This is the second of two Public Lands Blog posts that examine the management (and mismanagement) of more than 2 million acres of federal forestlands in western Oregon, administered by the Bureau of Land Management. Part 1 examined the history of rampant clear-cutting of old-growth forests and vast windfalls of revenues to local counties as a result. Part 2 examines the current threats to these public lands from the timber industry and local counties, and the opportunity that could present itself to secure permanent comprehensive congressional conservation of these imperiled lands.
Fig. 1. If Big Timber and the Addicted Counties get their way, large-scale old-growth forest liquidation will resume on western Oregon federal public lands administered by the Bureau of Land Management. Source: Bureau of Land Management.
To review, the fate of more than 2 million acres of federal forestlands in western Oregon turns on the question of how the Oregon and California Lands Act (OCLA) of 1937 is to be interpreted. These three basic positions have been taken:
• The conservation community sees a multiple-use statute—although a less-than-fully-encompassing one—and see that multiple-use statute alongside other applicable statutes, including but not limited to, the Endangered Species Act, the Clean Water Act, and the Antiquities Act.
• Big Timber and the Addicted Counties see a timber-above-all-else statute.
• The BLM sees a timber-focused statute in the context of a United States Code that also includes the Endangered Species Act, the Antiquities Act, the Clean Water Act, and many other statutes that they must obey, follow, and/or enforce.
Figure 2. Prior to Northwest Forest War II, old-growth forest liquidation was rampant. Just three logs on a loaded log truck means that they undoubtedly came from an old-growth forest. Source: Bureau of Land Management.
War by Litigation
Big Timber (in the form of the American Forest Resource Council, AFRC) and the Addicted Counties (in the form of the Association of Oregon and California Counties, AOCC) have brought a series of legal cases that have successfully (so far and in some courts) relitigated matters of law that previously went against them. One needs a scorecard to make sense of it all, particularly as over the decades, various courts have found, among many other inconsistencies, that
• the OCLA is a timber-first statute;
• the BLM (forced by the Clinton administration’s secretary of the interior, Bruce Babbitt) can place off-limits to logging large late-successional (mature and old-growth) forest reserves and riparian (streamside) reserves on O&C (and CBWR) lands, using its authorities under the Clean Water Act and the Endangered Species Act;
• the BLM must sell a very large amount of timber, despite the Clean Water Act and the Endangered Species Act;
• a president, using powers granted by Congress, can establish a national monument including O&C lands; and
• a president cannot establish a national monument on O&C lands if those lands have commercial timber potential (most do).
This all has not yet been sorted out.
Following is a summary account of the pertinent OCLA legal cases and their current status. There are the resource management plan cases, the Cascade-Siskiyou National Monument cases, and the northern spotted owl critical habitat case.
The Resource Management Plan Cases
1995 RMPs. In 2015, Big Timber challenged the BLM’s 1995 resource management plans (RMPs), which in effect outline how the Northwest Forest Plan (NWFP) is to be followed on BLM lands. Yes, Judge William Dwyer of the US District Court for Washington had ruled in 1995 that the NWFP was legal for BLM lands, but wait a decade and try again in a different court. Big Timber’s court of choice was the US District Court for the District of Columbia, in most particular Judge Richard J. Leon. Judge Leon found that the BLM had violated the OCLA by not offering the maximum amount of timber that it said it would in its RMPs. (In earlier legal battles, Big Timber’s judge of choice, Thomas Penfield Jackson, sat on the same district court.)
2016 RMPs Case 1 (Big Timber). In 2016, Big Timber (different plaintiffs) challenged the BLM’s 2016 RMPs, which in effect withdrew the BLM from the NWFP but nonetheless resulted in a net increase of “reserves” from approximately two-thirds to three-quarters of the BLM lands in western Oregon. Big Timber asked the court to overturn the RMPs and force the BLM to revise them in order to offer for sale the maximum amount of timber possible as OCLA requires. Judge Leon might well grant their wish.
