The Oregon Surveyor Sept/Oct 2018

21 Professional Land Surveyors of Oregon | www.plso.org continues T Oregon personnel had little difficulty sell- ing off the productive lands, as they were constitutionally authorized to do, but circa 1900 the remaining lands that had been derived through the school land grant process were generally unattractive, as they represented an administrative nightmare, being widely scattered and situated in places which were exceed- ingly difficult to reach (see 32 Or Op Atty Gen 100). Basically, Oregon employees assigned to dispose of state lands had a white elephant on their hands, in the form of a multitude of far flung proper- ties in obscure locations that comprised more burden than benefit, yet those un- sold lands carried an implicit public trust component, stemming from the federally mandated purpose for which they were bestowed upon Oregon. How did Oregon leaders address the onus imposed upon them by the unman- ageable remnants of the problematic federal school land grant? 1910 to 1960–After pondering how best to remedy this scenario during the first decade of the Twentieth Century, Ore- gon Governor Oswald West and Oregon State Forester Francis Elliott developed a plan which would eventually produce the timberland tract bearing Elliott’s name, although he was not destined to live long enough to savor the results of his ef- forts. Originally, their plan was to create a state forest unit either within or direct- ly adjoining the Santiam National Forest, but the focal area eventually shifted to the Siuslaw National Forest (originally the Umpqua Forest Reserve when cre- ated by President Roosevelt in 1907) in southwestern Oregon. More important than the targeted location however, was the land consolidation mechanism, de- vised by Elliott and embraced by West, which called for a massive land exchange with the federal government, effectively swapping Oregon’s existing rights to the aforementioned remnant school lands of indifferent character and spread across widely separated townships, with the objective of establishing a compact and readily manageable land unit of more or less equivalent total acreage. In 1913, the Oregon Legislature got on board and contributed to this effort by enacting a law confirming that none of the federal land to be withdrawn from the Siuslaw NF and transferred to Oregon, in pursu- ance of the proposed exchange, would be sold by Oregon for 50 years. Feder- al approval of this proposal was also necessary of course, and although not surprisingly it took more than a decade to obtain, during which time the federal General Exchange Act of 1922 (see Pub- lic Law 67-173 aka 42 Stat 465, and the amendment of 1925, Public Law 68-513 aka 43 Stat 1090) was enacted, paving a path to success for proposals such as Elliott’s. Many bureaucratic or logis- tical hurdles were finally surmounted by this law, and the US General Land Office agreed to the exchange, defin- ing the exact lands to be transferred in duly authorized federal documentation. Because of this exemplary collaboration between public employees tasked with administration of state and federal land rights, the Millacoma Tract Exchange (MTE) was formally executed, by means of a Presidential Proclamation in 1927 (45 Stat 2907). Thirty years later however in 1957, cognizant that the expiration date set in 1913, associated with the protec- tive 50-year period, was looming on the horizon, just 6 years away, Oregon law- makers acted once again, amending the 1913 state law to eliminate that limita- tion. Thus, when Governor West passed from this life in 1960, he did so comforted by the knowledge that a living memorial to his long-deceased friend and profes- sional colleague Elliott would endure for perpetuity, as long as Oregon existed. What were they thinking in 2014? Whether or not anyone representing Or- egon actually took notice of ORS 530.450, which embodies the will of the people of Oregon, as expressed by the Oregon Leg- islature in 1957, prior to agreeing to sell a portion of the Elliott State Forest to a timber company in 2014, or pondered the potential legal ramifications of that statute prior to taking such action, is unknown, but presumably a review of all potential- ly relevant state law was conducted, and state personnel were evidently directed to proceed with that transaction. Although as early as 1938 and as recently as 1982, those charged with management of state land were warned by the Attorney Gen- eral of Oregon about relevant limitations upon their authority (see 19 Or Op Atty Gen 78 and 42 Or Op Atty Gen 260.) It would appear that in 2014, certain Ore- gon officials, at or near the highest levels of state government, were operating in the belief that their constitutionally vest- ed power to conduct land disposals on behalf of the state made their decisions on that subject invulnerable to state leg- islation, causing them to view certain existing state laws, including 530.450, as unwelcome legislative encroachments upon their turf. The decision to move forward with the 2014 land sale would not go unchallenged however, by envi- ronmental interests, seeking to block or negate any such conveyances, and legal action against both the public and pri- vate participants in that transaction was soon initiated with that objective (see 293 Or App 127 – 8/1/18). The complainants pointed out that the publicly held title to portions of the forest land being conveyed into private hands was still under valid legislatively imposed protection, per the state law of 1913, as amended in 1957, but their opponents proceeded none- theless, and when directly challenged in court, the defendants set forth two pri- mary defenses, among others, which we will note here. The state and its grantees initially prevailed, at the trial court level in 2015, as the trial judge concluded that the complainants had insufficient legal standing to support the litigation which they had launched, refusing to address the merits of their position for that rea- son, so the matter came to the Oregon Feature Article continued T Francis Elliot, Oregon State Forester, 1911-1930