Appendix — Boise Cascade Corp. v. Oregon ex rel. Oregon State Board of Forestry
Supreme Court brief2001
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001 238 JAN 3 02001
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au eg Supreme Court
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
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
VOLUME I
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
S70"
i
TABLE OF APPENDICES
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 S47459),
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
~€ounty 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).
ii
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 S47459), 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.
iii
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. Ltd. 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.
Letter dated December 10, 1997, from the
federal government to counsel for Boise Cascade
suggesting that Petitioner should apply for an
ITP.
iv
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.
RSET Sra ee
App. A-1
991 P.2d 563 (Or.App. 1999)
BOISE CASCADE CORPORATION, a Delaware
corporation, Respondent,
Vv.
STATE OF Oregon, By and Through the OREGON STATE
BOARD OF FORESTRY, Appellant.
(93-2018; CA A100855)
Court of Appeals of Oregon
Appeal After Remand from Circuit Court,
Clatsop County
Paula J. Brownhill, Judge
Argued and Submitted Feb. 22, 1999.
Decided Nov. 10, 1999.
John T. Bagg, Assistant Attorney General, argued the
cause for appellant. With him on the briefs were Hardy Myers,
Attorney General, and Michael D. Reynolds, Solicitor General.
Phillip D. Chadsey, Boise, ID, argued the cause for
respondent. With him on the brief were Charles F. Adams and
Stoel Rives LLP.
Daniel Kearns, Portland, Reeve Kearns PC, and John D.
Echeverria, San Francisco, CA, filed a brief amicus curiae for
Audubon Society of Portland.
Brent D. Boger, Robin L. Rivett, and Eric Grant,
Sacramento, CA, filed a brief amicus curiae for Pacific Legal
App. A-2
Foundation, Oregon Farm Bureau, and California Farm Bureau
Federation.
Before De MUNIZ, Presiding Judge, and DEITS, Chief
Judge, and ARMSTRONG, Judge.
De MUNIZ, P.J.
The state appeals from a jury verdict in favor of plaintiff
Boise Cascade (Boise) on its claim for a temporary taking of a
stand of timber in which a pair of northern spotted owls were
nesting. For the following reasons, we reverse and remand.
In 1988, Boise acquired 1,770 acres of commercial
timberlands in Clatsop County and conducted some logging
activities on its property. Also in 1988, the Oregon Department
of Fish and Wildlife designated the northern spotted owl as a
threatened species. In 1990, the State Forester adopted an
administrative policy precluding timber harvesting within a
70-acre area around known spotted owl nesting sites, ultimately
codified as former OAR 629-24-809.' In 1991, Boise sold all of
' Former OAR 629-24-809 provided, in part:
"(1) Whenever the State Forester determines that an
operation will conflict with protection of a nesting site of the northern
spotted owl * * *, 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 ow! habitat
encompassing the nest site, to be maintained as suitable spotted owl
habitat[.}"
A substantially similar rule is currently found at OAR 629-665-0210.
App. A-3
those commercial timberlands except for a 64-acre parcel (the
Walker Creek site), which the buyer refused to accept due to the
presence of a northern spotted owls’ nest on the site. The
present dispute centers around the state's refusal to permit
logging on the Walker Creek site during the period that the
spotted owls were nesting there.
A spotted owl had been seen on the Walker Creek site in
1986, and a pair of spotted owls nested on the site in 1990,
hatching two offspring. Another spotted owl was seen on the site
in 1991. A breeding pair was present on the site in 1992. In
early 1992, Boise sought approval from the State Forester of its
plan to harvest the timber on the site. The State Forester did not
approve Boise's harvesting plan because the plan did not identify
for protection 70 acres of suitable spotted ow! habitat
encompassing the nesting site at Walker Creek. The Board of
Forestry upheld the denial of Boise's plan on the ground that the
proposed plan failed to comply with former OAR 629-24-809. A
subsequent plan permitted Boise to log several acres of the
Walker Creek site but only during time frames when no owls
were nesting on the site.
Boise initiated this action for inverse condemnation,
arguing that the refusal to permit it to log the Walker Creek site
constituted a taking under Article I, section 18, of the Oregon
Constitution, as well as under the Fifth Amendment, as applied
to the states through the Fourteenth Amendment, of the United
States Constitution. Boise further alleged that the restriction on
logging the other acres during the owl nesting season was a
temporary taking under both constitutions. The trial court
dismissed the complaint. On appeal, we reversed, Boise
Cascade Corp. v. Board of Forestry, 131 Or.App. 538, 886 P.2d
1033 (1994), and the Supreme Court allowed review. On
review, the Supreme Court affirmed in part and reversed in part,
concluding that, although Boise failed to state a claim for a
temporary taking of the small amount of timber that the Board of
App. A-4
Forestry permitted to be logged, Boise did state a claim for a
taking of the remainder of the Walker Creek site. Boise Cascade
Corp. v. Board of Forestry, 325 Or. 185, 935 P.2d 411 (1997).”
On remand, Boise dropped its claim under the Oregon
Constitution and proceeded only on its federal constitutional
claim. Boise moved for partial summary judgment, and the trial
court ruled as a matter of law that a regulatory taking had
occurred. The question of damages was tried to a jury, as was a
question as to whether a taking by "physical invasion" had
occurred. Meanwhile, one of the spotted owls on the Walker
Creek site had died and the other had left the site, and all
restrictions on logging the site were lifted. The jury returned a
verdict for Boise, and the trial court entered judgment for Boise
in the amount of $2,279,223 in damages for the temporary
restriction on its logging of the Walker Creek site. This appeal
ensued.
On appeal, the state makes numerous arguments that the
trial court erred in failing to dismiss the claim, in granting partial
summary judgment, in limiting the state's evidence, in instructing
the jury, and in various other regards. We turn first to the state's
argument that the trial court lacked jurisdiction by reason of the
Eleventh Amendment to the United States Constitution.
The state argues that there is no direct right of action
under the Fifth and Fourteenth Amendments to the United States
Constitution against the state in a state court. The state maintains
that, although Congress can, and has, abrogated the states'
immunity from suit by way of its power to enforce the
Fourteenth Amendment, Boise has not pleaded its case under any
statute that abrogates the state's immunity, e.g., 42 USC section
2 The court's decision covered other subjects as well, but they are not
pertinent to this appeal.
App. A-5
1983. Although the state acknowledges that a number of takings
claims under the federal constitution have proceeded in Oregon
courts throughout the years, it argues that the sovereign
immunity question was not raised and thus was not addressed in
those cases.
Boise responds that, although the Eleventh Amendment
may bar plaintiffs from pursuing federal constitutional claims
against states in federal court, it "has nothing to do with barring
a plaintiff from bringing a takings claim against the State, based
on the federal constitution, in the Oregon courts[.]" Until quite
recently, Boise's position on this question seemed unassailable.
See, e.g., Hilton v. South Carolina Public Railways Com'n, 502
U.S. 197, 204-05, 112 S.Ct. 560, 116 L.Ed.2d 560 (1991) ("But
as we have stated on many occasions, ‘the Eleventh Amendment
does not apply in state courts.'"). However, in a recent series of
cases, the United States Supreme Court has significantly altered
its position on the question of states’ sovereign immunity. Most
directly on point is Alden v. Maine, 527 U.S. 706, 119 S.Ct.
2240, 144 L.Ed.2d 636 (1999), which concerned an attempt by
state employees to enforce the Fair Labor Standards Act (FLSA),
29 USC section 201 et seq., against the state in a state court
proceeding. Although the FLSA contains a provision purporting
to authorize actions against states in their own courts, the Court
held that "the powers delegated to Congress under Article I of
the United States Constitution do not include the power to subject
nonconsenting States to private suits for damages in state courts."
119 S.Ct. at 2246.
The Court first acknowledged that the text of the
Eleventh Amendment does not actually address the question of
when a state may be sued in its own courts.’ Jd. However, after
3 The Eleventh Amendment to the United States Constitution
provides:
App. A-6
reviewing at length the history of the Tenth and Eleventh
Amendments, and its own earlier case law upholding the states’
"sovereign immunity in various contexts falling outside the literal
text of the Eleventh Amendment," id. at 2253, the Court
concluded that basing decisions concerning states' immunity on
the text of the amendment alone would constitute "ahistorical
literalism[.]" Jd. at 2254. Although acknowledging Congress's
power to enact legislation such as the FLSA via the Commerce
Clause, the Court concluded that Congress did not have the
power to abrogate states' sovereign immunity in doing so. /d.
The Court went on to indicate, though, that sovereign
immunity would "not bar all judicial review of state compliance
with the Constitution[.]" /d. at 2266. In particular, the Court
pointed out:
"We have held also that in adopting the
Fourteenth Amendment, the people required the States to
surrender a portion of the sovereignty that had been
preserved to them by the original Constitution, so that
Congress may authorize private suits against
nonconsenting States pursuant to its § 5 enforcement
power. Fitzpatrick v. Bitzer, 427 U.S. 445[, 96 S.Ct.
2666, 49 L.Ed.2d 614] (1976). By imposing explicit
limits on the powers of the States and granting Congress
the power to enforce them, the Amendment
‘fundamentally altered the balance of state and federal
power struck by the Constitution.’ Seminole Tribe [of
"The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State."
App. A-7
Fla. v. Florida, 517 U.S. 44, 59, 116 S.Ct. 1114, 134
L.Ed.2d 252 (1996) ]. When Congress enacts
appropriate legislation to enforce this Amendment, see
City of Boerne v. Flores, 521 U.S. 507[, 117 S.Ct. 2157,
138 L.Ed.2d 624 (1997)], federal interests are
paramount, and Congress may assert an authority over
the States which would be otherwise unauthorized by the
Constitution. Fitzpatrick, supra, at 456 [96 S.Ct.
2666]." Alden, 119 S.Ct. at 2267.
In summary, the Court has declared that, even if a state
has not waived its sovereign immunity, Congress may, pursuant
to the enforcement power granted it by section 5, of the
Fourteenth Amendment,‘ enact legislation to enforce
constitutional rights that have been made applicable to the states
through the Fourteenth Amendment. It is not disputed that the
just compensation clause of the Fifth Amendment applies to the
states through the Fourteenth Amendment. The question, then,
is whether plaintiff's only remedy for the constitutional violation
it alleges is through a positive enactment of Congress, such as
42 USC section 1983, as the state posits.
* The Fourteenth Amendment to the United States Constitution
provides, in part:
"Section 1. * * * No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
“Ree *
"Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article."
App. A-8
The parties cite no provision other than 42 USC section
1983 as an affirmative act of Congress that would abrogate the
states’ sovereign immunity and subject it to takings claims in
state courts, and we are aware of none.’ However, we do not
find the state's answer to this issue--that plaintiff failed to state a
claim because it did not proceed under 42 USC section 1983--to
be satisfactory. Section 1983 actions may be brought against
"persons," but a state is not a "person" for purposes of section
1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 64,
109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). As noted above,
though, the Fourteenth Amendment provides that no "state [shall]
deprive any person of * * * property, without due process of
law," and the Fifth Amendment, incorporated as to the states
through the Fourteenth Amendment, calls for "just
compensation" for a taking of property. (Emphasis added.) In
short, section 1983 does not provide for the remedy required by
the constitution for a taking of property by the state.
Thus, the question comes down to whether Boise can
maintain an inverse condemnation action against the state in state
court, based on an alleged violation of the Fifth Amendment to
United States Constitution, in the absence of congressional action
pursuant to section five of the Fourteenth Amendment
authorizing such an action. As a general matter, the Alden
decision discussed above might suggest that the answer is "no,"
because of its emphasis on positive acts of Congress under
section five of the Fourteenth Amendment. However, certain
language in the Alden decision, particularly when read in
conjunction with some of the Court's earlier case law describing
> The state concedes that Congress has authority to subject it to suit in
state court without its consent. We recognize that Alden may well be read to
indicate otherwise, but we will treat the state's concession in this case as a
partial waiver of any sovereign immunity defense that it is immune from suit in
state court even if Congress has the authority to subject it to suit in federal
court.
App. A-9
the Fifth Amendment as "self-executing," casts doubt on such a
conclusion. In Alden, the Court distinguished the issue before it
from the issue presented in Reich v. Collins, 513 U.S. 106, 115
S.Ct. 547, 130 L.Ed.2d 454 (1994):
"In Reich v. Collins, 513 U.S. 106 [115 S.Ct. 547, 130
L.Ed.2d 454] (1994), we held that, despite its immunity
from suit in federal court, a State which holds out what
plainly appears to be a ‘clear and certain’ postdeprivation
remedy for taxes collected in violation of federal law
may not declare, after disputed taxes have been paid in
reliance on this remedy, that the remedy does not in fact
exist. Jd. at 108 [115 S.Ct. 547]. This case arose in the
context of tax-refund litigation, where a State may
deprive a taxpayer of all other means of challenging the
validity of its tax laws by holding out what appears to be
a ‘clear and certain’ postdeprivation remedy. Jbid.; see
also Fair Assessment in Real Estate Assn., Inc. v.
McNary, 454 U.S. 100[, 102 S.Ct. 177, 70 L.Ed.2d
271] (1981). In this context, due process requires the —
State to provide the remedy it has promised. Cf. Hudson
v. Palmer, 468 U.S. 517, 539[, 104 S.Ct. 3194, 82
L.Ed.2d 393] (1984) (O'Connor, J., concurring). The
obligation arises from the Constitution itself, Reich does
not speak to the power of Congress to subject States to
suits in their own courts." Alden, 119 S.Ct. at 2259
(emphasis added).
Although Reich has little direct bearing on the issue before us, as
it did not involve any issues of sovereign immunity, the Court's
description of Reich in Alden strongly suggests that states may be
required to provide promised remedies in state court proceedings
by force of the Due Process Clause alone.
Further support for this idea that the Constitution itself
may dictate the availability of remedies in state court under
App. A-10
certain circumstances can be found in First Lutheran Church v.
Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d
250 (1987). Although First Lutheran did not squarely present
the type of sovereign immunity issue with which we are
confronted, it provides significant guidance on the issue. In First
Lutheran, the plaintiff sued a county after it adopted an interim
ordinance that temporarily banned construction within a flood
zone. 482 U.S. at 307- 08, 107 S.Ct. 2378. The focus of the
case was whether a temporary regulatory taking constituted a
taking under the Fifth Amendment. It does not appear from the
text of the opinion that a sovereign immunity defense was raised.
However, the Solicitor General, an amicus in the case, did make
a sovereign immunity argument that the Court addressed:
"We have recognized that a landowner is entitled
to bring an action in inverse condemnation as a result of
‘the self-executing character of the constitutional
provision with respect to compensation * * *.' United
States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 63
L.Ed.2d 373 (1980), quoting 6 P. Nichols, Eminent
Domain § 25.41 (3d rev ed 1972). As noted in Justice
Brennan's dissent in San Diego Gas & Electric Co., 450
U.S. [621], 654-55, 101 S.Ct. 1287, 67 L.Ed.2d 551 [
(1981) ], it has been established at least since Jacobs v.
United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142
(1933), that claims for just compensation are grounded in
the Constitution itself:
"'The suits were based on the right to
recover just compensation for property taken by
the United States for public use in the exercise of
its power of eminent domain. That right was
guaranteed by the Constitution. The fact that
condemnation proceedings were not instituted
and that the right was asserted in suits by the
owners did not change the essential nature of the
App. A-11
claim. The form of the remedy did not qualify
the right. It rested upon the Fifth Amendment.
Statutory recognition was not necessary. A
promise to pay was not necessary. Such a
promise was implied because of the duty to pay
imposed by the Amendment. The suits were thus
founded upon the Constitution of the United
States.’ Id. at 16, 54 S.Ct. 26, 78 L.Ed. 142.
(Emphasis added [by First Lutheran court] ).'
"Jacobs, moreover, does not stand alone, for the
Court has frequently repeated the view that, in the event
of a taking, the compensation remedy is required by the
Constitution. See, e.g., Kirby Forest Industries, Inc. v.
United States, 467 U.S. 1, 5, 104 S.Ct. 2187, 81
L.Ed.2d 1 (1984); United States v. Causby, 328 U.S.
256, 267, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946);
Seaboard Air Line R. Co. v. United States, 261 U.S.
299, 304-306, 43 S.Ct. 354, 67 L.Ed. 664 (1923):
Monongahela Navigation [Co. v. United States, 148 U.S.
312, 13 S.Ct. 622, 37 L.Ed. 463 (1893).°
° "The Solicitor General urges that the prohibitory
nature of the Fifth Amendment * * * combined with
principles of sovereign immunity, establishes that the
Amendment itself is only a limitation on the power of
Government to act, not a remedial provision. The cases
cited in the text, we think, refute the argument of the
United States that ‘the Constitution does not, of its own
force, furnish a basis for a court to award money
damages against the government.’ Brief for United
States as Amicus Curiae 14. Though arising in various
factual and jurisdictional settings, these cases make clear
that it is the Constitution that dictates the remedy for —
interference with property rights amounting to a taking.
See San Diego Gas & Electric Co. v. San Diego, 450
App. A-12
U.S. 621, 655 n. 21, 101 S.Ct. 1287, 67 L.Ed.2d 551
(1981) (Brennan, J., dissenting), quoting United States v.
Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 91 L.Ed.
1789 (1947)." First Lutheran, 482 U.S. at 315-16, 316
n. 9, 107 S.Ct. 2378.
Piecing together the Court's various statements in First
Lutheran with its description of Reich in Alden, we conclude that
the Court, in its recent Eleventh Amendment decisions, did not
intend to abandon the notion that at least some constitutional
claims are actionable against a state, even without a waiver or
congressional abrogation of sovereign immunity, due to the
nature of the constitutional provision involved. We recognize
that our conclusion on this point is not beyond dispute. See,
e.g., Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704,
705 (9th Cir. 1992), cert. den. 506 U.S. 1081, 113 S.Ct. 1049,
122 L.Ed.2d 357 (1993) (Takings plaintiff had "no cause of
action directly under the United States Constitution. We have
previously held that a litigant complaining of a violation of a
constitutional right must utilize 42 USC 1983[.]"). However,
particularly in light of the Court's rejection of the amicus
curiae's sovereign immunity argument in First Lutheran, and in
light of the fact that the state has explicitly disavowed any
reliance on Alden in the present case, we conclude that Alden
should not be read so broadly as to dictate that states may not be
sued in state courts on federal takings claims unless they have
specifically waived their sovereign immunity. We conclude that,
because of the "self-executing" nature of the Fifth Amendment,
as applied to the states through the Fourteenth Amendment, a
State may be sued in state court for takings in violation of the
federal constitution.
The state next argues that the trial court erred in denying
its motion to dismiss for failure to state a claim under either of
two theories: the Lucas theory (deprivation of all beneficial use
of property) and the Loretto theory (physical occupation of
App. A-13
property). See generally Lucas v. South Carolina Coastal
Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798
(1992); Loretto v. Teleprompter Manhattan CATV Corp., 458
U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982). To state a
claim under the Fifth Amendment for a taking under a Lucas
theory, the property owner must allege that a governmental
action has deprived the owner of all economically beneficial use
of the property. Both this court and the Oregon Supreme Court
concluded that plaintiff had stated a claim under this type of
theory in the course of the previous appeal. See Boise Cascade,
131 Or. App. at 551, 886 P.2d 1033 ("plaintiff alleges, in
essence, that the government has regulated its property in such a
way that productive uses are unavailable and all viable economic
and beneficial use has been eliminated. Those allegations suffice
to state regulatory taking claims under * * * Lucas"): Boise
Cascade, 325 Or. at 198, 935 P.2d 411 (Plaintiff's allegations
were “sufficient to meet the ‘deprivation of all economically
viable use of the property’ standard. The Court of Appeals was
correct in so holding."). Although plaintiff amended its
pleadings after remand, the amended pleadings, insofar as the
Lucas theory of recovery is concerned, are much the same as its
pleadings discussed in the previous appellate decisions in this
case. Plaintiff alleged that the state has regulated its property in
such a way that all viable economic and beneficial use of the
property was eliminated. The trial court properly denied the
State's motion to dismiss on the ground that plaintiff failed to
state a claim under the Lucas theory.
The state also moved to strike plaintiff's allegations that
it had suffered a per se taking by means of a "permanent physical
occupation" in violation of the Fifth Amendment. In its
complaint, plaintiff alleged that the administrative rules described
above required plaintiffs to maintain spotted owl nests and
prevent their abandonment so the nests could be occupied
annually by a pair of breeding owls and that the state's denial of
plaintiff's plan to harvest the timber constituted a per se taking.
| pacer RRAERST wri noe ee saieErwasniens atetntigto anand ae
App. A-14
The Loretto case concerned "whether a minor but
permanent physical occupation of an owner's property authorized
by government constitutes a 'taking' of property for which just
compensation is due under the Fifth and Fourteenth
Amendments." 458 U.S. at 421, 102 S.Ct. 3164. The state
argues that the court erred in denying its motion to strike this
count of plaintiff's claim because plaintiff has not alleged the
type of physical occupation at issue in Loretto. We agree.
In Loretto, the challenged statute required landlords to
permit cable television companies to install devices on their
property. /d. There, the Court recounted at length the historic
distinctions between takings involving permanent physical
invasion of property and regulations that place restrictions on the
use of property. 458 U.S. at 427-35, 102 S.Ct. 3164. One of
the early physical invasion cases that the Court discussed in
Loretto was Pumpelly v. Green Bay Co., 80 U.S. (13 Wall) 166,
20 L.Ed. 557 (1871), in which the Court held that "where real
estate is actually invaded by superinduced additions of water,
earth, sand or other material, or by having any artificial structure
placed on it, so as to effectually destroy or impair its usefulness,
it is a taking[.]" (Emphasis added.) Pumpelly involved a
situation where the government caused a party's land to become
flooded. However, the Court's "physical occupation”
jurisprudence in no way suggests that the same takings analysis
would apply where, for example, a natural flood occurred and
government regulations pertained to how a landowner was to deal
with floodwaters on his or her land. Compare Pumpelly, 80
U.S. at 177-78 (where government caused property to flood by
constructing a dam, there was a taking by "physical
occupation"), with First Lutheran, 482 U.S. at 308, 107 S.Ct.
2378 (where flood occurred as a consequence of a forest fire
destroying a watershed area, government regulation of
construction within flood zone was analyzed under regulatory
takings case law).
\
App. A-15
As the state points out, there are significant differences
between a government authorizing or conducting a physical
invasion of the property of another and a government regulating
what one may do with property due to the random or incidental
location of a natural resource or wild animal on the property.
The state has no control over where spotted owls choose to nest.
The natural occurrence of a pair of breeding spotted owls on a
piece of property is more akin to the naturally occurring flood in
our hypothetical described above than to a flood caused by the
government's construction of a dam, as was the case in
Pumpelly, or to the installation of an artificial structure such as a
cable television box, as was the case in Loretto.
The state did not cause or induce the spotted owls to
breed on plaintiff's property. The state simply regulated
plaintiff's use of the property based on the presence of the
spotted owls there. Although plaintiffs have stated a claim for a
regulatory taking, they have not stated a claim for a "physical
occupation" taking under Loretto. The trial court erred in
concluding otherwise.
However, that conclusion does not end our inquiry. As
noted, plaintiff pleaded two theories in alternative counts as part
of its takings claim. Although the court should have stricken the
Loretto count, it properly denied the state's motion to dismiss the
regulatory taking count. As noted above, the trial court granted
plaintiff summary judgment on its regulatory taking count and
submitted the Loretto count to the jury. In response to a separate
question, the jury also determined damages, but it is undisputed
that the damages under either theory would be the same. Thus,
although the submission of plaintiff's Loretto theory to the jury
was erroneous, the jury's damage award nevertheless was proper
if the trial court correctly decided the regulatory taking question.
This is not a situation where we cannot tell what theory the jury
followed in reaching its conclusion. Cf. Whinston v. Kaiser
Foundation Hosp. , 309 Or. 350, 357, 788 P.2d 428 ( 1990)
Oa nent ee ae
'
£2 ———————V—_eV—ree...
App. A-16
(where more than one theory is submitted to the jury and some
are unsupported by the evidence, but it cannot be determined on
which allegation the jury based its verdict, a new trial must be
granted). Only one theory of liability was before the jury here,
and even though it was not properly before the jury, the damages
question, which applied in the same manner to both takings
theories, was properly before the jury and would have been
properly before the jury even if the trial court had correctly
stricken the Loretto count from plaintiff's takings claim. We
therefore turn to the pleading issues pertaining to the regulatory
taking claim.
The state argues that the trial court erred in striking its
defense that Boise's proposed logging would constitute a
nuisance and that the state cannot be liable for refusing to permit
Boise to perform acts that constitute a nuisance and violate the
law. In Lucas, the Court noted that there would be no taking if
"the proscribed use interests were not part of [the property
owner's] title to begin with." 505 U.S. at 1027, 112 S.Ct. 2886.
The Court further noted that such limitations "must inhere in the
title itself, in the restrictions that background principles of the
State's law of property and nuisance already place upon land
ownership." /d. at 1029, 112 S.Ct. 2886. The state’s defense at
issue here appears to rest on this part of the Lucas case.
The state offers no authority for the proposition that
knocking down a bird's nest on one's property has ever been
considered a public nuisance. The case on which it relies,
Columbia Fishermen's Union v. St. Helens, 160 Or. 654, 87
P.2d 195 (1939), concerned a suit by fishermen to enjoin the city
of St. Helens from dumping raw sewage into the Columbia
River--a practice which, needless to say, was detrimental to the
fish population on which the fishermen depended for their
livelihoods. That case concluded that the fisherman had standing
to maintain an action against the city. /d. at 666, 87 P.2d 195.
App. A-17
However, any analogy to the present case is less than
clear. The court in Columbia indicated that the state could
protect its navigable waters from pollution because it had an
interest in ferae naturae (the fish) in the waters. it does not
follow, as the state seems to posit, that any act taken by the state
to protect ferae naturae on private property is the equivalent to
an abatement of a public nuisance or, alternatively, any act by a
private party to destroy ferae naturae on private property
constitutes a public nuisance. Cf. State Dept. of Env. Qual. v.
Chem. Waste;-19 Or.App. 712, 719, 528 P.2d 1076 (1974)
("defendant has been ‘operating’ the site in violation of the
Environmentally Hazardous Wastes Statutes from the time they
became effective in early 1972, [but] that continuing violation
does not require a finding that the site constitutes a public
nuisance"). The trial court correctly struck the state's defense
that plaintiff's proposed logging constituted a public nuisance.
In its final assignment of error concerning the pleadings,
the state argues that the trial court erred in striking its defense
that it labeled as "failure to exhaust its administrative remedies."
The state argues that Boise's regulatory takings claim is unripe
because it did not make an effort to obtain an "incidental take"
permit pursuant to 16 USC section 1539(a). Former OAR
660-24-809(5S) provided that "[e]xceptions 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." The state argues that, because plaintiff did not
attempt to avail itself of this exception, it may not yet assert a
takings claim. The trial court granted Boise's motion to strike
this defense without stating its reason for doing so. We therefore
examine all of the arguments made to the trial court on this issue
in order to determine if the trial court erred in striking this
defense.
App. A-18
As an initial matter, Boise correctly points out that the
state's argument is not so much an exhaustion of remedies
argument as it is a ripeness argument. However, the terminology
used in the caption is not dispositive here, as the parties clearly
addressed the issue in the lower court as a ripeness issue, and
Boise does not contend that the state failed to preserve this issue.
We do not consider a mislabeling of a caption in the pleadings to
be dispositive where the body of the pleading adequately
describes the nature of the defense that is being asserted. See
Curran v. ODOT, 151 Or.App. 781, 786 n. 4, 951 P.2d 183
(1997) (concluding under similar circumstances that ripeness
issue was preserved).
