Small forest landowners consider challenging law

Stream buffers take wide swaths of property out of timber production


Capital Press July 15, 2010

CHEHALIS, Wash. -- A handful of Washington's 215,000 small-forest landowners gathered recently to hear about ways to challenge what they consider violations of their property rights.

Brian Hodges, an attorney with the Pacific Legal Foundation, explained the principle of eminent domain, which is based on constitutional law, and states that government can legally condemn private property, but must pay just compensation.

However, eminent domain has limits. Hodges quoted a 1922 U.S. Supreme Court case that states that "while a property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."

Hodges defined a "regulatory taking" as a taking or damaging of private property for public use without just compensation being paid by a governmental entity that has not instituted formal proceedings.

This is exactly what has happened to Washington's small forest landowners, said Rick Dunning, director of the Washington Farm Forestry Association.

His group, along with the Citizens Alliance for Property Rights and the Family Forest Foundation, organized the daylong seminar June 24 to consider remedies to landowners' loss of their property.

Their property was lost to them, Dunning said, when the state removed their right to profit from it. Under the 1992 Forest Practices Rule, 50- to 100-foot buffers were established along salmon-bearing streams, areas in which timber harvest was restricted. Then the 1999 Forest and Fish Law expanded that to 170 feet with a "complicated, three-tier buffer system," he said.

As far as total area impacted, Dunning said, the Washington State Department of Natural Resources was given the responsibility of calculating how many acres were impacted. Such a survey has not been done, he said.

The Forest and Fish Report of 1999 acknowledged that changes in rules and statutes would "impose substantial additional financial burdens on forest landowners." It further stated, "such financial impacts may be experienced disproportionately by different landowners."

Samuel Rodabough, an attorney with Groen Stephens and Klinge LLP in Bellevue, Wash., said buffer requirements are greater on lower-elevation lands, those owned in greater proportion by smaller landowners.

The state made three promises to induce the small forest landowners to agree to the report, Rodabough said: a Small Forest Landowner Office, a Forest Riparian Easement Program (FREP) and Alternate Plans.

The office, intended to administer FREP and assist landowners in making alternate plans, started with a staff of 12. It now has a staff of 1.5, Rodabough said, and its backlog continues to grow.

FREP was intended to compensate landowners who "leased" the trees and their associated riparian function to the state. Landowners were to receive a minimum of 50 percent of the fair-market stumpage value of the timber. As of July 1, 2009, no funding was available for FREP, according to the Small Forest Landowner Office.

In a separate interview, Heath Packard, director of legislative and internal affairs for the Washington State Department of Natural Resources, said $1 million was allocated to FREP in the 2010 supplemental budget.

"Half of that came from the state capital budget," he said, "and half came from the sale of Commissioner (of Public Lands Peter) Goldmark's fixed-wing aircraft. We felt that FREP was a much higher priority."

Alternate plans would allow the landowner to propose different management strategies that "provide protection for public resources at least equal in overall effectiveness to the protection provided by the basic rules," according to the Forest and Fish Report. But without funding or technical assistance by the office, those plans cannot be considered, Rodabough said.

He summed up the situation: "The three pillars you relied on are pretty much gone."

Steve Stinson, executive director of Family Forest Foundation, said it's not just salmonids that are being protected now. "They're including sculpins," he said. "Do you know what sculpins' primary food source is? Salmon eggs."

Stinson estimated the value of FREP takings at more than $1 billion.

"We've exhausted policy efforts," Dunning said. "Now we're in the legislative process, which might get a little bit of traction -- legislation that would eliminate 90 percent of the problems in this room. Maybe we wouldn't have to go to the courts."

Packard said, "The Legislature (in 2010) directed Natural Resources to work with interested stakeholders to reform the FREP program, to target resources and landowners with the greatest need. I'm sure we'll be seeking additional funding."

He said in 2009 and 2010, Natural Resources asked the Legislature to fund the Small Forest Landowner Office to the tune of $10 million to handle the office's backlog.

At the June 24 seminar, Charles Klinge, also an attorney with Groen Stephens and Klinge, said going to court is an option. "You can keep getting run over or you can try to fight back," he said.

Comments made about this article

Posted By: arthur On: 7/16/2010

Title: Forest families need to work together

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