Boise Cascade Corp. v. Oregon

No. 93-2018 (Or. Ct. App. November 10, 1999)

ELR Digest

The court reverses and remands a jury verdict awarding damages to a logging company that alleged that the state caused a temporary taking by refusing to permit logging on a parcel of the company's property on which a pair of northern spotted owls were nesting. The court first holds that because of the self-executing nature of the Fifth Amendment, as applied to the states through the Fourteenth Amendment, a state may be sued in state court for takings in violation of the U.S. Constitution. The company, therefore, can maintain its inverse condemnation action against the state in state court even though it failed to proceed under 42 U.S.C. § 1983, which is the only affirmative act of Congress that would abrogate the state's sovereign immunity and subject it to a takings claim in state court.

The court next holds that the trial court properly denied the state's motion to dismiss on the ground that the company failed to state a claim that it was deprived of all beneficial use of its property. The company alleged that the state regulated its property in such a way that all viable economic and beneficial use of the property was eliminated. The court then holds, however, that the trial court erred in failing to dismiss the company's claim that it suffered a per se taking by means of a permanent physical occupation in violation of the Fifth Amendment. The state did not cause or induce the owls to breed on the company's property. The court additionally holds that the trial court correctly struck the state's defense that the company's proposed logging constituted a public nuisance. The state offered no authority for the proposition that knocking down a bird's nest on one's property has ever been considered a public nuisance. Nevertheless, the court then holds that the trial court erred in striking the state's defense that the company's takings claim is unripe. The company did not make an effort to obtain an incidental take permit from the U.S. Fish and Wildlife Service, which is a prerequisite to any variance under state law for the destruction of northern spotted owl habitat.

The full text of this opinion is available from ELR (11 pp., ELR Order No. L-121).

Counsel for Respondent
Phillip D. Chadsey
Stoel Rives
900 SW 5th Ave., Ste. 2600, Portland OR 97204
(503) 224-3380

Counsel for Appellant
John T. Bragg, Ass't Attorney General
Attorney General's Office
Carvel State Office Bldg.
820 N. French St., Wilmington DE 19801
(302) 577-8400

[30 ELR 20183]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]