Coast Range Conifers, LLC v. State ex rel. Oregon State Board of Forestry, 339 Or. 136

Summary

The Oregon Supreme Court held that state wildlife regulations restricting logging around a bald eagle nest did not constitute a taking under either Article I, section 18, of the Oregon Constitution or the Fifth Amendment. For the state constitutional regulatory-takings analysis, the court adopted the whole-parcel rule and evaluated the owner's economically viable use of the entire contiguous 40-acre parcel rather than only the affected nine acres. Because the owner could still log more than three-fourths of the property, the court reversed the Court of Appeals.

Holdings

1. Article I, section 18, of the Oregon Constitution is not limited to physical appropriations; regulations that deny an owner any economically viable use of property can constitute a taking requiring compensation.
2. Under Article I, section 18, the court must consider the owner's ability to use the whole parcel owned in determining whether the property retains any economically viable use.
3. The timber was part of the underlying real property because no contract to sever it existed; therefore, the court could not treat the nine acres of timber as a separate property interest for the takings analysis.
4. The wildlife regulation did not effect a taking under Article I, section 18, because plaintiff retained an economically viable use of the 40-acre parcel and could log more than three-fourths of it.
5. The regulation did not effect a taking under the Fifth Amendment because the substantially-advances theory was no longer valid after Lingle, the whole parcel retained economically beneficial use under Lucas, the regulation did not authorize a physical occupation under Loretto, and the undisputed historical facts permitted the court to resolve the Penn Central claim as a matter of law.

Questions Presented

1. Whether Article I, section 18, of the Oregon Constitution applies to regulations that restrict the use of private property, or only to physical appropriations.
2. Whether the Oregon Constitution's regulatory-takings analysis requires the court to consider the entire 40-acre parcel or only the nine acres affected by the wildlife regulation.
3. Whether the timber interest could be treated separately from the underlying real property for purposes of the takings analysis.
4. Whether the wildlife regulation effected a federal taking under the substantially-advances theory, Lucas, Loretto, or Penn Central.
5. Whether the Penn Central issue had to be submitted to a jury.

Disposition

reversed