012517-cgt-nws-timber-suit-gv03.JPG (copy) (copy)

Photograph of the property above Hoskins which is part of the 8,400 acres of state forest trust land in Benton County. 

We've been following with interest the recent effort to persuade Benton County's commissioners to withdraw from the $1.4 billion class action lawsuit against the state over timber management practices.

The effort came to a head, more or less, at a meeting this week of the commissioners. After hearing the case for withdrawal (made in part by previous commissioners), current Commissioner Xan Augerot said she now regretted her 2017 vote to remain in the suit and would vote differently on the issue today.

But the board took no formal action on the question. So Benton County remains among the 15 counties and more than 100 taxing districts who are plaintiffs.

The lawsuit itself, which is scheduled to go to a jury trial in Linn County later this month, is fascinating.

Although the lawsuit raises important issues about the management of state lands, at its heart it is a reasonably straightforward breach-of-contract case: The claim is that managers failed in their duty to generate as much revenue as possible from the state forest trust lands, mainly logged-over or fire-damaged properties that were acquired by counties through tax foreclosures starting in the 1920s and then turned over to the state for management.

A 1939 law says these lands must be managed for "the greatest permanent value to the state." At the time, the assumption was that "greatest permanent value" meant maximizing timber harvests from the lands, and therefore maximizing the revenue flowing to the counties.

But over the years, the state broadened the definition of "greatest permanent value" so that it included other goals, such as clean water, fish and wildlife habitat, recreational opportunities and carbon storage. As those goals became increasingly important, and timber harvests declined, the money flowing to the counties declined, leading to the lawsuit's claim that the state has breached its contract with the counties. That erosion of revenue, the lawsuit argues, has aggravated the budgetary woes suffered by Oregon counties.

Benton County always has been a bit of an outlier in the lawsuit: Linn County has been driving this from the start, and most of the other counties in the lawsuit have been hit hard by changes in state (and federal) forest policies. (In fact, it's fair to say that Linn County's commissioners were surprised — perhaps even astonished — when Benton County voted to remain in the suit back in 2017.)

It's also true, as the former officials pointed out to the commissioners this week, that several former Benton County officials were involved in the work that led to the state expanding the definition of "greatest permanent value" to include factors such as clean air and water, healthy wildlife habitat and recreational opportunities. That expansion may well be sound forest management policy; we tend to think so. But it also could legally be a breach of the state's contract with the counties — and that's the point that will be argued in a Linn County courtroom beginning Oct. 24.

Withdrawing from the lawsuit at this late date would have been a purely symbolic decision, even in the highly unlikely event that the judge overseeing the case approved Benton County's request. The time to reconsider the commissioners' actions would have been in the weeks after the January 2017 vote.

But if the Benton County commissioners have regrets today about that 2017 vote, there is something they could do. Benton County contains a relatively small amount of the state forest trust land in question, but if the suit is successful, the county could receive an estimated $30 million in damages. Some of that money would be shared with seven local taxing districts, but some of it would flow to the county. The commissioners could vow not to accept the county's share or could resolve to invest that money in projects that reflect its forest management values. That gesture still would be largely symbolic, but at least it would have a bit of cash backing up those words. (mm)

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