would have any significant impact upon them.

2000 WL 298707 at *5. Also while this action was pending

before the Oregon courts, the State brought a legal action against

the USF&WS alleging that it had threatened to take legal action

against the State and its employees, pursuant to the ESA, if they

failed to enforce the Guidelines that the USF&WS had been

forced to rescind. State of Oregon v. Int’l Paper Co., U.S.D.C.

Or. Civil No. 93-6223-HO (Complaint dated July 1993 at 4). A

18

copy of that Complaint is reproduced as Appendix X

(“App. X”*).

Shortly after the State, in October 1997, declared the

nest site on Petitioner’s land to have been abandoned, Boise

Cascade submitted, and the State Forester approved, a new

logging plan to harvest the 56 acres that had previously been

protected. Petitioner, through its counsel, also inquired of the

USF&WS whether it still considered the site to be protected

under the ESA due to the death of the female owl and the

abandonment of the nesting site by the male owl. Counsel for

the federal government responded by indicating that the

USF&WS did still consider the nesting site to be occupied and

suggested Boise Cascade apply for an ITP if it desired to harvest

its timber. A copy of the federal government’s December 10,

1997 letter is reproduced as Appendix Y (“App. Y”). Petitioner

then commenced an action in the United States District Court for

the District of Oregon against the USF&WS, seeking a

declaratory judgment that the site was no longer occupied and

was, therefore, no longer protected under the ESA. Sweet

Home, 515 U.S. 687. The federal government filed a

counterclaim seeking an injunction barring Petitioner from

logging its timber because the USF&WS did not consider the

nest site to have been abandoned. The district court granted the

government an injunction prohibiting Petitioner from cutting any

trees on its property unless it first obtained an ITP for the owls.

A copy of the district court’s decree and judgment is reproduced

as Appendix Z (“App. Z”).

19

As a result of the injunction, Petitioner submitted an

application for an ITP to the USF&WS, along with a Habitat

Conservation Plan for the Unit. In August 1999 the USF&WS

also came to the conclusion that the site had been abandoned and

notified Boise Cascade that it would not oppose dissolving the

injunction. A copy of that letter is reproduced as Appendix AA

(“App. AA”). This was two years after the State had declared

the site to have been abandoned. Over nine years elapsed

between the time the State adopted its regulations that prevented

Petitioner from logging its timber and the date the federal

injunction was lifted. The law does not require the doing of a

useless act in order to satisfy ripeness.

The BOF’s Final Order clearly defined the impact of the

regulation on Petitioner’s property: it was prevented from

making any economic use of 56 acres of merchantable timber.

Once the BOF issued its Final Order there was no question about

how the subject regulations applied to the particular land in

question. Suitum v. Tahoe Reg’! Planning Agency, 520 U.S.

725, 739 (1997). At that point there was no permissible

economic use of the timber subject to the restriction. The BOF

had no discretion under its own rule but to deny Petitioner’s

logging plan, unless Petitioner was successful in the future in

obtaining an ITP for the owls from the USF&WS. Moreover, as

this Court stated in Suitum, Petitioner’s “takings claim [cannot]

be kept at bay from year to year * * *” on the remote possibility

that the USF&WS would grant an ITP, which in turn would

allow the BOF to exercise its discretion and approve Petitioner’s

20

logging plan. /d. at 741. Such a rule, as adopted by the subject

regulation and approved by the courts below, would allow the

State “to stultify the Fifth Amendment’s guarantee.” /d.

This Court’s prudential ripeness doctrine is based on the

fact that land use boards usually have a “high degree of

discretion” in applying a law to a parcel of property. /d. at 738.

However, the BOF was not applying a land use regulation, and it

had no discretion under Or. Admin. Rule 629-665-0210, but to

deny Petitioner the right to log the area surrounding the spotted

owl nest site. Even if Petitioner had applied for an ITP after the

BOF had issued its Final Order in 1992, that would not have

barred Petitioner’s claim for compensation for a temporary

takings claim for the period it was prevented from logging its

. property. First English, 482 U.S. 304; Lucas, 505 U.S. 1003.

If the USF&WS had denied an ITP, the BOF had no authority to

reverse its Final Order and allow Petitioner to log its property.

Or. Admin. Rule 629-665-0210(5). While if the ITP was

granted, the BOF was also under no obligation to reverse its

Final Order and allow Petitioner to log its property. /d.

Il. The Petition Should Be Granted Because the Decision

Below Conflicts with Decisions of This Court and

Other Federal and State Courts.

The Oregon Court of Appeals’ reversal of the “takings”

judgment entered here after trial is contrary to the basic physical

taking jurisprudence of this Court as stated in Loretto, Yee and

Kaiser Aetna. There is, however, a split among the lower courts

21

in cases involving wildlife over whether a property owner can

sustain a claim based on a physical takings theory. The better

reasoned cases focus on whether the property owner has the right

under the subject law to exclude the animals from its land. If

not, the forced occupation imposes a wildlife servitude.

Southview Associates, 980 F.2d 84; Bailey v. Holland, 126 F.2d

317, 324 (4th Cir. 1942) (“If the Government wishes to do more

in the way of protecting migratory birds than prohibiting their

slaughter, * * * it must acquire some proprietary interest in the

areas suitable for such uses.”); State v. Herwig, 117 N.W.2d

335, 340 (Wis. 1962) (holding that in order to protect bird

nesting habitat on private land “the state should acquire whatever

rights or easements are needed by purchase, lease or

condemnation”); Shellnut v. Ark. State Game & Fish Comm’n,

258 S.W.2d 570, 574 (Ark. 1953) (taking of private property for

a wildlife refuge); Moerman v. State, 21 Cal. Rptr. 2d 329,

333-34 (Cal. Ct. App. 1993) (holding that there was no taking

under Loretto because the landowner had the right to exclude elk

from his property).

In conflict with this line of cases, are those such as the

decision below that avoid the exclusion analysis, and hold that

there was no forced occupation that constituted a taking because

the State has no control over wildlife. See also Christy, 857

F.2d 1324; Fla. Game & Fresh Water Fish Comm’n, 636 So.2d

761; Sierra Club, 26 Cal. Rptr. 338.

As pointed out above, the Oregon courts have raised

hurdles to satisfying prudential ripeness requirements that go far

——<—<— ——

22

beyond this Court’s takings jurisprudence. Cf. Palazzolo v. State

ex rel. Tavares, 746 A.2d 707 (R.I. 2000), cert. granted, 69

U.S.L.W. 3257 (Oct. 10, 2000).

CONCLUSION

Petitioner respectfully urges the Court to grant the

Petition for Writ of Certiorari.

Dated this 25" day of January, 2001.

Phillip D. Chadsey* re eG

Charles F. Adams

James N. Westwood

Scott E. Crawford

*Counsel of Record

STOEL RIVES itp

900 SW Fifth Avenue, Suite 2600

Portland, OR. 97204-1268

(503) 294-9376

Of Attorneys for Petitioner

Boise Cascade Corporation