This is the second in a series of four Public Lands Blog posts regarding the infamous “O&C” lands, a variant of public lands administered by the Bureau of Land Management. Part 1 set the stage with a brief history and description of recent epochal events. Part 2 examines a recent ruling by the US Ninth Circuit Court of Appeals. Part 3 examines a recent ruling by the US District of Columbia Circuit Court of Appeals. Part 4 recommends repeal of the O&C Lands Act of 1937 and transferring administration of all BLM lands in western Oregon to either the Forest Service or the Fish and Wildlife Service.
Figure 1. The first of forty-seven pages of one of the two most consequential court rulings ever to affect the infamous O&C lands. Source: US Supreme Court.
(Trigger Alert: This Public Lands Blog post liberally quotes from a legal opinion. However, they are not dry quotes, but rather sing to the heavens as to the multiple ways the Clearcut Conspiracy got it wrong about the O&C Act of 1937.)
In 2023, the Court of Appeals for the Ninth (western US) Circuit and for the District of Columbia Circuit issued separate opinions on the Oregon and California Lands Act (OCLA) of 1937. Both opinions address the legality of national monuments on O&C lands, as well as what the OCLA really means. In this post I quote liberally from the Ninth Circuit opinion (citations in text omitted) with a bit of commentary in between. In the next Public Lands Blog post, I similarly treat the DC Circuit opinion.
Figure 2. How many BLM staffers does it take to log a forest? A lot! Source: Bureau of Land Management.
The Gist of the Case: Are the O&C Act and the Antiquities Act Irreconcilable?
This case calls on us to consider the intersection of the Antiquities Act, adopted in 1906, and the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act (“O&C Act”), adopted in 1937. The Antiquities Act grants the President broad authority to create, by presidential proclamation, national monuments from federal lands to protect sites of historic and scientific interest. In contrast, the O&C Act is much narrower in scope, addressing the use of timberlands in the southwest corner of Oregon.
Actually, the “timberlands” are also in the northwest corner of Oregon.
Admittedly, the validity of the Proclamation—an Antiquities Act order that implicates the O&C Act—presents a statutory thicket. But, ultimately, Murphy’s claim of irreconcilability misses the forest for the trees. The Antiquities Act and the later-enacted O&C Act are not irreconcilable, nor did the O&C Act repeal the Antiquities Act. The Proclamation is consistent with the O&C Act’s flexible land-management directives, which incorporate conservation uses. And, notably, only a tiny percentage of the several million acres covered by the O&C Act (“O&C Lands”) fall within the expanded Monument’s territory. The Secretary retains broad discretion over the millions of acres remaining. The Proclamation does not usurp congressional intent or the Secretary’s authority to regulate the O&C Lands as a whole. We affirm the district court’s grant of summary judgment in favor of the United States and Soda Mountain. [emphasis added]
“Soda Mountain” refers to the Soda Mountain Wilderness Council, the lead intervenor in the case. Murphy claimed the OCLA implicitly forbids a president from establishing a national monument on O&C lands. The court decided otherwise:
But Murphy overreads the extent of congressional commitment to timber production in the O&C Act and improperly discounts the considerable discretion that the statute grants the Department in managing O&C Lands for uses other than timber. After reviewing the O&C Act’s plain text and legislative history, we hold that the Proclamation is a valid exercise of the President’s Antiquities Act authority. [emphasis added]
Figure 3. The East Applegate Ridge Trail on the BLM’s Medford District. Source: Bureau of Land Management.
Under the US Constitution (Article IV, Section 3, Clause 2), Congress holds all power over federal public lands. Congress has delegated the power to proclaim national monuments to the president and has delegated general administerial authority to the secretary of the interior, generally acting through the Bureau of Land Management. The court said:
The O&C Act provided “for the management of the timber on a conservation basis,” and accorded significant discretion to the Secretary of the Interior when it came to “classification of land” and “sale of timber.” [emphasis added]
The Center of the Controversy: The First Paragraph of the OCLA
A reading of the legislative history does not support either the holz über alles (“timber above all else”) or the “logging is the dominant use” interpretation.
