BEFORE THE OREGON BOARD OF FORESTRY Statement of Mary Scurlock, Oregon Stream Protection Coalition
Agenda Item 3: Siskiyou Streamside Protections Review
8 January 2019
Timely Degradation Finding Regarding Stream Tempreature as Priority. Our priority is for this Board to reach a final decision about the sufficiency of the current water protection rules with respect to stream temperature in the Siskiyou based on all available relevant information, including the expanded literature review. It would be ideal to decide the sufficiency of the rules to meet “desired future condition” at the same time, but not if alignment requires delay of a decision on stream temperature. We urge the Board to establish July 2020 as a firm date to decide whether resource degradation is occurring in the Siskiyou under current rules.
Climate Change Should Be Considered Without Delaying A Degradation Decision. We believe that available information on climate change is important contextual information that should be incorporated into the Siskiyou analysis, but that a 9 to 12 month project is not required to provide this information to the Board. We hope that you can find a way to scale back Option 1 to focus on the three identified information sources (the NorWest model, Spies et. al. 2018 and the Southwest Oregon Adaptation Partnership) in a way that fits within a hard July 2020 decision point. Your direction can clarify that consideration of this information in no way shifts the focus of your decision away from the discrete impacts of current forest practices on stream temperature.
Climate Change Option 2 creates a false tradeoff by for the Board. Option 2 outlines a policy analysis and development project that ODF (and other state agencies) may well find both necessary and valuable, but it does not belong in this Siskiyou Stream Rules review. We do not think that pursuing this or a similar policy development option should have any direct bearing on the conduct of the Siskiyou rules analysis, nor should it burden the Department’s limited effectiveness monitoring budget.
Project Charter (Attachment 2): This is a useful format to convey project scope. We have a few concerns:
• We suggest attaching a timeline, including past milestones.
• The outcome of the ODF-DEQ collaboration is described as a “process for aligning agencies’
sufficiency reviews.” Does this mean the result is simply a process for future alignment, or can we expect to accomplish actual alignment within the context of the Siskiyou rule review? When will the parties get beyond the current stage of “clarifying” their respective legal and policy authorities and mandates and finalizing statements of intent?
• We suggest that the description of monitoring options in the charter be amended to clarify how final decisions about how and whether to proceed will be made;
• The landowner-controlled regional committees are listed as “interested parties” that will be represented on the Siskiyou Advisory Committee but these committees do not actually represent a separate stakeholder group from forest landowners, who are already recognized. We suggest that it may be more appropriate to include county governments, local watershed councils or water providers as interested parties.
Committee Objectives (Attachment 3). We appreciate that the purposes of the committee have been clarified and that the Department recognizes the importance of prioritizing inclusion of Siskiyou region members and the use of in-region locations as budgets allow.
We are making excellent progress in our campaign to protect forest waters in Oregon through ballot measures. Our forest water measures will update forest management practices, improve habitat for fish and wildlife, and increase the resilience of our forests in the face of climate change.
The three measures – Initiative Petitions 45, 46, and 47 – were filed in October by concerned Oregonians to put the vote on the ballot for this year’s election. The aim is to increase protections for water in Oregon’s forests up to the level of Washington State.
We’re hearing support from people around the state, and our polling is strong. Plus, we’ve been getting a lot of coverage in the media.
Another sign that we’re off to a good start: Logging interests have responded with ballot measures of their own. And, no surprise, they’re already resorting to extremist rhetoric despite the fact that our proposals largely follow the standards of neighboring states. Our proposals are reasonable, feasible, and long overdue.
This will be a challenge, as is always the case when taking on the logging industry in Oregon, but one that is shaping up to break the stranglehold that the logging industry has exercised on environmental policy in Oregon for too long.
Here are four quick updates on the campaign and a way you can help.
4 quick updates
1. Our refiled Initiative Petitions have final titles and they are strong.
The forest waters coalition resubmitted three initiative petitions on October 2, 2019 (IP 45, 46, and 47). Please take a look at the titles
IP 45: Expands area around forest waterbodies where aerial pesticides are prohibited and where logging operations limited
IP 46: Expands area around forest waterbodies where aerial pesticide spraying prohibited; increases notice requirements for spraying
IP 47: Expands to 50/100 feet the area around waterbodies where commercial logging operations limited; exceptions
As expected, the logging industry – who have opposed the measures all along – appealed these titles to the Oregon Supreme Court. The Attorney General will defend the titles, and the chief petitioners will submit amicus briefs to the Court.
2. The logging industry is pursuing three measures of their own. Please consider taking a look at them as well.
IP 53: A Constitutional Amendment that will require taxpayers to pay landowners when laws protect public values – like buffers for rivers and streams – without any exceptions for public health, safety.
IP 54: Statutory measure to block voter’s and legislature’s ability to change forest laws.
IP 55: Statutory measure to change the board of forestry to increase the number of logging interests on the board.
One of these cynical measures received its final ballot title on Monday, January 13. The other one was rejected on single-subject grounds. The third will have a final title assigned on January 17. The current titles for IP 54 and 55 expose the brazen attempt by the logging industry to rig the rules in their favor and put corporate interests ahead of the public good.
3. New climate study underscores the need for forest protections
Study authors analyzed forests across the country that could prove most critical in storing carbon pollution and found that Oregon – especially the Cascades and Coast Range – is filled with forests deemed a high priority for protection. The forest waters initiatives aim to protect these carbon-storing forests near waterways across the state, while also protecting our clean water and wildlife.
4. People and groups are getting involved. What’s next?
Our chief petitioners for the forest waters initiatives are local people who have been directly impacted by industrial logging. Kate Crump is a coastal resident and fishing guide who knows firsthand how industrial logging in Oregon harms drinking water and fish habitat. Micha Elizabeth Gross is co-owner of Myrtle Glen Farms in Coos County, where Oregon’s lax buffers around streams have damaged her drinking source water. Vik Anantha is a conservation advocate and outdoor enthusiast who has seen our coastal forests rapidly converted to industrial tree farms.
Public health and conservation groups from across the state are supporting the effort of local residents to put one of these measures before the voters. Some of the organizations involved are: Beyond Toxics, Cascadia Wildlands, Klamath Siskiyou Wildlands Center, Native Fish Society, North Coast Communities for Watershed Protection, Oregon Wild, Pacific Rivers, Portland Audubon, and Wild Salmon Center. The petitioners are gearing up to begin the volunteer portion of their signature gathering drive.
We would like your help and involvement!
We still have a few things to wrap up before we bring the forest waters initiative to the ballot. So far we have met or exceeded the goals we set for ourselves. For example, our:
Experiments with signature gathering show we can collect what we need very quickly.
Opinion research shows a growing majority of Oregonians support the forest waters initiatives, with 70% in support.
Fundraising efforts show major donors are willing to invest in the potential campaign.
We are working now to line up your group, your members, and individual volunteers to be prepared with petitions to help gather signatures. We will be ready to go just as soon as the Supreme Court challenge is completed.