2016 RMPs Case 2 (Addicted Counties). In 2016, the Addicted Counties filed an essentially identical challenge to 2016 RMPs Case 1. Legally and politically, there is no daylight between Big Timber and the Addicted Counties. This is also before Judge Leon.
2016 RMPs Case 3 (Conservation Community). In 2016, several Oregon conservation organizations challenged the 2016 RMPs’ halving of the riparian reserves of the 1995 RMPs (which were in alignment with the NWFP), for failing to consider the environmental consequences for Forest Service timberlands of the BLM pulling out of the NWFP. Alas, this suit was lost in the District Court for Oregon and is on appeal to the US Ninth Circuit Court of Appeals.
The Cascade-Siskiyou National Monument Cases
In 2000, President Clinton proclaimed the Cascade-Siskiyou National Monument, which included both BLM O&C and public domain (PD) lands. Big Timber and the Addicted Counties groused but did not sue.
In 2017, President Obama expanded the Cascade-Siskiyou National Monument. Hedging their bets, Big Timber sued in both the US District Court for Oregon and the US District Court for the District of Columbia (different plaintiffs). The Addicted Counties also sued in DC (same judge). Their complaints are essentially interchangeable.
Judge Michael McShane in the District Court for Oregon found the monument expansion to be legal and that O&C lands could be included in a national monument. Judge Leon in the District Court for the District of Columbia found the opposite. Appeals in the respective courts of appeal are ongoing.
The Northern Spotted Owl Critical Habitat Case
In the US District Court for the District of Columbia, Big Timber seeks to overturn the critical habitat rule issued by the Fish and Wildlife Service that specified critical habitat (CH) necessary for the conservation of the Endangered Species Act–protected northern spotted owl (NSO). No decision yet. A lot of public forestland (BLM and Forest Service) has been designated NSO CH. Though filed in 2015, the case has still not been decided on its merits (or lack thereof).
Figure 3. A one-log load circa 1960. Source: Umpqua Valley Museums.
How the Cases Could Go
In the end, the interests of the conservation community could prevail on appeal in both the Ninth Circuit in the West and the DC Circuit in the East. Ironically, our interests and those of the federal government are the same. In all cases—save for the conservation community suit against the BLM—the position of the federal government is that Big Timber and the Addicted Counties are wrong. Even under this horrible president, the federal government seeks to maintain its discretion and prerogative.
Yes, the Trump administration is arguing in federal courts in Oregon and in Washington DC that the president can proclaim a national monument, while simultaneously arguing in the District Court for Utah that a president can shrink national monuments previously proclaimed. Yes, the Soda Mountain Wilderness Council, the primary advocate for the establishment of and continuation of the Cascade-Siskiyou National Monument, has intervened in the cases in defense of defendant Donald J. Trump.
Go Trump administration! (Actually, Trump administration, just go.)
On the other hand, consider this a gentle warning to the Oregon and national public lands conservation community. A gentle warning in the same vein as my Nest® smoke detectors’ gentle voice warning that it has detected some smoke in the kitchen, which permits me a chance to remedy the chicken (organic pasture-raised and slaughtered by vegan virgins, of course) that is burning in the oven before the devices simultaneously clang and yell at me.
Big Timber and the Addicted Counties could legally prevail. The courts, especially the appeals courts and higher, are being populated with Trump-appointed conservatives (often in fact corporate socialists or libertarian extremists). Precedent isn’t as precedential as it used to be under this presidency, as this president has especially packed the courts of appeal and higher.
The ramparts are staffed. Oregon Wild, Klamath-Siskiyou Wild, Cascadia Wildlands, Klamath Forest Alliance, and others are challenging bad BLM timber sales.
Lawyering the conservation community’s way through the O&C litigation quagmire are the most able Susan Jane Brown of the Western Environmental Law Center and Kristen Boyles of Earthjustice. If the Oregon conservation community fails to prevail, it will be because of conservative activist judges, not our lawyers.
