CARRELL F. BRADLEY, Trustee of the Carrell F. Bradley Trust, created September 16, 1992, Plaintiff-Appellant,
STATE OF OREGON, by and through its Department of Forestry, by and through its State Forester, Defendant-Respondent
Argued and Submitted: December 11, 2012.
[Copyrighted Material Omitted]
Clatsop County Circuit Court 092063. Philip L. Nelson, Judge.
Larry A. Brisbee argued the cause for appellant. On the briefs was Michael T. Stone.
Stephanie L. Striffler, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Wollheim, Presiding Judge, and Nakamoto, Judge, and Schuman, Senior Judge.
[262 Or.App. 80] NAKAMOTO, J.
Plaintiffs  filed a petition for a way of necessity to acquire road access to their landlocked property over state land owned by the Oregon Department of Forestry (ODF) near the coast in Clatsop County. A plaintiff who seeks a way of necessity over state-owned land cannot receive road access unless the state grants permission for the way of necessity under ORS 376.185. ORS 376.180(11). In turn, ORS 376.185 provides that the state " shall not unreasonably withhold" the required consent for a way of necessity. ODF denied plaintiffs its consent due to its concerns that the access road would harm the nesting habitat of the marbled murrelet, a sea bird that is protected under state and federal statutes concerning endangered species. Plaintiffs argued that the proposed road would not harm nesting habitat and that ODF unreasonably withheld its consent. The circuit court determined that ODF's consent was not unreasonably withheld and entered a judgment denying the way of necessity. In a supplemental judgment, the circuit court awarded ODF its attorney fees and costs in the amount of $45,698.12. Plaintiffs challenge both judgments on appeal. For the following reasons, we affirm.
Because it is helpful to an understanding of the dispute, we first provide some background information concerning the protections in effect for the marbled murrelet, general policies for management of state forest lands, and the nature of a way-of-necessity proceeding. We then relate the history of plaintiffs' and the previous owner's attempts to obtain road access through ODF's property and the procedural facts leading to this appeal. We later supplement the facts as we discuss the assignments of error.
A. Marbled murrelet protections
The marbled murrelet ( Brachyramphus marmoratus ) is a sea bird that has declined in population over the past century. In 1992, the marbled murrelet was listed as a [262 Or.App. 81] " threatened" species under the federal Endangered Species Act (ESA), 16 USC § § 1531 - 1544. 57 Fed Reg 45328 (Oct 1, 1992); 50 CFR § 17.11 (1993). The marbled murrelet is also afforded protections by state law, ORS 496.171 to 496.192. Generally, the marbled murrelet nests in old-growth coastal coniferous forests and younger stands with " platforms" along the Oregon coast. To avoid predators, the marbled murrelet seeks nesting sites that provide cover in the middle of the live crown of old-growth trees.
ODF manages its forest lands " to secure the greatest permanent value of those lands to the state[.]" ORS 530.050. Pursuant to that directive, ODF may sell forest products and enter into timber sale contracts. ORS 530.050(2), (3). In addition, ODF may permit the use of its lands for other purposes so
long as those uses are not detrimental to the best interest of state, including protecting fish and wildlife. ORS 530.050(4).
ODF has adopted rules governing the management of state forest lands, see OAR chapter 629, division 35, and it defines the phrase " greatest permanent value" in ORS 530.050 to mean " healthy, productive, and sustainable forest ecosystems that over time and across the landscape provide a full range of social, economic, and environmental benefits." OAR 629-035-0020(1). The State Forester is required to actively manage state forest lands to provide sustainable timber harvest and revenues in a way that " [p]rotects, maintains, and enhances native wildlife habitats[.]" OAR 629-035-0020(2), (2)(b). ODF has adopted policies to protect threatened and endangered species, including a set of policies specifically concerning marbled murrelets.
