June 29, 2016

Timber dispute fells meetings law

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Looking over a clearcut in Lane County

Todd Cooper/Eugene Weekly

Looking over a clearcut in Lane County

A kerfuffle at an April meeting of county forestry leaders has at least one environmental group calling foul, a county commissioner chastised, and forestry leaders ensnared in a legal quagmire that’s hiding behind war-font headlines.

See if you can follow me. This one’s kind of an oddball.

The upset stems from a March lawsuit in which Linn County sued the state of Oregon for $1.4 billion in a bid to boost logging revenue from Oregon’s forestlands. The suit is the latest pet of lobbyist/courtroom magician John DiLorenzo, whose projects have included successfully handcuffing campaign finance limits in Oregon, lobbying for oversight of the SAIF Corporation, and recovering utility fees for Portland’s water and sewer ratepayers when used for other projects.

The latest suit charges state officials with failing to promote Oregon’s timber harvests, and argues that the failure has cost the 15 counties that normally share in timber revenues, as well as the special districts that rely on them, big sums. The effort has pegged losses statewide at $35 million a year since 2000. DiLorenzo is aiming for class action status in the timber lawsuit. And if class action status is approved, all 15 counties and their special districts will become plaintiffs by default.

All of this probably rings a bell. There have been some screaming headlines about the lawsuit. But looking past the headlines, what’s there is this: that quite a number of county leaders didn’t know the lawsuit was coming. And as they find themselves its de facto plaintiffs, however unwittingly, there’s a lot of whispering about what to do about it.

“Nobody asked us. They told us after the fact,” said Polk County Commissioner Craig Pope, who was especially rattled by the litigation. He told Redacted that the remedy of just opting out of the lawsuit is not that easy. Counties and districts will have to petition the court to untangle themselves from litigation if the class is certified. And such petitioning makes more of a political statement than some county leaders are comfortable with. In all likelihood, many will avoid the ruffled feathers it will cause with industry and other rural leaders.

But digesting the news of their impending plaintiff status was still a bit heartburn-inducing. The unease and disgruntlement became particularly apparent after a Council of Forest Trust Land Counties meeting in April. That’s the regular meeting of the leaders of these same 15 counties whose forestlands are stewarded by the state.

It’s easy to see why. Imagine being one of these people — people who work in tandem with the Oregon Board of Forestry to create the state’s forest management plans[1] — and finding out that you’re suing them. These are people who normally commit a considerable amount of time to collaborating with state forestry leaders. Now, the Department of Justice, acting as the attorney for the Board of Forestry, has advised the board’s members not to talk to them anymore.

“When this lawsuit comes along and smacks us, it’s like what value are we as a council?” said Pope. “One of our members just decided to take up arms on their own.”

Have weirder things happened? Yes. This is Oregon, after all. Our public agencies once exploded a whale on a beach with a half a ton of dynamite.[2] But who can blame Pope for coming to the conclusion that future council meetings would be an exercise in time-wasting? He drafted a letter to other council members letting them know that Polk County planned to abandon the process.

Chairman Tim Josi was less than cheered by this news. And this is where we veer into Redacted territory. In response to the letter, Josi convened a meeting after the meeting. Its purpose was for general laundry airing among the county’s 15 representatives, with the goal of keeping Pope, the vice chairman of the council, and Polk County in the club. Those in the know characterize the meeting as theater for Pope’s verbal spanking.

We’ll never know quite what went down. No one from the public was is the room. This, thanks to Josi. And his efforts to shoo the public away from the meeting have since earned a verbal spanking of their own.

Josi is a county commissioner from Tillamook. And after a regular meeting of the Council of Forest Trust Land Counties,[3] he convened a second one at the Association of Oregon Counties office April 22. It included the same group of people that attended the Council of Forest Trust Land Counties meeting but was billed as a meeting of “AOC members interested in discussing forest trust land issues,” according to AOC attorney Rob Bovett, who made clear that the meeting would be public. It’s this meeting that Josi asked observers to leave. He said his agenda was to have some frank clubhouse discussion about why Polk County was leaving the council. And that he wasn’t ordering people to leave. Just suggesting it.

Chris Smith got the hint when he showed up. Smith is the state forest program coordinator for the Sierra Club. He has yet to win a popularity contest in forestry circles. His arrival at the spanking session did not improve that circumstance.

When Josi asked Smith to leave, the dustup that occurred happened more after the fact than in the moment. This is how Smith put it: “I didn’t make much of a stand. It was a fairly tense situation. I don’t have the most congenial relationship with Tim Josi and that room anyways.” When Josi asked him to leave, he said, “I was pretty shocked and in disbelief because I’ve attended some of these meetings in the past… I kind of wanted to leave to diffuse the situation as quickly as possible.”

Smith said he did point out that the meeting was public.

Josi agrees. “I said, ‘I know that Chris, you know what this is about, why don’t you be nice?’” Josi said later. “He looked at me and smiled and said, ‘All right, I’ll leave under one circumstance — you give me the code to the bathroom.’”

It was this convivial exchange that (with whale-sized spectacle) blew up at the following Board of Forestry meeting. That and the fact that Josi repeated the exchange with Liz Dent and Seth Barnes next — the state forest division chief and the director of forest policy for the Oregon Forest & Industries Council.