What the conservation community is now doing is exclusively defense—defending a status quo BLM management of O&C (and CBWR, and PD) lands that while far better than what it used to be is far from what it should be.
Figure 4. If the tree is heavy enough, it will press down on the bar of the chainsaw that is killing it, thereby requiring a hydraulic assist. Source: Bureau of Land Management.
When Handed Lemons, Make Lemon Mojitos
Having lost their social license to clear-cut older forests on public lands, Big Timber and the Addicted Counties are seeking a legal license to do so that may or may not be legal. Depending on the outcome of the pending litigation, the Oregon conservation community should be prepared to seize the opportunity to secure enduring protection for BLM lands in western Oregon.
If there is no legal license to log the crap out of most BLM lands in western Oregon, the conservation community should complement our site-specific challenges to bad BLM timber sales with increased advocacy for additional areas of wilderness, wild and scenic rivers, national recreation areas, legislated areas of critical environmental concern, and other comprehensive congressional conservation for 2.6 million acres of federal public lands in western Oregon.
If it turns out there is a legal license to log the crap out of most BLM lands in western Oregon, the conservation community must seize the once-in-a-lifetime opportunity to secure enduring comprehensive congressional conservation for each and every damn acre of BLM lands in western Oregon.
Thank you, Big Timber and the Addicted Counties, for starting another Northwest forest war.
NWFW III will be fought more locally than nationally in equal parts. If Big Timber and the Addicted Counties feel besieged now, just wait. They will rue the day they tried to reclaim the bad old days and not adapt to changing times.
The Oregon and the national conservation community will take to the streets, the trees, and the Congress. Its ranks will swell with a new generation of public lands conservationists who first came to love forests for their unique ability to store and sequester otherwise atmosphere-endangering carbon.
Roadmap to a Sane Resolution to NWFW III
If massive clear-cutting of old-growth forests resumes big-time on federal public lands, it will be up to the Oregon congressional delegation to put an end to it, once and for all. Let’s look at the positions of the Oregon congressional delegation on old-growth logging.
During Northwest Forest War II (2013–2016), Democrats Ron Wyden and Jeff Merkley introduced legislation that would have protected all moist forest stands on BLM lands more than 80 years old and in dry forest stands all trees more than 150 years old. Representative Earl Blumenauer (D-3rd) has called for the permanent protection of all older forests. Representative Suzanne Bonamici (D-1st) doesn’t have a lot of federal forestland in her district, but her environmental positions tend to track those of Blumenauer, Wyden, and Merkley. While on the wrong side during NWFW II, Representatives Kurt Schrader (D-5th), Peter DeFazio (D-4th), and Greg Walden (R-2nd) still had legislation that would have protected trees more than 120 years of age in western Oregon BLM forests.
The Oregon congressional delegation will either rise to greatness and leave a great conservation legacy or fall from grace and leave a despicable legacy. I’m betting on the former.
Here’s the roadmap:
• Abolish the Oregon and California Lands Act.
• Expand the National Forest System by transferring ~2.4 million acres from the BLM to the Forest Service.
• Expand the National Wild Refuge System by transferring ~0.2 million acres from the BLM to the Fish and Wildlife Service.
• Take the $100 million that would be saved annually by such transfers and pay the Addicted Counties one last big check they don’t deserve.
• Dedicate the former western Oregon BLM forestlands to the storage and sequestration of carbon for the benefit of the climate, biological diversity, and watershed integrity for this and future generations.
Thank you, Big Timber and the Addicted Counties, for never adapting to a changed Oregon. The Oregon conservation community wouldn’t be able to do this without your help.
NWFW III will be the best so far.
Figure 5. Growing up in timber country, I never believed the maxim that the smaller the penis on the man, the larger the bar on the chainsaw. This one (bar, that is) is at least 48”. Unfortunately, 72” bars are still being manufactured. Source: Bureau of Land Management.