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By Susan Jane
Rich
On November 2, the Natural Resources Law Institute (NRLI) hosted a lively debate on Oregon Measure 64, popularly known as the "Clearcut Ban." Supporting the measure was third-year student and NEDC executive director Brent Foster, and opposing the ban, from a libertarian environmentalism perspective, was Dean Jim Huffman. Professor Michael Blumm moderated the event. The controversial issue drew a large crowd which packed Room one to witness the debate.
One of the many purposes of Measure 64 was to amend the Oregon Farming and Forest Practices Act (FFPA). This change would have been statutory, not constitutional. It also would have required a greater number of green trees to be retained on both public and private land after timber harvest, and would have banned the use of pesticides and herbicides on those same lands, regardless of their purpose. Additionally, the act would have extended the jurisdiction of the Clean Water Act, so that "navigable waters" would include any land where trees were found.
Dean Huffman began the debate by explaining that the measure, as drafted, set bad policy and was an attempt by environmentalists to shut down the timber industry, which was a vital part of Oregon's economy. Huffman, echoing the opposition's slogan, argued that Measure 64 was "too extreme." He believed that Measure 64, rather than increasing the number of jobs, would result in a loss of revenue from timber receipts, which in turn would decimate timber towns across the state. The pesticide ban, Huffman noted, would be a "one size fits all" remedy which would prevent foresters from deciding when and where pesticides could be applied. In some instances, application of chemicals is necessary to prevent the spread of agricultural disease and to control noxious weeds. Finally, he argued that the aesthetic values that allegedly would be gained from a ban on clearcutting were over-estimated.
Foster admitted that, although Measure 64 was highly publicized and widely supported by Lewis and Clark students, the measure did have problems. The benefit of this measure, however, was that it would have articulated a popular sentiment expressed by many Oregonians that clearcutting is not an acceptable forestry practice. The real problem, Foster explained, was that, despite good intentions, the Oregon Farming and Forestry Practices Act is not enforced, which results in adverse effects to every aspect of the environment. A measure like this is needed to point out the inadequacies of the current law and to draw support in correcting it. If nothing else, the measure would have allowed Oregonians to enforce the Farming and Forest Practices Act through citizen suits.
Huffman responded by saying that the FFPA was an improvement over historical forestry practices, and that Oregon depended on timber for its livelihood. The measure overlooked these points, according to the Dean. He conceded that the citizen suit provision of Measure 64 was a good idea and probably a necessary element, but that the current measure was not the vehicle to deliver it. Finally, Huffman proposed the idea that clearcuts are still an acceptable harvest practice, if created under the right circumstances.
In his rebuttal, Foster explained that clearcuts are destructive on every level, and that anyone who has ever watched a timber harvest would agree. In fact, it was legislation like the FFPA that resulted in much of the environmental degradation in Oregon. He maintained that the FFPA has not been an improvement over historical harvest methods, and will likely result in an exhaustion of natural resources. Rather, Foster believes that sustainable timber harvests without clearcutting is feasible and also profitable.
The parties then turned to the constitutional aspects of the Measure 64 debate. Foster began this issue by stating that the FFPA hinders the public interest in timberland, specifically on public land "owned" by the entire populace. The status quo invades private interests as well, because property destruction and personal injuries caused by clearcutting cost private and state entities millions of dollars every year. Instead, the ban was really a zoning restriction-an acceptable limitation of private liberties. Foster then turned to the issue of whether or not Measure 64 would result in a "taking" in violation of the 5th Amendment to the U.S. Constitution. He first noted that a taking is the complete loss and enjoyment of private property for a public use without just compensation. Measure 64 was a regulation, but it was not a complete deprivation of the use of a private landowner's property: the land would still have a great deal of beneficial use. According to case law, Foster concluded, the courts have allowed a minimal amount of taking in the public interest.
In response, Dean Huffman first explained that the measure raised federalism problems. Specifically, there were Commerce and Supremacy Clause issues because the state of Oregon does not have the authority to regulate commerce, as Measure 64 would require (because it would restrict the amount of timber produced from the state). Huffman also noted that the state, through the FFPA, already fully carries out the intent of the measure, which was to protect the welfare of the state. Finally, the Dean said that a partial taking is nonetheless a taking, which is unconstitutional, and, if the measure wasn't void for its unconstitutionality, it was void for its vagueness requirements.
In response, Foster explained that there was no federalism issue, especially with regard to the Clean Water Act (CWA). The restrictions in the clearcutting ban simply tightened the requirements in the CWA that forestry practices in the state not contribute to the degradation of aquatic resources. Measure 64 was not void for vagueness, according to Foster, because it provided specific guidelines and requirements. Additionally, if the Oregon legislature found the measure too vague, it could amend it in the next legislative session. In sum, the ban constitutionally allowed the state to increase and enforce beneficial environmental standards.
Huffman contended that the takings issue was the first and only issue that a court needed to reach to find Measure 64 unlawful. The policy behind the ban could not be deemed constitutional simply because some people thought it was a "good idea." In fact, recent case law indicates that even if the ban was not a prima facie full taking, but rather a partial taking, it may be treated as a full taking under the law and therefore unconstitutional.
I found this debate to be quite interesting, and a good overview of each side of Measure 64. I also thought that both Foster and Huffman did a good job of presenting a fair and well-articulated debate. I supported the ban, but I also felt that it had fatal flaws. I do not think that Huffman countered Foster's argument that a partial taking was acceptable to the courts, so long as the landowner's total use and enjoyment of the land wasn't impaired. I also liked Foster's argument that the measure was essentially a zoning restriction, and the state (and federal) government passes such restrictions on a regular basis.
On the other hand, the pesticide ban, takings, and void for vagueness issues were problematic. Foster conceded that the pesticide ban was unacceptable in many situations, but that fact cannot be overlooked when judging the overall validity of the measure. The taking issue is unclear as well, as Huffman noted; the case law is fact-specific, and it is unlikely that an Oregon or Ninth Circuit court would approve a ban that would widely affect a large segment of Oregonians and their jobs, as well as take private property without compensation. The vagueness in Measure 64 was also unsettling. Although the intent behind the ban is something that I wholeheartedly support, as I do the Oregon ballot procedure, it is unacceptable for the public to make law and then hope that the legislature will correct sloppy drafting in subsequent sessions.
As it turned out, Measure 64 was defeated resoundingly at the polls. However, the proposed ban was an encouraging step, because it articulated the popular sentiment that clearcutting is not an acceptable forestry practice, especially on public land. Supporters of the measure predict that the clearcutting ban will be on the next ballot in a more clear and concise form, and that opponents will have more difficulty defeating it. Either way, the debate on proper timber harvest practices in Oregon is far from over.