Here’s how you can help.
Please make a pledge to collect signatures to qualify our measures for the ballot! We need 112,020 valid signatures (and a cushion to be safe), and you or your group can help! We can provide the signature sheets and training to your teams, and we will take the sheets when complete and validate the signatures and conduct the turn-in.
The forest waters initiatives have been designed with extensive feedback from community organizations, conservation groups, landowners, small family foresters, and neighbors living with the impacts of industrial forestry. As we work to make history by passing the first significant modernization of Oregon’s forest water laws we need your help and your best ideas. Please email us at email@example.com with your thinking, and we will be in touch!
The Oregon Board of Forestry has put Peter Daugherty, the state forester, on a performance improvement plan to address dysfunctional relationships with some board members, poor communication with the board at large and concerns over the agency’s financial condition.
In a Oct. 30 letter to Daugherty, board chair Tom Imeson said the plan stemmed from a discussion the board had after its retreat on Oct. 9. He said the recommendations for corrective action were endorsed by the entire board and the governor’s office.
Tensions between board members, the department and Daugherty have been evident for some time, particularly those members appointed to bring a conservation voice to the board: retired businessman James Kelly, fish biologist Cindy Williams and retired Oregon State University forestry professor Brenda McComb.
The three have frequently expressed frustration with the agency’s lack of responsiveness to their requests for information and that their concerns on specific issues were ignored. The board’s increasing dysfunction spilled into an open and emotional discussion at the Oct. 9 retreat, and Daugherty acknowledged some of the problems there.
Daugherty responded Friday in an emailed statement.
“I take all board feedback seriously, particularly when it has recommendations for improvement,” he wrote. “This review is an opportunity to work with the board to improve relationships within the board as well as between the board, the department and our stakeholders.”
The agency has remained mired in numerous struggles during Daugherty’s tenure, which began in 2016. For the last several months, it has been trying to address an acute cash flow crisis due to uncollected costs from large wildfires. The issue is significant enough to threaten the agency’s solvency, and it has only been able to keep the doors open by borrowing from Treasury, raiding its own reserves and having the Department of Administrative Services cover its payroll costs.
Simultaneously, agency leaders have been striving to develop a new management plan for state forests, one that can stabilize the finances of the division while winning support among both conservation and timber interests. The agency released a draft of that plan this week, and initial feedback from the timber industry, environmental groups and rural counties was not good.
Agency leaders have also been under the gun to respond to two major lawsuits. One just ended with a $1.1 billion jury verdict against the agency for failing to maximize logging revenues on state forests. The other remains in the discovery phase, but seeks to stop 68 planned timber sales that environmental groups contend threaten endangered salmon.
Imeson’s letter acknowledged that the department was dealing with multiple challenges at once, and called the position of state forester “one of the most difficult jobs in state government.” He said Daugherty has effectively led the agency’s firefighting efforts, and that his “loyalty to the department, its people and its programs is unquestioned.”
It went on to say, however, that the broad set of perspectives individual board members brought to the job should be a valuable asset to the department.
“It is critical that each board member feel that their contributions are valued, their request for information are heeded and their concerns are addressed,” Imeson wrote. “At this moment not all board members feel that way. Individual discussions with each board member are imperative to reset the relationship as necessary.”
The letter directed Daugherty to meet individually with each board member within 60 days to gather their perspectives, prepare an overview of the feedback, and deliver a plan detailing how he can work with the board “in a way that builds relationships, promotes consensus and effective and respectful governance. That action plan should be complete by February 15.”
The board also directed Daugherty to prepare a list of key agency stakeholders and develop a strategy to show his and the agency’s commitment to “meaningful and recurring dialogue with all of your stakeholders.”
Imeson called the financial management of the agency’s wildfire costs an issue “of paramount importance.” He acknowledged that Daugherty had informed the board on several occasions that the department was struggling with an outdated fire funding model. But Imeson said Daugherty failed to give them several vitally important facts, including how old some of the uncollected bills were; the sheer size of the $100 million-plus backlog; and that the agency had come perilously close to default on a line of credit on one or more occasions.
“This failure is unacceptable, getting in the way of the board’s responsibility to provide oversight and assistance.”
The same discussion came up at the Oct. 9 retreat, where several board members expressed their concerns that they were only learning the severity of the agency’s cash flow crisis by reading about it in The Oregonian/OregonLive.
The governor has since appointed a financial SWAT team and hired a consultant to help the agency dig out of its financial hole. Imeson’s letter directed Daugherty to work with them and deliver a plan to achieve a meaningful reduction in the uncollected fire costs, and develop a long-term solution to those funding problems.
“You may find that as you are following through on these expectations that you would benefit from a leadership coach,” the letter continued. “We support your working with the Department of Administrative Services to retain a leadership coach who can help you reflect and take action on the feedback you receive from board members and stakeholders.”
The board, which has the authority to hire and fire the state forester, will keep Daugherty on a fairly short leash. Imeson said he would schedule another board evaluation with Daugherty, most likely at the January 2020 meeting, and will require quarterly progress reviews through the year.
Timber companies notified state regulators this year that aircraft will spray pesticides on least three dozen tracts of forestland in Lane County.
Aerial spraying of these chemicals has been controversial in Oregon, with environmental groups seeking reforms to the practice for years. Timber companies spray pesticides using aircraft to kill competing vegetation after a clear-cut that can curtail the growth of Douglas fir and other valuable trees grown for logging. Oregonians have raised concerns about how the broad application of pesticides and applying them from the air can pollute waterways and sicken people.
Oregon lawmakers moved in 2015 to protect homes and schools from the chemicals, but more recent legislative efforts to restrict aerial spraying and improve public notification have floundered.
In recent weeks at the county and state level, efforts to ask voters to curtail or outright ban the practice, which opponents say is only loosely regulated, have been stymied. For example, a judge threw out in September an aerial spray ban that Lincoln County voters passed in 2017.
But supporters of the statewide efforts received good news Thursday when Secretary of State Bev Clarno approved three proposed initiatives, two of which seek more restrictions on aerial spraying, to take another step toward signature gathering. Clarno rejected three earlier proposed initiatives after concluding they were unconstitutionally over broad.
“I appreciate that the chief petitioners of these initiatives amended their proposals to meet the constitutional requirements,” Clarno said in a statement. “Voters will now be able to read and decide for themselves on these issues.”
Regulating aerial spraying
State regulation of aerial spraying falls under the Oregon Forest Practices Act, the law that sets policy for commercial logging in Oregon’s forests, and is chiefly divided between the state departments of agriculture and forestry.
The agriculture department registers the pesticides and licenses the people who apply it. To qualify for an Oregon aerial applicator license, which allows a person to apply pesticides by aircraft, pilots must meet a list of requirements, including passing an aerial exam and least 50 hours of pesticide application flight time. There are 1,012 active Aerial Pesticide Applicator licenses in the state.
