By Rob Davis
October 4, 2019
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.