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Conservation Committee Update Fall 2021

Published September 9th, 2021 in Conservation

Public Trust and Oregon’s Private Forests, Part 1… Angela Jensen

Environmental groups, like-minded individuals, and families in rural Oregon have long been concerned about industrial logging practices on private lands. With the unrestricted leveling of forest habitat and ecosystems, the ubiquitous use of pesticides, and the disregard for neighboring citizens sharing water and atmosphere, private industrial timber interests have benefited greatly from their private forest land ownership. Indeed, many have done so at the expense of the rest of us.

I remember my father praising the practices of such timber exploiters in Southern Oregon for having the “business smarts” and foresight to take advantage of federal lands open to them while buying up private timberland while it was cheap. You see, their business plan was to exploit the timber resources on public lands while it was available to them. The private timber industrialists knew that public lands would soon be restricted. But this would not matter… if they could log with impunity on their own land.

Indeed, this is what happened. With the implementation of the Northwest Forest Plan in 1994, new rules were set in motion to help achieve more sustainable practices on federal forest lands. However, private lands in Oregon were not bound by such restrictions. In fact, Oregon’s statute on the subject was drafted to protect the “farmer” from lawsuits of neighbors who wished to bring a nuisance or trespass claim against the farmer or logger whose actions otherwise diminished the use and enjoyment of their property by pesticide drift, polluted water, or other unacceptable circumstances. The term “farming” encompassed the agriculturist and private forester alike. Oregon’s Land Use and Right to Farm statute (30.930 and 30.936) was adopted in 1993. Was it a coincidence that it took effect before federal land restrictions? Unlikely. At that time, the Oregon legislature deemed agriculture and forestry practices vital to Oregon’s economy.

But what about the neighboring landowner that inhales the drift from forest pesticide application; whose water and soil are now tainted with glyphosate; whose use and enjoyment of their own life and land is now inhibited? What about the future generations that will realize the repercussions of their exploitation to the tune of decreased wildlife and ecosystem services, combined with a disrupted and unpredictable climate system? Do their predicaments matter less than current landholders seeking prosperity?

Of course not.

So, why are current laws so antiquated that they seem to only protect the interests of those seeking to profit, even at the expense of others?

Well, not all laws are. In fact, some laws are so old that they are not given due consideration in our current courts yet could otherwise be useful tools in these situations. One such common law concept is the Public Trust Doctrine.

While there is considerable disagreement about the origins of the Public Trust Doctrine, its principle is straightforward: some resources are too precious for individual control and exploitation and must be held in trust by the sovereign body for the benefit of everyone. Historically, this doctrine has been appropriately applied to air, running and navigable waters, and the sea. But living resources cannot be disconnected from each other and certainly cannot be disconnected from us.

So, could the Public Trust Doctrine be employed to stop the private forester fr

om polluting, infringing on, and otherwise damaging living resources that the rest of us and future generations rely on? It’s a concept. And while it would take a great deal of work to get this concept employed in the courts, I certainly like the thought of it. After all, it seems that a few have become unjustly enriched by their private timber exploits at the expense of the rest of us. Is not some reparation due?

 

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