Timber companies must notify the forestry department before applying pesticides, but there’s no state requirement to notify the public. Companies can voluntarily provide that public notice.
Thirty-eight tracts of Lane County forestland were sprayed with pesticides using aircraft in 2019, according to Beyond Toxics which provided The Register-Guard with data from an Oregon Department of Forestry-managed database. Pesticide reform is one of the main missions of Beyond Toxics, a Eugene-based nonprofit environmental organization.
From 2015 to 2019, 185 tracts of Lane County forestland were sprayed with pesticides by aircraft, according to the data.
The database doesn’t provide the exact acreage sprayed, the exact dates of the spraying or the exact chemicals and amounts used.
But the typical chemicals used in those sprays included imazapyr, a weedkiller, and clopyralid, an herbicide that kills broadleaf weeds, including clover. Both chemicals can damage or irritate eyes and skin.
The data shows that this year another 44 Lane County tracts of forestland were sprayed with either aircraft or on-the-ground applicators.
“We’re finding that more and more timber companies are switching from aerial spray to ground spray because of the public awareness,” said Lisa Arkin, Beyond Toxics executive director. “I think that’s a good thing.”
At the same time, she said, companies are applying pesticides more frequently as the growth cycle for trees grown for logging has narrowed from 60 years to about three decades.
Attempts to strengthen regulations
In 2015, state lawmakers passed a law establishing a 60-foot “no-spray buffer” when aerial spraying occurs next to homes and schools. The law also required state certification for applicators using aircraft to spray pesticides.
The law came amid growing public concern about the potential dangers of aerial spraying and Oregon’s weak regulations in comparison to neighboring states, which do more to protect people and the environment from drifting chemicals.
But efforts to further tighten regulations surrounding aerial spraying haven’t advanced in the Legislature since then.
A 2017 bill, supported by Beyond Toxics, would have provided residents timely public notification of aerial sprays and more detailed public information about the applications, but it died in committee.
Earlier this year, a second attempt to strengthen notification requirements failed, as did a bill that would ban aerial spraying on state-owned lands.
Recent county efforts stymied
Locally, county commissioners have made clear they will not refer to voters a ballot measure proposed by grassroots organizations to ban aerial spraying of herbicides, which kill undesirable plants and weeds, in Lane County.
The groups, including Community Rights Lane County and the Lane County Freedom From Aerial pesticides Alliance, gathered signatures to qualify the measure for the ballot but a judge invalidated the initiative in 2018 as overly broad.
While an appeal of that decision is pending, backers have pressed county commissioners to refer the measure to the ballot, citing the level of public support.
Elected county commissioners have balked, citing an opinion from their attorney, County Counsel Stephen Dingle, that they could be held personally and financially liable for spending public money to hold an election on a measure that doesn’t pass legal muster. The county took the rare step of waiving attorney-client privilege to make the opinion public because of the high interest in the issue.
Stan Long, a retired local attorney and timber industry supporter, has threatened to take the county to court if it refers the measure. He sued Lane County and that case ultimately led to the judge throwing out the groups’ measure.
State law preempts cities and counties from adopting policies and regulations related to the use of pesticides.
This preemption is the reason a Lincoln County judge invalidated that county’s voter-approved measure. The measure was similar to Lane County’s proposed initiative.
And the potential personal liability for Lane County commissioners if they referred the local measure to the ballot with that state preemption on the books gave the elected leaders pause.
“To me, wasting time, money and effort if it’s going to be preempted doesn’t make a great deal of sense,” Commissioner Pat Farr said at an Oct. 17 meeting when the legal issues surrounding a referral were debated.
The attorney representing the organizations putting forth the measure disputes Dingle’s finding, arguing there’s no case in which public officials have been held personally liable for placing a measure on the ballot.
“They (commissioners) lack the courage to stand with the people, and they’re hiding behind an unjust (state) law,” said Michelle Holman, founder of Community Rights Lane County, one of the measure’s backers.
Measures proposed to state
Meanwhile, efforts by a coalition of environmental groups to amend state law to scale back aerial spraying and restrict logging had hit roadblocks until Thursday.
In September, Clarno, the state’s top elections official, had tossed three prospective initiatives for being unconstitutionally overbroad. The coalition, which includes Oregon Wild and Beyond Toxics, filed another three prospective initiatives aimed at addressing Clarno’s concerns, leading to her approval.
A key aim of the initiatives is to amend the state law to expand the buffer where aerial spraying is prohibited to 500 feet from 60 feet in areas next to waterways.
Jason Gonzales, Oregon Wild’s forest and watershed campaign organizer, said the coalition is seeking to put on the November 2020 ballot a measure that amends current law in a way “that the science, common sense and the voters will support.”
“A 500-foot buffer from running water is something that we found widespread agreement about,” he said, “and something that I think accomplishes what we all want to see, which is protection from this practice without going so far as banning a whole class of behavior.”
Katie Fast, executive director of the agribusiness industry group Oregonians for Food and Shelter, raised concerns about the local and statewide efforts.
She questioned how county governments would enforce local bans and restrictions without the experts and resources offered by the state.
“Would the county still have the expertise to go in and do an investigation?” she asked.
On the proposed statewide restrictions, Fast noted the federal government registers the chemicals and sets the instructions for their use, including how far they can applied from water.
“What’s in the ballot measure are very large buffers that we would see as” an infringement of private property rights, she said, “because of not being able to control noxious weeds in that area by using the application method.”
Holman with Community Rights Lane County said the groups pushing the county measure aren’t allowing the recent setback as a result of the county commission decision to stop them.
“We believe we are fighting a principled fight,” she said.
A group of retired foresters backed by the timber industry filed three initiative petitions this week looking to counter what they say are “radical anti-forestry ballot initiatives being pursued by environmental extremists.”
Jim James, a forestry consultant and executive director of the Oregon Small Woodlands Association, is one of the chief petitioners. He said he was not acting on behalf of the association, though it is mentioned in the initiative petitions. The Oregon Forest Industries Council, a timber industry trade group, is serving as treasurer of the campaigns.
“I’m a professional forester and have had a long career in the industry,” James said. “When I became aware of the three anti-forestry ballot measures, I became very passionate about how wrong those were and I reached out to others to push back on these absolutely crazy initiatives they proposed.”
Environmental groups filed three ballot measures earlier this year to tighten aerial herbicide spraying rules, increase forest stream buffers, prohibit logging in steep, landslide-prone areas, and prohibit conflicts of interest for state forestry board appointees.
Secretary of State Bev Clarno rejected all three petitions, saying they violated rules that prohibit measures that address more than a single policy topic. Environmental groups are taking her to court over that decision, but have since filed new versions of the petitions that they claim address Clarno’s concerns.
Now the forestry groups have filed their own countermeasures.
