Friday, August 12, 2005
The Oregon Supreme Court yesterday decided that a state decision preventing Boise Cascade's from logging 9 acres of a 40 acre parcel in order to protect the spotted owl did not violate either the Oregon or the US Constitution.
The Court adopted "no economically viable use" of the "whole parcel" as the test of regulatory takings under the Oregon Constitution.
The Court also decided that there was no taking under the US constitution. The Court determined that there was no Lucas taking because of the whole parcel rule, no taking under Agins because Lingle eliminated the substantive due process test, and no taking under Loretto because a rule that does not allow a property owner all uses of its property is different than providing an easement to a third party who installs equipment. The Court also upheld the trial court's resolution of the Penn Central question as a matter of law; no jury is required to decide whether regulatory action constitutes a taking under Penn Central, if there are no undisputed historical facts.