Opinion
Civil No. 99-1038-JO
September 17, 2001
Gary M. Bullock, Wade V. Regier, Bullock Regier, P.C., Portland, OR, Attorneys for Plaintiff.
James L. Sutherland, Assistant United States Attorney, District of Oregon, United States Attorney's Office, Eugene, OR, Attorney for Defendant.
OPINION AND ORDER
Plaintiff Marvin McDougal brings this action against defendant United States Forest Service, through the United States, alleging, as relevant, a claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq, for damages incurred in relation to a fire in the Strawberry Mountain Wilderness Area in 1996.
On July 31, 2001, I granted in part defendant's motion to dismiss or, alternatively, for summary judgment on certain of plaintiff's damages claims (# 61). The opinion left one issue unresolved, whether plaintiff may recover net loss from timber sales. Specifically, the opinion states:
Plaintiff also seeks recovery of an alleged net loss from timber sales in the sum of $682,500. The basis of this claim is not apparent on the record, because neither the lease agreements nor the option documents appear to grant him any right to harvest timber. Plaintiff's most recent submission suggests, however, that he may claim that the Trust orally granted him timber rights. Consequently, although on the present record I would be inclined to strike this element of plaintiff's damages claim, I will grant him leave to supplement the record by submitting, within 14 days of the date of this opinion, specific and admissible evidence demonstrating that at the time of the Wildcat fire, he had a right to harvest Oxbow Ranch timber and retain the proceeds of any sale.
McDougal v. U.S. Forest Service, Civil No. 99-1038-JO (Opinion and Order, July 31, 2001), Slip Op. at 8-9.
On August 15, 2001, plaintiff filed an affidavit, in which he states, in relevant part, that "[i]t was also agreed among the parties that I would have the right to cut timber on the Oxbow ranch, including the Main Ranch and apply the proceeds towards the purchase price." Affidavit of Marvin McDougal ("McDougal Aff."), ¶ 7. Plaintiff attached to the affidavit a letter from the ranch owner's attorney, Michael Kilpatrick, which states that
The actual owner of the Oxbow Ranch at the relevant time was the Rotchford and Julie Barker Grandchildren's Trust.
McDougal was to be permitted to carry on logging with the understanding that a plan would be followed, which would be approved by the owners of the Oxbow Ranch. Timber removed would be accounted for and applied to the purchase price of the ranch.
McDougal Aff., Exhibit 1. McDougal further states that it "was agreed and understood" with the ranch owner that (1) the cost of logging would be subtracted from the timber proceeds; (2) the net proceeds would be placed in trust "to be applied towards the purchase price in the event I exercise my option"; and (3) if he did not exercise the option, "the timber proceeds would belong to the seller," i.e., the ranch owner. McDougal Aff., ¶ 9.
The above evidence, to the extent it is admissible, is insufficient to meet plaintiff's burden on summary judgment. Plaintiff's own testimony and evidence demonstrate that his rights to the timber, if any, were limited. Plaintiff was to be "permitted" to carry on logging "with the understanding" that he would follow a plan approved by the ranch owner. Timber proceeds were to be "accounted for," placed in trust, and applied to the purchase price for the ranch. If plaintiff did not exercise his option to purchase the ranch, "the timber proceeds would belong to the seller." McDougal Aff., ¶ 9 and Exhibit 1. This language compels the conclusion that the ranch owner, not plaintiff, is the proper party to claim any net loss in the value of timber burned in the fire.
Defendant objects to many of the statements in McDougal's affidavit on hearsay grounds. Because of my disposition of this issue, I need not reach defendant's evidentiary objections but note that many of the objections appear to be well-taken.
Moreover, as defendant points out, under Oregon law growing timber is considered real property and any conveyance of growing timber separate from the land must be in writing or comply with the requirements of ORS Chapter 72, which governs the sale of "goods." See ORS 72.1070(2), 72.2010(1), 72.4010, 72.5010; see also Burkhart v. Cartwright, 221 Or. 26, 31, 350 P.2d 185 (1960). Plaintiff does not rely on any written agreement, only on an oral understanding with the timber owner, which may grant him a license to enter and cut, but does not convey any ownership rights or title. See Burkhart, 221 Or. at 31.
Consequently, I grant defendant's motion with respect to plaintiff's claim for timber loss. In view of this disposition, I again refer the parties for further mediation before Judge Ann Aiken.
IT IS SO ORDERED.