The dueling ballot measures go the heart of the timber tug of war that has been playing out in Oregon for four decades. Once centered on the decline of logging on federal forests because of endangered species concerns, the divide over policies also spread to private and state forests. Indeed, that partisan divide could become a deciding factor in how the legislative session plays out next year, with likely battles over climate change policies and wildfire funding.
As it stands, the controversy is currently being spotlighted in a $1 billion lawsuit in which 14 rural counties are suing the state for breach of contract, saying it has failed to maximize logging on state forests.
Environmental groups have long contended that Oregon has some of the weakest forest protection rules in the West. They say the rules fail to ensure the protection of endangered species and their habitats, as well as the health and safety of rural residents. They describe the forestry ballot measures as a power grab by the industry that would limit the discretion of the state board, and possibly lock the state in the same constitutional debate over property rights and land use safeguards that came with the 2004 passage of the far-reaching Measure 37. Voters subsequently overturned most of those reforms with the passage of Measure 49 in 2007.
“With this measure, industry wants to change the Oregon constitution to make Oregonians pay them to not pollute rivers and streams with excessive clearcutting on steep slopes, said Ralph Bloemers, senior staff attorney for the Crag Law Center, a non-profit that represents conservation groups and local residents throughout Oregon.
“They expect to be paid if Oregonians decide to limit their ability to spray toxic chemicals near drinking water supplies, homes and schools,” he said. “I don’t expect Oregonians will be fooled twice.”
James, meanwhile, insists that there is no scientific evidence that wider stream buffers would help salmon habitat, as environmentalists contend. He says the new regulations proposed in the environmental petitions would prevent active forest management in many areas, cause more wildfires, and result in an uncompensated taking of land from private owners. And while he could not cite a specific example, he said the forestry board’s policy-making has been hobbled by a divide among conservation and industry-oriented members.
“If there was more of a collaborative model,” he said, “things would happen more quickly and they would be more balanced and fair.”
The timber industry and environmentalists are headed toward a showdown over forest management that could bring as many as nine ballot measures before the voters next November.
At issue is a fundamental disagreement over what forest practices best protect water quality. The two sides are also gearing up for a possible fight over what role the timber industry should play in making the regulations that govern forest management in Oregon.
The environmentalists fired the opening volley with Initiative Petitions 35, 36 and 37 in July. All three were rejected by Oregon Secretary of State Bev Clarno, who said the petitions failed to meet the requirement that each measure cover a single topic.
The environmentalists sued, hoping to overturn that decision.
While that case works its way through the court system, the environmentalists filed three pared-down initiative petitions — 45, 46 and 47 — in October, in an attempt to meet the single topic requirement.
Last week, the timber industry fired back, filing three initiative petitions of its own. They’re numbered 53, 54 and 55.
The environmentalists propose changing the laws to block clear-cuts in landslide-prone areas and to create more restrictive rules around spraying of herbicides near waterways.
They argue that intensive logging in landslide hazard locations increases sediment and debris in the forest waters that become Oregonians’ drinking water. They also argue that aerial application of toxic herbicides is allowed across broader areas of forest watersheds in Oregon than in other states and that this affects forest waters and endangers Oregonians’ health.
Their first set of proposed measures would additionally prevent people with conflicts of interest from sitting on the State Board of Forestry. Those who make money from the industries the board regulates could not become board members. These conflict of interest rules weren’t included in their second round of petitions.
The pro-timber petitions filed last week would do three things. First, Initiative Petition 53 would change the Oregon Constitution to provide that any time the state makes a law or regulation that eliminates the economic value of a property, it would have to provide just compensation to the landowner.
Second, Initiative Petition 54 would mandate that policies related to forest management be based on peer-reviewed science and on the forestry board’s consensus.
Third, Initiative Petition 55 would change the composition of the forestry board to expressly include industry representatives, small woodlands owners and wood manufacturing employees — people who would be barred under the environmentalists’ proposed conflict of interest rules. It would also include three members nominated by state agencies to represent environmental advocates.
Sara Duncan of Gallatin Public Affairs, a spokeswoman for the Oregon Forest and Industries Council, said barring those industry representatives from the board would amount to regulation without representation. She said it’s important to have members who work in the timber industry because they are the ones who have experience in managing the forests.
Duncan said the landslide and spraying rules proposed by the environmentalists aren’t based on science.
“There has been a movement — and you can see it in the ballot initiatives of the anti-forestry activists — to put in regulations, prescriptive regulations that have no backing by science. We think that’s a bad idea,” she said.
Duncan also said reducing timberland owners’ ability to manage their forests increases the risk of wildfire.
“We think that will increase catastrophic wildfire risks in Oregon and we don’t think Oregonians want that, nor can they afford it. It’s bad for our health. It’s bad for the health of the forest. It pollutes our air and our water and we think that’s a bad idea,” Duncan said.
She said the spraying that environmentalists object to is necessary to ensure that newly planted trees aren’t choked out by Scotch broom and blackberries before they have a chance to grow into forests to replace those that have been harvested.
Water quality in the state is excellent today, especially in forestlands and including actively managed forest, Duncan said.
“So we know that the laws that are in place to protect water quality in the forest, those are working,” she said.
Kate Crump of Rockaway Beach is a chief petitioner for the environmentalists’ initiatives. She does not think the state’s current forestry laws adequately protect the water Oregonians are drinking.
“I feel like they’re extremely unsafe, and I feel like there’s a complete lack of transparency on what is happening in our drinking watersheds in forestlands,” she said.
And that, she said, has everything to do with the forestry board’s membership.
“They’re the ones that are making the decisions and they are responsible for allowing Oregon to fall behind our neighbors in our forest practices. They’re responsible for not protecting our forest waters further for communities and people and wildlife,” she said.
She also disputed the assertion that her petitions’ proposals are unscientific.
“All of our measures are backed by science. I definitely feel like that’s an inaccurate claim,” she said.
Crump is a fishing guide for Frigate Adventure Travel. She became concerned about her water after she received a notice in the mail saying elderly or pregnant people shouldn’t drink it.
“I was like what, I live in America. How is this a thing?” she said.
There wasn’t a factory upstream, but she said she discovered the water flowed through recently cut industrial timberland. She walked to the headwaters and said it looked like a bomb had gone off and she learned it was being helicopter sprayed with herbicides and pesticides.
Crump said caring about clean water and forests is a core value for Oregonians.
“It’s very important to people to protect these places and to have clean water and to know that it’s safe for their children to drink and play in it,” she said.
Oregon Attorney General Ellen Rosenblum is refusing to defend Secretary of State Bev Clarno in litigation over Clarno’s unprecedented rejection of three proposed ballot initiatives to tighten state forestry laws.
Rosenblum also challenged Clarno’s legal basis for tossing the proposals, which Clarno said violated a state requirement that legislative measures stick to one subject. The rule applies equally to voter initiatives and bills in the Legislature.
“There is no question that, under current law, the legislature could pass a measure such as this one and it would be in full compliance with the ‘single subject’ requirement,” Rosenblum told The Oregonian/OregonLive in a statement. “I do not believe there is any compelling reason to argue for a change in the current law.”
