Takings Suits On Eco Rulings
Have Activists Screaming Foul

PORTLAND, Ore. — Grasping environmental activists may see their long string of legal victories come back to bite them, or at least haunt them.

Two decades of successful venue-shopping for friendly courts has allowed eco-extremists to claim a number of "endangered species" victories that have shut down productive enterprise in a variety of industries, from timber and mining to ranching.

Now they face the possibility that they — or more likely, the taxpayers — may eventually have to pay for the damage that's been done. And the prospect has them gnashing their teeth.

Lawsuits seeking compensation for damages over protection of the spotted owl in Oregon could lead to a financial fallout that the activists claim threatens the protection of other wildlife.

A state appeals court heard arguments last week in a lawsuit filed by Boise Cascade Corp., which wants the court to uphold a $1.8 million award that said the state should compensate the company for preventing it from harvesting a parcel of old-growth timber where a pair of spotted owls nested.

If the appeals court rules in Boise Cascade's favor, activists moan that the state's efforts to protect wildlife and fish, including salmon, could be put at risk.

They say that whenever a private party suffered an economic loss due to one of Oregon's habitat-preservation programs, the state would have to cut a check.

Already, the Boise Cascade case has spurred two similar suits by timberland owners in the state.

``You are just seeing the tip of the litigation iceberg,'' Daniel Kearns, a lawyer for the Portland Audubon Society, told The Wall Street Journal Northwest Edition for a story published last Thursday.

Should the firm prevail in the appeals court and the suits pile up, Kearns said ``it is going to make a host of restrictions the state places on timber, on keeping streams clean to protect fish, even on hunting laws, too expensive to afford.''

(Duh. — Ed.)

Oregon Deputy Attorney General David Schuman agrees. ``It would make it very difficult to keep teeth in our environmental laws,'' he said.

The question before the judges in Salem is whether Oregon must make amends with Boise Cascade by reimbursing it for the lumber the company said it would have been able to sell if the state hadn't issued a series of logging moratoriums on 56 acres the company owns in Clatsop County.

The moratoriums were in effect from January 1993 to October 1997. The company argues that the state's actions amounted to a ``taking'' of private property.

The state's argument is that its duty to preserve wildlife for the general public overrides private-property rights when a species is supposedly endangered.

That claim runs directly counter to the U.S. Constitution's Fifth Amendment, however, and the U.S. Supreme Court has ruled in several cases that landowners can be compensated for the loss of the use of their land for environmental protections.

But the Boise Cascade case is the first time Oregon would decide the case for the state.

And while federal regulations also would have prevented the company from logging its Oregon land, state officials were the first place where the company encountered a roadblock.

The taking of property rights has rankled Northwest timber operators since 1990, when the U.S. Fish and Wildlife Service declared the northern spotted owl a "threatened" species.

Since then, the harvest on 19 federal forests in Oregon and Washington has fallen by 82.6 percent to 662 million board feet in 1998 from 3.8 billion in 1990, according to the U.S. Forest Service.

After the federal listing, the state — which declared the spotted owl threatened in 1987 — also moved to preserve the animal's nesting grounds on private property.

"The bottom line is that if we are going to require timber companies to place off-limits a certain portion of land to protect owls, salmon or other wildlife, then that is a taking — and they are going to be compensated,'' said Chris West, vice president of the Portland-based Northwest Forestry Association, a group of 60 timber and lumber companies in Oregon and Washington.