Property rights advocates get rebuked in Oregon


Supporters of Oregon’s successful Measure 37, which requires compensation for any government land-use regulation that diminishes the value of property, have introduced a radical concept that overturns decades of settled law on what constitutes the "taking" of private property.

Now, the Oregon Supreme Court has delivered a stinging rebuke to the legal theory underpinning takings law. In the case of Coast Range Conifers v. the Board of Forestry, the Oregon Supreme Court unanimously delivered the message: "Oregon ain’t goin’ there."

The facts are not in dispute. In 1998, a logging company named Coast Range Conifers acquired 40 acres of timber known as the Beaver Tract. Subsequently, a U.S. Fish and Wildlife Service employee observed two bald eagles in the area and a nest on a 31-acre portion of the site that the company wanted to log. The bald eagle is listed as threatened under the Endangered Species Act. Coast Range Conifers offered a logging plan that prohibited logging within 400 feet of the nest, leaving 50 percent of the neighboring trees, and received a logging permit from the Oregon Department of Forestry. The company logged the 31 acres.

Following the bald eagle nesting season, the company observed the nest was no longer occupied and offered a revised logging plan for the remaining nine acres of the Beaver Tract with larger buffer strips around the nest. The state forester denied the permit. Coast Range Conifers filed suit, complaining the government had taken its property by regulation and demanding compensation.

Lincoln County Circuit Judge Robert J. Huckleberry denied the claim, ruling the regulation did not take private property. He noted that the company made its money on the 31 acres it logged.

The Oregon Court of Appeals effectively reversed Huckleberry, ruling the regulation did deprive Coast Range Conifers of its property on the remaining nine acres of the Beaver Tract by prohibiting further logging.

In a unanimous decision, the Oregon Supreme Court reversed the judicial adventurism of the Court of Appeals and held the Department of Forestry’s regulation did not require compensation. The Oregon Supreme Court relied on long-established, well-settled legal principles. It was the plaintiffs and their lawyers who sought to overturn settled legal traditions.

For decades, Oregon courts have held that government only "takes" private property if it takes title to it, grants public access to private property or deprives the owner of "substantial beneficial use" of property.

It is the last phrase that created this dispute.

There are decades of case law that define the phrase "substantial beneficial use," and the cases include the value of all the property involved in the dispute — not just part of it.

The supporters of Measure 37, some of whom helped pay the bills for Coast Range Conifers’ lawsuit, are enthralled by a radical legal theory popularized by law professors such as Richard Epstein of the University of Chicago and some of his judicial and academic followers in the Federalist Society.

They argue that the "takings clause" in the U.S. Constitution is meant to require compensation for any regulations that "interfere" with the profits of an individual or corporation, including regulations that promote the health and safety of individuals. Under this theory, even minimum wage laws could require compensation for lost profits — real or imagined.

The Oregon Supreme Court served unambiguous notice that it ain’t buyin’. The unanimous opinion held that any decision about whether Coast Range Conifers was deprived of the value of its land must be based on the economics of the entire 40-acre parcel, of which the company logged 31 acres, and not the nine remaining acres where logging was prohibited because of the bald eagle and its status under the Endangered Species Act.

The Oregon Supreme Court’s opinion also raised an issue systematically ignored by takings advocates. This is the long-settled issue that wildlife belonging to the state — in this case the bald eagle — are held in trust for the public.

The Court’s unanimous opinion held that the state has a right to protect its property rights in the eagle, without incurring liability under the takings clause. That’s not what developers, the timber industry and radical lawyers want to hear.

In its own quiet way, the Oregon Supreme Court has weighed in on the debate over Measure 37 and its change in what triggers constitutionally required compensation for the routine regulation of private property in the public interest. Lawyers will appreciate the significance of this exchange of opinions between the Oregon Court of Appeals and the Oregon Supreme Court. Perhaps taxpayers will also appreciate how the court is protecting their wallets.

Russell Sadler is a contributor to Writers on the Range, a service of High Country News ( He writes in Ashland, Oregon.

Note: the opinions expressed in this column are those of the writer and do not necessarily reflect those of High Country News, its board or staff. If you'd like to share an opinion piece of your own, please write Betsy Marston at [email protected].

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