Both parties agree that the relevant concept is laid out in
the Court's decision in Williamson Planning Comm'n v. Hamilton
Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985).°
In Williamson, the plaintiff sought to develop certain property
based on the preliminary approval of a plat map that had been
obtained by its predecessor in interest. The planning commission
disapproved the development because it failed to comply with
numerous zoning ordinances. /d. at 176-83, 105 S.Ct. 3108.
Rather than applying for variances from the zoning ordinances,
the plaintiff sought just compensation under the Fifth
Amendment. The Court looked to its earlier cases, Hodel v.
Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S.
264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), and Agins v.
Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980),
Stating that 5;
"a Claim that the application of government regulations
effects a taking of a property interest is not ripe until the
government entity charged with implementing the
® In Williamson, the Court explained the distinction between
“exhaustion of remedies” and “ripeness” as follows:
App. A-19
regulations has reached a final decision regarding the
application of the regulations to the property at issue."
Williamson, 473 U.S. at 186, 105 S.Ct. 3108.
The Court quoted from Hodel:
"There is no indication in the record that appellees have
availed themselves of the opportunities provided by the
Act to obtain administrative relief by requesting either a
variance * * * or a waiver * * *[.] If (the property
Owners] were to seek administrative relief under these
procedures, a mutually acceptable solution might well be
reached with regard to individual properties, thereby
obviating any need to address the constitutional
questions. The potential for such administrative solutions
confirms the conclusion that the taking issue * * * simply
is not ripe for judicial resolution." 452 U.S. at 297, 101
S.Ct. 2352.
The Williamson Court went on to note that, in Agins, the
property owners had submitted a plan that was disapproved but,
as they had not sought approval of any other type of plan, it "was
not clear whether the Commission would deny approval for all
uses that would enable the plaintiffs to derive economic benefit
from the property." 473 U.S. at 187, 105 S.Ct. 3108. The
Williamson Court concluded that the claim was unripe for the
Same reason that the claim in Hodel was unripe: had the plaintiff
"While the policies underlying the two concepts often Overlap, the
finality requirement is concerned with whether the initial
decision-maker has arrived at a definitive position on the issue that
inflicts an actual, concrete injury; the exhaustion requirement
generally refers to administrative and judicial procedures by. which an
injured party may seek review of an adverse decision and obtain a
remedy if the decision is found to be unlawful or otherwise
inappropriate.”
App. A-20
sought and obtained available variances and waivers, the parties
might have reached a mutually acceptable solution. /d. at
188-90, 105 S.Ct. 3108; cf. Curran v. ODOT, 151 Or.App. at
787, 951 P.2d 183 (addressing ripeness problem under Article I,
section 18, of the Oregon Constitution, the court concluded that
plaintiff's failure to apply for a permit that could have obviated
"takings" meant that plaintiff's claim was not ripe); Larson v.
Multnomah County, 121 Or.App. 119, 122, 854 P.2d 476,
adhered to on recons. 123 Or.App. 300, 859 P.2d 574 (1993)
(recognizing rule that if a landowner has unsuccessfully filed an
application but has pursued no alternatives that could lead to
approval, a takings claim is unripe).
The state maintains that plaintiff's claim suffers the same
flaw as did the claims of the plaintiffs in Williamson and Hodel.
The state argues that plaintiff's failure to seek an "incidental
take” permit from the United States Fish and Wildlife Service
pursuant to 16 USC section 1539(a), which is a prerequisite to
any variance under former OAR 660-24-809(5) for destruction of
northern spotted owl habitat, creates a ripeness problem similar
to the ripeness problems of the plaintiffs in Williamson and Hodel
due to their failure to seek variances that could have obviated the
problem.
Boise responds by making several points. First, it notes
that it is undisputed that, even if Boise had obtained an incidental
take permit from the United States Fish and Wildlife Service, the
state would not have been obliged to approve Boise's logging
plan. That is true; under former OAR 660- 24-809(5), an
incidental take permit is a prerequisite to state approval of a
logging plan that destroys spotted owl habitat, but an incidental
take permit does not, in itself, guarantee that the logging plan
will be approved. However, nothing in Williamson, Hodel or
Agins implies that a waiver or variance must be a "sure thing" in
order for a plaintiff to be required to pursue such a remedy
before bringing a takings claim.
App. A-21
Boise also suggested, in the course of its arguments on
this issue to the trial court, that no incidental take permit would
have been required in any event, for several reasons. First,
Boise asserted that the Endangered Species Act only prohibits
"taking" an endangered species, and destroying an endangered
species’ habitat does not fail within the definition of "take":
"The term ‘take’ means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or
attempt to engage in any such conduct." 16 USC Section
1532(19).
We disagree with plaintiff's assertion that the definition
of "take" does not encompass destruction of habitat. In
Babbitt v. Sweet Home Chapter, Etc., 515 U.S. 687, 115
S.Ct. 2407, 132 L.Ed.2d 597 (1995), the Court upheld
an Interior Department rule that defined "harm" as
including destruction of endangered species’ habitat. See
_also Palila v. Hawaii Dept. of Land and Natural
Resources (Palila I], 852 F.2d 1106, 1108 (9th
Cir. 1988) (same).
Boise also suggested in the trial court that, because the
United States Department of Fish and Wildlife had enacted a
regulation defining critical habitat for the spotted owl on federal
lands but not on private land, Boise somehow was exempted
from any requirement that it acquire an "incidental take" permit
before taking owls on its private property. Boise argued:
"(T]he USF & WS had published in the Federal Register
its own regulations governing the Northern Spotted Owl.
57 Fed Reg 1796-01 (Jan 15, 1992 WL4601 (F.R.)). In
that document it defined the critical habitat for the bird's
recovery. It made a specific finding that private lands
were not included in critical habitat, even where the
surrounding federal lands had been so designated.
;
;
|
App. A-22
Clatsop County contains no federal critical habitat areas
for the Northern Spotted Owl and even the more than
100,000 acres of State commercial timberlands in the
county have not been so designated.”
It is unsurprising that the regulation found at 57 Fed Reg 1796
(Jan 15, 1992) referred only to critical habitat on federal lands,
given that the regulation pertains only to section 7 of the
Endangered Species Act, which is a section that sets forth the
obligations of federal agencies in protecting endangered species.
The prohibition on "any person” taking an endangered species,
by contrast, is contained in section 9 of the Act,’ which has a
broader application that Section 7. The "incidental take"
provisions are cross-referenced in section 1538, which pertains
to "any person." The "incidental take" provisions are not limited
to federal agency protection of endangered species under section
7. The summary of the regulation itself stated: "This critical
habitat designation provides additional protection requirements
under section 7 of the Act with regard to activities that are
funded, authorized, or carried out by a Federal agency." 57 Fed
Reg 1796 (Jan 15, 1992) (emphasis added). We conclude that
this regulation has no direct bearing on whether Boise was
excused,
7 16 USC Section 1538(1) provides, in part:
"(a) Generally:
"(1) Except as provided in sections 1535(g)(2) and 1539 of
this title, with respect to any endangered species of fish or wildlife
listed pursuant to section 1533 of this title it is unlawful for any person
subject to the jurisdiction of the United States to -
"“se# eet
"(B) take any such species within the United States or the
territorial sea of the United States[.}"
App. A-23
as a matter of law, from seeking an incidental take permit under
the Endangered Species Act as a prerequisite to the ripening of
its takings claim against the state.®
Finally, Boise has suggested that it may be inferred from
one of its trial exhibits that the state as much as admitted that it
would not have approved Boise's logging plan even if Boise had
applied for an incidental take permit. We understand Boise's
argument to be an invocation of the "futility" exception to the
ripeness requirement. See generally Larson, 121 Or.App. at
122, 854 P.2d 476 (describing "futility" exception).
For two reasons, either of which is independently
dispositive, we reject Boise's assertion of futility. First, the
question before us is whether the trial court erred in striking the
state's defense on the pleadings; that question cannot be
answered by reference to a trial exhibit that might, as a factual
matter, be determinative of whether the state prevailed on that
defense. Second, assuming for the sake of argument that that
were not the case, the trial exhibit to which Boise refers does not
indicate that it would be futile for Boise to obtain an incidental
take permit. Rather, it indicates that the state's decision would
not depend solely on the issuance of such a permit and that a
decision by the federal government that-such a permit was not
required would not satisfy the Oregon administrative rule. One
of the state's trial exhibits, on the other hand, is a letter of advice
to Boise from the Assistant Regional Director of the United
States
* It is possible that the designation of critical habitat on federal lands
could, in fact, affect whether or how incidental take permits are granted for
taking endangered species on private lands. That, however, has no bearing on
whether the state's defense based on Boise's failure to even attempt to get an
incidental take permit should have been stricken from the pleadings.
Hens snapeamaiAN
Pike ble Migh” Lhe or ACS w
App. A-24
Department of the Interior Fish and Wildlife Service indicating
that "an incidental take permit is required when otherwise lawful
activities will incidentally take a threatened species” and
suggesting that they should visit the proposed logging site, after
which the agency "should be better able to discuss the situation
and advise you regarding [an] incidental take permit." Neither of
these trial exhibits, alone or together, indicate that it would have
been futile for Boise to pursue an incidental take permit. We
conclude that none of Boise's arguments in support of its motion
to strike the state's defense that the claim was not ripe are
meritorious. The trial court erred in striking the state's defense.
Because of our disposition of this assignment of error,
we need not reach the state's numerous assignments of error
pertaining to the conduct of the trial.
Reversed and remanded.
App. B-1
IN THE COURT OF APPEALS
OF THE STATE OF OREGON
BOISE CASCADE ) Clatsop Cotsnty Circuit
CORPORATION, a ) Court No. 93-2018
Delaware corporation, )
)
Plaintiff-Respondent, )
)
v. ) CA A100855
)
STATE OF OREGON, by )
and through the Oregon )
State Board of Forestry, ) ORDER DENYING
) PETITION FOR
Defendant-Appellant. ) RECONSIDERATION
Appellant has filed a petition for reconsideration of the
Court’s decision dated November 10, 1999, pursuant to ORAP
6.25. Opposing counsel has filed an objection to the petition.
The petition is denied.
/s/ Paul J. De Muniz |
PAUL J. DE MUNIZ
PRESIDING JUDGE
MAR 15 2000 :,
DATE
re David F. Coursen
Phillip D. Chadsey
~~~ Daniel H. Kearns
John M. Groen
App. B-2
REPLIES SHOULD BE DIRECTED TO THE STATE COURT
ADMIN., RECORDS SECTION, SUPREME COURT BLDG.,
1163 STATE ST., SALEM, OR 97310
or244
km
App. C-1
IN THE SUPREME COURT
OF THE STATE OF OREGON
BOISE CASCADE CORPORATION, ) Clatsop County Circuit
a Delaware corporation, ) Court No. 93-2018
)
Plaintiff-Respondent, )
Petitioner on Review, )
) SC $47459
v. ~-- ) CA A100855
)
STATE OF OREGON, by and through )
the Oregon State Board of Forestry, )
ae )
Defendant-Appellant, )
Respondent on ) ORDER DENYING
Review. ) REVIEW
Upon consideration by the court.
The Court has considered the petition for review and
ORDERS that it be denied.
Dated this 24" day of October 2000.
/si W P. ;
WALLACE P. CARSON JR.
CHIEF JUSTICE
Kulongoski, J., not participating
C: Phillip D. Chadsey
David Farris Coursen
John M. Groen
S47459-Den.wpd
App. D-1 |
Paula J. Brownhill, Circuit Judge Philip L. Nelson, District Judge
(503) 325-8555 (503) 325-8536
CIRCUIT/DISTRICT COURT OF THE
STATE OF OREGON
FOR THE COUNTY OF CLATSOP
Clatsop County Courthouse +
749 Commercial
PO Box 659
Astoria, OR 97103
- October 16, 1997 ise
Phillip D. Chadsey
Attorney at Law
Standard Insurance Center sae
900 S. W. Fifth Avenue, Suite 2300
Portland, Oregon 97204
William F. Cloran
Attorney at Law
Department of Justice
1162 Court Street NE
100 Justice Building
Salem, Oregon 97310-0506
Re: = Boise Cascade Corporation vs. State of Oregon
~ Case No. 93-2018
Gentlemen:
I ruled on several motions at the September 22, 1997 hearing.
Mr. Chadsey submitted an order reflecting those rulings on
September 30, 1997. I signed it today and directed the clerk to
file the second amended complaint and answer.
App. D-2
There are two matters under advisement. I will deny defendant’s
supplemental Rule 21 motion to dismiss for failure to state a
claim. I will allow plaintiff's motion for partial summary
judgment on Count 3 of the amended complaint. Mr. Chadsey,
please prepare an order that reflects these rulings.
Yours truly,
/s/ Paula Brownhill
Paula Brownhill
App. E-1
CLATSOP CIRCUIT COURT
97 NOV 21 PM 6:39
TRIAL COURT ADMINISTRATOR
IN THE CIRCUIT COURT
FOR THE STATE OF OREGON
COUNTY OF CLATSOP
BOISE CASCADE CORPORATION, )
a Delaware corporation, )
)
Plaintiff, ) Case No. 93-2018
)
v. ) SPECIAL
) INTERROGATORY
STATE OF OREGON, by and through ) VERDICT
the OREGON STATE BOARD OF
FORESTRY,
Defendant.
i a a a
We, the Jury, find:
1. Was plaintiff Boise Cascade Corporation required to
submit to a physical occupation of its property as a result of
the Board of Forestry’s order denying its written plan to log
the subject property from January 15, 1993?
ANSWER: Yes_X No
Proceed to question 2.
App. E-2
2. On January 15, 1993, what was the fair market value
of the timber that plaintiff was unable to log due to the Board
of Forestry’s order?
ANSWER: $2,279,233 _
Proceed to question 3.
a On October 17, 1997, what was the fair market value
of the timber?
ANSWER: $1,615,425
DATED November _21 , 1997.
/s/ Cons rquein
Presiding Juror
App. F-1
FILED
CLATSOP CIRCUIT COURT
1993 APR 30 PM 3:20
TRIAL COURT ADMINISTRATOR
By /s/ unreadable __
IN THE CIRCUIT COURT
OF THE STATE OF OREGON
FOR THE COUNTY OF CLATSOP
BOISE CASCADE, a Delaware
corporation,
No. 93-2018
Plaintiff,
JUDGMENT
Vv.
