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Wildland v. Oregon Department of State Lands

Court of Appeals of Oregon

August 1, 2018

CASCADIA WILDLANDS, an Oregon non-profit corporation; Audubon Society of Portland, an Oregon non-profit corporation; The Center for Biological Diversity, a California corporation; and Joshua Laughlin, Petitioners-Appellants,
v.
OREGON DEPARTMENT OF STATE LANDS, an administrative agency of the state of Oregon, Respondent-Respondent, and SENECA JONES TIMBER COMPANY, LLC, an Oregon limited liability company, Intervenor-Respondent.

          Argued and Submitted June 10, 2016

          Lane County Circuit Court 621407847; Karsten H. Rasmussen, Judge.

          Daniel Kruse argued the cause and fled the brief for appellants.

          Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent Department of State Lands. Also on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Dominic M. Carollo argued the cause and fled the brief for respondent Seneca Jones Timber Company, LLC.

          Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Shorr, Judge.

         [293 Or.App. 128] Case Summary:

         Petitioners appeal a judgment of the circuit court that dismissed their petition for review of a final agency order of the Oregon Department of State Lands (ODSL) to sell the "East Hakki Ridge parcel," which is part of the Elliot State Forest, to intervenor, Seneca Jones Timber Company (Seneca Jones). The circuit court concluded that petitioners lacked standing to challenge ODSL's decision and dismissed their petition without reaching the merits. On appeal, petitioners argue that they have standing and request that the merits of their petition be granted, namely, that the sale of the East Hakki Ridge parcel be set aside as violating ORS 530.450, which withdraws the Elliot State Forest from sale. ODSL and Seneca Jones argue that petitioners lack standing and that, even if petitioners have standing, ODSL's decision should be affirmed because ORS 530.450 violates the Oregon Constitution. Held: Petitioners have standing to bring their challenge to ODSL's decision because they have shown that they have suffered an injury to a substantial interest resulting directly from the challenged government action. On the merits of the petition, ORS 530.450 is constitutional, ODSL's final order selling the East Hakki Ridge parcel to Seneca Jones violated ORS 530.450, and the final order must be set aside.

         Reversed and remanded.

         [293 Or.App. 129]

         Petitioners appeal a judgment of the circuit court that dismissed their petition for judicial review of a final order of the Oregon Department of State Lands (ODSL) to sell the "East Hakki Ridge parcel," which is part of the Elliot State Forest, to intervenor Seneca Jones Timber Company (Seneca Jones). Petitioners sought a declaration that ODSL was required by ORS 530.450 to withdraw the East Hakki Ridge parcel from sale and an injunction preventing or setting aside the sale. The circuit court concluded that petitioners lacked standing to challenge ODSL's order, and, accordingly, it dismissed the petition without reaching the merits of petitioners' challenge.

         On appeal, in addition to arguing that they have standing, petitioners argue that we should reach the merits of their challenge, which is that ODSL violated ORS 530.450 when it sold part of the Elliot State Forest to Seneca Jones. ODSL and Seneca Jones respond that petitioners lack standing and that, even if petitioners have standing, ODSL's decision should be affirmed because ORS 530.450 violates the Oregon Constitution and, hence, is void. We conclude that petitioners have standing to bring their challenge and that we should reach the merits of petitioners' challenge under the circumstances of this case. As to the merits, we conclude that ORS 530.450 is constitutional and that ODSL violated that statute when it sold the East Hakki Ridge parcel to Seneca Jones. Accordingly, we reverse and remand the judgment of the circuit court.

         The relevant facts are undisputed. When Oregon was admitted into the union on February 14, 1859, the United States agreed to transfer certain federal land to Oregon for support of Oregon schools. See State of Or. By and Through Div. of State Lands v. Bureau of Land Management, 876 F.2d 1419, 1421 (9th Cir 1989) (explaining that Oregon Admission Act, 11 Stat 383, section 4, created an obligation on the United States to grant to Oregon sections 16 and 32 of every township in Oregon for use of schools). Because the designated lands were not all available to be conveyed to Oregon at statehood, Congress enacted statutes that authorized states to select other federal public land in lieu of [293 Or.App. 130] unavailable sections. Id. The land that the United States granted to Oregon is referred to as the "common school lands."

         Pursuant to a 1927 presidential proclamation, Oregon received a large tract of common school lands from the United States in lieu of designated lands that were not available to be conveyed to Oregon at statehood. Oregon obtained the lands through written instruments called "clear lists." Id. at 1423. "'A clear list is a government list of lands, title to which has been cleared to a party. It transfers title as effectively as a patent.'" Id. at 1423 n 3 (quoting Oregon v. Bureau of Land Management, 676 F.Supp 1047, 1055 (D Or. 1987)). The United States approved the clear lists, transferring title to the "in-lieu land" to Oregon. Id. at 1423.

