Eagle ruling fuels
property rights movement
August 19, 2005
Capital Press Agriculture Weekly
P.O. Box 2048
Salem, Oregon 97308
800-882-6789 or 503-364-4798
Fax: 503-364-2692 or 503-370-4383
In a case that property rights advocates and local
government officials watched closely, the Oregon Supreme
Court last week said regulatory taking of standing
timber isn't entitled to compensation.
The August 11 decision overturns a 2003 Oregon Court of
Appeals ruling in a case brought against Oregon Board of
Forestry by Oregon Coast Conifers of Monroe. The
decision turned on the family forestry corporation being
able to log 31 acres of a 40-acre parcel, but not the 9
acres that are within 400 feet of an eagle nest.
Bald Eagles build large nests, called
eyries, at the top of sturdy tall trees. Oregon forest
practice rules require state consent for logging within
300 feet of a nest. The Oregon Department of Forestry
insisted on 400 feet. - File Photo/Capital Press
“In determining whether the regulation at issue
here deprived plaintiff of any economically viable use
of its property, we focus on plaintiff’s ability to
use the 40-acre parcel, not merely on its ability to use
the nine acres of timber. Viewed from that perspective,
plaintiff’s property has an economically viable
use,” said the unanimous opinion, written by Justice
The litigation gained widespread interest in legal and
environmental circles, in part because the bald eagle is
protected by the federal Endangered Species Act, and the
Oregon Constitution mirrors the U.S. Constitution,
forbidding taking of private property for public use
without compensation from government. The federal
standard for compensation turns on whether a regulation
strips a parcel of all economic value.
“I expect it is going to add a little bit of fuel on
the fire of the property rights movement,” said Gene
Grant, a lawyer with Portland’s Davis, Wright and
Tremaine, who has written about legal implications of
He noted that because the Legislature didn’t clarify
some parts of Measure 37 -- last November’s
restatement of public policy on regulatory taking --
there’s already an effort among property rights
advocates to bring additional initiatives before Oregon
Oregon’s Constitution copies part of the U.S.
Constitution’s Fifth Amendment, declaring: “Private
property shall not be taken for public use, nor the
particular services of any man be demanded, without just
Coast Range Conifers sought land exchanges with the U.S.
Forest Service in the 1990s to put sensitive wildlife
habitat in public ownership and apply active management
to the timberland it obtained. The 40 acres in question,
located south of Waldport, came through a 1996 exchange
The eagle nest was spotted when the timber harvest plan
was developed in 1998. Oregon forest practice rules
require state consent for logging within 300 feet of a
nest. Coast Range proposed harvest to within 330 feet of
the nest tree. Oregon Department of Forestry insisted on
400 feet. The Board of Forestry upheld the decision, and
Coast Range sued for compensation in Lincoln County
Coast Range Conifers filed a separate suit with the U.S.
Court of Federal Claims in 2002, and terminated it in
2003, about the same time the Oregon Court of Appeals
said the state should consider value of the 9 acres
within the circle around the eagle tree.
In previous cases, the Oregon Supreme Court has found
that “Regulation in pursuit of a public policy is not
equivalent to taking for a public use.” The high court
has yet to see any litigation of compensation claims
arising from Measure 37, the initiative that says
government either compensates or grants a waiver to
regulations decreasing property value.
Kevin Neely, the Oregon Department of Justice spokesman,
said this case has nothing to do with Measure 37.
Sara Leiman, who manages the family timber for Coast
Range, told the Associated Press there’s no evidence
the eagle nest was actually occupied.
Two Oregon Department of Fish and Wildlife biologists
testified they saw a pair of adult eagles at the nest -- May
Last week’s decision apparently means the eagle circle
remains in force as long as the nest tree exists.
“The whole principle is how far do you go before the
public helps” with species protection, Leiman told the
“How much does the private landowner have to take care
of before the public starts helping to pay?’’
The Associated Press contributed to this report. Tam
Moore is based in Medford, Oregon. His e-mail address is
Copyright 2005, Capital Press.