The timber industry filed a lawsuit against Grays Harbor County on Aug. 6, challenging the county’s ordinance prohibiting large forest landowners from getting a property tax break if they charge for access.
The lawsuit, filed in Thurston County Superior Court by the Washington Forest Protection Association, Green Diamond Resource Co, Rayonier and the Weyerhaeuser Co., alleges that the county’s new ordinance is in direct conflict with state law, the state constitution and the U.S. Constitution. The county ordinance says that timber companies should not be allowed to get a tax break for growing timberland, while at the same time charging hunters and hikers to access that land. The state allows an “open space” designation for forestland, which allows timber companies to get a big discount on their property taxes because the companies are growing timber and eventually pay a harvest tax. The state put the program in place but left it to the counties to determine what should be in the forest management plan that timber companies are required to abide by and the ordinance adopted last month by the county commissioners would prevent fees for access as a condition of opting into the “open space” tax break program.
The county commissioners had been anticipating that the ordinance could be challenged in court.
Mark Doumit, executive director of the Washington Forest Protection Association, said the challenge was necessary because the timber industry only had 30 days to do a “facial challenge” of the ordinance itself. The organization needed to make sure the county assessor didn’t try to enact the ordinance and begin kicking forestland out of its special property tax bracket because companies charge fees.
The lawsuit acknowledges that once land is designated as forest land under the proper state law, one of the only ways it can be removed is if “the owner ceases using the land primarily for the growing and harvesting of timber.” Once removed, the land would be revalued for property tax purposes at its highest- and best- use market value and subjected to a compensating tax equal to the property tax differential for each year the land was designated to get the property tax break up to 10 years, the lawsuit notes.
“Charging a permit fee as a condition of permitting entry onto the land for recreational purposes is not one of the statutory grounds for removing land from the state Designated Forestland program and imposing the compensating tax,” the lawsuit states.
County Commissioner Wes Cormier argues that charging fees for access brings in a lot of extra revenue for the timber companies other than just cutting the timber. He asserts the county’s right to put conditions on the county forest management plan, which is locally controlled, not controlled by the state.
Before final passage of the ordinance, the county commissioners adopted an amendment providing an exemption for small forest landowners, who have harvested no more than an average timber volume of 2 million board feet per year.
The lawsuit notes, “the disparate treatment of ‘large’ and ‘small’ forest landowners also violates the uniformity clause of the Washington Constitution.” The “disparate treatment of large and small forest land owners violations the Equal Protection clause of the U.S. Constitution,” as well, the lawsuit notes.
The lawsuit seeks to prompt a judge to invalidate the county’s ordinance and award costs and attorney fees to the timber industry.
Doumit, a former state senator and former Wahkiakum County commissioner, said he understands the needs of local governments and hopes to work out a compromise before going to court. He emphasized the lawsuit was filed because there was a 30-day window that was closing on Aug. 6.
“We don’t want other counties to implement this,” Doumit said. “I’m going to do what I can to work with the Association of Counties and the Association of Prosecutors and the Grays Harbor County commissioners,” Doumit said. “We certainly don’t want to go to court if we don’t have to. …
“These companies have rights as private land owners,” he added. “It’s unfortunate the commissioners chose to write an ordinance like this… It’s not a resolution. It’s not a letter and that puts us in a different realm. They didn’t leave us any choice other than to challenge the ordinance that has the weight of law behind it. Commissioner Cormier wanted it to go to court so he can somehow test the law, yet he was already counseled by his own prosecutor and the state Department of Revenue that this is the wrong way to do this.”
The ordinance comes about after Weyerhaeuser started charging for access during the hunting months on its property in Pacific, Lewis and Grays Harbor counties.
“But Rayonier has had a fee program for a couple years and Green Diamond has one as well,” Doumit said. “These types of fee access programs have been around since 1993 in different counties.”
Although the timber industry had said it would keep access open to the public when the tax breaks were put in place in the 1970s, Doumit argues that charging fees for access is still keeping the access open.
“Part of keeping public access open doesn’t mean you can’t recover the cost with a fee,” Doumit said. “Even the state of Washington has decided to charge for access on the state lands with their pass. … As a longtime supporter of county government, it is unfortunate that it has come to this point, but we have no choice except to protect private landowners’ rights by taking legal action.”