Lawsuit hearing creates sparks

Audrey Caro

By Audrey Caro

Of The New Era

Circuit Court Judge Daniel Murphy heard arguments on Thursday, Jan. 4, in Linn County’s $1.4 billion breach of contract lawsuit against the state of Oregon and the State Forestry Department.

Attorneys for the county contend that the state did not manage the Forest Trust Lands pursuant to the Forest Acquisition Act of 1939.

The county believes that the state failed in its obligation to manage the lands for the greatest permanent value, part of which it interprets as revenue maximization.

The county’s complaint, filed on March 10, 2016, states that the “GPV Rule defined ‘greatest permanent value’ in a way that does not emphasize maximization of revenues to the Forest Trust Land Counties and their intended beneficiaries.”

The state filed a summary judgment motion on Sept. 6, 2017, the content of which was the focus of last Thursday’s hearing.

Attorneys Frank Hammond and Scott Kaplan are representing the state.

Among the requests in the state’s summary judgment is that the court dismiss “plaintiffs’ prayer for future damages because they are too speculative.”

Kaplan said there is no way to know the amount of future damages suffered by the county. He said factors such as changes in the law or external forces, such as natural disturbances, could influence forest values.

“You and I don’t know because we aren’t professionals,” Murphy responded. “But aren’t there professionals in the timber industry who in fact make those decisions every day, which is the basis for multi-billion-dollar decisions in the timber industry? Decisions about, ‘Are we going to buy that plot of land, are we going to harvest that or delay harvest in that particular section?’

“Aren’t those decisions made based on verifiable probabilities and so on? We aren’t talking about absolute certainty. I would agree with you completely. Nobody can predict the future with any kind of absolute certainty.”

John DiLorenzo and Aaron Stuckey, of the Portland law firm Davis Wright Tremaine, are representing the county.

DiLorenzo said these considerations are present in any future damages case.

“For instance, let’s say you have a future damages case concerning a marijuana grower contract,” DiLorenzo said. “Growing marijuana is legal in the state of Oregon as long as it’s in accordance with the OLCC rules. “(If one party says) Attorney General Sessions has just withdrawn that authority that allows the federal government to overlook this and who knows if the U.S. Attorney is going to crack down and make all of this illegal or not. That doesn’t preclude the jury from calculating future damages.”

The state also filed a motion to strike a declaration by Paul Levesque., which was filed last October in opposition to the state’s motion for summary judgment.

In his declaration, Levesque states that he has “performed research” for more than 41 years “for a number of Western Oregon counties, cities, port districts, and law firms.” Most of this was completed for Tillamook County, either as an employee (3/1976 – 9/1976; 5/1988 – 9/2017) or as a consultant (9/1976 – 5/1988), he said.

He said the much of his work Tillamook County was “researching and documenting the county (and) state relationship in state forest lands.

“Although my initial project in 1976 was to research and document the establishment of Tillamook County’s 276 miles of county roads, it was during this six-month project that I was requested to also begin assembling records concerning Tillamook County’s interest in its state forest.”

In arguing to strike Levesque’s declaration, the state describes him as “a self-taught, amateur historian on the subject of state forest lands.”

“There is no contention that Levesque has any personal knowledge of any relevant event; rather, his declaration is offered as expert opinion,” the state argues. “However, there is no indication in the record that Levesque has any formal education or training in history or forestry whatsoever, much less in legislative history research or statutory construction.”

The state contends that Levesque is not a qualified expert witness.

“Levesque is in essence providing legal argument in the guise of an ‘expert’ declaration from an individual whose only qualification is that of a retired county employee,” according to the motion to strike.

Stuckey described the state’s position as elitist.

“Lack of educational degree doesn’t disqualify an expert,” he said, using mechanics and repair person as examples of experts who do not have PhDs.

“The state hasn’t offered anything to suggest Mr. Levesque’s work was wrong,” Stuckey said.

DiLorenzo said that when they go to trial, the county intends to prove that future damages were foreseeable, that future damages will occur and there is a reasonable method for calculating future damages.

“Contrary to what the state has suggested in its briefing, we are not intending to call Nostradamus,” DiLorenzo said. “I imagine if we did the state would object because he wasn’t sufficiently peer-reviewed. Regardless, our expert will employ the method that the department uses and methods that the timber industry uses to estimate damages.”

Murphy said he expects to rule on the summary judgment by Jan. 19.