)
)
)
)
)
)
)
STATE OF OREGON, by and through )
the OREGON STATE BOARD OF )
FORESTRY, )
)
)
Defendant.
Pursuant to the order of dismissal entered in this
case on April , 1993 and incorporated herewith, it is
ORDERED:
:. Judgment is hereby entered in favor of defendant.
2. Plaintiff's Supplemental Complaint is dismissed _
with prejudice. a
8 Costs shall be determined subsequently pursuant
to ORCP 68.
Dated this 30 day of April, 1993.
App. F-2
/s/ Thomas E. Edison
Thomas E. Edison
Circuit Court Judge
PRESENTED BY:
Phillip D. Chadsey, OSB No. 66028
Of Attorneys for Plaintiff
App. G-1
BOISE CASCADE CORPORATION, a Delaware
corporation, Appellart, ce
v.
BOARD OF FORESTRY, Respondent.
93-2018; CA A79626.
) Appeal from Circuit Court, Clatsop County
Thomas E. Edison, Judge
Court of Appeals of Oregon.
886 P.2d 1033 (Or. App. 1999)
Argued and Submitted July 15, 1994.
Decided Dec. 7, 1994. ca
Phillip D. Chadsey, Portland, argued the cause for
appellant. With him on the briefs was Stoel Rives Boley Jones &
Grey.
Virginia L. Linder, Sol. Gen., argued the cause for
respondent. With her on the brief were Theodore R.
Kulongoski, Atty. Gen. and John T. Bagg, Asst. Atty. Gen.
Before ROSSMAN, P.J., and De MUNIZ and
LEESON, JJ.
De MUNIZ, Judge.
Reversed and Remanded.
Plaintiff appeals from the judgment for defendant Board
of Forestry ("board") in this inverse condemnation action arising
out of the board's refusal to permit logging operations on
App. G-2
plaintiff's property in which a spotted owl nesting site is located.
Plaintiff contends that the board's refusal gives rise to an
uncompensated taking of its property in violation of the Fifth
Amendment to the federal constitution and Article-f- section 18,
of the state constitution. The trial court granted the state's
ORCP 21 motion to dismiss on the grounds that the court lacked
subject matter jurisdiction, that the action was not ripe and that
plaintiff's complaint' failed to state takings claims. We disagree
with the trial court that the motion to dismiss was properly
granted on any of those grounds, and we reverse and remand.
_For purposes of reviewing the granting of a motion to
‘ dismiss for failure to state a claim under ORCP 21A(8), we take
as true the allegations in the complaint, along with any facts that
might be adduced to prove the allegations. Doyle v. Oregon
Bank, 94 Or.App. 230, 232, 764 P.2d 1379 (1988), rev. den.
307 Or. 571, 771 P.2d 1021 (1989).? With two exceptions that
we will discuss below, the state accepts the statement of facts in
plaintiff's opening brief as adequately summarizing the
complaint. Accordingly, we take the facts that are material to our
discussion from plaintiff's statement:
. We use the generic term "complaint" to refer to the supplemental
complaint on which the parties ultimately proceeded.
. Although the allegations in the complaint do not play the same
definitive role with respect to the jurisdictional issue, see ORCP 21A(1), the
facts concerning it are undisputed, and it is resolvable solely on legal grounds.
Ripeness issues fall in a gray area, in that they are not jurisdictional, and they
are usually presented as matters of defense. However, the ripeness contentions
presented here turn in part on a purely legal question and in part on factual
questions that cannot be conclusively answered on the basis of this
record--whether inside the complaint or out. It is unnecessary for us to decide
whether we may look beyond the complaint to resolve the state's ripeness
arguments because, at this stage of the case, they fail whether or not we do.
App. G-3
“Boise Cascade has been the owner of real property in
Clatsop County, consisting of approximately 65 acres of
commercial timberland, which is known as the 'Walker Creek
Unit' * * *. The Walker Creek Unit is the only commercial
timberland that plaintiff owns in Clatsop County.
"In October 1988, Boise Cascade acquired the Walker
Creek Unit. At that time and all times since, it has been zoned
as commercial timberland. The Walker Creek Unit also cannot
be developed or used for a commercial purpose that is not
authorized by Land Conservation and Development Commission
Goal 4 governing forestlands. OAR 660-06-000, et seq. That
goal limits commercial activities on such lands to forest
operations related to the growing and harvesting of any tree
species as defined in ORS 527.620(6) and certain locationally
dependent or compatible forest uses. Consistent with that goal,
ORS 527.630(1) provides, in part, that 'it is declared to be the
public policy of the State of Oregon to encourage economically
efficient forest practices that assure the continuous growing and
harvesting of forest tree species and the maintenance of
forestland for such purposes as the leading use on privately _
owned land * * *.' At the time plaintiff acquired the subject:
property and at all times since, the Oregon Threatened or
Endangered Wildlife Species Act, (ORS 496. 192(1)), has
provided, in part, that it was not intended 'to require an owner of
any commercial forestland or other private land to take action to
protect a threatened species or endangered species, or to impose
additional requirements or restrictions on the use of private land. '
“Plaintiff acquired the Walker Creek Unit with the
reasonable economic expectation that it could log the existing
merchantable timber on the property and replant it with forest
tree species in order tu provide future merchantable timber.
harvests from the unit. The existing merchantable timber on the
_ Walker Creek Unit consists of old and second growth Douglas
Fir, Western Red Cedar, and Western Hemlock.
ee re ees
pee |
App. G-4
"In August 1990, the Oregon State Forester adopted an
interim spotted owl policy precluding timber harvest within a
70-acre core area 'of the best available suitable habitat in the
vicinity of the [nest] site.' Also in 1990, a pair of spotted owls
were found nesting on a tree within the Walker Creek unit. Old
growth timber of the kind found on the Walker Creek Unit is
considered to be the best suitable habitat for spotted owls. The
Board subsequently adopted OAR 629-24-809, which requires
protection of a 70-acre core area of suitable habitat encompassing
the nest site.
"Commercial timberland, consisting of trees that are 70
years or less in age, is not considered to be the ‘best’ suitable
owl habitat if old growth timber is also available in the vicinity of
the nest site. In addition to the pair in the Walker Creek Unit, a
number of other pairs of spotted owls have been found in Clatsop
County. Some of those nest on State of Oregon-owned
timberland that does meet the habitat requirements of OAR
629-24-809. Spotted owls have been found in 50- to 60-year old
timber in the Buster Creek drainage in Clatsop County. Several
pairs of spotted owls have been found in the Jewell area, which
is approximately four air miles from the Walker Creek Unit.
Spotted owls, including juveniles when they fledge, will often fly
20 miles or more in order to find new suitable habitat.
"On January 7, 1992, plaintiff filed Notification No.
92-521-11022 giving notice to the Oregon State Forester of its
intent to conduct an operation and harvest timber on the Walker
Creek Unit. Because of the location of protected waters on or
near the Walker Creek Unit and the Walker Creek Unit's
identification as spotted owl habitat, a written logging plan was
required. Plaintiff filed such a plan on February 4, 1992. The
plan provided that, if a pair of owls nested in the operations area
in 1992, no operation would be conducted during the critical
period of use, March 1 to September 30, or until the young owls
had fledged, in order to avoid any incidental harm to the owls
App. G-5
while they were present in the area. That plan was denied
approval on February 24, 1992, on the ground that it failed to
describe how the operation would be conducted to provide a
70-acre core area of suitable ow! habitat consistent with the
requirements of OAR 629-24-809.
"On May 5, 1992, plaintiff submitted an amended written
logging plan. The amended plan reported that a pair of spotted
_owls was then known to be nesting in a tree within the harvest
area, although it was a different site from the one that had been
occupied by a pair of owls in 1990. The amended plan provided
that plaintiff would not conduct operations in the area while the
owls were present. With respect to the habitat identification
requirement, the amended plan specifically provided that there
were more than 70 acres of commercial timberland immediately
adjacent to the Walker Creek Unit that were owned by the State. |
of Oregon and that could provide habitat for the owls after
plaintiff's property had been logged. Except for the subject
timber which plaintiff desires to log, there is not sufficient
‘suitable spotted owl habitat,’ as defined by OAR
629-24-809(1)(a), in the immediate area of the Walker Creek
Unit to meet the requirements of that statute. Further, the only
known nest trees in the immediate area of the Walker Creek Unit
to meet the requirements of that area are located within the unit
which plaintiff desires to log. On May 15, 1992, approval of the
amended plan was denied. In denying plaintiff's amended plan,
the Oregon Department of Forestry identified the core areas
consisting of approximately 56 acres of plaintiff's unit, nine
acres of another private landowner's timber, and approximately
five acres of adjacent timberland owned by the State of Oregon.
The Oregon Department of Forestry did advise plaintiff that there
were eight acres in its Walker Creek Unit that could be
harvested.
"Plaintiff then took a timely appeal of the Oregon
Department of Forestry's denial of its amended plan to the
App. G-6
Board. As a basis for that appeal, plaintiff claimed that the
Board's requirement that plaintiff set aside any part of its
merchantable timber, including the nest trees, for spotted owl
habitat constituted a taking of such property for a public purpose
which requires just compensation under Article I, section 18, to
the Oregon Constitution and the Fifth and Fourteenth
Amendments to the United States Constitution. After a contested
case hearing was held, on January 6, 1993, the Board refused to
waive the 70-acre nest site requirement in order to permit
plaintiff to log its Walker Creek Unit, and on January 15, 1993,
it entered a final order which affirmed the denial of plaintiff's
amended plan. The denial of plaintiff's written plan by the
Board was a final administrative action prohibiting plaintiff from
logging the subject timber.
"The timber, including the two nest trees, on the Walker
Creek Unit which plaintiff desires to log has no economic value
unless harvested. The Board's action in denying plaintiff the
right to log the Walker Creek Unit has denied it of all economic
use of that timber. Apart from the subject merchantable timber,
the underlying commercial forestland has no separate economic
value until the timber has been logged. After logging and
replanting, with young forest tree species as required by law, the
land-would have a fair market value of $500 per acre.
"Since 1987, when the northern spotted owl was
designated as a ‘threatened species’ pursuant to ORS 496.172, et
seq., the State of Oregon has continued to sell its own
merchantable timber in Clatsop County for the purpose of having
it logged in order to provide revenue to various governmental
entities and to manage its commercial timberland for future
timber production. The State of Oregon has sold stands of
merchantable timber that it owns within 20 miles of plaintiff's
Walker Creek Unit even after the Board refused to permit
plaintiff to log its merchantable timber.
App. G-7
"After the amended plan was denied approval by the
Board in January 1993, on February 22, 1993, plaintiff submitted
a written plan No. 93-251-11132 to log four acres of its Walker
Creek Unit that the Oregon Department of Forestry had
previously agreed could be harvested. On March 8, 1993, the
Oregon Department of Forestry approved that plan, subject to the
condition that logging operations not begin until October 1, 1993,
and end by March 1, 1994, because of the close proximity of
those four acres to the spotted owl nest sites in the adjacent core
area. :
"On March 19, 1993, plaintiff appealed to the Board the
temporal condition placed on its right to log the four acres on the ~
basis that the restriction constituted a temporary taking of the
subject timber. After a hearing, the Board on April 19, 1993,
issued its order refusing to remove the temporal condition which
prevents plaintiff from commencing logging operations before
October 1, 1993. The Board's action in refusing to remove the
temporal condition was a final administrative action which
prevents plaintiff from logging its timber in a timely manner.
"Boise Cascade is presently deprived of all economic use
of its merchantable timber on the subject four acres."
The two aspects of plaintiff's factual recitation with
which the state disagrees are, in the state's words, the allegations
that "plaintiff is presently deprived of all economic use of its
merchantable timber on land governed by the restriction in OAR
629-24-809," and that the "underlying commercial forestland has
No separate economic value until the timber has been logged."
The state argues that both allegations are conclusions of law,
which should not be considered in determining whether the
complaint states a claim. The state also argues that the second
allegation is legally wrong, because the timber and the land are
not separable property interests, and the land has value
notwithstanding regulations on the logging of the timber.
Bnskiage a
App. G-8
The state is incorrect on both points. The state's
argument concerning the separability of the timber and the land is
adversely answered by Hawkins v. City of La Grande, 315 Or.
57, 70-71, 843 P.2d 400 (1992), and its efforts to distinguish that
case do not persuade us. Moreover, for purposes of our review
of the motion to dismiss, the point is close to academic: Plaintiff
alleges that, if it cannot log the land, the land has no
economicaily viable or beneficial use. In other words, plaintiff
alleges that, at least as of now, it has lost all economic and
beneficial use of the land, as well as of the timber, by virtue of
the restrictions on logging.
The state's second point apparently is premised on the
fact that loss of all economically viable or substantial beneficial
use of property is the legal test for whether a regulatory taking
can be found under the Fifth Amendment and Article I, section
18, respectively. See Lucas v. South Carolina Coastal Council,
___ US. __, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992); Fifth
Avenue Corp. v. Washington Co. , 282 Or. 591, 581 P.2d 50 a
(1978). However, whether such a loss has occurred is also a
factual question, and it is an ultimate question of fact in a
regulatory takings case.
Plaintiff's pleading of that fact, coupled with the state's
choice to proceed by a motion to dismiss, makes the disposition
of this appeal turn on what is alleged in the complaint rather than
on what the factual and legal merits of the parties’ cases may
ultimately prove to be. Many of the state's arguments in this
appeal present matters that are outside the complaint. As noted,
our review of a motion to dismiss for failure to state a claim
starts with the premise that all well-pleaded allegations in the
complaint are true, and our review is confined to matters that
appear in the complaint. ORCP 21A; Emmert v. O'Brien, 72
Or.App. 752, 754, 697 P.2d 222 (1985).
App. G-9
For that reason, at this stage of the present case, we are
in much the same position that the reviewing courts were in.
