Top Line: It turns out that state forests are not held in trust for the financial benefit of certain timber-addicted counties.
Figure 1. Lost Lake in the Clatsop State Forest. Source: Wikipedia.
The Oregon Court of Appeals in April 2022 conclusively found that Oregon’s 0.6 million acres of state-owned forestlands need not be managed solely for the financial benefit of the counties in which they lie. In a late September decision, the Oregon Supreme Court let the ruling stand, so it’s time for the management of Oregon’s state forests to enter the twenty-first century.
A Quick and Selective History
1911
During the one-term administration of my second-favorite Oregon governor, Oswald West (all-time favorite: Barbara Roberts), the Oregon Board of Forestry (OBOF) was created by the Oregon Legislative Assembly. theOBOF then appointed the first state forester. Initially, “forestry” was solely about preventing and fighting forest fires, so the standing logs (you may think of them as trees) would not burn up before they were cut down.
1931
In 1931, the legislature authorized the OBOF to acquire lands by gift, purchase, or “transfer of title to the state by any county.” Oregon counties had increasing amounts of cutover timberlands that they seized for nonpayment of taxes (which were not high but still not worth paying in the minds of cut-and-run timber operators). The Great Depression contributed to the collapse of any notion that cutover timberland was worth owning. These tax-foreclosed private timberlands newly reconverted to public forestlands were to be
administered and managed by the state board of forestry for any or all of the following purposes:
(a) Continuous forest production and so far as practicable to promote sustained yield forest management for the forest units of which such lands are a part;
(b) water conservation or watershed protection; [or]
(c) recreation.
“Continuous forest production” was code for logging. The inclusion of “water conservation,” “watershed protection,” and “recreation” were evidence that the lands were to be managed not exclusively for timbering. Notice that “wildlife” was not included as a forest purpose.
In exchange for deeding over the worthless formerly private timberlands they owned, the counties would receive 5 cents per acre per year and 12.5 percent of all revenues from the transferred lands. In today’s money, 5 cents is 93 cents, suggesting that the counties were desperate to unload the lands.
1933–1951
The first of four fires that became known as the Tillamook Burn started on a very hot, low-humidity day, but the source of this ignition and the three to follow roughly every six years until 1951 was logging (the Northern Oregon Coast Range has the lowest incidence of lightning strikes in the Lower 48). The landscape was a massive old-growth rainforest in the midst of being logged. Huge piles of slash helped the fire to spread. After the first fire, a lot of salvage logging commenced, on the order eventually of 7 billion board feet. Massive dead trees were felled as they were deemed “a powder keg awaiting ignition” (they were not). Mostly though, the snags were worth hauling to the mill.
1939
In 1939, the Oregon legislature imposed a new acquisition regime. First, the revenue split between county and state jumped to 75 percent for the counties. Second, the acquired lands must be “chiefly valuable for the production of forest crops, watershed protection and development, erosion control, grazing, recreation or forest administrative purposes.” The purposes of such lands were expanding but not always in a good way—still no mention of fish or wildlife. Third, the state could not obtain any lands in a county unless the county government concurred. Fourth, the lands were to be designated as state forests.
1941
The next regular session of the legislature felt the need to clarify and expand. It set, in the words of the Court of Appeals, the “management standard,” specifying that the state
shall manage the lands acquired pursuant to this act so as to secure the greatest permanent value of such lands to the state [emphasis and double-emphasis added]
This is the statutory scheme basically still in effect today. “Greatest permanent value” (GPV) applies to all state-owned forestlands administered by the OBOF—not just the lands deeded over from the counties. In ensuing decades, fifteen Oregon counties availed themselves of the opportunity and conveyed hundreds of thousands of acres of land to the State of Oregon to become state forests.
I examined GPV in an earlier Public Lands Blog post, “Oregon State Forest Lands, Part 3: ‘Greatest Permanent Value’,” so will not do so again here. Suffice it to say that counties’ view that the trees in the state forests were and are merely standing logs is not in alignment with state law.
Figure 2. The Tillamook State Forest. Source: Wikipedia (Alanna Risse).
