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OIA DEFENDS MEASURE 7
IN COURTS, STATE CAPITOL

By Bill Moshofsky,
Vice President, Government Affairs,
Oregonians In Action

As expected, the passage of Measure 7 set off a flurry of activity by the anti-landowner activists.  Efforts to overturn Measure 7 are underway in both the courts and at the Oregon Legislature.  Fortunately, it does not appear that either effort will succeed.

As reported in the Nov/Dec. 2000 edition of Looking Forward, two lawsuits have been filed in the Marion County Circuit Court to overturn Measure 7.  Identical claims have been made in each of the lawsuits, and they have been consolidated for trial.  The defendants in the lawsuits are the State of Oregon, John Kitzhaber, and Bill Bradbury.  Because the state, the Governor, and the secretary of state are the defendants in the lawsuit, they are being represented by Hardy Myers, the Oregon Attorney General.

On December 6, 2000, Circuit Court Judge Paul Lipscomb issued a preliminary injunction temporarily halting the enactment of Measure 7 pending the outcome of the lawsuit.  What is troubling about the injunction is 1) the lack of effort and legal errors made by the attorney general’s office in defending against issuance of the injunction, and 2) the refusal by Judge Lipscomb to allow lawyers representing landowners to participate and argue against issuance of the injunction.

Had there been any effort at all spent on fighting the injunction, it would not have been issued by Judge Lipscomb. The arguments in favor of the injunction were so weak that a first year law student could have defeated them.  Unfortunately, no one was there to argue on behalf of the 54% of Oregon voters who voted for Measure 7.

After the injunction was issued, Judge Lipscomb did allow lawyers for Stuart Miller, the chief petitioner for Measure 7, to intervene in the lawsuit and argue on behalf of the Oregon voters.  But by then it was too late to stop the injunction - it had already been issued.

At this point, further proceedings before Judge Lipscomb are on hold, while the Oregon Court of Appeals decides whether two additional landowners - Dorothy English and Betty Wiemers - should be allowed to intervene and defend Measure 7.  Mrs. English and Mrs. Wiemers both have Measure 7 claims, and are interested in protecting their rights in the court battle.  Judge Lipsomb denied their request to intervene in the lawsuit, and they have appealed that decision to the Oregon Court of Appeals.  It will likely take quite some time before a decision is made in that case.

In the meantime, activity is also occurring at the Oregon legislature.  Although there has been no legislation introduced to amend or modify Measure 7, an unofficial work group has been formed to look at Measure 7 with the goal of crafting legislation to implement the Measure.  As reported in the media, a number of cities and counties adopted local rules to create a claims process for landowners who want to make a Measure 7 claim.  Unfortunately, no two local rules were the same, and many of the local rules were not designed to provide a process, but were instead designed to make it very costly and very difficult, if not impossible, for a landowner to get compensation or removal of a regulation.

 Dave Hunnicutt, Director of Legal Affairs for Oregonians In Action, is part of the unofficial work group.  “We are trying to craft a bill to take to the Oregon Legislature that would set out a uniform and fair statewide process for making Measure 7 claims,” said Hunnicutt.  “What we are trying to do is to make sure that landowners who have Measure 7 claims are not subject to excessive costs, hurdles and barriers to make their claims.  The best way to do that is to establish statewide standards, that will be applied in every city and county in the state.  That should stop efforts by the more aggressive cities and counties to block or limit Measure 7 claims.”

According to Hunnicutt, it is too early to tell if anything else will occur at the legislature.  “Rumors are flying all over the capitol,” said Hunnicutt.  “It’s hard to tell which are true and which aren’t.  Leaders in both the House of Representatives and Oregon Senate, however, have indicated to me that they will not allow any legislation to be passed that will weaken the protections which the voters adopted for themselves with Measure 7.  I appreciate the support we have been getting from Senators Derfler and Nelson and Representatives Simmons and Minnis.”

Whatever the ultimate outcome, Hunnicutt expects a battle.  “We knew going in that getting Measure 7 passed would only be half the battle.  Anytime you have opposition that is well funded and organized by the extreme environmental community, you are going to have a fight.  I don’t expect the other side to ever give up, regardless of what the public says.”