Lucas v. South Carolina Coastal <‘uncil, supra. As the Oregon
Supreme Court observed in Dodd v. Hood River County, 317 Or.
172, 183 n. 13, 855 P.2d 608 (1993), the state in Lucas "chose
not to contest at any level the landowner's allegation that his land
had been rendered absolutely worthless” by the regulation in
question. Here, the state's motion to dismiss for failure to state a
claim concedes plaintiff's corresponding allegation for purposes
of the ruling on the motion and of our disposition of the present
appeal. The difference between the cases is that, in Lucas, the
state's failure to deny the contention at any point amounted to a
confession of ultimate judgment, while in this case the
presumption of the allegation's truth extends only to the
proceedings on the preliminary motion that is now before us.
With the foregoing as prologue, we turn to the parties' specific
arguments.
In its first assignment, plaintiff contends that the court
erred by ruling that it lacked subject matter jurisdiction. The
apparent basis for the ruling, and the principal basis on which the
State defends it in this appeal, was that the board's action was
taken in the context of a contested case proceeding, and it is
subject to exclusive review under applicable provisions of the
Administrative Procedures Act (APA). ORS 183.310 et seq.;
see ORS 183.482.°
* Plaintiff has sought APA review of the board's orders, and we have
issued our decision on those petitions simultaneously with this decision. Boise
Cascade Corp. v. Board of Forestry, 131 Or-App. 552, 886 P2d 1041 (1994).
Some of the jurisdictional arguments we address here appear in the parties'
briefs in that case rather than in their presentations in this appeal. However,
because the issue is jurisdictional, we are free to consider factors the parties do
not raise here, as well as those they do.
App. G-10
The remedy plaintiff seeks here is compensation for the
taking that it contends the board's action has occasioned. If all
of plaintiff's material allegations are found to be true, its right to
that remedy does not depend on whether the board's orders are
reversible on direct review. Stated another way, plaintiff does
not seek review in this case of what the board did but seeks relief
for the taking that it maintains the board action has caused.
Accordingly, plaintiff contends that an inverse condemnation
proceeding is not made unavailable on the ground that there is an
exclusive APA remedy, because it is not seeking review of the
correctness of the board's orders; rather, plaintiff is contending
that, right or wrong, the orders impose a regulation that results in
a taking. We agree with plaintiff on that aspect of its
jurisdictional argument. This action is not part of the
administrative process and is not subject to or restricted by the
APA. However, the parties’ other jurisdictional contentions
require more extensive discussion.
__ Both parties rely on Dunn v. City of Redmond, 303 Or.
201, 735 P.2d 609 (1987). The Supreme Court held there that
takings claims may be asserted in circuit court inverse
condemnation actions, as well as in appeals to the Land Use
Board of Appeals (LUBA) from local land use decisions. Each
party relies on language in Dunn that, read in its selected
context, supports the party's position. The state takes the view
that Dunn supports the proposition that an agency has "primary
jurisdiction" to decide whether its regulation gives rise to a
taking; only after the agency has made that determination does
Circuit court authority arise to decide actions that can culminate
in monetary relief. According to the state, not until an agency
has decided whether a taking would result-from its regulatory
action can it be appropriate for damages to be considered; up to
that point, the agency has the right to change its regulatory
decision and thereby avoid both the need for compensating a
landowner and the circuit court proceeding that could result in
that remedy. Hence, the state concludes that the circuit courts do
App. G-11
not obtain jurisdiction before the agency has decided initially
whether a regulatory taking has resulted from its regulatory
action.
In Springer v. City of Bend, 111 Or.App. 136, 826 P.2d
1, rev. den. 313 Or. 354, 833 P.2d 1283 (1992), and Nelson v.
City of Lake Oswego, 126 Or.App. 416, 869 P.2d 350 (1994),
we addressed the effect of Dunn on circuit court jurisdiction and
authority over inverse condemnation claims. We said in Springer
that the Supreme Court had concluded in Dunn:
"[A]lthough damages for inverse condemnation could
only be recovered in a judicial action, ‘regulatory
takings’ issues could arise as constitutional questions and ———
be relevant in LUBA's disposition of appeals from local
land use decisions. The court concluded that inverse
condemnation issues could be asserted in both forums.
"Circuit courts have always had jurisdiction-- exclusive
or concurrent--to try inverse condemnation claims;
neither [the Supreme Court's nor this court's] opinion in
Dunn did anything to change that, and both in fact
reiterated it." 111 Or.App. at 138-39, 826 P.2d 1.
(Emphasis in original; footnote omitted.)
However, we also noted in Springer:
"The Supreme Court suggested that there might
be circumstances in which a circuit court must delay a
decision on an inverse condemnation claim until LUBA
has decided a corresponding issue that is pending before
it." 111 Or.App. at 139 n. 1, 826 P.2d 1.
If the question here was whether LUBA or the circuit
court had initial authority to decide the question, we might agree
with the distinction that the state draws as it applies to that
App. G-12
agency's initial authority and the circuit court's.‘ For a number
of reasons, however, we cannot agree with the state's argument
that, under Dunn or our cases, the circuit court lacked
jurisdiction over this action. First, both Dunn and Springer make
clear that the circuit courts retain their historical jurisdiction over
inverse condemnation claims. Dunn does not purport to change
that but, rather, holds that the statutes governing LUBA review
add a form of concurrent LUBA jurisdiction; Dunn also holds
that issues relating to the sequence of LUBA's and the courts'
authority to act will arise in some contexts. However, neither of
those holdings divests the circuit court of subject matter
jurisdiction over inverse condemnation actions. They simply
address the allocation or timing of authority between bodies that
share jurisdiction.
The other reasons for our conclusion stem from the fact
that the issue in this case does not involve LUBA's authority to
decide takings questions; instead, the state asserts that agencies
other than LUBA, whose regulations purportedly give rise to
* The court in Dunn summarized its holding:
"In sum, if an owner seeks to have a land use decision set
aside on constitutional grounds, the owner must take that appeal to
LUBA. An owner who maintains that the government's acts entitle
him to compensation may seek compensation in [the] circuit court. If
the owner seeks invalidation of the land use decision or compensation
in the alternative, or both, and the government defends the validity of
its’ regulatory decision and denies that compensation is due, the court
may have to withhold judgment until the legality of the land use
decision is placed before and decided by LUBA and the government
has had an opportunity to reconsider and modify its decision. The
the local government, ORS 197.830(1), as was done here, shows that
a full LUBA review of whatever may bear on the constitutionality of a
land use decision was not beyond legislative contemplation.” 303 Or.
at 209, 735 P.2d 609.
ee App. G-13
takings, have initial jurisdiction of the kind defined in Dunn to
decide whether their own actions have occasioned takings.
However, the court in Dunn did not purport to make a general or
abstract allocation of jurisdiction or authority between the circuit
courts and all agencies; rather, the Dunn decision was based very
specifically on the statutes that confer jurisdiction on LUBA to
review land use decisions and constitutional questions that arise
in connection with them. See ORS 197.835(7)(a)(E). On the
basis of that statutory analysis, the court concluded that the
legislature has conferred jurisdiction on LUBA to share part of
the circuit courts' historical decisional authority over takings ~
questions.
The state attempts by analogy to equate LUBA's role and
the board's under the Dunn rationale. The analogy does not
succeed because, inter alia, LUBA is an adjudicative agency,
while the board is the regulatory agency whose action is subject
to adjudication to determine if it has resulted in a taking. The
proper analogy is not between the board and LUBA, but between
the board and a governmental body, as described in Dunn, that
chooses to "[defend] the validity of its regulatory decision"
before LUBA or the courts: 303 Or. at 209, 735 P.2d 609.
Whether it is performed by LUBA or the courts, the
determination of whether a regulatory action results in a taking of
private property is an adjudicative act. Leaving aside the fox in
the henhouse problem with the state's contention that a regulatory
agency should have sole original jurisdiction to decide in the
same order that imposes a regulation whether the regulation
results in a taking, the state's argument is mechanically flawed:
The adjudication of whether there has been a regulatory taking
will generally be dependent on a showing of facts that cannot
even be known at the time that the regulatory decision is made,
e.g., the scope of the regulation's impact on a particular
landowner's ability to make viable economic use of particular
land. Although regulatory agencies obviously may consider
App. G-14
whether their prospective actions might result in takings, nothing
in Dunn or in logic supports the view that they have jurisdiction,
to the exclusion of the circuit courts, to decide whether their own
consummated regulatory actions have resulted in takings.°
We reject the state's jurisdictional argument, and we
conclude that the trial court erred by ruling that it lacked
jurisdiction. We turn to the ripeness issue. It is unclear whether
the state's contention that the APA provides plaintiff's exclusive
remedy is meant to relate solely to jurisdiction, or is also meant
to suggest that the action is not ripe, because plaintiff did not
exhaust available appeals from the board's orders to reviewing
bodies before bringing this action. If the latter point is intended,
we rejected a materially similar contention in Nelson v. City of
Lake Oswego, supra, and we reject the present variation of it as
well. The state's other ripeness arguments depend on facts that
cannot be determined from the complaint or the record before us.
See n. 2, supra. We hold that it was error to dismiss the action
on ripeness grounds.
The remaining question is whether the trial court was
correct in ruling that plaintiff's complaint fails to state a claim.
The state makes a number of arguments that are directed against
specific allegations and theories that plaintiff pleads. However,
the state also makes one argument attacking the sufficiency of
plaintiff's complaint as a whole. It contends that plaintiff did not
> We need not decide here whether the board has any decisional
authority over such questions. The issue is whether the circuit court has
jurisdiction. See also Boise Cascade Corp. v. Board of Forestry, supra, 131
Or.App. at 555 n. 1, 886 P.2d at 1043 n. 1.
We note that there was no “land use decision” or other event here that
could have been appealed to LUBA. The board is the only agency that
was or could have been involved in the relevant final decisions.
App. G-15
and cannot plead that the alleged taking was an act by "a state
agency authorized to exercise the power of eminent domain."
According to the state, the board has no authority to condemn
property. The state argues that that is an essential element of an
inverse condemnation claim under Tomasek v. State, 196 Or.
120, 147, 248 P.2d 703 (1952), and later cases that follow it.
However, the state reads Tomasek too literally; on the page of its
opinion following the language on which the state relies, the
court rejected as an "erroneous premise" the defendant's
contention "that a distinction is to be drawn between the state
itself and its agencies." 196 Or at 148, 248 P.2d 703.
More fundamentally, unlike the present case, Tomasek
did not involve an alleged regulatory taking. Assuming that the
state correctly reads Tomasek in its own context, the principle the
State derives from it has no logical application in the regulatory
takings context. It would be nonsensical to hold that there can be
no regulatory taking claim if the regulatory agency whose action
allegedly causes the taking happens not to have the power to
condemn as well as the power to regulate. Even assuming that
the Fifth Amendment would permit the state to make inverse
condemnation proceedings unavailable for regulatory taking
claims that are unrelated to the potential exercise of the eminent
domain power, Dunn v. City of Redmond, supra, and Springer v.
City of Bend, supra, make it clear that such proceedings are
available for that purpose in this state.
Although plaintiff pleads a variety of theories, it has
attempted to state only two claims: that there has been a taking
of the "core" area of its property and that there has been a
temporary taking of the four-acre tract that was subject to the
board's "temporal" restriction on logging. In both contexts,
plaintiff alleges, in essence, that the government has regulated its
property in such a way that productive uses are unavailable and
all viable economic and beneficial use has been eliminated.
Those allegations suffice to state regulatory taking claims under
App. G-16
both constitutions as to the principal part of the property, see
Lucas v. South Carolina Coastal Council, supra; Fifth Avenue
Corp. v. Washington Co., supra, and a temporary taking of the
four-acre part. See First Lutheran Church v. Los Angeles
County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987).
Because the motion to dismiss was directed against and
allowed as to the entire complaint, it is unnecessary for us to
decide whether any or all of plaintiff's alternative taking theories
may prove to be factually or legally tenable. We nevertheless
note that, even assuming the correctness of plaintiff's legal
premises, the presence or absence of the requisite facts to
support plaintiff's permanent physical occupation and its
reasonable investment-backed expectations theories cannot be
determined without further evidentiary development.
The parties’ remaining arguments either require no
further separate discussion or relate to matters that are beyond
the reviewable record.
Reversed and remanded.
x: App. H-1
325 Or. 185, 935 P.2d 411
BOISE CASCADE CORPORATION, a Delaware
corporation, Respondent
on Review,
v.
BOARD OF FORESTRY, Petitioner on Review.
CC 93-2018; CA A79626; SC S42159.
Supreme Court of Oregon
Argued and Submitted Jan. 10, 1996.
Decided April 10, 1997.
Virginia L. Linder, Solicitor General, Salem, argued the
cause for petitioner on review. With her on the brief were
Theodore R. Kulongoski, Attorney General, and John T. Bagg,
Assistant Attorney General.
Philip D. Chadsey, of Stoel Rives Boley Jones & Grey,
Portland, argued the cause for respondent on review. With him
on the briefs was Charles F. Adams.
Before CARSON, C.J., and GILLETTE, VAN
HOOMISSEN, FADELEY and DURHAM, JJ.*
On review from the Oregon Court of Appeals.
* Unis, J., retired June 30, 1996, and did not participate in this
decision; Graber, J., did not participate in the consideration or decision of this
case.
\
App. H-2
GILLETTE, Justice.
This is an inverse condemnation case in which plaintiff
Boise Cascade asserts that the defendant State of Oregon, acting
through its Board of Forestry, has "taken" certain property of
Boise Cascade by promulgating a rule that, Boise Cascade
alleges, denies Boise Cascade all beneficial use of the property.’
The state seeks review of a decision of the Court of Appeals,
which reversed a circuit court order that dismissed plaintiff's
inverse condemnation action under ORCP 21? on several
grounds. Boise Cascade Corp. v. Board of Forestry, 131
Or. App. 538, 886 P.2d 1033 (1994) ("Boise I").> There are two
' “Inverse condemnation” refers to a claim “against a governmental
agency to recover the value of property taken by the agency although no formal
exercise of the power of eminent domain has been completed by the taking
agency." Lincoln Loan v. State Hwy. Comm., 274 Or. 49, 51 n. 1, 545 P.2d
105 (1976) (citing Thornburg v. Port of Portland, 233 Or. 178, 180, 376 P.2d
100 (1963)).