Rosenblum said she couldn’t represent Clarno because the Oregon Legislature is also a client and she didn’t want to make arguments that would impede its work. She said she authorized Clarno to find another lawyer due to the conflicting interests.
Clarno did not respond to a request for comment. Her deputy, Rich Vial, declined to answer questions.
The decision by Rosenblum, a Democrat, is unusual, pitting two of Oregon’s top elected officials against one another.
Clarno, a Republican who has taken $36,000 in donations from timber interests in her career, is not backing down in a suit brought by environmental advocates trying to ensure their original petitions advance.
She will instead be represented by Schwabe Williamson Wyatt, a Portland law firm that advertises itself as “one of the nation’s top timber law practices” and says it is part of the fabric of the timber industry. The firm says on its website it is “involved” with the Oregon Forest & Industries Council, one of the leading opponents to the ballot measures.
Clarno on Sept. 24 rejected Initiative Petitions 35, 36 and 37. The measures are substantially the same, calling for tightening the state’s aerial herbicide spraying laws. They propose more logging restrictions in steep, landslide-prone areas. They would prohibit conflicts of interest for state forestry board appointees.
Clarno rejected the initiatives proposed by environmental advocates, including the group Oregon Wild, saying each of the proposals covered more than one subject. The Oregon constitution says a ballot initiative can only address a single policy topic. The same ballot initiative couldn’t raise the minimum wage and ban the death penalty, for example.
No other ballot measure has ever been rejected by the Secretary of State on single-subject grounds, two election lawyers have said.
Vial, Clarno’s deputy, is a former Republican lawmaker who took $19,000 from timber interests in his career.
Vial would not say how the law firm retained by the Secretary of State was being paid. He would not explain why the Secretary of State is litigating a case the state’s lead attorney has opined has no legal justification.
Former Oregon Supreme Court Justice Michael “Mick” Gillette is representing Clarno’s office for the Schwabe law firm. Gillette declined comment.
As a justice on the Oregon Supreme Court, Gillette wrote the landmark 1997 ruling that eliminated Oregon’s campaign contribution limits. The decision allowed Oregon to become one of the biggest money states in American politics, one where today the timber industry gives more than anywhere else in the nation.
Rosenblum’s full statement is below.
My office represents both the Secretary of State and the Oregon Legislature. Our overarching client is always the State of Oregon, however. As the chief law officer of the state I have reached the conclusion that the Secretary of State is entitled to hire conflict counsel in this matter. This is a brief explanation of this decision.
The Oregon Supreme Court has said that the ‘single subject’ requirement in the Oregon Constitution that governs the initiative process is to be given the same interpretation as the ‘single subject’ requirement that applies to the legislature. There is no question that, under current law, the legislature could pass a measure such as this one and it would be in full compliance with the ‘single subject’ requirement. I do not believe there is any compelling reason to argue for a change in the current law.
Under the circumstances I concluded that we would not want to make arguments detrimental to our legislative branch client (although the legislature is not currently a party to this litigation) in order to defend this executive branch action. I authorized Secretary Clarno to obtain conflict counsel, which will allow her to present her view of the ‘single subject’ requirement to the courts for their consideration.
by guest columnists Nancy Webster, Jane Anderson and Pat Himes
Webster lives in Rockaway Beach. Anderson lives in Garibaldi. Himes lives in Oceanside. All three are members of the North Coast Communities for Watershed Protection, an organization that seeks to protect air and water throughout the region.
We live at the Oregon coast and have been directly affected by the influence of money in Oregon politics. For 25 years, the Oregon Legislature has failed to significantly update protections from clearcutting for rivers and streams, or to protect us and water from aerial spraying of toxic pesticides. Out of frustration, we have joined with people from across Oregon to advance protections for forest waters.
Recently, The Oregonian/OregonLive’s Rob Davis wrote an article on Secretary of State Bev Clarno’s rejection of ballot initiatives seeking greater protections for forest waters. The initiatives sought to put an important question before voters: Should Oregon update its protections for rivers and streams and require larger buffers for aerial spraying of toxic chemicals? Clarno’s denial appears to be another example of corporate influence hurting rural Oregonians. And considering the donations that she and her deputy have taken in the past, it also seems to be another example of the overreach of corporate influence in Oregon as Davis revealed earlier this year in the series “Polluted by Money.”
For too long, we have watched Wall Street corporations clearcut near Oswald West State Park, Cannon Beach, Yachats, Rockaway Beach, Arch Cape and other communities. Experts from Oregon State University have found that short-rotation clearcutting reduces water supplies by half. We have witnessed streams running dry in the summer months.
While we all use wood products, we cannot make more water. According to state figures, timber is around 2% of Oregon’s gross domestic product and less than 2% of jobs. Welcoming visitors to our communities and providing water for them and local residents is worth more. We also know how hard people work and that every job in our rural economy matters. We feel that things are out of balance, and that Oregonians from diverse backgrounds will agree.
The fact is that investment firms and Wall Street corporations control huge amounts of land in northwest Oregon. These companies flood our Legislature with money and resist even modest updates to protect the public’s water supplies that flow from Oregon’s forests.
Secretary of State Clarno demonstrated she is ill-informed when she confused the Oregon Board of Forestry, charged with protecting the greatest permanent value for all Oregonians, with the Oregon Forest & Industries Council, a timber lobbying group that works to protect its ability to clearcut by streams, spray toxic chemicals, and denude steep slopes. While we agree the timber industry should have a voice in decisions affecting its industry, we do not agree that they should get to set all the rules in their favor.
Those of us on the coast are being adversely affected, and we’re not going to take it anymore. In Rockaway Beach, we watched as more than 80% of the forestland from which our water flows was clearcut. Cannon Beach, Yachats, Newport, Arch Cape, Wheeler, and other communities have watched in alarm as their forested watersheds have been clearcut and sprayed with toxic chemicals. Slopes designated by the state as having a high risk of landslides have been clearcut, endangering communities and the waters which sustain them. Our group, North Coast Communities for Watershed Protection, reflects our common goal to ensure the air we breathe and the water we drink are safe. To learn more about us, visit https://healthywatershed.org.
Idaho, Washington, and California have better protections for forest waters than “green” Oregon. The companies which are deforesting Oregon are able to profitably comply with these better protections in other states. Why not in Oregon? The proposed initiative is consistent with Oregon values. It would protect our forests and the waters that flow from them. It would live up to our reputation.
We have been talking to Oregonians of all stripes who tell us they will support increased protections for forest waters because they know the value of clean and abundant water. They know we cannot afford to spend millions of dollars to treat dirty water caused by clearcutting on steep slopes and by streams. Clarno asserts that the initiative is confusing, but the voters we spoke with understood that it would protect forests and the water they provide.
