Commissioners say it’s “morally wrong” to opt out of forestland lawsuit

At their Dec. 7 regular meeting, the Tillamook County Commission unanimously agreed to do nothing.

Not about everything. Just about a lawsuit.

By Ann Powers

Tillamook County is named as a plaintiff in a $1.4 billion class action Linn County lawsuit filed against the Oregon Department of Forestry (ODF) for an alleged breach of contract concerning the state’s Forest Trust Lands.

It includes counties and roughly 150 local taxing districts as plaintiffs.

“If you want to stay in the case you don’t have to do anything,” Tillamook County Counsel William Sargent told commissioners. “Or, if you want out of it you can affirmatively do so and send them a letter, or something, saying we don’t want to participate.”

The commission unanimously agreed to stay with the suit filed earlier this year by Attorney John DiLorenzo, of Davis Wright Tremaine, LLP in Portland. He sent out a notice last month to all of the timber-harvest beneficiaries entitled to damages if awarded.

DiLorenzo argues the mismanagement of 654,000 acres of Forest Trust Lands has cost the counties and special districts $35 million annually since 1998. About half of the acreage is in Tillamook County.

“You have a significant amount to gain,” Sargent said during a workshop prior to the commission’s regular meeting.

The breach of contract claim stems from issues dating back to the 1930s, as well as the definition of Greatest Permanent Value (GPV).

In 1939, under Gov. Charles Sprague and the Legislature’s State Forest Acquisition Act, the state began acquiring the mostly cutover timberlands. The land became a financial burden to the counties during the Great Depression because of delinquent property tax payments, foreclosures and in the wake of massive fires.

In exchange, the lands were to be managed for their GPV and portions of revenues generated by timber sales distributed to the counties. At the time, the counties and special districts interpreted that to mean the property be managed for the largest sustainable timber.

Since then, the state has expanded the GPV’s definition to embody other factors like wildlife protection, watershed enhancement and recreation. In 1998, an administrative rule changed forest management policy so timber-revenue generation was less of a priority, and the ODF reduced annual timber harvest proceeds without the consent of the beneficiaries, according to Commissioner Tim Josi.

He said the state is contractually required to permit more logging on the forestland to ensure funding for counties that deeded the property to the state about 70 years ago.

“This, in its simplest form, is a contractual issue to be decided by a jury,” he said. “This doesn’t affect the forestry policy, doesn’t change our relationship with the forestry department, it doesn’t change the definition of Greatest Permanent Value.”

Bob Van Dyk, Oregon and California Wild Salmon Center policy director.

Bob Van Dyk, Oregon and California Wild Salmon Center policy director, disagreed.

“We think it likely that if the court finds that the law requires timber maximization, then the state will change policy to move in that direction,” he said. “That’s likely why Hampton Lumber paid for the suit — to get more harvests for their mills.”

Court documents show legal fees are being funded lumber companies and timber groups including Oregon Forest & Industries Council, Sustainable Forests Fund, Stimson Lumber and Hampton Tree Farms.

Officials said if counties opt out, it doesn’t disqualify the taxing districts from participating. Timber-harvest beneficiaries choosing not to participate forego any damages that may be awarded.

Tillamook County Commissioner Bill Baertlein

“If we opt out in a county that is, quite frankly, a poverty county, that would be unconscionable to me,” Commissioner Bill Baertlein said. “If we were to receive the funds, that money has specific needs in the community that it could go to. It would be morally wrong for this commission to say – no, we’re not going to stay in the suit.”

Baertlein also addressed a counter-argument claiming the litigation would hurt Oregon by draining millions from state coffers.

“A lot of our rural communities don’t see much regard from the state with a lot of our funding priorities,” Baertlein added. “All the housing money usually goes to Multnomah County. The rural counties get locked out. It’s just time to make a statement.”

But, Van Dyk said the money needed to fight the litigation would hit home as well.

“The suit has already cost the Department of Forestry hundreds of thousands of dollars, and ODF staff expect it will cost as much as $1.5 million to fight the suit,” he noted. “These dollars could have gone to the state forest program to do things like run the Tillamook Forest Center, open fish passage, keep campgrounds open, and staff the South Fork prison.  Instead it is going to pay lawyers.”

A petition being circulated on the North Coast BBQ, a community posting site, urges the county to take a ‘hell-no-we-won’t-go’ along with the legal action.

“By participating in this law suit, Tillamook County is assuming that timber harvest can be dramatically increased with no harm to the environment,” states the petition. “If this lawsuit succeeds, it will redefine the “value” of a forest, and likely lead to drastic increases in industrial style logging—more clear-cuts, more spraying. We already have one of the weakest Forest Protection Acts in the Northwest and minimal protection for our forest land and streams.”

In addition, Van Dyk claimed science is on their side.

“Independent scientists have found that a timber maximization approach will be worse for fisheries, cause more erosion in streams, result in more pesticide use, and result in warmer rivers as compared to the current plan,” he said. “Counties that support the suit are causing a crisis, undermining collaborative management, and pressuring the state to clearcut more and to cut other programs to pay supposed damages.”

County officials contend much of the anti-litigation rhetoric is inaccurate, specifically that from the North Coast State Forest Coalition (NCSTC).

“There’s quite a bit, in my opinion, of misleading information,” said Commission Chairperson Mark Labhart, who worked for ODF for 34 years, with 21 years as the district forester managing the majority of the Tillamook State Forest.

“We’ve been called out in the media in the media by the Tillamook County Commissioners several times in the past and they have alleged misinformation,” said Chris Smith, NCSTC director. “But, they are never specific about that claim and have never backed it up to my knowledge.”

DiLorenzo anticipates the case to go to trial in the latter part if 2017, or early 2018.

In addition to Linn and Tillamook, the other counties listed in the suit are Clackamas, Clatsop, Columbia, Coos, Douglas, Josephine, Klamath, Lane, Lincoln, Marion, Polk and Washington.