"*Eminent domain’ is the power inherent in a sovereign state of taking
or of authorizing the taking of any property within its jurisdiction for a public
use or benefit." G7E Northwest, Inc. v. Public Utility Commission, 321 Or.
458, 466, 900 P.2d 495 (1995) (citing Dept. of Trans. v. Lundberg, 312 Or.
568, 571 n. 1, 825 P.2d 641 (1992)).
2 ORCP 21 A(8) provides:
"Every defense, in law or fact, to a claim for relief in any
pleading, whether a complaint, counterclaim, cross-claim or third
party claim, shall be asserted in the responsive pleading thereto,
except that the following defenses may at the option of the pleader be
made by motion to dismiss: * * * (8) failure to state ultimate facts
sufficient to constitute a claim[.]"
3 Boise I was consolidated for purposes of oral argument in this court
with our review of Boise Cascade Corp. v. Board of Forestry, 131 Or.App.
App. H-3
issues before us: (1) whether, in an inverse condemnation
proceeding of this kind, a court should (or must) Stay its own
proceeding until the agency first has an opportunity to determine
whether the application of its rule effected a "taking" and, if not,
(2) whether plaintiff has stated a claim in this case. We conclude
that plaintiff's complaint properly was before the circuit court,
because the circuit court and the Board share concurrent
jurisdiction in this case. We also conclude that certain of the
allegations in plaintiff's complaint are sufficient to survive a
motion to dismiss.
FACTS
In February 1992, plaintiff filed a proposal with the
Oregon Department of Forestry ("the Department") to log a
64-acre parcel of plaintiff's land (the "Walker Creek Unit").‘
552, 886 P.2d 1041 (1994) ("Boise II"). Boise II involves two petitions for
judicial review of two final orders of the Board of Forestry. The first final
order, dated January 15, 1993, denied plaintiff's plan to log the same 64-acre
property owned by plaintiff that is the subject of the present case. The second
final order, dated April 19, 1993, approved plaintiff's plan to log four acres
within the larger parcel, subject to a temporal restriction that no logging occur
during spotted owl nesting season. Plaintiff sought judicial review of both final
orders in the Court of Appeals. The Court of Appeals consolidated the two
administrative petitions (Boise IJ), but did not consolidate the circuit court
appeal (Boise I) with Boise II.
* The Oregon Blue Book adequately describes the relationship
between the Board of Forestry, State Department of Forestry, and the State
Forester as follows:
"The seven-member board [of forestry], appointed by the
governor, makes policy and provides vision to the overall management
and protection of the state's 11 million acres of state-owned and
private forest land. It operates under ORS chapter 526 in Setting
forest policy for the state. The board authorizes a forestry program
App. H-4
The land contains northern spotted owl nests and is subject to the
northern spotted owl protection provisions of OAR 629-24-809,
which the Board of Forestry ("the Board") adopted in 1990.°
The Department denied the proposal on the ground that the
logging plan did not provide sufficient protection for spotted owl
habitat, as required by OAR 629-24-809.
In May 1992, plaintiff submitted an amended logging
plan. The Department again denied the proposal, pursuant to
OAR 629-24-809, but advised plaintiff that eight specified acres
of the Walker Creek Unit could be logged, if the logging did not
take place either between March 1 and September 30, 1992
for Oregon designed to assure an adequate future wood supply to benefit society,
the economy and the environment.
"The Department of Forestry, authorized by ORS 526.008 and
established in 1911, is under the direction of the state forester, who is appointed
by the Board of Forestry. The statutes direct the state forester to act on all
matters pertaining to forestry, the protection of forest lands and the conservation
of forest resources.”
Claire Levine, ed., 1995-96 Oregon Blue Book, 67 (1995).
> OAR 629-24-809 provides, in part:
"(1) Whenever the State Forester determines that an
operation will conflict with protection of a nesting site of the northern
spotted owl * * *, 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 ow! 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. Such
App. H-5
(which was the critical period of use), or until young spotted
owls fledged. Plaintiff appealed that decision to the Board
arguing, inter alia, that such an application of OAR 629-24-809
to its Walker Creek Unit property effected a “taking” of that
property under the state and federal constitutions.
On January 15, 1993, the Board rejected plaintiff's
challenge and entered a final order denying plaintiff's logging
plan for the 64 acres. With respect to plaintiff's “takings”
argument, the Board stated:
"Boise Cascade appears to have been undecided
as to the appropriate time to advance this argument.
Although it asserts * * * that such an argument is not
premature, it did not at hearing attempt to present
evidence that any ‘taking’ had in fact occurred. * * *
Certainly[,] there is an inadequate factual basis upon
which to advance any claim of a constitutional taking.”
On February 1, 1993, plaintiff filed this inverse
condemnation action in Clatsop County Circuit Court, alleging
that the Board's application of its administrative rule constituted a
"taking" under Article I, section 18, of the Oregon Constitution,
and under the Fifth Amendment to the United States
Constitution.° (Boise J).
disturbances must be prevented during the critical period of use for
nesting. The critical period of use is the time period between March |
and September 30, each year.”
® Article I, section 18, of the Oregon Constitution, provides:
“Private property shall not be taken for public use, nor the
Particular services of any man be demanded, without just
compensation; nor except in the case of the state, without such
Compensation first assessed and tendered{.}"
App. H-6
On February 22, 1993, after it had filed the present
action, plaintiff submitted a plan to log four of the eight acres
that the Department previously had agreed could be harvested.
On March 8, 1993, the Department approved plaintiff's plan,
subject to a condition that the logging not begin until October 1,
1993, and end by March I, 1994, when no nesting would take
place. Plaintiff appealed that temporal restriction to the Board
and argued, inter alia, that the temporal restriction also
constituted a temporary "taking" under the state and federal
constitutions.
On March 17, 1993, while its second "takings" claim
concerning the four-acre parcel still was pending before the
Board, plaintiff petitioned the Court of Appeals for judicial
review of the Board's January 15, 1993, order. (Boise II).
On April 19, 1993, the Board rejected plaintiff's
challenge to the temporal restriction concerning the four acres
and entered a second final order. In that order, the Board did not
address the "takings" issue. Rather, the Board stated that "[t]he
issue of whether there is a taking would more properly be
[addressed] in a court of competent jurisdiction, once
administrative remedies are exhausted."
On April 22, 1993, plaintiff filed a supplemental
complaint in the present circuit court action, alleging that the
The Fifth Amendment to the United States Constitution, provides:
"No person shall * * * be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation.”
The Takings Clause of the Fifth Amendment is made
applicable to the states through the Due Process Clause of the
Fourteenth Amendment. Nollan v. California Coastal Comm'n, 483
U.S. 825, 827, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987).
App. H-7
separate temporal restriction on logging the four acres constituted
a separate "taking." (Boise J).
On April 26, 1993, plaintiff filed a second petition for
judicial review, seeking review of the Board's April 19, 1993,
order that refused to remove the temporal condition on logging of
the four acres. As noted, the Court of Appeals consolidated that
proceeding with the earlier administrative review proceeding.
(Boise II).
In May 1993, the circuit court granted the state's motion
to dismiss the entire inverse condemnation claim on the grounds
that the court lacked subject matter jurisdiction over the dispute,
that the action was not ripe, and that the complaint failed to state
aclaim. (Boise I). Plaintiff appealed the circuit court's ruling to
the Court of Appeals, which reversed the dismissal of plaintiff's
inverse condemnation claim on all three grounds. The state
petitioned for review.’
DISCUSSION
I. Jurisdiction
The first issue presented is whether, as the state argues,
in a regulatory "takings" claim, the agency that promulgated the
tule that is alleged to effect a "taking" has primary jurisdiction to
determine whether the application of that rule does, in fact,
constitute a "taking."* The Court of Appeals held that the Board
and the circuit court have concurrent jurisdiction over plaintiff’ s
\
’ We reject the state's ripeness arguments for the reasons stated in the
Court of Appeals’ opinion. Boise I, 131 Or.App. at 540 n. 2, 886 P.2d 1033.
* The doctrine of "primary" jurisdiction is defined as a doctrine under
which, "where the law vests in an administrative agency the power to decide a
controversy or treat an issue, the courts will refrain from entertaining the case
App. H-8
“takings” claims, but declined to decide whether the Board has
any “decisional authority” initially to decide the “takings” issue.
Boise 1, 131 Or. App. at 546-49, 886 P.2d 1033. The state
advances two arguments on review: (1) The Board has
“exclusive” jurisdiction, to the exclusion of the circuit court, to
decide the “takings” issue; or, (2) alternatively, a regulatory
“takings” claim must be resolved, in the first instance, by the
agency whose rule is alleged to have effected a “taking,” because
the agency has “primary jurisdiction" over such claims.
There are two types of "primary" jurisdiction. First,
statutory primary jurisdiction exists when a statute "specifically
requires courts to apply the primary jurisdiction doctrine to a
class of disputes." Kenneth Culp Davis and Richard J. Pierce,
Jr., Il, Administrative Law Treatise § 14.1, 276 (3d ed. 1994)
(hereafter "Davis and Pierce").? Second, by contrast, "[iJn the
bulk of cases * * *, primary jurisdiction is a judge-made
doctrine. Its scope and effect are determined by judicial
reasoning." /bid. There is no statute that addresses the issue
before us; the state in this case is asserting the latter type of
primary jurisdiction.
until the agency has fulfilled its statutory obligation.” Black's Law Dictionary
1190-91 (6th ed. 1990). An even clearer and more comprehensive definition
appears in a standard layman's dictionary: “[T]he right or responsibility of an
administrative or regulatory agency to pass initially on controversies involving
matters of fact or discretion within its sphere before relief is sought in the
courts[.]" Webster's Third New Int'l Dictionary 1800 (unabridged ed. 1993).
“Exclusive” jurisdiction is defined as jurisdiction “to the exclusion of all other
[tribunals}." Black's, at 564. “Concurrent” jurisdiction means, in this case,
that a court and administrative agency share “[ajuthority * * * to deal with the
same subject matter." /d. at 291.
For example, Professor Davis notes that “Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., providfes] for nonjudicial and
nonadversary resolution of claims and provid{es]} that a complainant in a state or
locality with a fair employment commission must first go to that commission
with his claim." Davis and Pierce, § 14.1 at 276.
App. H-9
Judicial invocation of the doctrine of primary jurisdiction
generally is appropriate when a court decides that an
administrative agency, rather than a court of law, initially should
determine the outcome of a dispute or one or more issues within
that dispute that fall within that agency's statutory authority. The
purpose behind the doctrine is the “recognition of the need for
orderly and sensible coordination of the work of agencies and of
courts." Kenneth Culp Davis, Administrative Law Text § 19.01,
374 (3d ed.1972). The reason for the doctrine is "not a belief
that an agency's expertise makes it superior to a court; [but] that
a court confronted with problems within an agency's areas of
specialization should have the advantage of whatever
contributions the agency can make to the solutions." Id., § 19.06
at 381. That is, the doctrine is one ordinarily invoked by a court
in the traditional judicial system with the belief that a previous
agency disposition of one or more issues before the court will
assist the court in resolving the case before it.
Courts vary in their approaches to invoking the doctrine
of primary jurisdiction. According to one treatise on
administrative law, with which we agree:
"There is no fixed formula for determining whether an
agency has primary jurisdiction over a dispute or an issue
raised in a dispute. In making such determinations,
courts consider several factors, including (1) the extent to
which the agency's specialized expertise makes it a
preferable forum for resolving the issue, (2) the need for
uniform resolution of the issue, and (3) the potential that
judicial resolution of the issue will have an adverse
impact on the agency's performance of its regulatory
responsibilities."
Davis and Pierce, § 14.1 at 272. The authors also observe,
however, that, "[iJncreasingly, * * * courts balance the
considerations that favor allocation of initial decisionmaking
App. H-10
responsibility to an agency against the likelihood that application
of primary jurisdiction will unduly delay resolution of the dispute
before the court." /bid.
Upon invoking the doctrine of primary jurisdiction, the
disposition of the case depends on the nature of the parties’
dispute and the scope of the agency's authority. If an agency has
primary jurisdiction over the entire dispute, the court action is
dismissed. However, if an agency has primary jurisdiction over
an issue in dispute,
“the court will defer any decision in the action before it
until the agency has addressed the issue that is within its
primary jurisdiction. The court retains jurisdiction over
the dispute itself and all other issues raised by the
dispute, but it cannot resolve that dispute until the agency
has resolved the issue that is in its primary jurisdiction."
Davis and Pierce, § 14.1 at 271.
We now turn to the present case. The state argued in the
Court of Appeals that the Board has primary jurisdiction over the
"takings" claim under Dunn v. City of Redmond, 303 Or. 201,
735 P.2d 609 (1987)."° The Court of Appeals rejected that
argument for two reasons. First, the court concluded that Dunn
did not hold that circuit courts lack jurisdiction over inverse
condemnation claims. Rather, that case concerned the sequence
of the Land Use Board of Appeals ("LUBA") and the circuit
court's authority to act in some contexts, where both land use
and "takings" issues were asserted and intertwined. Boise I, 131
Or.App. at 548, 886 P.2d 1033. Second, the a of Appeals
” The facts and procedural history of Dunn are discussed below, 325
Or. at 195, 935 P.2d at 418.
App. H-11
observed that Dunn dealt with LUBA's authority to decide
"takings" questions and “did not purport to make a general or
abstract allocation of jurisdiction or authority between the circuit
courts and all agencies.” Jbid.
| The Court of Appeals also observed that LUBA is an
adjudicative agency, while the Board is a regulatory agency, and
that "the determination of whether a regulatory action results in a
taking of private property is an adjudicative act." Id. at 549, 886
P.2d 1033. The court stated:
"Leaving aside the fox in the henhouse problem
with the state's contention that a regulatory agency
should have sole original jurisdiction to decide in the
same order that imposes a regulation whether the
regulation results in a taking, the state's argument is
mechanically flawed: The adjudication of whether there
has been a regulatory taking will generally be dependent
on a showing of facts that cannot even be known at the
time that the regulatory decision is made, ¢.g., the scope
of the regulation's impact on a particular landowner's
ability to make viable economic use of particular land.
