This fall, Sara Leiman sent out a short letter to friends and family with some good news. The Oregon Court of Appeals had just decided in her favor that the state had taken her family's private property without compensation when it required a 500-foot protection circle around a bald eagle nest on their forest land. While wanting to "do the right thing," as she says, the state's restrictions made Sara wonder where their responsibility for protecting an endangered species ends, and where the public should begin to pick up the tab.

The decision marks the most recent step in a ten year odyssey. Throughout, Sara and her family's company, Coast Range Conifers LLC, have struggled with difficult circumstances. They have accepted steep financial losses due to two endangered species, first northern spotted owls and later bald eagles. The situation also prompted them to take legal action against the State of Oregon, a decision that still troubles the family even after it has turned in their favor.

As Sara recalls it, she discussed the property's northern spotted owl habitat with the Oregon Department of Forestry during notification for a timber sale in 1993. The owl was nesting north of their Yachats property on US Forest Service land. "We were good to go as far as ODF was concerned, but a week before bids were due we got a call from US Fish & Wildlife saying our proposed cut was within the 1.5 mile home range radius from the owl's nest." Realizing that having to protect habitat for an endangered species might cause a problem for potential buyers of the timber, they called off the timber sale.

Ultimately the family decided to trade the property with the owl home range to the Forest Service. Everyone did their homework to be sure the property received in the trade was land they could harvest. "We hired a biologist to call for owls and check for other species on Forest Service parcels we thought we might receive in the trade," says Sara. They made the trade in 1996 and received three Lincoln County parcels in return. Although they gained forestland of equal value, the trade wasn't a break-even deal. They had missed out on log prices that have never been as high since. But that wasn't the only problem, recalls Sara. The Beaver Tract, a 40-acre parcel three miles inland, turned into a Trojan horse. "This tract was surveyed for owls and murrelets during the trade process. No one thought there would be eagles or saw an eagle's nest." A bald eagle nest was identified on the Beaver Tract, anchored in the branches of a large Doug-fir tree. Although the nest had not been used for some time, Oregon state law requires landowners to preserve nest trees until the tree falls down, if the eagles do not establish another nest nearby.

The size of the protection area imposed a significant economic penalty. A 500-foot radius of standing forest must be maintained around the nest. The closest 400-foot circle must be left untouched. Between 400 and 500 feet no more than half the trees can be cut. Says Sara, "Our eagle refuge had been created and its timber value in dollars to the family had suddenly and unexpectedly gone to zero."

Sara and her family began legal action against the State of Oregon in 1999. As she explains, "The state denied our right to log our timber in order to preserve it as a bald eagle nest site, which constitutes a taking of the timber for a public purpose."

As a landowner, the possibility that a new species will be identified and the uncertainty of not knowing howmuch economic value will have to be forgone for protection is what troubles Sara the most. As she puts it, "I do feel we have responsibility as landowners. I know timber is not money in the bank. We are willing to give up our monetary value to a certain extent. But where will it stop?" She finds herself wondering, "Is there a point after which everyone else should pitch in?"

The legal concept of what constitutes a "taking" of private property is laid out in the United States Constitution, 5th Amendment, which says: "...nor shall private property be taken for public use, without just compensation." The same just compensation is required under Article 1, Section 18 of the Oregon Constitution.

How much protection does an eagle's nest really need? "I believe it is a forestry answer," says Frank Isaacs, an Oregon State University Wildlife Biologist. Isaacs is a leading bald eagle specialist, having led the annual Oregon eagle nest survey since 1978. "Everything we know about eagles points to their need for a large tree." An eagle's nest can be six feet across and two feet thick, built of solid sticks, dirt and grass. Over the years it can get really dense. Says Isaacs, "You need a big tree that can hold that much weight."

He thinks of a nest's protection needs in terms of the kind of forest conditions necessary to grow those big trees, keep them standing in high-wind conditions, and have others nearby in case the original blows down. The area of forest you need can vary from place to place. He explains, "In Eastern Oregon it could take 200 years and 5 acres. In Western Oregon it might take just 50 years and only one acre."

"So the protection zone is a silvicultural issue," says Isaacs. "Every place is different. Site specific assessment is best." But he points out, "It takes time and money to do site specific reviews." Regulations can't be that site specific and still retain fairness. Sara and her family are conflicted about the lawsuit. "I believe there should be no more laws that require set-asides on our lands until there is recognition of how much these public benefits cost landowners. We keep getting pounded and the regulations keep piling up." She is one of a growing group of landowners who think that the Department of Forestry could play an important role by helping landowners better cope with the challenges of sensitive species.

Bill Arsenault is one who sees potential in a concept called the "Specified Resource Site Safety Net." Arsenault is a member of the Committee for Family Forestlands, a permanent advisory committee to the Board of Forestry. The idea would be to provide a landowner with compensation for the years the site cannot be used due to habitat protection.

The concept is to set up a loan program for anybody affected by a sensitive species restriction that exceeds a certain percentage of the landowner's total property. "They could apply for a loan to compensate them for the takings while the specified resource site is in use," explains Arsenault. The state would guarantee the loan by taking a lien on the trees. "When the owl or eagle moves away," says Arsenault, "They can harvest the trees and pay back the loan."

The fund would attempt to correct an unfortunate unintended consequence of current regulations. Says Arsenault, "Right now, there are tremendous disincentives for landowners to allow their forest to grow in longer rotations. They might feel they need to cut their trees before they attract bald eagles or owls because they don't want to have their lands restricted and lose potential timber income."

The Specified Resource Site Safety Net idea has been presented to the Board of Forestry and is being studied further. Arsenault and others hope that something like it can change a disincentive into an incentive for landowners to provide good habitat for sensitive species.