The Oregon Surveyor Sept/Oct 2018

23 Professional Land Surveyors of Oregon | www.plso.org the stage for the demise of the ill-fated 2014 conveyance. Is there any meaningful distinction between legislative authority and administrative authority emanating from the Oregon Constitution? What the Oregon personnel who coor- dinated the 2014 conveyance, or their legal advisors, evidently failed to real- ize, the OCOA clarified, is the fact that not all forms of governmental authority are equivalent in status, so not all forms of vested authority, even those which have been constitutionally sanctioned, can be exercised without limitation. Au- thority vested in both the executive and the legislative branches of government is constitutional in nature and origin, but the administrative authority of those employed in the executive branch is not entirely independent of the lawmaking authority possessed by the legislative branch. Thus, those whose positions in- volve the execution of administrative governmental tasks like selling land on behalf of the people of Oregon, are sub- ject to legitimate limitations upon their activities, which have been put in place through legislative action. The Oregon personnel who conducted the 2014 trans- action did so in the apparent belief that no legislative restrictions upon their land disposal activities could constrain them in any manner, since they were operat- ing under a mandate which arose directly from the Oregon Constitution. The OCOA informed them that they were mistaken, notifying them that they were in fact sub- ject to legislatively imposed restrictions upon their conveyance decisions, such as the one set forth by 530.450, so they were not authorized to engage in any such expressly banned transactions. As Oregon officials learned on this occasion, the authority to perform administrative tasks at the state government level, just as at the federal level, although constitu- tionally envisioned and supported, does not enable administrative personnel to ignore the will of the people, which has been captured, presumptively with accu- racy, using properly definitive language, by our elected lawmakers, in the form of statutory law. Neither the 1913 statute nor the 1957 amendment thereof was unconstitutional as the OCOA rightly con- cluded. They were both valid legislative statements which were still in full legal effect in 2014, effectively nullifying the contested deed to the timber company because those laws did not represent an unauthorized abrogation or usurpation of the constitutional authority held by the chief decision makers steering the executive branch of government in Or- egon, which any officers or employees of the state were at liberty to disregard. The Oregon appellate panel deems the action taken by state officials judicially unsustainable. The answer provided on 8/1/18 by the OCOA to the question posed in the title of this essay was, as we have seen, “no,” because part of the land comprising this unique tract has been legislatively placed beyond the reach of the constitution- al authority, which is vested in Oregon personnel operating at the administra- tive level, to dispose of Oregon lands. As the Court poignantly framed its conclu- sion, “ORS 530.450 does not divest the State Land Board of a power granted by the Constitution … it only places a lim- itation on how the Board may exercise that power,“ rejecting the assertion set forth on behalf of the state land dispos- al team that the origin of their power to convey land places their activities on a higher plane than that occupied by state lawmakers. Thus even though Oregon is undisputedly the holder of the legal title to all of the land at issue, and the relevant Oregon personnel are constitutionally authorized to dispose of Oregon lands, title to those lands which are subject to 530.450 cannot legally be transferred into the hands of any individual or private en- tity because, as the law currently stands, those specific lands have been legisla- tively immunized against any such sale, in recognition of their public trust origin and stature. From the standpoint of the relevant state officers and employees, 530.450 may represent an unfortunate restraint upon their constitutional capacity to alienate title, preventing the attempt- ed passage of title to lands which were acquired by Oregon under the MTE, on the grounds that doing so would amount to an abandonment of a public trust, but justification for that restriction upon Or- egon, as the fee title holder, has now been judicially identified and upheld, in accord with the public trust character of this most unusually obtained tract. What could happen next? Although the portion of the Elliott State Forest which was once a federal reserve carries an elevated level of protection, enhanced by legislatively mandated re- spect for its former federal land status, originally bestowed upon those densely wooded slopes 111 years ago by Presi- dent Roosevelt, as we have seen, in what was then a politically unpopular move on his part, this land’s ultimate fate has yet to be determined, as the long hot sum- mer of 2018 grinds toward its conclusion and the winds of political change continue to stir. If this OCOA ruling is not exam- ined by the Supreme Court of Oregon, and no related legal action in any feder- al court suggests that the result reached by the OCOA is flawed in some respect, then title to the land acquired nearly a century ago by Oregon through the MTE, amounting to over 68,000 acres, will re- main in the hands of Oregon. The law is not static however, and the obscure stat- ute which was last amended more than six decades ago by legislators who were focusing upon the priorities of a bygone generation of Oregonians during the time when the concept of land preservation was emergent and fervently burgeon- ing all across the United States may not remain in place forever without ongo- ing support. Present Oregon legislators, or those of the future, could potential- ly repeal 530.450, leaving Elliott’s grand legacy unprotected, should they find themselves motivated to do so by the will of the people of Oregon. Nonethe- less, for the moment, that majestic forest and its many denizens have survived to see yet another glorious day dawn upon the Beaver State.  x The author, Brian Portwood, is a licensed pro- fessional land surveyor, a federal employee, and a provider of educational material to all those engaged in the land rights industry. Feature Article