1949–1971
After all the green-tree logging and dead-tree logging, the State of Oregon embarked on a massive program of artificial reforestation, scattering more than a billion Douglas-fir seeds (an average of 2,816 seeds per acre), most of which did not take. In addition, 72 million seedlings were hand planted, including some by the small hands of bussed-in schoolchildren who to their dying day are proud of their role in “reforesting” the Tillamook Burn.
Figure 3. Historical marker that neglects to note the cause of the Tillamook Burn: logging. Source: Oregon Historical Society.
1972
My third-favorite Oregon governor, Tom McCall, announced on the completion of the artificial planting frenzy that the area known as the Tillamook Burn would be known from that day forward as the Tillamook State Forest. Of course, the legislature had so deemed it in 1939.
1972–1978
Green-tree logging commenced in a big way, with 75 percent of the gross income being given over to the local county and 25 percent being retained by the Oregon Department of Forestry for “administration.” Bureaucracies being what they are, there weren’t any pennies unneeded by the agency that could go to pay the State of Oregon back for some of the huge bonded indebtedness incurred “reforesting” these cutover/burned-over/salvaged-logged lands.
The timber-addicted counties (TACs) started out fat and happy with their share of timber receipts, but they needed more money as the Oregon legislature reduced property and timber taxes on private timberlands, some of which had gone to counties.
The counties were getting crankier.
1979–1983
The Oregon legislature enacted a law to establish a Crabtree Valley State Park in eastern Linn County. The land was owned by Willamette Industries (now Weyerhaeuser) and contained the oldest known forest in Oregon (with old-growth specimens approaching one thousand years of age). Conservationists were desperate to save it and turned to the Oregon legislature after a proposed land exchange with the Bureau of Land Management (BLM) fell through. The legislation specified that Willamette Industries would receive in exchange for its lands going to the Oregon State Parks Department nearby state timberland of equal value. This land is now (but was not then) known as the Santiam State Forest.
(A shout-out here to Cameron La Follette, who led the charge to make Crabtree Valley a state park. Her nemesis in the battle for Crabtree Valley described Cameron as “one of the most persistent, persuasive, and effective lobbyists the legislature has seen in a long while.” I agree. Cameron is still moving the needle as executive director of Oregon Coast Alliance.)
The Crabtree bill absolutely freaked out the counties that had given “their” (tax-foreclosed) lands to the State of Oregon. The counties could not abide such lands being given over to state park use where they would receive no revenue. The Crabtree episode caused the counties to organize (and brand!) themselves as the Council of Trust Land Counties. They eventually killed the Crabtree bill in the legislature.
Logging increased unabated on state forestlands.
Figure 4. The Santiam State Forest. Source: Wikipedia (Jason McArthur).
1987
The Oregon Supreme Court ruled that the Oregon legislature couldn’t just give away portions of the Santiam State Forest to create a state park. This ruling became a basis for a challenge by timber-addicted counties (TACs) two decades later (the “Tillamook County” case).
Full disclosure: trading state forestlands in Linn County to establish a Crabtree Valley State Park was my idea. Critics now ask why we didn’t simply ask the legislature to buy the parkland with public dollars. All I can say is that although that would be a politically viable approach today, it was not in 1979. Sometimes one has to try to solve a problem at hand knowing that it will cause problems for the night shift later.
(No matter. Although Crabtree Valley never became a state park, the land exchange with BLM finally did go through and today the pristine valley is safely on the map as overlapping parcels deemed research natural area, outstanding natural area, and/or Area of Critical Environmental Concern—totaling about twice the size of what would have been Crabtree Valley State Park.)
Logging increased unabated on state forestlands.
Figure 5. Crabtree Lake in Crabtree Valley. Source: Oregon Wild.
1984–2015
Logging continued at very high levels on state forests, and public concerns rose. Public concern about logging’s impact on other forest and public values increased. Timber industry dominance of the Board of Forestry generally diminished. After a hyper-focus on successfully reducing logging on federal public lands in Oregon, the conservation community gave more attention to logging on state public lands.
The TACs, in the form of the Council of Trust Land Counties, became increasingly distraught.
Figure 6. The Tillamook State Forest. Source: Wikipedia (Tiger365).
