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County’s $1.4B timber lawsuit survives state’s motion to dismiss
ALBANY, Ore. — A judge has denied the State of Oregon’s motions to dismiss a lawsuit by Linn County that seeks $1.4 billion over state forest management practices.
Linn County Circuit Judge Daniel Murphy also said he’s inclined to certify the case as a class action — which would include other counties in the litigation — though he’s postponed ruling on that matter.
According to Linn County’s lawsuit, filed earlier this year, insufficient logging on state-owned forestland has cost 15 counties more than $1.4 billion.
The complaint claims the counties turned over ownership of forestlands to the state in the early 20th Century with the expectation that it would maximize timber revenues, but since 1998, forest managers have instead prioritized wildlife habitat, water quality and recreation values.
More than 650,000 acres were donated to the state by Benton, Clackamas, Clatsop, Columbia, Coos, Douglas, Josephine, Klamath, Lane, Lincoln, Linn, Marion, Polk, Tillamook and Washington counties.
In his ruling, Murphy rejected arguments by the state’s attorneys that he lacks jurisdiction over the case and that Linn County’s pleadings were insufficient for the lawsuit to move forward.
According to the Sept. 6 ruling, the judge “could only dismiss this claim now if the court could find it impossible for the plaintiff to prove the claim and thereby prove that best grazing and forest management practices/greatest permanent value at the time the contract was entered into included the maximization of revenue.”
Without “reciting in detail the court’s reasoning,” Murphy also held that he believed the lawsuit meets the requirements for a class action, but he agreed with Oregon’s attorneys that ruling on the issue now would be premature.
If the lawsuit survives further motions, then it’s “entirely appropriate and should go forward promptly” as a class action, he said.
During a hearing last month, Scott Kaplan, an attorney for the state, said the problems in managing the case as a class action would be “enormous.”
The counties donated 183 separate parcels to the state, each of which contains different slopes, tree types, waterways and federally protected species, he said.
Determining how much timber could have been generated from each parcel would devolve into 183 mini-trials, he said.
“How can we decide if revenue has been maximized on a particular parcel unless you consider all of those issues?” Kaplan said.
Linn County is also an inadequate representative of the other counties for multiple reasons, he said.
The litigation costs are currently being paid for by timber groups and lumber companies — the Oregon Forest & Industries Council, Sustainable Forests Fund, Stimson Lumber and Hampton Tree Farms.
Linn County is simply lending its name to a lawsuit that actually represents private interests, the state’s attorneys argue.
“It’s not a public interest case. It’s a case to benefit one particular group,” Kaplan said.
Unlike the counties, which appreciate tourism and other benefits from uses besides logging, the timber interests funding the lawsuit primarily want to change the state’s “greatest permanent value” rules for forest management to emphasize harvesting, he said.
Much of the alleged damages are for lost future timber revenues, which may force the state to change its logging policies, he said.
“That would directly challenge the interests of the other counties,” Kaplan said.
The case also doesn’t qualify as a class action because of the lack of “commonality” among the counties, which donated their land to Oregon during different times and under specific terms, he said.
Chris McCracken, an attorney for Linn County, rejected the argument there’s a lack of commonality among the counties.
They all face the same issues, such as whether the state has violated its contract to maximize timber revenues, he said.
“We have common questions in droves,” McCracken said.
The Oregon Department of Forestry does not manage each parcel individually but instead treats them according to regional forest plans, he said.
Deciding the counties’ contractual rights collectively is more efficient than trying separate cases with potentially conflicting verdicts, he said.
McCracken also disputed that the lawsuit’s funding mechanism should disqualify it as a class action.
The Davis Wright Tremaine law firm would be entitled to 15 percent of any financial award in the case.
Contingency fees aren’t unusual in class action lawsuits, particularly since the counties are strapped for cash and could not afford such litigation on their own, McCracken said.
“There are no disabling conflicts between Linn County and the class members,” he said.
It’s irrelevant whether some counties prefer the forests to be managed for ecological or recreational benefits, McCracken said.
The lawsuit’s outcome won’t affect these priorities, he said.
“All that is sought here is money damages,” he said. “This lawsuit is not seeking to change the management of the forests.”
Cranberry Run is Saturday
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Bandon volleyball team plays Saturday
Ryan Bundy asks to remove standby counsel, dismiss charges
Just days before his trial is scheduled to begin, Ryan Bundy has asked a judge to get rid of his standby counsel and dismiss the government’s case against him.
In the latest series of court filings from the Malheur National Wildlife Refuge occupier, Bundy writes that he remains committed to representing himself in court.
At the same time, he says he’s been unable to create a defense for himself because he lacks access to critical documents.
Bundy writes that standby counsel Lisa Ludwig was “thrust upon defendant by the government, without the right of interview, contract, or competence test. Defendant was denied his right to represent himself through standby counsel and to file his own motions and his right to find his own assistance which is competent to help him prepare a defense.”
Bundy also asked U.S. District Judge Anna Brown for a 30-day extension to file pretrial motions because he hasn’t been able to view what he describes as the “United States Attorney’s file.”
Bundy and defendant Kenneth Medenbach nearly lost the ability to represent themselves in court after repeatedly violating court orders.
In court this week, Bundy reluctantly assured Brown.
“I will abide by the court’s rulings as long as the court rulings are in abidance of the law,” he said.
In an unrelated filing late this week, the Utah-based attorneys for Ammon Bundy, Ryan’s brother, take issue with Assistant U.S. Attorney Ethan Knight’s assertion that the court has jurisdiction over the case because it involves federal charges.
Mumford compared Knight’s response to that of a “first-year law student” and recites what he calls a “memorable exchange” from “The Treasure of the Sierra Madre.”
That scene includes Humphrey Bogart’s character saying, “If you are the police, where are your badges?” Alfonso Bedoya responds, “Badges? We ain’t got no badges. We don’t need no badges. I don’t have to show you any stinking badges!”
“The government’s response says, essentially, we don’t need to prove no stinking subject matter jurisdiction,” Mumford writes.
Jury selection for the case of the Bundy brothers and six other occupiers is set to begin Wednesday.
Oregon refuge headquarters to remain closed for rest of year
PORTLAND, Ore. (AP) — The Malheur National Wildlife Refuge headquarters, which has been closed since an armed occupation was held there earlier this year, is expected to remain closed for the remainder of 2016.
Oregon Public Broadcasting reports the U.S. Fish and Wildlife Service is installing security upgrades at the headquarters and visitor center. The federal agency says the work could take until early next spring to complete, but it’s still encouraging people to visit other areas of the refuge.
The roads and wetlands remain open to visitors.
The upcoming trial of eight defendants charged in the 41-day armed occupation is creating additional interest in the refuge. Fish and Wildlife spokesman Jason Holm says the agency is taking security concerns seriously.
The armed takeover started Jan. 2 as a protest against the imprisonment of two ranchers.