Environmental groups were rather chapped about Smith’s ejection. And upon reflection, so was Smith. Josi got clipped pretty good by two Forestry board members, who also reacted to the political friction the incident exposed by requiring Josi to take a tally of votes at meetings henceforth. But, “he showed very little regret or remorse,” Smith said afterward, something Smith found irksome.

And indeed, Josi still says he’s still pretty sure he didn’t break the law. “In retrospect, I wish I hadn’t asked him to leave,” he said. But he adds that he requested — and did not order — anyone to leave the meeting, something he thought was fair game. He got a legal opinion about doing so before he did it. And he thought he was in the clear. Instead, what he recalled as a mostly congenial exchange exploded into nasty press coverage, letters, and a public tongue-lashing. “This is just an attempt to denigrate me,” Josi said. He’s since been accused of being loud and intimidating, a characterization he thinks everybody in the room would reject.

It’s a little hard to feel bad for Josi, whether the law is on his side or not. His effort to sniff out the line between “suggesting” and “ordering” people out of a public meeting is a bit like winning on a technicality. He clearly knows the rules for public meetings well enough to figure out how to bend them. And I do wonder whether the Oregon Government Ethics Commission would agree that “suggesting” someone leave a public meeting is not the same thing as kicking them out. For now, nobody has made a complaint to the commission. And Smith says he may not.

Still, whatever bad behavior played out here, the oddity of this situation has to be noted. In any other circumstance, elected leaders are allowed to close meetings for executive sessions to discuss pending litigation. In another scenario, Josi’s intent — to have a frank discussion about future membership, within the context of the lawsuit — might have been properly exempt from open meetings law. That is, if it didn’t stray too far from the subject of the lawsuit on its way to a reprimand for Pope. But as I said from the beginning — this one’s an oddball. Even though the counties have been looped into the new timber litigation by default, they only officially become defendants when the class is certified by a judge. That hasn’t happened yet. Which makes it too soon for an executive session to be legal, even though it isn’t too soon for the lawsuit to hit every newspaper in the state, or for county leaders to be blindsided enough to have to think through their legal strategies now.

The epilogue is that Polk County has opted to stay involved in the council for now. And Pope has decided to hang in there, too, even while the Council of Forest Trust Land Counties could be cut off from the Board of Forestry through litigation. Still, “It’s very frustrating for all of us to be in this territory where we’re forced to be partners in a lawsuit,” he said. “It’s awkward and it’s hard and we don’t know how to talk to each other.”

[1] Here’s ODF spokesman Ken Armstrong explaining this particularly nebulous arrangement: The Forest Trust Land Advisory Committee is a statutory construct of the Board of Forestry. In other words — a committee. It provides feedback and recommendations to the board on issues that concern the Forest Trust Lands — or those forestlands located within the counties. Six or seven members serve on the FTLAC. The Council for Forest Land Trust Counties, however, is a different beast. There are 15 counties within the state that have trust lands. The Council is a self-governing organization that provides members to the FTLAC to represent the counties on forestry issues. The council itself is not a construct of the Board of Forestry. It’s the FTLAC that is.

[2] If you live in Oregon, you probably don’t need this footnote. But who can help reliving the experience? It was the Oregon Department of Transportation that cooked this one up, an explosive solution to a whale of a problem – a whale carcass that washed up the shore near Florence. The original newscast is on KATU’s website if you’ve never seen it. Or just want to see it again. It looks as ridiculous as it sounds. In it, a piece of whale blubber actually crushes a car. But if you really want to amuse yourself, read journalist Paul Linnman’s account in his book The Exploding Whale: and Other Remarkable Stories from the Evening News. You’re welcome.

[3] Yes, I too find this configuration of committees within councils, advising boards, offensively confusing. Flow chart, please?

4 thoughts on “Timber dispute fells meetings law

  1. Now that’s what I call exemplary investigative reporting, and I hope it reaches mainstream media! DiLorenzo’s lawsuit stinks to high heaven, and I trust the assigned judge will dismiss it. Right now, I’m more concerned/angry about the Oregon Dept. of Forestry’s abysmal, outdated regulations of private timberland management, not to mention their decision to sell the Elliot State Forest to the highest bidder.

  2. Suing the State of Oregon to force or require the state to boost timber harvest is not a good strategy. The state has trust obligations to sustainably harvest natural resources as well as generation of revenue. When the current old growth forests which comprise less than 5% of what remains is gone and given the climate change extremes we see today particularly of drought and in higher solar radiation, reforestation will become more difficult, if not impossible. Rural counties have obligations to balance the need for “growth” for sustainability and livability. The growth model of economics (American style) will be the death of us all.

  3. “There are 15 counties within the state that have trust lands. The Council is a self-governing organization that provides members to the FTLAC to represent the counties on forestry issues.”
    Oregon is a trustee of the Trust created at the time of statehood. The federal government was the grantor and lands set aside for specific purposes like the public school mandate were either retained like in Washington State or sold off such as in the New Mexico. Read the state Enabling Acts to prove the lands were intended to be held “in perpetuity…” Why some states managed to sell those same lands is a bit of mystery. The lands were still sold cheap (almost always for the benefit of the “private sector” and to the detriment of the “public”) and the proceeds invested or in some cases divested depending on the risk in the investment portfolio. Land and its associated natural resources are the real value and of course, private sector all too well knows. Perhaps, it is time to start talking about having the private sector in particular BIG business pay its fair share of obligation to the public trust to which it owes, oh, so much. Any shortages are not always the “fault of the government.”