Through its Marbled Murrelet Operational Policies, ODF seeks to " [m]inimize the disruption of [the marbled murrelet's] reproductive activities" and to " maintain habitat suitable for successful nesting" in marbled murrelet occupied sites. Marbled Murrelet Operational Policies 126.96.36.199. In addition, ODF will use reasonable measures to " avoid direct take of marbled murrelets" and to " minimize the risk of any potential take incidental to [its] management practices."  [262 Or.App. 82] Marbled Murrelet Operational Policies 188.8.131.52 (emphasis added). Pursuant to those policies, ODF establishes Marbled Murrelet Management Areas (MMMAs) in locations that ODF determines are occupied by marbled murrelets.
In 2003, the marbled murrelet was detected in the Hug Point Beach area. In 2005, ODF designated that area as an MMMA, known as the Hug Point Beach MMMA, for the protection of marbled murrelet nesting habitat. Some of ODF's land over which plaintiffs seek a way of necessity lies within the Hug Point Beach MMMA or its " buffer zone." Marbled murrelets have been sighted on ODF's property in the past.
B. Statutory way of necessity
When a landowner has no means of vehicle access to a public road from his or her property, the landowner may petition for a way of necessity across another's property to gain road access pursuant to ORS 376.150 to 376.200. That is the case here. Plaintiffs' property consists of a square parcel with a small " panhandle" at the northwest corner. ODF's land lies south and west of plaintiffs' property. Campbell Group, LLC, a timber company, owns property north and east of plaintiffs' property, and private property lies west of the panhandle of plaintiffs' property. All of the properties are forested, and plaintiffs' property is " landlocked" without access to a public road. To gain road access to their property, plaintiffs filed for a way of necessity, proposing the construction of a road over ODF's land, which ODF opposed.
Unlike an easement, which provides a nonpossessory interest in another's private right of way, " a successful petition for a way of necessity creates public access to landlocked property through a route determined, owned and controlled by the county." Nice v. Priday, 149 Or.App. 667, 673, 945 P.2d 559 (1997), rev den, 327 Ore. 82, 961 P.2d 216 (1998). To obtain a way of necessity, the landowner petitions the governing body in the county in which the land is located. ORS 376.155(1). Once served with a petition, the county may transfer jurisdiction over the establishment of the proposed way of necessity to the circuit court in that county if the county has adopted an ordinance allowing jurisdiction. ORS 376.200(1). When a circuit court has jurisdiction over [262 Or.App. 83] the establishment of the way of necessity, as in this case, the court must appoint an investigator to submit a written report addressing whether the conditions for the way of necessity have been met, recommending possible alternative routes, and making a recommendation for a specific road access location. ORS 376.200(5); ORS 376.160(2).
In a way-of-necessity proceeding, the petitioner or plaintiff has the burden to show, by a preponderance of the evidence, that the
12 conditions for establishing a way of necessity enumerated in ORS 376.180 have been met. Tyska v. Prest, 163 Or.App. 219, 224, 988 P.2d 392 (1999) (citing Witten v. Murphy, 71 Or.App. 511, 516, 692 P.2d 715 (1984), rev den, 298 Ore. 773, 697 P.2d 556 (1985)). One of those conditions, ORS 376.180(11), is at the heart of the dispute in this case. That provision provides as follows:
" A way of necessity established under ORS 376.150 to 376.200 shall:
" * * * * *
" (11) Not be established over land owned by the state or a political subdivision of the state unless permission is granted for the way of necessity under ORS 376.185[.]"
In addition, the court must direct the plaintiff to pay reasonable attorney fees and costs incurred by each landowner whose land was subject to the action for the way of necessity. ORS 376.175(2)(e). If the court grants the way of necessity, it must also direct the plaintiff to pay the " amount of compensation due to any owner of land across which" the way of necessity has been established. ORS 376.175(2)(f).
C. Requests for easements across ODF's property denied
Plaintiffs acquired their property from Nordgren, who offered his property to plaintiffs as security for a loan. In 2007, when Nordgren could not pay back his loan, plaintiffs accepted conveyance of the property. At the time of the conveyance, plaintiffs were aware that there had been litigation involving the property but did not know the extent of the property's road access problem. The original plat for the property shows seven different platted roads that connect to the property, but those roads cross deep valleys or steep ridges, which makes access impractical, if not impossible. [262 Or.App. 84] The nearest public access or roadway to plaintiffs' property is Shannon Lane, which connects to Highway 101. The Hug Point Beach MMMA on ODF's property lies west of plaintiffs' property and separates plaintiffs' property from Shannon Lane. The MMMA's buffer zone lies directly south of plaintiffs' property.