Although regulatory agencies obviously may consider
whether their prospective actions might result in takings,
nothing in Dunn or in logic Supports the view that they
have jurisdiction, to the exclusion of the Circuit courts, to
decide whether their own consummated regulatory
actions have resulted in takings."
Ibid. (footnote omitted).
On review, the state challenges what it describes as the
Court of Appeals’ "overly narrow" application of Dunn. The
State concedes that Dunn arose in a different context from this
Case, but argues that the rationale underlying Dunn supports the
conclusion that the agency has primary jurisdiction to resolve a
App. H-12
regulatory "takings" claim in this case.'' In the state's view,
Dunn "stands for the proposition that the forum jurisdiction issue
requires an examination, first and foremost, of the statutory
scheme that the legislature has put into place" and for the
proposition that "the legislature may place jurisdiction over
takings claims in an administrative venue, and that legislative
choice will be respected by the courts."
The state observes that the Board, like other “
administrative agencies, has authority to consider a complaint
that includes constitutional claims. From that fact, the state
reasons that the Board has authority to resolve a "takings" claim.
According to the state, "[t]he fact that the board has the authority
to adjudicate constitutional challenges to its own rule, and that
under the APA [Oregon Administrative Procedures Act (ORS
chapter 183)] its decisions are subject to full judicial review,
should have led the Court of Appeals to conclude that the board
has primary, if not exclusive, jurisdiction over the takings
challenge." The state also argues, inter alia, that an inverse
condemnation action in circuit court is duplicative and
unnecessary, because administrative proceedings and judicial
review of those proceedings adequately protect the constitutional
interests at stake.
At the outset, we note that the state's reliance on Dunn is
misplaced. In Dunn, a petitioner sought judicial review of
LUBA's determination that two city ordinances did not constitute
a "taking" of petitioner's land. The landowner argued that the
ordinances allowed the city to "take" property, in violation of the
state and federal constitutions. The Court of Appeals did not
reach the merits of that claim, because it decided sua sponte that
'! In the alternative, the state argues that the Court of Appeals should
have concluded “that the board has primary, if not exclusive, jurisdiction over
the takings challenge.” (Emphasis added.)
App. H-13
the challenged actions were beyond LUBA's jurisdiction and
ordered LUBA to dismiss the proceeding. Dunn v. City of
Redmond, 82 Or.App. 36, 727 P.2d 145 (1986).
Bp,
peabernrnenrrcmrncte i eters :
err
On review, this court noted that "Oregon land use law
assigns * * * LUBA ‘exclusive jurisdiction’ to review a ‘land use
decision,’ including review of its constitutionality. ORS
197.825, 197.835(8)(a)(E)." Dunn, 303 Or. at 203, 735 P.2d
609. The court also noted that, under the applicable statutes,
LUBA could "reverse or remand" an unconstitutional land use
decision. On the other hand, LUBA could not "award
compensation when the constitutional claim is that the challenged
decision takes private property for public use without just
compensation.” Jd. at 204, 735 P.2d 609. The court stated:
"In sum, if an owner seeks to have a land use
decision set aside on constitutional grounds, the owner
must take that appeal to LUBA. An owner who
maintains that the government's acts entitle him to
compensation may seek compensation in circuit court. If
the owner seeks invalidation of the land use decision or
compensation in the alternative, or both, and the
government defends the validity of its regulatory decision
and denies that compensation is due, the [circuit] court
may have to withhold judgment until the legality of the
land use decision is placed before and decided by LUBA
and the government has had an opportunity to reconsider
and modify its decision."
Id. at 209, 735 P.2d 609. Dunn rejected the Court of Appeals’
conclusion that "LUBA loses jurisdiction whenever 'a taking
claim is asserted,’ even if the petition asserts that claim in an
effort to invalidate a land use decision rather than to obtain
compensation." /d. at 208, 735 P.2d 609.
App. H-14
In contrast to Dunn, this case does not involve a
legislative grant of "exclusive jurisdiction” to an agency such as
LUBA to consider plaintiff's claim. Rather, this case involves a
circuit court challenge to final orders that the Board had the
authority to enter. The alleged effect of the final orders was to
preclude plaintiff from using its land. In our view, Dunn makes
it clear that the fact that plaintiff's inverse condemnation claim
stems from an agency order does not preclude the circuit court
from exercising jurisdiction. The issue presented--whether a
"taking" occurred--is a constitutional question, and the context
within which it is raised, an inverse condemnation action,
traditionally falls within an area adjudicated by courts.
Therefore, the traditional rationales for primary jurisdiction, such
as agency expertise, collateral estoppel, and efficiency either are
not applicable or are present only to a diminished degree.
Moreover, in this case, "the special competence of an
administrative body" is not required to determine whether the
application of OAR 629-24-809 effected a "taking" of plaintiff's
land. Cf. Kenneth Culp Davis, Administrative Law 121 (6th
ed.1977) ("a court should not act upon subject matter that is
peculiarly within the agency's specialized field without taking
into account what the agency has to offer"). Likewise, other
justifications for invoking the doctrine of primary jurisdiction,
such as a need for uniform resolution of the legal-issue involved
or a consideration whether judicial resolution of the issue may
adversely impact the agency's performance of its regulatory
responsibilities, are not present in this context. Accordingly, it is
not appropriate in this case to prevent the circuit court from
exercising its jurisdiction over plaintiff's "takings" claim by
invoking the doctrine of primary jurisdiction. That being so, we
hold that plaintiff's complaint properly was before the circuit
court, because the circuit court and the Board share concurrent
jurisdiction in this case. It follows that the trial court erred in
dismissing the action for lack of subject matter jurisdiction.
App. H-15
II. "Takings" by inverse condemnation under the Oregon
Constitution
- Because this case comes to us on appeal of a judgment of
dismissal, we next must determine whether plaintiff's complaint
States a claim for relief.'* For purposes of reviewing a motion to
dismiss, we assume the truth of all well-pleaded facts alleged in
the complaint and give plaintiff the benefit of all favorable
inferences that may be drawn from those facts. Stringer v. Car
Data Systems, Inc., 314 Or. 576, 584, 841 P.2d 1183 (1992);
Oksenholt v. Lederle Laboratories, 294 Or. 213, 215, 656 P.2d
293 (1982). In order to determine whether the complaint states a
claim for relief, we first must discern what is required to
establish a "takings" claim under Oregon law."
Our decisional law demonstrates that there are at least
two different ways in which governmental action may result in a
"taking" by inverse condemnation under Article I, section 18, of
the Oregon Constitution. The first arises when a present
governmental action creates an expectation that the private land
in question eventually will be taken for a public use. See Fifth
Avenue Corp. v. Washington Co., 282 Or. 591, 613, 581 P.2d
50 (1978) (illustrating concept). In such circumstances, a
property owner must prove that the owner is precluded from "all
economically feasible private uses [of the property] pending
eventual taking for public use" or that "the designation [of the
property for eventual public use] results in such governmental
intrusion as to inflict virtually irreversible damage." /d. at
613-14, 581 P.2d 50.
2 We use the term "complaint" to refer to the supplemental
complaint on which the parties ultimately proceeded.
'3 This court considers state constitutional claims before considering
federal constitutional claims. State v. Kennedy, 295 Or. 260, 262, 666 P.2d
1316 (1983); Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981).
App. H-16
The second category of “takings” by inverse
condemnation occurs when the government acts to “intervene[ ]
to straighten out situations in which the citizenry is in conflict
over land use or where one person's use of his land is injurious
to others.” Fifth Avenue Corp., 282 Or. at 613, 581 P.2d 50
(quoting Fred F. French Inv. Co., Inc. v. City of New York, 39
N.Y.2d 587, 385 N.Y.S.2d 5, 350 N.E.2d 381, 384-86 (citing
Joseph L. Sax, Takings and the Police Power, 74 Yale L.J. 36,
62-63 (1964)), cert. den. 429 U.S. 990, 97 S.Ct. 515, 50
L.Ed.2d 602 (1976)). To establish a "taking" in the latter
context, the test is essentially the same as under the former: The
property owner must show that the application of the
government's particular choice deprives the owner of all
economically viable use of the property. Fifth Avenue Corp., 282
Or. at 609, 613, 581 P.2d 50. If the owner has "some
substantial beneficial use" of the property remaining, then the
owner fails to meet the test. Dodd v. Hood River County, 317
Or. 172, 184-86, 855 P.2d 608 (1993).
In this case, plaintiff has alleged in both its claims for
relief that the Board's application of OAR 629-24-809 to its
proposed logging plans denied plaintiff all economic use of its
land.'* With respect to the first claim for relief, the plaintiff has
alleged "depriv[ation] * * * of the only economically viable use
of approximately 56 acres of merchantable timber." Assuming
'4 Plaintiff's complaint outlines the lengthy procedural facts set forth
above, which we will not repeat. The complaint also alleges, in part:
"Plaintiff asserts two claims for inverse condemnation based on the
Oregon and U.S. Constitutions. The first claim seeks just
compensation for this regulatory taking, which deprives plaintiff of the
only economically viable use of approximately 56 acres of the
merchantable timber. The second claim involves a temporal
restriction prohibiting plaintiff from logging four acres of the unit until
after October 1, 1993, which constitutes a temporary taking of
plaintiff's timber for a public use."
App. H-17
the truth of all well-pleaded facts alleged in the complaint and
giving plaintiff the benefit of all favorable inferences that may be
drawn from those facts, that allegation is sufficient to meet the
"deprivation of all economically viable use of the property"
standard. The Court of Appeals was correct in so holding.
_. With respect to the second claim for relief, plaintiff has
alleged two things: (1) The "temporal restriction prohibiting
plaintiff from logging four acres of the unit until after October l,
1993, * * * constitutes a temporary taking of plaintiff's timber
for a public use," and (2) "[p]laintiff is presently deprived of all
economic use of its merchantable timber on the subject four
acres." (Emphasis added.) In other words, plaintiff alleges a
temporary deprivation of all economically viable use of the four
acres during the six-month period when the temporal restriction
was in effect.
Both this court and the United States Supreme Court have
recognized that, under certain circumstances, a "temporary"
taking of all economic use of a piece of property may constitute a
"taking" under the pertinent provisions of the state and federal
constitutions. See Suess Builders v. City of Beaverton, 294 Or.
“FIRST CLAIM FOR RELIEF
"The timber, including the two nest trees, on the Walker
Creek Unit which plaintiff desires to log has no economic value unless
harvested. The Board's action in denying plaintiff the right to log the
Walker Creek Unit has denied it of all economic use of that timber.
Apart from the subject merchantable timber, the underlying
commercial forestland has no separate economic value until the timber
has been logged."
“SECOND CLAIM FOR RELIEF
"Plaintiff is presently deprived of all economic use of its
merchantable timber on the subject four acres.”
(Emphasis added.)
App. H-18
254, 263, 656 P.2d 306 (1982) (decided at least in part under
Article I, section 18, of the Oregon Constitution; holding that
complaint, liberally construed, could be deemed to allege that
one or more local governments had "temporarily taken all
economic use of the plaintiffs’ property"); First Lutheran
Church v. Los Angeles County, 482 U.S. 304, 318, 107 S.Ct.
2378, 2387, 96 L.Ed.2d 250 (1987) (holding to similar effect
under Fifth and Fourteenth Amendments to the United States
Constitution). But each of those cases was one in which a
government regulation or ordinance that was on its face
permanent in character allegedly prevented the owners from
making any economic use of the property in question. By
contrast, the allegations here affirmatively establish that, under
the regulations, plaintiff can utilize the four acres in question for
timber production during part of each calendar year. That is, the
regulations appear to be permanent, but their interference with
plaintiff's use of its property is not temporally comprehensive.
We think that, in order to distinguish between a "taking,"
on the one hand, and simple administrative inconvenience or
delay, on the other, it is necessary to require that a complaining
party allege some degree of permanence in its loss. We hold
that, in order to assert a claim for a "temporary taking" under the
Oregon Constitution, the complaining party must allege that it
has been denied all economic use of its property under a law,
ordinance, regulation, or other government action that either is
permanent on its face or so long lived as to make any present
economic plans for the property impractical. See Suess Builders,
294 Or. at 262-63, 656 P.2d 306 (to that effect). Under such a
standard, plaintiff's complaint falls short. It alleges only that,
during certain months of each year, it will not be permitted to
harvest trees on the parcel. By necessary implication, there is
nothing in the regulations that would prohibit harvesting during
the balance of the year. To be a "taking," governmental action
must be made of sterner stuff.
App. H-19
We understand the federal rule, under First Lutheran, to
be to the same effect. 482 U.S. at 318, 107 S.Ct. at 2387. The
Court of Appeals erred in holding that plaintiff had alleged a
sufficient claim in its second claim for relief.
The state attempts to avoid the entire "takings" question
by relying on GTE Northwest, Inc. v. Public Utility Commission,
321 Or. 458, 900 P.2d 495 (1995). The state argues that GTE
stands for the proposition that express eminent domain authority
is the predicate to a compensable "taking." In GTE, plaintiff
GTE (a telephone local exchange carrier, "LEC") sought review
of certain collocation rules adopted by the Public Utility
Commission ("PUC").'° Under the challenged rule, an LEC was
required to allow an enhanced services provider ("ESP") to
occupy a portion of the LEC's property, for the purpose of
placing the ESP's equipment there.
GTE argued that the PUC lacked the Statutory authority
to promulgate the collocation rules, because the rules allegedly
constituted a "taking," in violation of the state and federal
constitutions. GTE further argued that, because the PUC lacked
the express eminent domain authority that is required before an
agency may effect a "taking," the collocation rules are beyond
the PUC's statutory authority, no matter how much compensation
might be paid for actions taken under them. In other words,
GTE argued that the PUC lacked authority to engage in acts,
including rulemaking, that effect a "taking," because the PUC
lacked express eminent domain authority to take property for a
public purpose.
