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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 Oregons 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 hes inclined to certify the case as a class action which would include other counties in the litigation though hes postponed ruling on that matter.
According to Linn Countys 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 states attorneys that he lacks jurisdiction over the case and that Linn Countys 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 courts reasoning, Murphy also held that he believed the lawsuit meets the requirements for a class action, but he agreed with Oregons attorneys that ruling on the issue now would be premature.
If the lawsuit survives further motions, then its 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 states attorneys argue.
Its not a public interest case. Its 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 states 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 doesnt 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 theres 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 lawsuits 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 arent 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.
Its irrelevant whether some counties prefer the forests to be managed for ecological or recreational benefits, McCracken said.
The lawsuits outcome wont 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.