2016–2022
Linn and twelve other Oregon counties (and 151 taxing districts such as school and fire districts) sued the State of Oregon and the Oregon Department of Forestry, alleging a single claim—breach of contract—and seeking more than $1 billion in damages.
Linn et al. claimed that the 1941 statute facilitating the transfer of county-owned tax-foreclosed lands was a contract that had been breached by the state (of Oregon through its Department of Forestry). The plaintiffs claimed that this contract implied that the state must manage state forests to maximize revenue (also known as log the crap out of them). The case went to a jury that found in favor of the plaintiffs and awarded them $1 billion for past and future revenue losses.
The efendants (the good guys in this drama) appealed to the Oregon Court of Appeals, raising twenty-eight assignments of error in the trial court case. In its April 2022 ruling, the Oregon Court of Appeals chose to focus solely on the defendants’ seventh assignment of error because the entire case turned on how the court would decide that issue.
[A]nalyzing that assignment of error requires that we consider the obligations owed by the state to various Oregon counties with regard to lands acquired by the state under the Act. Specifically, . . . we must consider whether the [relevant statute], requiring the Board of Forestry . . . to manage certain lands “so as to secure the greatest permanent value of such lands to the state,” is a term in a statutory contract between the state, on the one hand, and various Oregon counties, on the other.
The Court of Appeals found, among other things:
• There is no statutory contract.
• “Greatest permanent value” (GPV) means more than maximizing timber revenues so counties get the maximum amount of money.
• The determination and focus of GPV of the state forests is “to the state,” not to the counties.
• The Oregon Supreme Court’s Tillamook County ruling in 1987 didn’t determine that a statutory contract exists or define GPV as timber revenue maximization.
• Even if there was a statutory contract to some extent, GPV doesn’t mean timber revenue maximization (most of which under the statutes goes to the counties).
• GPV is an “ambiguous” term in the statute, and legislatures subsequent to 1941 can (and have) revise(d) the statutory language and the State of Oregon can (and did) elaborate on its meaning in administrative rule.
• The GPV is a mandate to the Board of Forestry, not an implied statutory contract between the state and the counties.
• The trial court judge erred in letting the jury decide what GPV means. Juries decide matters of fact, not matters of law.
Figure 7. The Sun Pass State Forest. Source: Wikipedia (Forest Service).
The Court of Appeals conclusion in the opinion summarizes the rights of the counties and of the state in the matter of “greatest permanent value” for state forestlands as defined by Oregon statute.
The state and Oregon counties have long cooperated in the management of Oregon’s forests. And, particularly in view of Tillamook Co., there can be no doubt that the statutory scheme attendant to that cooperation, ORS 530.010 to 530.181, creates certain enforceable rights insofar as the state’s management of formerly county-owned forestland is concerned. However, the text, context, and absence of useful legislative history regarding the obligation of the Board to secure the “greatest permanent value of such lands to the state,” as originally set forth in Oregon Laws 1941, chapter 236, section 5, and now codified as amended at ORS 530.050, do not reflect the clear and unmistakable intent necessary to conclude that that obligation is a term in a statutory contract. Consequently, we conclude that the trial court erred in denying defendants’ motion to dismiss. We reverse and remand.
On appeal, the Oregon Supreme Court declined to accept the case, so the Court of Appeals opinion stands. No further judicial appeal is possible. It is now a matter of settled law.
Today
I hope the plaintiffs’ lead attorney, the notorious John A. Dilorenzo Jr., didn’t spend his cut of the jury award before he received it. His law firm’s web page touts the amount of the jury verdict to the penny: “$1,065,919,400.00.” Actually, I take it back. I do hope he (and his firm) did so spend.
The Oregon Board of Forestry and the Oregon Department of Forestry should rename their Forest Trust Land Advisory Committee, as there is no such thing as “trust land” in the context of Oregon state forests. It also should diversify representation, since currently seven of the seven members are county commissioners from the timber-addicted counties. On the other hand, the committee could simply be abolished.