         What is now called the Elliot State Forest was created when Oregon received those in-lieu lands from the United States. Thus, the Elliot State Forest is part of the common school lands that the State Land Board is directed by the Oregon Constitution to manage for the benefit of the people of Oregon. See Or. Const, Art VIII, §§ 2, 5. ODSL is the administrative arm of the State Land Board.

         The East Hakki Ridge parcel is within the Elliot State Forest and is made up of 788 acres, over four tax lots, that are part of the common school lands. Oregon acquired one of the tax lots from a private party in 1983. Oregon selected the remaining three tax lots as part of the lands that it acquired from the United States as in-lieu land. In 2013, the cost of managing the Elliot State Forest exceeded the revenue generated by timber sales within the forest. Because of the net loss to the common school fund, the State Land Board approved offering the East Hakki Ridge parcel for sale. Seneca Jones bought the East Hakki Ridge parcel through a sealed-bid auction, and the sale was memorialized in a purchase and sale agreement (PSA) on April 15, 2014.

         Petitioners petitioned for review in the circuit court of ODSL's decision to sell the East Hakki Ridge parcel, identifying the signed PSA as the final agency order that they were challenging. After a hearing on the petition based on [293 Or.App. 131] stipulated evidence, the circuit court concluded that petitioners did not have standing to challenge the sale and entered a judgment dismissing their petition for judicial review.[1]Petitioners appeal that judgment.

         To seek judicial review, a petitioner must have "standing" to do that. "'Standing' is a legal term that identifies whether a party to a legal proceeding possesses a status or qualification necessary for the assertion, enforcement, or adjudication of legal rights or duties." Kellas v. Dept. of Corrections, 341 Or. 471, 476-77, 145 P.3d 139 (2006). "The source of law that determines that question is the statute that confers standing in the particular proceeding that the party has initiated, 'because standing is not a matter of common law but is, instead, conferred by the legislature.'" Id. at 477 (quoting Local No. 290 v. Dept. of Environ. Quality, 323 Or. 559, 566, 919 P.2d 1168 (1996)). Thus, we must look to ORS 183.480 to determine whether petitioners have standing to seek judicial review in this case.

         Under ORS 183.480(1), a person may seek judicial review of an agency order in an other than contested case if the person is "adversely affected or aggrieved" by the order.[2]In People for Ethical Treatment v. Inst. Animal Care, 312 Or. 95, 101-02, 817 P.2d 1299 (1991) (PETA), the Supreme Court concluded that

"a person is 'aggrieved' under ORS 183.480(1) if the person shows one or more of the following factors: (1) the person has suffered an injury to a substantial interest resulting directly from the challenged governmental action; (2) the person seeks to further an interest that the legislature expressly wished to have considered; or (3) the person has such a personal stake in the outcome of the controversy as to assure concrete adverseness to the proceeding."

[293 Or.App. 132] (Citations omitted.) Because we conclude that petitioners have shown that they are "aggrieved" under the first factor listed above, we discuss only that factor.

         For purposes of establishing their standing, petitioners submitted in the circuit court an affidavit from petitioner Laughlin. In that affidavit, Laughlin attested that he is the campaign director for petitioner Cascadia Wildlands and has "spent years of [his] life working to protect the forests, waters, and wildlife of the Elliot State Forest from clearcutting and other environmentally harmful practices." He attested that the Elliot State Forest and, in particular, the East Hakki Ridge parcel, are important to him and that he has visited the forest and parcel for work, recreation, and personal use to "enjoy hiking, looking for wildlife, and experiencing the peace and solitude of some of the last intact and unlogged coastal forests in Oregon." He also attested that he planned to continue to use and enjoy the East Hakki Ridge parcel in the future but was prevented from doing so after the sale to Seneca Jones because Seneca Jones had posted "no trespassing" signs around the parcel. In addition, he attested that Cascadia Wildlands, as an organization, has "dedicated a substantial amount of time, money, and energy into preserving the Elliot State Forest as a public space for public use and for the continuing benefit of the people, forests, waters and wildlife of this state" and has organized educational and recreational outings "in and about the Elliot State Forest."

         On appeal, petitioners argue that they have standing under the first PETA factor because petitioner Laughlin has personally visited and enjoyed the East Hakki Ridge parcel, he had concrete plans to return to the parcel at the time that ODSL entered into the PSA with Seneca Jones, and, after the completion of the sale, he was excluded from visiting the parcel. Petitioners argue that selling the East Hakki Ridge parcel to Seneca Jones also directly affects Cascadia Wildlands' mission. In making those arguments, petitioners urge us to follow federal case law that has interpreted the "adversely affected or aggrieved" standing standard in the federal Administrative Procedure Act to confer standing on people whose affected interests are their use and enjoyment of public land, wildlife, or other natural resources. See, e.g., [293 Or.App. 133] Summers v. Earth Island Institute,555 U.S. 488, 494, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ("While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests ...


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