Nordgren and plaintiffs variously approached ODF and made three different requests for an easement over ODF's property before plaintiffs sought a way of necessity, but ODF denied all of them due to concerns about, among other things, the negative impact to the marbled murrelet habitat. Before Nordgren conveyed the property to plaintiffs, he made two separate requests for an easement. First, in 2004, Nordgren requested an easement that started on Shannon Lane and then went east toward the western border of his property, following a logging road on ODF's property that was not in use. After ODF's professional staff reviewed the request and recommended denial based on concerns about the marbled murrelet habitat, ODF denied Nordgren's 2004 easement request.
In 2005, Nordgren made a second easement request to ODF, but this time he proposed that the access road would start on Shannon Lane and would dip down and run through the Hug Point Beach MMMA's buffer zone, rather than through the MMMA, on ODF's property and then curve up to meet the southern border of his property. In part, ODF denied the request based on biologists' concerns that the proposed easement would cause unacceptable disturbances to marbled murrelet habitat because ODF would not have control over the amount of vehicle traffic over the proposed road.
After they acquired the property from Nordgren, plaintiffs decided to build a residence on the property, and they, too, explored access options. In 2008, plaintiffs met with Bangs, ODF's Natural Resource Specialist, and proposed an easement that would be located in the Hug Point Beach MMMA and would cross ODF's property along the historic logging road that would connect to Shannon Lane. Bangs explained to plaintiffs that their easement request was identical to Nordgren's 2004 easement request, which [262 Or.App. 85] had been denied, and suggested that they consider proposing a different route.
Later that year, plaintiffs formally requested an easement for a road that would start on Shannon Lane and would go down along portions of an existing road and then go through the MMMA buffer zone and
would meet the southern border of plaintiffs' property. That request was " nearly identical" to Nordgren's 2005 easement request with the exception that plaintiffs offered to provide ODF with the exclusive right to manage the timber on their property. In response to plaintiffs' request, Bangs reviewed information from Nordgren's 2005 easement request through the MMMA buffer zone, and he later sought input from Smith, ODF's Northwest Oregon Area Biologist who had also reviewed Nordgren's two easement requests. Smith concluded that reopening the road and allowing additional construction would cause a risk to the marbled murrelet. Ultimately, Bangs concluded that ODF's previous concerns as to Nordgren's 2005 request remained valid for plaintiffs' 2008 easement request. Assistant District Forester Zilli, who had reviewed Nordgren's 2004 easement request, reviewed plaintiffs' 2008 request and recommended that it be denied because the road would not contribute to the " greatest permanent value" to the state forest.
As relevant to this appeal, in his October 2008 letter, District Forester Savage, on behalf of ODF, stated that plaintiffs' easement request was denied because ODF had concluded that plaintiffs' " alternate location has the potential to negatively impact marbled murrelet habitat." ODF asserted that plaintiffs' proposed road would " require the removal of a large majority of the buffer and create a hard edge close to suitable nesting habitat." ODF noted that it had consulted with the Oregon Department of Fish and Wildlife (ODFW) and the United States Fish and Wildlife Service (FWS), and explained that, in ODFW's opinion, the proposed road " would make the adjacent suitable nesting habitat susceptible to windthrow"  and was " likely to lead to an increase in the corvid (jays and crows) population[,]" [262 Or.App. 86] making marbled murrelet nesting habitat more susceptible to predation. Although ODF denied plaintiffs' easement request, it was willing to offer them a temporary road-use permit across ODF's land, but only for forest management purposes.
D. The petition for a way of necessity
Shortly thereafter, in February 2009, plaintiffs petitioned the Clatsop County Board of Commissions (board) to establish a way of necessity pursuant to ORS 376.150 to 376.200. The board transferred jurisdiction to the Clatsop County Circuit Court pursuant to ORS 376.200 and Clatsop County Ordinance No. 08-01. After the court had jurisdiction, plaintiffs hired (and the circuit court later appointed) AKS Engineering ...