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The Boise Cascade Corp Story

In 1993, the Oregon Board of Forestry forced the Boise Cascade Corporation to set aside 56 acres of commercially-harvestable timberland as a preserve for the northern spotted owl without paying compensation.

Boise Cascade filed suit seeking compensation for this effective loss of their property between 1993 and 1997. An Oregon trial court and jury ruled in favor of Boise Cascade and awarded the company compensation for the regulatory taking of its property. The state of Oregon appealed the decision.

The state argued that it couldn't be required to pay compensation to private landowners because it is not responsible for the spotted owl's movements. Since the "spotted owl is a wild animal" and "moves according to its [own] will," it is not an agent of the state of Oregon so the State of Oregon cannot be held liable if the federally-protected owl, with all of its accompanying Endangered Species Act regulations, takes up residence on someone's land.

Property rights lawyers handling the case argued that having forced Boise Cascade to allow the owls to live on its property, the state can not escape liability for a loss in property value because it does not control the owl's movements.

The state and the Audubon Society also asserted the sweeping notion that private landowners have a duty to protect the habitat of any wildlife the state deems worthy of protection. As justification for making this legally-suspect argument, the Audubon Society offered as examples existing laws protecting wildlife such as prohibitions on canning salmon, trapping beaver or killing deer. However, the analogy was flawed because while those laws prevent property owners from killing or capturing wildlife, property owners still have the right to prevent wildlife, such as beaver, from entering their property and damaging it. Boise Cascade Corporation merely sought to exclude the owls from its property. It never sought to kill the birds.

In 1998, the Oregon Court of Appeals ruled for Boise Cascade, holding that the state had denied Boise Cascade "the only economically viable use of approximately 56 acres of merchantable timber."
Source: Pacific Legal Foundation