TILLAMOOK — The state's apparent failure to serve notice on all Forest Trust Land Counties of its intent to appeal a judge's July decision that the state Legislature improperly appropriated $10 million in state timber revenues could end up giving the counties a technical knockout win over the state.

At least that's the way Tillamook County Commissioners and the attorney representing the counties of Tillamook, Coos and Linn see it. This view is reflected in attorney Carson Bowler's motion to dismiss the appeal, filed Dec. 6 with the Oregon Court of Appeals in Salem.

"This is really good news for the county," said Tillamook County Commissioner Mark Labhart.

""We knew for some time that there was a mistake," said Commissioner Tim Josi, who saw the development as reason for optimism for the counties involved in the lawsuit.

Bowler, with the law firm of Schwabe, Williamson & Wyatt of Portland, argued in his motion to dismiss the state's appeal that the state had not complied with the judicial statute requirements of the appeal, since it had only served notice on the law firm representing three of the 15 parties "designated as adverse in the notice of appeal." For that reason, the appeals court has no jurisdiction to hear the appeal, he asserted.

The statute, he said, provides that the Court of Appeals has jurisdiction only when all parties identified in the notice of appeal as adverse parties have been served the notice of appeal within 30 days of the court's entry of judgment in the case.

That period has expired. The entry of judgment in favor of the counties was filed Oct. 25, Bowler said, noting that only his firm, representing three counties, had been serviced with the notice.

The months between the summary judgment by Circuit Court Judge Richard L. Barron and the filing of the notice to appeal was taken up with deliberations and motions involving such things as disposition of interest earned from the $10 million.

In his motion to dismiss, Bowler cited several judicial precedents and statutes supporting throwing out the appeal based on a lack of proper notice and subsequent lack of court jurisdiction.

In an amendment to this motion, Dec. 8, Bowler cited the Oregon case of McCall v. Kulongoski, in which the Oregon Supreme Court "confirmed that the statutory requirements for serving a notice of appeal are strictly construed, and held that the Court of Appeals properly dismissed the state's appeal for lack of jurisdiction when the state failed to serve the notice of appeal properly on the plaintiff's lawyer."

In his motion last week, Bowler pointed out that the state had designated as adverse parties the counties of Benton, Clackamas, Columbia, Douglas, Josephine, Klamath, Lane, Lincoln, Marion, Polk, Washington, Tillamook, Linn, Coos and Clatsop. However it "timely served" attorney Jay. T. Waldron at his law firm, whcih represents only Tillamook, Coos and Linn.

The other counties, except Clatsop, "were each represented by their own county counsel ... and each of those counties' counsel was identified on the complaint."

He added, that while those counties "did not file any substantive motions at the trial court level," each one "independently joined the summary judgment motions filed by Clatsop County, and by Tillamook, Coos and Linn counties.

Bowler points out in his motion that the 11 counties did authorize his firm to "accept and forward copies of the filings in the underlying case to them, it did continue to "include those other counties on the certificates of service attached to filings on behalf of the tree counties it represented.

Bowler made the distinction, though, that his firm "never represented" to the court or the state "that it represented those counties in the litigation," or that his firm "was authorized to accept service on behalf of those counties in the event of an appeal.

So, he maintained, the state serving notice on his firm doesn't constitute serving the 11 counties, as well.

If the court didn't accept that argument, Bowler had one more. By noticing his firm, that didn't constitute a proper service on the remaining county — Clatsop — which was represented in the case by John Junkin and John Osburn of the Bullivant Houser Bailey law firm. Since that firm was not served, he said, "this omission deprives the court of jurisdiction."

Junkin confirmed Monday that his firm had not been served notice of appeal by the state.

Kevin Neely, spokesman for Attorney General Hardy Myers conceded that upon "initial response," it appears the state "may have not properly noticed all the parties." However, he said the Justice Department is reviewing the file to determine whether that is the case.

It's a technicality, he said, but added that courts "are sticklers for technicalities."

The state now has 14 days from the date of the motion to dismiss in which to respond with its reasons why the appeal is valid, according to Bowler.

The state is appealing Judge Barron's summary judgment that determined the Legislature was wrong in 2003, when it diverted $10 million in state timber revenues from Oregon Department of Forestry's Forest Development Fund to the state general fund during a budget crisis. Barron said the state must repay the $10 million.

The Trust Counties contended that the Legislature's 2003 appropriation of the forest funds breached an arrangement the counties had with the state when those lands were conveyed from the county to the state in the years following the Tillamook Burn fires — that the funds were to be only used for forest management.

When a state Senate bill taking that position failed to pass in the last legislative session, the counties sued the state, and both parties agreed for a judge to make a decision without the case going to trial. Barron determined that even though there was no agreement between the Forest Trust Counties and the state, the state is "contractually bound" by what "has been a consensual arrangement for more than 70 years."