Until now I’ve not mentioned the role of Big Timber in this matter. While the timber-addicted counties do have an interest in timber revenues from the sale of state-owned timber, let’s not forget that many county commissioners act as pawns of Big Timber. Historically in Oregon, there has been no daylight between the interests of Big Timber and the TACs. A contributing factor is that Big Timber has the money to play kingmaker (or kingkiller) in local county elections. Big Timber has also done well reducing its state timber and property taxes to near zero, largely at the expense of county budgets.
The same lack of daylight used to exist between the TACs and the Oregon Department of Forestry (ODF). As the ODF has tried during these first two decades of the twenty-first century to move itself into the last two decades of the twentieth century, daylight has emerged. Take, for example, state forest logging having to comply with the state and federal Endangered Species Act. The TACs would rather the ODF blow off these acts, not to mention other statutes that also tend to limit logging. The bureaucrats would rather not go to jail for violating the laws.
Back to the Future
In 2001, at the request of the Oregon Department of Forestry, the Oregon Legislative Assembly enacted into law a bill, relating to forestry carbon offsets. The language is pretty good and points to something that can contribute to the GPV of state forests. To be fair to the 2001 ODF, at the time foresters hopefully (but incorrectly) believed that landowners could both sell carbon offsets from trees into the emerging carbon market and also cut down those same trees and send them to the mill, emitting a huge amount of carbon into the atmosphere.
The selling of carbon offsets from state forests rather than logging state forests has not yet been done. However, the Board of Forestry should look into it. The price of carbon is rising. At some point, perhaps soon, the net present value (NPV) of not logging a forest might well exceed the NPV of logging a forest.
Of course, as we’ve learned from the Oregon Court of Appeals, greatest permanent value does not equate to net present value.
Figure 8. The Gilchrist State Forest. Source: Conservation Fund.
Shout-Outs
Ralph O. Bloemers and Crag Law Center filed an amici curiae brief for Northwest Guides & Anglers, North Coast Communities for Watershed Protection, Oregon Wild, Native Fish Society, Wild Salmon Center, Cascadia Wildlands, Center for Biological Diversity, Umpqua Watersheds, and Beyond Toxics. If you are a member of any of these organizations, tell them thanks. If you are not, give one or more of them some money and tell them why. Ralph kept telling me not to sweat the Linn County decision, that it would be reversed on appeal. For the sake of public lands and in particular Oregon’s state forests, I’m glad Ralph was right.
For More Information
Cannon, Kess. 1984. The Council of Forest Trust Land Counties: A History with the Crabtree Caper. Council of Forest Trust Land Counties/Association of Oregon Counties.
Decker, Doug. Tillamook Burn (web page). Oregon Encyclopedia. (Trigger warning: Decker was the Oregon state forester and his article faithfully recites several myths pertaining to the Tillamook State Forest née Burn. Taking with a grain of salt will not suffice; plan on a tablespoon.)
Green, Aimee. September 17, 2022. “Oregon Supreme Court won’t hear case that tried to collect $1 billion from the state for failing to cut more trees.” Oregon Live/The Oregonian.
• Kerr, Andy. October 2, 2020. “Oregon State Forest Lands, Part 1: A New Day?” Public Lands Blog.
• ———. October 14, 2020. “Oregon State Forest Lands, Part 2: What, Were, Who, Why, and How Much.” Public Lands Blog.
• ———. October 28, 2020. “Oregon State Forest Lands, Part 3: ‘Greatest Permanent Value’.” Public Lands Blog.
• Oregon Court of Appeals. 2022. County of Linn et al. v. State of Oregon. 319 Or App 288.
• Oregon Supreme Court. 1987. Tillamook County v. State Board of Forestry. 302 Or. 404 (Or. 1987).
• Schick, Tony, Rob Davis, and Lylla Younes. June 11, 2020. “Big money bought the forests. Small timber communities are paying the price.” Oregon Public Broadcasting, The Oregonian/Oregon Live, and ProPublica.
• Tillamook State Forest (web page). Wikipedia.
Bottom Line: The Oregon Board of Forestry is free to recognize—as do most Oregonians—that the greatest permanent value of Oregon state forests is more fish and wildlife conservation, watershed protection, biodiversity conservation, carbon storage and sequestration, and recreation and less timber production.