We think that, given the chance, voters in Tillamook County and many other rural counties will vote for protecting forests and the water they provide. We are for “logging,” and we are for doing better –– for our drinking water, the fish and our communities.
Oregon’s state forests are supposed to be managed to deliver a balance of benefits, from sustainable timber harvests to habitat for fish and wildlife, from clean air and drinking water to well-managed recreation spaces.
But the Oregon Department of Forestry is failing on almost every front.
The reasons are numerous, but stem from structural issues exacerbated during the last decade by ineffective management at the agency, ineffectual oversight by its seven-member board and inaction by the governor and legislators.
The agency’s state forest division budget is almost entirely dependent on timber sales, a volatile revenue stream that it can’t control and is subject to market swings, political agendas and legal challenges. The division gets no money from taxpayers, but is asked to provide services that cost millions of dollars annually and generate little or no revenue. Meanwhile, two-thirds of the timber sales it does generate go directly to 15 counties and the taxing districts where the logging takes place.
Since the 2008 recession, agency managers have warned that budget formula no longer works, leaving them operating at the edge of a financial precipice.
In response, they’ve axed staff, frozen programs and cut more trees. They’ve reduced the amount of forests set aside for conservation. They’ve deferred investments necessary to ensure future forest health and productivity. And they’ve skimmed the cream off their available “inventory,” targeting accessible clearcuts of large, high-value trees to quickly generate more profitable sales.
Those aren’t sustainable tactics, much less the durable long-term strategy to increase both financial and conservation outcomes that the division has been directed to develop since 2013, but has so far failed to deliver.
It’s unclear that such a balance can be achieved. Tradeoffs are inevitable. That’s why the current strategy – laid out in a document called the forest management plan — has become a zero-sum game, pitting rural counties, their schools and jobs against conservation, recreation and clean water.
The policy mess will be showcased in a trial starting this week. Fourteen of Oregon’s 15 “forest trust land” counties are suing the agency, arguing they’ve been shortchanged $1.4 billion in logging revenues. Bankrolled by private timber companies, the counties claim the state breached its contract with them by failing to maximize harvests on state forests since 2001. Many observers expect the agency will lose.
Conservationists and environmental groups are deeply unhappy with the agency, too. They’re convinced the state is already cutting at unsustainable levels to backfill its budget and is serially manipulating what it’s promised to protect so it can keep up the pace. They contend the logging on state forests threaten endangered salmon runs, wildlife habitats and clean water. To stop that, they’re suing to block 68 proposed timber sales.
And pressures are building within agency leadership. At an Oct. 9 planning retreat for the Oregon Board of Forestry, members complained of being stonewalled by staff on requests for basic financial and scientific information. Members of the oversight board said State Forester Peter Daugherty had failed to fully inform them of critical financial problems. And they said relations among board members had become dysfunctional.
Cindy Williams, a fish biologist from Medford who has served on the board for seven years, said it had been a tension filled year that left her feeling she had to “bulldoze my way into the conversation” to raise concerns.
“Something fundamental in the board attitude has changed,” she said, “and we need to address it.”
Valuing state forests
The state forest division’s mandate is to manage its public land for the “greatest permanent value” to the state of Oregon. Yet the exact meaning of “value” — and to whom it should go — is a controversial question.
It’s also unclear how much Oregon’s state forests have to give.
Many Oregonians rely on state forests as a place to hunt, fish, hike and camp — activities that cost the division millions of dollars a year to manage, but generate little revenue to offset its growing costs.
Oregonians also cherish wildlife habitats within forests like the Clatsop.
But the Clatsop is also the money-basket of the state forests. To improve the agency’s bottom line, forestry officials have systematically reduced their commitment to conserve parts of it, from 50% of the land base in 2003, to 40% in 2009 and to 30% in 2011.
The need to squeeze money from forests is fueled in part by a promise made nearly 80 years ago with Oregon’s 15 so-called “trust land counties.” In exchange for taking over hundreds of thousands of burned-over, logged and unproductive acres of county-owned forestland, the state agreed to rehabilitate them, protect them from fire and share the proceeds of future logging. Those revenues are critical for cash-strapped rural counties and support everything from public safety to education. And the forest products industry, despite its rapid decline over the last four decades, still provides those counties with some of their best paying jobs.
Daugherty, Oregon’s state forester since 2016 and an agency employee since 2007, acknowledges the dilemma.
“There’s a finite amount of state forests, and they can only produce a given suite of goods and services,” he said. “There are certainly tradeoffs.”
Bob Van Dyk picks his way up a hillside in the Clatsop State Forest. He pushes through the undergrowth, grabbing ferns and shrubs for handholds as he clambers over downed trees.
Fifty yards in, he stops next to a towering Douglas Fir with a trunk nearly 10 feet around.
“We’re in one of the very rare patches in the north coast of forest that has some genuine old growth characteristics,” said Van Dyk, policy director at the Wild Salmon Center, pointing out the mix of tree species and sizes, the abundance of standing snags and downed wood.
The state forest division once designated the area as protected, allowing only thinning of some younger trees.
Now, it’s been opened up for clearcutting.
This particular tract was part of a 6,000-acre land swap the forestry board approved last year in its ongoing effort to keep the division from going broke.
With little explanation, agency officials removed 2,600 acres of older tracts with large trees from conservation status that protected them from intensive logging and dropped them into the agency’s cut bucket, making them available for sale and harvest. The agency then gave another 3,550 acres protected status. The strategy helped the division present the move as a net gain in acres being managed to promote prime wildlife habitat, protect salmon-bearing streams and provide clean, reliable drinking water.
But conservationists describe it as a shell game. They say most of those newly protected acres were smaller tracts of young trees with seemingly minimal conservation value or narrow strips of trees along streams that were already protected.
An extreme example sits a few miles away, near the town of Jewell. It’s a gravel parking area with an abandoned Barcalounger and piles of trash. It bears no resemblance to older forest structure. Nor does the nearby open field riddled with gopher holes.
But both are now part of the 30% of the forest the agency has set aside to create “complex forest.” In reality, the division is making no progress toward that goal. The percentage of state forests that are complex today is going down, and now stands at 10%.
The swap gave heartburn to agency biologists, who raised concerns internally that it would break up existing habitat. Environmental groups fumed that the swap wasn’t accompanied by any detailed rationale. Yet the board approved the move, and many of the sections of forest were put up for sale this year.
“They basically opened up some of the fattest, juiciest most accessible stands of trees they have to clearcutting,” Van Dyk said. “Our overarching concern is that this is unsustainable.”
An agency on the brink
Oregon’s state forest division is a public program, but it doesn’t get any public money. Instead, it’s almost completely reliant on revenues from cutting trees. And right off the top, the agency must transfer nearly two-thirds of those proceeds to the trust land counties.
The agency manages the state’s forests with what’s left, no matter its expense level.
It’s a financial straitjacket that the counties and timber companies, who have considerable influence over forestry issues in Salem, have no interest in loosening. They have successfully opposed recent agency requests for general fund money to cover the growing costs of its recreation program, for example, insisting the agency should simply cut more trees.