‘> Collocation’ means a service, offered by a{n} LEC, which
provides for placement and installation of a customer's equipment, software, and
databases on LEC premises. Premises include central offices, remote network
facilities, or any other similar location owned by the LEC. The equipment,
software, and databases are owned by the customer.” GTE, 321 Or. at 462, 900
P.2d 495.
App. H-20
This court in G7E outlined relevant decisional law and
stated:
"The cases cited above establish a bright-line
rule: that an agency may not act in eminent domain
without an express grant of power from the legislature.
It is up to the legislature, not the PUC or any other
administrative agency, to determine how those powers
should be exercised. The legislature's reasons for
granting or refusing to grant [to] an administrative
agency the power to act in eminent domain may include a
desire to refrain from depleting the public fisc.
However, the legislature's decision may also be rooted in
a number of other policy considerations.
"ke ee K€
"In summary, the power of eminent domain may
be exercised by an agency only if the agency has express
statutory authority. The PUC does not have express
statutory authority to promulgate rules that wou!d effect a
taking of an LEC's facilities."
321 Or. at 467-68, 900 P.2d 495. The G7E court then
concluded that the collocation rules effected a "taking" under the
federal constitution, and struck them down. /d. at 477, 900 P.2d
495.
The state relies on that portion of G7E that defines the
"bright-line” rule concerning express eminent domain authority.
That passage from G7E is significant, the state argues, because
express eminent domain authority "is a key element of an inverse
condemnation claim and of the right to seek compensation for a
regulatory taking."
App. H-21
The state misreads GTE. GTE involved a
straightforward eminent domain action in which the issue was
whether the state could "take" certain property and, if so, what
compensation was owed to the property owner. Unlike GTE, this
case involves an inverse condemnation action in which plaintiff
alleges that the state "took" plaintiff's property when it issued
two orders that prevented plaintiff from logging on two separate
occasions. The “bright-line” rule set forth in GTE applies in the
eminent domain context. In contrast, in an inverse condemnation
action wherein a plaintiff alleges that a "taking" has occurred and
the plaintiff seeks damages, GTE does not require a landowner to
prove that an agency has express eminent domain authority as an
element to an inverse condemnation action. Rather, the issue in
this case is whether the application of OAR 629-24-809 to
plaintiff's timber harvest plans resulted in a "taking." Plaintiff
has alleged that application of the rule in this case did result ina
taking. GTE does not stand for any proposition that would defeat
circuit court jurisdiction in such circumstances.
In summary, we conclude that the Board shares
concurrent jurisdiction with the circuit court in this case. The
Board does not have primary jurisdiction. Consequently,
plaintiff's complaint was properly before the circuit court,
assuming that it otherwise properly pleaded a claim for relief for
inverse condemnation. We hold that it did adequately plead such
a Claim in its first claim for relief. It did not do so in its second
Claim for relief.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
affirmed in part and reversed in part, and the case is remanded to
that court for proceedings consistent with this opinion.
App. I-1
FILED: November 10, 1999
IN THE COURT OF APPEALS
OF THE STATE OF OREGON
BOISE CASCADE CORPORATION,
a Delaware corporation,
Respondent,
Vv.
STATE OF OREGON, by and through
the Oregon State Board of Forestry,
Appellant.
(93-2018; CA A100855)
Appeal from Circuit Court, Clatsop County, Paula J. Brownhill,
Judge.
John T. Bagg, Assistant Attorney General, attorney for appellant.
Phillip D. Chadsey attorney for respondent.
Daniel Kearns, Reeve Kearns PC, and John D. Echeverria filed a
brief amicus curiae for Audubon Society of Portland.
Brent D. Boger, Robin L. Rivett, and Eric Grant filed a brief
amicus curiae for Pacific Legal Foundation, Oregon Farm
Bureau, and California Farm Bureau Federation.
Before De Muniz, Presiding Judge, Deits, Chief Judge, and
Armstrong, Judge.
App. I-2
DE MUNIZ, P. J.
Reversed and remanded
DESIGNATION OF PREVAILING PARTY
AND AWARD OF COSTS
Prevailing party: Appellant
[X] Costs allowed, payable by: Respondent
MONEY JUDGMENT
Judgment #1
Creditor: STATE OF OREGON, by and through the
Oregon State Board of Forestry
Debtor: BOISE CASCADE CORPORATION, a
Delaware corporation
Costs: $3,088.99
Attorney fees: -0-
TOTAL AMOUNT: $3,088.99
Interest: Simple, 9% per annum, from the date of this
appellate judgment.
Appellate Judgment COURT OF APPEALS
Effective Date: December 15, 2000 (seal)
App. J-1
OREGON ADMINISTRATIVE RULES COMPILATION
CHAPTER 629. DEPARTMENT OF FORESTRY
EMERGENCY FIRE COST COMMITTEE
DIVISION 665. SPECIFIED RESOURCE SITE
PROTECTION RULES
Current through August 15, 2000
629-665-0210
Interim Requirements for Northern Spotted Owl Nesting Sites
(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 caused owls to flush from the nesting site. Such
disturbances must be prevented during the critical period of use
for nesting. The critical period of use is the time period between
March 1 and September 30, each year.
(2) For the purpose 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.
Such determination must be supported by repeated observation of
the owls in close proximity or observation of nesting behavior.
(3)(a) For the purposes of this rule, suitable spotted owl
habitat means and includes:
App. J-2
(A) A stand of trees with moderate to high canopy
closure (60 to 80%); a multi-layered, multi-species canopy
dominated by large overstory trees (greater than 30 inches in
diameter at breast height); a high incidence of large trees with
various deformities (e.g., large cavities, broken tops, and other
evidence of decadence); numerous large snags; large
accumulations of fallen trees and other woody debris on the
ground; and sufficient open space below the canopy for owls to
fly; or
(B) In the absence of habitat which exhibits all the
characteristics listed above, the available forested habitat which
comes closest to approximating the listed conditions.
(b) Stands which do not exhibit at least two of the
characteristics listed in paragraph (a)(A) of this section are not
suitable habitat.
(4) (For information only) Federal law prohibits a
person from taking northern spotted owls. Taking under the
federal law may include significant alteration of owl habitat on
any class of land ownership. Compliance with subsection(1) of
this rule is not in lieu of compliance with any federal
requirements related to the federal Endangered Species Act.
(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.
Stat. Auth.: ORS 527.710
Stats. Implemented: ORS 527.715
Hist.: FB 11-1990(Temp), f. 12-20-89, cert. ef.
12-21-90; FB 5-1991, f. & cert. ef. 6-6-91; FB 9-1996,
f. 12-2-96, cert. ef. 1-1-97, Renumbered from 629-024-
0809
App. K-1
DEPARTMENT OF FORESTRY
DIVISION 680
RESOURCE SITE INVENTORY AND
PROTECTION PROCESS RULES
629-680-0000
Purpose
(1) OAR 629-680-0000 to 0430 shall be known as the
Resource Site Inventory and Protection Process Rules.
(2) The purpose of the rules in OAR 629, Division 680 is
to set criteria to inventory and protect special resources described
in ORS 527.710 (3)(a) on forestlands regulated by the Forest
Practices Act. Forests make a vital contribution to Oregon by
providing jobs, products, tax base and other social and economic
benefits, by helping to maintain forest tree species, soil, air and
water resources and by providing a habitat for wildlife and
aquatic life. Consistent with ORS 527.630, it is the policy of
these rules to encourage economically efficient forest practices
that assure the continuous growing and harvesting of forest tree
species and the maintenance of forestland for such purposes as
the leading use on privately owned land, consistent with sound
management of soil, air, water and fish and wildlife resources
that assures the continuous benefits of those resources for future
generations of Oregonians.
Stat. Auth.: ORS 527.710
Stats. Implemented: ORS 527.715
Hist.: FB 4-1990, f. & cert. ef. 7-25-90: FB 3-1991, f.
& cert. ef. 5-23-91; FB 9-1996, f. 12-2-96, cert. ef.
1-1-97, Renumbered from 629-056-0010
App. L-1
OREGON ADMINISTRATIVE RULES COMPILATION
CHAPTER 629. DEPARTMENT OF FORESTRY
EMERGENCY FIRE COST COMMITTEE
DIVISION 680. RESOURCE SITE INVENTORY
AND PROTECTION PROCESS RULES
Current through August 15, 2000
629-680-0010
Definitions
In addition to the definitions listed in OAR 629-600-
0100, as used in OAR Chapter 629, Division 680:
(1) “Critical period of use”, means the time of year the
State Forester determines a species is sensitive to disturbance at a
resource site.
(2) “Disturbance” means actions which cause birds to
flush from the resource site.
(3) “Endangered species” means any fish or wildlife
species identified as “endangered” on lists that are adopted, by
rule, by the Oregon Fish and Wildlife Commission or are
federally listed as “endangered” under the Endangered Species
Act of 1973 as amended.
(4) “Listed species” means a species adopted by the
Board under OAR 629-680-0200.
(5) “Site productivity” means the ability of a resource
site to produce the benefits for which it is being protected. As an
example, nesting site productivity is measured by the number of
young birds successfully raised. For a roosting site, productivity
is measured by the number of birds roosting over a given time.
Watering site productivity is measured by the number of band-
tailed pigeons that visit the resource site over a given time.
(6) “Threatened species” means any fish or wildlife
species identified as “threatened” on lists that are adopted, by
rule, by the Oregon Fish and Wildlife Commission or are
federally listed as “threatened” under the Endangered Species
Act of 1973 as amended.
Stat. Auth.: ORS 527.710
App. L-2
Stats. Implemented: ORS 527.715
Hist.: FB 4-1990, f. & cert. ef. 7-25-90; FB 3-1991, f.
& cert. ef. 5-23-91; FB 8-1991, f. & cert. ef. 10-30-91;
FB 9-1996, f. 12-2-96, cert. ef. 1-1-97, Renumbered
from 629-056-0020
App. M-1
OREGON ADMINISTRATIVE RULES COMPILATION
CHAPTER 629. DEPARTMENT OF FORESTRY
EMERGENCY FIRE COST COMMITTEE
DIVISION 680. RESOURCE SITE INVENTORY AND
PROTECTION PROCESS RULES
Current through August 15, 2000
629-680-0100
Process for Board Evaluation of Threatened and Endangered
Fish and Wildlife Species that use Resource Sites that are
Sensitive to Forest Practices
(1) When a species is listed as threatened or endangered
by state or federal authorities, the Board shall adopt rules to
protect resource sites that are used by those species and that are
sensitive to forest practices. The following process shall be used
when the Board develops protection rules for these resource Sites:
(a) The Board’s evaluation shall be based on the best
available information summarized in a technical review paper.
The paper must be submitted by those proposing protection for
resource sites used by a threatened or endangered species. The
paper may be written by the State Forester, another agency, an
organization or a person. The paper shall demonstrate how the
resource sites are sensitive to forest practices. The paper may
rely upon information used during the listing process and must:
(A) Identify the resource sites used by the species;
(B) Identify forest practices that conflict with the
resource sites;
(C) Evaluate the biological consequences of the
identified conflicts; and
(D) Propose protection requirements and exceptions for
the resource sites.
(b) The State Forester shall review the technical paper
submitted under subsection(1)(a) of this rule. The review shall
include an evaluation of the literature used, consultation with
technical experts and a technical review by experts chosen by the
App. M-2
State Forester. The State Forester shall submit a report of this
review to the Board.
(c) The Board shall review and accept or reject the
information presented in subsections(1)(a) and (b) of this rule;
(d) Using the technical review paper and the State
Forester’s report, plus other available information for the
species, the Board shall:
(A) Identify the resource sites for the species;
(B) Identify forest practices that conflict with the
resource sites and evaluate the consequences of those conflicts;
(C) Determine the protection requirements for the
resource sites; and
(D) Determine any exceptions criteria.
(2) The Board shall adopt protection requirements and
exception criteria for resource sites used by the threatened or
endangered species.
(3) The State Forester shall maintain an inventory of
protected resource sites that are used by threatened or
endangered species.
(4) When a threatened or endangered species is de-listed
by the Oregon Fish and Wildlife Commission or the U.S. Fish
and Wildlife Service, the Board shall determine whether
continued protection of resource sites is warranted:
(a) If the Board determines that continued protection
rules are warranted, the rules shall be promulgated under the
appropriate statutory authority;
(b) If the Board determines that continued protection
rules are not warranted, existing rules shall be repealed.
Stat. Auth.: ORS 527.710
Stats. Implemented: ORS 527.715
Hist.: FB 4-1991, f. & cert. ef. 5-23-91; FB 9-1996, f.
12-2-96, cert. ef. 1-1-97, Renumbered from 629-056-
0100
App. N-1
OREGON ADMINISTRATIVE RULES COMPILATION
CHAPTER 629. DEPARTMENT OF FORESTRY
EMERGENCY FIRE COST COMMITTEE
DIVISION 680. RESOURCE SITE INVENTORY
AND PROTECTION PROCESS RULES
Current through August 15, 2000
629-680-0220
Process for Determining Forest Practices Conflicts and
Consequences; Protection Requirements for the Resource Site
(1) The following process shall be used by the Board to
evaluate forest practices conflicts and Consequences and in setting
appropriate protection for the resource site. Using the technical
review paper developed in OAR 629-680-0200, plus other
available information for each listed species, the Board shall:
(a) Identify the resource site for each listed species;
(b) Identify forest practices that conflict with the
resource site and evaluate the consequences of those conflicts;
(c) Determine the protection requirements necessary to
protect the resource site;
(d) Determine any exceptions criteria.
(2) The Board shall adopt protection requirements and
exception criteria for each species listed inOAR 629-665-0100.
Stat. Auth.: ORS 527.710
Stats. Implemented: ORS 527.715
Hist.: FB 4-1990, f. & cert. ef. 7-25-90: FB 9-1996, f.
12-2-96, cert. ef. 1-1-97, Renumbered from 629-056-
0220
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.