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Oregon Forest Lands Program

Presented by: Edward J. Sullivan

Working in the Urbanizing Landscape:

Changing Roles for Natural Resource Professionals

Beaverton, OR

May 23, 2011

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Oregon

Source: Oregon Department of Forestry, Oregon Indicators of Sustainable Forest Management. Data Information and Reporting for Criterion 4, indicator 19.

•  9th largest state, 98,380 sq mi (254,805 sq km)

• Nearly one half or 28 million acres out of 61 million acres in forests (11,331,198 hectares out of 24,685,824 hectares)

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Oregon Forest Lands Program

State of Oregon commonly referred to as the “Wood basket to the U.S.”

Oregon was the U.S. leader in lumber production for much of the 1900s

Forestry industry fueled most of the state’s economic growth for past 150 years

52% of Oregon land held in federal ownership (no state jurisdiction)

Unique state land use program

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Legal Limitations on Decision-Making

Federal Level

State Level

DLCD/ LCDC

City / County

United States Constitution United States Code

Oregon Constitution Oregon Revised Statues

19 Statewide Land Use Goals

Oregon Administrative Rules Division 660-

Comprehensive Plans including Transportation System Plan, Utility Plans and Master Plans

Local Land Use Regulations

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PLANNING AND REGULATORY ISSUES ON OREGON FOREST LANDS

a. Which agency or agencies regulates forest practices?

b. What non-forest uses, such as dwellings, should be allowed in forest areas.

c. Should the public pay for precluding non-resource uses on forest lands?

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Oregon Planning Structure

Planning Structure –Land Conservation and Development Commission (“LCDC”) (1973)

State Planning Laws – ORS Chapters 197, 215, 227

Statewide Planning Goals, Including Goal 4, Forestry

LCDC Administrative Rules (after 1982)

Regional, City and County Comprehensive Plans, Land Use Regulations and Actions

Land Use Board of Appeals (“LUBA”) and Appeal Courts

Acknowledgments

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Oregon Board of Forestry Forest Practices Act (1971)

LCDC forest land use goal (1974)

Who Regulates Forest Practices?

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Regulation of Forest Lands I – Early Efforts (1974-82)

• Adoption of Goal 4 – “To Preserve Forest Lands for Forest Use” (1974)

• Non-binding “Forest Policy” and “Common Questions” papers for guidance

• Conflicting policy interpretations among:

LCDC

LUBA

Appellate court opinions

• Need to rationalize policy-making

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Regulation of Forest Lands II – Rulemaking Attempts (1982-93)

First Administrative Rules (1982)

Inventory and designation of forest lands in plans

Land use regulations to protect forest lands

Non-forest uses and dwellings not addressed (no consensus), leading to policy vacuum, filled by LUBA and judiciary

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Regulation of Forest Lands III – Current Policy Through Legislative Action (1993-2011)

Environmental Regulations and market conditions devastate industry during 1980s and 1990s. Wilderness Act (1964)Endangered Species Act (“ESA”) (1969)Nt’l. Env’l Policy Act (“NEPA”) (1973)

Thus: Struggle for control over land use and

forest practice regulation Some forest land owners seek an

alternative: sale of lands for rural residential use

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• Inventory and designation, generally by soil type

• 80 acre (32.37 hectares) minimum lot size

• “Lots of record,” “template dwellings,” and “large tract dwellings”

• Forest uses allowed outright

• Non-forest uses and dwellings allowed only conditionally, if at all.

Regulation of Forest Lands III – Current Policy Through Legislative Action (1993-2011)

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Preemption of Most Local Land Use Regulations by Oregon Forest Practices Act

• LCDC protection of natural resources in forest areas by Goal 5 vs. Board of Forestry regulation of forest practices

• 1979 and 1987 legislative action makes Board of Forestry regulations superior to LCDC goals regarding forest practices

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The “Pay or Waive” Controversies

Forestry industry supports Measures 7 (2002) and 37 (2004)

•Payment for “lost value” from land use regulation or waiver of that regulation

•Administrative chaos and voter reaction

•Measure 49 some additional residential dwellings

•Forest landowner hedge against some forest practice regulations

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Conclusions – Decline of New Dwelling Permits

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Questions?

Edward J. Sullivan

Garvey Schubert Barer

esullivan@gsblaw.com

503.553.3106

Please find the article here:http://www.gsblaw.com/pdfs/Land_Use_Policies_OR_Forest_Sullivan.pdf