Without outside money, the division rides the same economic rollercoaster as the wood products industry. The collapse of the housing market in the 2008 recession, followed by falling timber prices, put the agency’s budget into freefall.
“I don’t think anyone knew how deep and how long the recession would last,” said Liz Dent, the state forest division chief.
For the division, it lasted six years. Declining harvest volumes were compounded by a deep slump in timber prices, and the division’s reserves dropped from nearly $40 million in 2008 to $4.9 million in mid 2015, presenting the very real prospect of insolvency.
Leaders hollowed out their offices, slashing staff by 30%. They reduced spending across the board and froze the recreation program altogether. They reduced spending so much in other areas — including research, monitoring and young forest management — staff warned they would no longer be able to meet their statutory mandates.
Meanwhile, agency leaders directed foresters to focus on sales that generated maximum revenues and to increase harvest levels to 245 million board feet a year, the highest sustainable level under its current policy.
The division’s annual operating plan for 2019 lays it out: “Currently revenues generated from timber sales are not covering all costs for state forests,” adding that sales that “don’t cover all costs, or don’t contribute revenue to the division should be avoided.”
Not every timber sale is the same. The age of the stand, the mix of species, its location and relative accessibility all affect the prices that timber companies are willing to bid.
Agency leaders insist they’re not cutting more trees to patch the budget. The annual volume of timber the division puts up for sale has averaged 227 million board feet a year in the west side forests covered by the forest management plan, said Liz Dent, chief of the state forest division.
Daugherty, the state forester, agrees. “Cutting more timber isn’t going to solve our problem,” he said. “I’ve been saying that since I became state forester.”
Yet harvest volumes have increased. In those same west side forests, they spiked to 252 million board feet in 2017, 295 million in 2018 and 285 million board feet in 2019. The average harvest volume over the last five- and 10-year periods is above the level that agency leaders say they’re selling.
Agency figures also show that since 2008, it has shifted its harvests to focus on clearcuts. More selective, partial cuts or thinning have declined dramatically.
“We’re high-grading the forests,” said Williams, the forestry board member, using industry lingo for cherry-picking the most marketable stands of trees.
The tactic appears to work.
Buoyed by a spike in both volume and timber prices, the agency generated a $15 million profit on its $47.2 million share of harvest revenues in the year ended June 30, 2018. Results were even better in fiscal 2019, with a $19.1 million profit on revenues of $51 million. The agency’s formerly depleted reserve account has now ballooned to nearly $50 million – an astounding turnaround.
Still, agency officials say that’s not a sustainable strategy. Timber prices won’t stay high. The supply of high-profit tree stands are limited. And they can’t delay forest management projects indefinitely without undermining the health of the forests – and in turn, future revenues.
Even with $50 million in reserves, leaders say they can’t afford to take on one of its key strategic priorities: restoring the Tillamook Forest. The forest is ground zero for Swiss Needle Cast, a fungal disease that stunts Douglas Firs, dramatically reducing harvest yields. Likewise, a quarter of the Tillamook is dominated by stands of alder that are losing value as they age and lose treetop branches.
The best way to deal with both problems is to cut the stands and replant. But the agency says it can’t afford that fix because the cost would exceed its share of the logging revenues.
Leaders can’t dip into the state forest division’s reserves to fund the restoration either. They’re using that account to weather the next industry downturn. Besides, more than half the money isn’t available. The agency has already borrowed $27 million of it to cover uncollected fire costs – expenses the state forest division is not responsible for covering.
Expenses outpacing revenues
The seven-member forestry board is charged with financial and policy oversight of the department. But the group, led by businessman Tom Imeson, lacks a comprehensive understanding of the state forest division’s budget problems.
Some openly speculate that the crisis is manufactured, or that it’s only being staved off by the cost cutting and cherry-picking high-value trees, which will eventually create an ecological crisis.
They say they don’t have enough information to tell. And they’ve been frustrated in their attempts to get it.
Their concerns were amplified last month when they read about another major financial issue in The Oregonian/Oregonlive. Daugherty, the state forester, had not fully informed them the agency was struggling to recoup more than $100 million it was owed from fighting wildfires – some of the bills had yet to be invoiced and dated back to 2015. The situation is so bad the agency is borrowing money from the Department of Administrative Services to meet payroll.
Hence the raid on the state forest division’s financial reserves to prop up agency operations.
Brenda McComb, a retired forestry professor from Oregon State University, told Daughterty at the retreat that she was frustrated they weren’t provided long-term financial projections. That came on top of long-standing and unanswered requests for accurate modeling of the agency’s timber inventory and sustainable harvest.
“I’m being told by staff that we’re going to fall off a financial cliff,” she asked. “Where is the cliff and how long is it going to take get there? What are the causes? Understanding the causes, what levers can we pull?”
Jim Kelly, a board member from Eastern Oregon, asked staff repeatedly over the past six months for an accounting of just one expenditure — pension costs – to determine if they were contributing to the division’s financial woes.
After he asked the question in three consecutive board meetings, and after The Oregonian/OregonLive repeated the request, staff finally provided a cut and paste explanation from the PERS website about how employer’s contribution rates were set. No specifics included.
“I never got anything useful,” Kelly said. “I don’t know the answer.”
Working toward a solution
Pension expenses are a problem – a big one.
Based on its most recent budget request for 2019-21, the state forest division’s pension costs were expected to have increased by more than 250 percent since the 2009-2011 biennium.
So are the agency’s fire costs – in particular, how they suck away dollars from other forest programs.
The agency doesn’t track how its non-fire divisions subsidize fire costs. But the fire program draws heavily on staff from across the agency during wildfire season, emptying the hallways and bringing work on other initiatives to a near halt, often for weeks at a time.
A 2016 Secretary of State audit found other programs were subsidizing fire costs, including training, staff fire equipment and supplies, specialized trucks, upgraded radios, discounted equipment rental rates and administrative overhead.
Despite repeated requests over a period of months from The Oregonian/OregonLive, agency officials said they could not provide a line item report tracking the division’s individual expenses, including the PERS and fire figures, or how they had changed over time.
Agency leaders said they don’t track expenses in a format that allows them to produce a report detailing them over time. Instead, they provided the news organization with a summary of expenses in three broad categories — personal services, services and supplies, and capital outlay – and how much they increased between 2011 and 2016.
In general terms, the agency did say that the cost of its recreation program, endangered species monitoring, fire protection and reforestation have all been increasing. They also point to growing administrative costs and the standard inflation for salaries and medical costs. But the figures were often non-specific and outdated, if they were provided at all.
Tom Imeson, the forestry board chair, says the agency has been looking for a viable solution to its budget problems – one that can also boost conservation outcomes — ever since he was appointed in 2012.
