Is buying a forest, logging it and operating it for recreational use within the scope of services of a Water District?  From Public Records Requests, it doesn’t appear as though the Board has asked or answered that question completely, especially the part about recreational use.

Warning:  This gets dry and technical pretty quickly!!  You can always skip ahead to ‘My Take’ & ‘Legal Opinion Letter’ and then jump back to the ‘State Statutes’ section.

State Statutes:

There are two State Statutes that may be applicable to the Board’s current plans for the forest; One Statute applies to Domestic Water Supply and the other Statue applies to Park and Recreation.

1. The Arch Cape Water District IS formed as a ‘special district’ that must comply with ORS 264–Domestic Water Supply Districts (https://oregon.public.law/statutes/ors_chapter_264)

Chapters of note are:

ORS 264.110 (Formation of a District) & ORS 264.560 (Permissible Services)

• “A domestic water supply district may be formed for the purpose of supplying inhabitants of the district with water for domestic purposes as provided by this chapter; “
• “A domestic water supply district may perform services related to the administration or operation of a corporation organized to supply water for domestic purposes, including maintenance, repair or replacement of infrastructure owned or operated by the corporation”

ORS 264.362 – 264.366

These chapters outline a formal process to be followed the District Board

“to make any improvement to be paid for in whole or in part by special assessment according to benefits”.    

Note: Within the statute, there doesn’t appear to be any definition of improvement.  The Forest is likely considered to be an improvement.

Key steps in the formal process include;

• The District must develop a report that outlines the details of the improvement, such as costs and how properties will be assessed to pay for it
• Upon their approval of the report, the District Board must declare its intention to make the improvement, provide the manner and method of carrying out the improvement and provide a notice to the District that contains:
  • The report on the improvement
  • The date of a public hearing that will he held to consider the improvement
  • The requirement that if there are written objections to the improvement by two-thirds of the owners, then the improvement will be abandoned for at least six months
• After the public hearing, if the objection requirement isn’t met,  the Board can move forward with the improvement

2.   Arch Cape IS NOT formed as a “special district” for Parks and Recreation (ORS 266. https://oregon.public.law/statutes/ors_chapter_266)

Per 266.110  – A community may form a municipal corporation to provide park and recreation facilities for the inhabitants.

My Take:

This is what comes to mind to me as a layman and not a lawyer. 

1. Regarding Purchase of the Forest

Since we don’t yet own the Forest, our buying of the Forest could be considered an infrastructure “improvement” to the District’s ability for “supplying inhabitants of the district with water for domestic purposes”.

ORS 264 outlines a formal process that must be followed for making any improvement to the District (e.g., buying the forest).  That process calls for providing relevant fact-based information to the community about the improvement and allowing the community to formally weigh in and potentially cause the improvement to be “abandoned” (e.g., not buying the forest).   However, that formal process is only required if the improvement is to be paid, in full or in part, through an assessment on the community (e.g., rate increases).  In our case, the formal process does not appear to be required as the cost of the improvement  (purchase of the forest) will be not be paid by the community (it will be paid by grants, COVID Relief Funds and donations).

It is unfortunate that the spirit of the statute wasn’t followed.  Since there is a probability of rate increases to pay for the ongoing operations of the forest when logging revenues fall short, I sense that the community would have appreciated the formal process being followed so that could have had a level of awareness and the opportunity to formally weigh in with any objections.

2. Regarding Logging of the Forest

The Board’s current thinking calls for the District to perform the following three services in addition to supplying water for domestic purposes.

• Restorative Logging – logging to improve the health of the forest.  
• Commercial logging – logging for profit over and above forest health, as revenue generation to pay District costs

Restorative Logging could reasonably be considered “maintenance, repair or replacement of infrastructure”, since the intent is to keep the forest healthy.  Commercial logging over and above the health of the forest seems a bit of a stretch as a permissible service.  But then it could potentially be considered “related to the administration or operation of a corporation, since it provides funding for the operations.   

3. Regarding Recreational Use of the Forest

The Board’s plan calls for managing the forest as a park for recreational use, to include promoting tourism and building recreational infrastructure.  I’m just not sure, with any stretch of the imagination, how Recreational Use falls within a permissible service of ORS 264 the Water District Statute. 

Recreational Use of a Forest seems to better fit within ORS 266 the Park and Recreation District Statute. And Arch Cape has not been formed as a Park and Recreation District. The statute also seems to be saying that even Park and Recreation Districts can only provide park and recreation facilities for the “inhabitants” of the District, and not the general public.

Legal Opinion Letter

In discussions with 3 Land Use Attorneys from Portland & Bend, they suggested that the Board has probably asked their legal counsel for a legal opinion letter about what the District is allowed do with the forest under the State’s Water District Statute – ORS 264, and that letter should be available as a public record. I did a public records request. Here’s what came back:

Since a legal opinion letter doesn’t exist, the Land Use lawyers have said that is likely in the best interest of the District for the Board to ask their legal counsel to due diligence confirmation and document that these services fall within the legal scope of what the District can do. That seems like sound advice.