“To say our inability to develop a solution to this problem has been frustrating would be a massive understatement, but I don’t believe it is the result of a failure to understand the economics.” he said. “If we conclude that we cannot do so, we will need to explain why not and offer suggestions for other tools that are beyond our current authority.”
For years, coastal residents and environmental groups have pushed state forestry officials and the Legislature for tighter restrictions on clearcutting and aerial weed killer spraying in Oregon’s forests.
And for years, little has changed in Oregon, where the timber industry gives more money to state lawmakers than anywhere else in the nation. Oregon trails neighboring West Coast states on a long list of environmental protections.
Now advocates are turning to another avenue — the ballot box. And there, too, they’ve been stymied. This time it’s by the Oregon Secretary of State’s office, led by two former Republican lawmakers whose campaigns drew significant financial backing from timber companies.
The three ballot measures — Initiative Petitions 35, 36 and 37 — are substantially the same. They call for tightening the state’s aerial spraying laws, which today offer some of the West Coast’s weakest protections for people and fish. They call for more logging restrictions in steep, landslide-prone areas. They would prohibit conflicts of interest for state forestry board appointees, who today can set policies that benefit their own companies.
But the Secretary of State’s elections division last week rejected the initiatives proposed by environmental advocates, including the group Oregon Wild, saying they related to more than one subject. The Oregon constitution says each ballot initiative can only address a single policy topic.
“When you have things with all sorts of things to do with a forest – setbacks and sprays and rivers – that’s more than one subject,” Secretary of State Bev Clarno said in an interview. “When you’re talking about creating an advisory board, and issues about how you can spray and set aside, that’s a lot of different subjects on how to manage a forest.”
Former Oregon lawmaker Richard Vial, Clarno’s deputy, also played a role in the decision. He is considering a campaign for Clarno’s spot in 2020; she has said she will not run.
Two elections attorneys called the rejection unprecedented and Clarno’s decision to perform her own legal review unusual.
The rejection delays proponents, who now must refile shorter initiatives while potentially challenging Clarno’s decision in court. The petitioners need the secretary of state’s approval before they can start collecting more than 100,000 signatures to qualify for the November 2020 ballot.
In each rejection, the secretary adopted arguments advanced by opponents of the initiatives. Those groups immediately celebrated Clarno’s action, which had been sought by the recently formed group Timber Unity and by Greg Chaimov, an attorney who has represented timber and pesticide interests.
On its Facebook page, Timber Unity called it “AMAZING NEWS!”, saying the initiatives were “trying to kill private forestry in Oregon.”
Kristina McNitt, president of the Oregon Forest and Industries Council, said the state’s existing forestry protections are sound and the initiatives “will face considerable constitutional hurdles and vehement objections by our industry.”
The initiative’s backers said they were stunned by the rejection, calling it evidence that Clarno and Vial are not as committed to running a politically agnostic office as the two Republicans have claimed. They said the explanation is clear: A political system fueled by timber industry dollars.
“It’s an office that says it wants to be nonpartisan doing something that is explicitly partisan,” said Sean Stevens, executive director of Oregon Wild. “It calls into question the confidence that people can have in their government. The grip the industry has on things is extending everywhere.”
As a lawmaker, Oregon House Speaker and candidate for state treasurer in the 1990s and early 2000s, Clarno took more than $36,000 in donations from timber interests. Vial took $19,000.
Then-Rep. Richard Vial, R-Scholls, in the House of Representatives chamber in 2017. (File/The Oregonian)
Clarno, when asked whether her decision was linked to party politics or her past backing by the timber industry, responded simply: “Bull.”
“I really do believe, in this office, partisanship has no business,” she said.
The attorney general typically provides a written opinion explaining why an initiative doesn’t pass legal muster. That opinion is typically made public, as a way to allow petitioners to redraft their initiative and ensure it complies with the law.
This time, the secretary of state didn’t ask for an opinion in writing, and the attorney general’s office didn’t draft one. Instead, an assistant attorney general met in person with officials in the secretary of state’s office. No one will disclose what the attorney said about the legality of the initiatives.
Clarno refused to waive attorney-client privilege to allow the attorney general to speak about it with a reporter. Vial at first refused to release even the name of the assistant attorney general who discussed the initiatives with him, saying her identity was protected by attorney-client privilege.
“Why would the public need to know that?” he asked, before eventually providing assistant attorney general Amy Alpaugh’s name.
Clarno, in an interview with The Oregonian/OregonLive, said she based her decision on analysis conducted by her own staff — Vial and elections director Steve Trout. “I thought I was in good hands,” she said.
Clarno said “we did not get a yes/no” from the attorney general about the initiatives’ legality, rather an assurance “that if I ended up in court they would defend me.”
A spokeswoman for Attorney General Ellen Rosenblum, a Democrat, said she could not discuss the measures because the secretary of state would not waive attorney-client privilege. The spokeswoman, Kristina Edmunson, confirmed that the Department of Justice was “involved in conversations” with Clarno’s office about the initiatives. But she also contradicted part of Clarno’s account.
“We have not said (and were not asked) whether we would, or would not, defend their office in case of a lawsuit,” Edmunson said in an email. She said the late Secretary of State Dennis Richardson, who was elected in 2016, had changed the initiative review process, asking the Department of Justice only to review initiatives upon request.
To qualify for the ballot, initiatives must pertain to a single subject. The same ballot initiative couldn’t ask voters to create campaign donation limits, permit grocery stores to sell liquor and outlaw the death penalty. It’s called the single-subject rule.
Oregon courts have strictly interpreted the single-subject rule for proposed constitutional amendments. But they’ve treated it far more permissively for changes to often-complicated state statutes, like those the forestry initiatives seek to change.
“It is a very lenient test,” said Dan Meek, a Portland elections attorney. “It is very difficult to violate the single-subject requirement.”
It’s so hard to violate that Meek and another attorney who has written multiple ballot measures said they didn’t think the Secretary of State had ever rejected an initiative to change state law on single-subject grounds.
“It just raises eyebrows to me,” said Margaret Olney, a Portland attorney who has drafted ballot initiatives for progressive groups including Our Oregon and Planned Parenthood. “It’s extremely surprising that there isn’t at least a short letter of explanation for purposes of transparency to allow the chief petitioners to fix any problems. That has been the standard.”
Meek read the ballot proposals and said they clearly relate to the same subject.
“It’s weird,” Meek said. “When the proponents take this to court, they will win – easily.”
Clarno’s office released a deeper explanation late Thursday night, after inquiries from The Oregonian/OregonLive about discrepancies in the reasons separately provided by Clarno, Vial and Trout.
In the news release, Clarno said questions about aerial spraying in forests and “how the Oregon Forest Council manages forests” are very different. “These aspects of the proposed measures would potentially confuse voters,” she said.
Oregon forest laws are in fact managed by the governor-appointed, seven-member Board of Forestry.
The Oregon Forest Council does not exist, though the Oregon Forest & Industries Council is a lobbying group that has donated to both Clarno and Vial’s campaigns.