[T]he O&C Act’s plain language empowers the Department to classify and manage the revested and reconveyed lands for several purposes—predominantly, but not exclusively, timber production. We cannot ignore the conservation provisions of the Act. As the D.C. Circuit long ago [1954] recognized, the O&C Act “conferred upon the Secretary of the Interior many duties requiring the exercise of his discretion and judgment.” The opening paragraph of the O&C Act reveals the breadth of congressional purpose:
[S]uch portions of the revested Oregon and California Railroad and reconveyed Coos Bay Wagon Road grant lands as are or may hereafter come under the jurisdiction of the Department of the Interior, which have heretofore or may hereafter be classified as timberlands, and power-site lands valuable for timber, shall be managed . . . for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the principal [sic] of sustained yield for the purpose of providing a permanent source of timber supply, protecting watersheds, regulating stream flow, and contributing to the economic stability of local communities and industries, and providing recreational facilties [sic]. [emphasis in original]
It is this very paragraph of the OCLA upon which the controversy has centered.
Figure 4. An indication that to the BLM, all forestlands in western Oregon were effectively “O&C” lands. The courts have instructed otherwise. Source: Bureau of Land Management.
The Clearcut Conspiracy conflates “permanent forest production,” “sustained yield,” and “timber supply” to mean timber above all else. Conservationists have long contended that “permanent forest production” includes all of a forest’s products—not only timber supply but also watershed protection, stream flow regulation, local economic stability, and recreation. To conservationists, the OCLA was Congress’s first attempt at writing a multiple-use statute. (Hey, they forgot wildlife, biodiversity, and beauty, along with historical, cultural, and other values—but it was a start.)
It turns out that neither interpretation was correct.
The Game Changer: Statutory Language Before “Shall be managed”
Both the Clearcut Conspiracy and conservationists emphasized the importance of the language after “shall be managed” in that first paragraph, but we diverged in what those words meant. Neither the Clearcut Conspiracy, conservationists, nor the government granted any importance to the statutory language previous to “shall be managed.” However, the appeals court did.
The first [underlined] provision indicates that not all O&C Lands were to be operated as timberlands. Instead, the statute directs the Department to determine which portions of the land should be set aside for logging and which should be reserved. The Department’s duty to oversee the lands is obligatory (“shall be managed”), but treating every parcel as timberland is not. Reading the statute differently would render the “heretofore” phrase mere surplusage and “run afoul of the ‘cardinal principle’ of interpretation that courts ‘must give effect, if possible, to every clause and word of a statute.’” Murphy concedes as much in acknowledging that “[s]ome O&C Act lands are not subject to the statutes’ sustained-yield timber production mandates.” Obviously, Murphy can’t pick and choose which parcels should be classified as protected timberlands. Otherwise, Murphy’s argument would place the court or the timber company in the driver’s seat and divest the Department of authority to make dynamic, scientific decisions about which parcels should or should not be logged. [emphasis in original]
This is the game changer. If the BLM wants to administer certain O&C lands for conservation, say late-successional or riparian reserves, it can. When in the 2016 western Oregon resource management plans (RMPs) the BLM established such reserves, it was effectively reclassifying what the agency may previously have classified as “timberlands” under the OCLA, making these lands no longer subject to the OCLA language subsequent to “shall be managed.” Under the 2016 RMPs, approximately three-quarters of the O&C lands are in a conservation “reserve” status and therefore not subject to the “shall be managed” provision of the OCLA.
Figure 5. The North Spit Coos Bay Area of Critical Environmental Concern, which should be transferred to the Fish and Wildlife Service for inclusion in the National Wildlife Refuge System. Source: Bureau of Land Management.
Multiple Uses: Statutory Language After “Shall be managed”
Then the Ninth Circuit Court of Appeals focuses its attention on the language after “shall be managed” in that first paragraph of the OCLA.
Importantly, the statute authorizes the Department to manage the O&C Lands for uses other than timber production. While “providing a permanent source of timber supply” is certainly primary, the Act delineates a number of purposes for the Lands: “protecting watersheds, regulating stream flow, and contributing to the economic stability of local communities and industries, and providing recreational facil[i]ties.”
I don’t agree that “providing a permanent source of timber supply” is “certainly primary.” I read the clause as merely the first of five equal purposes of “permanent forest production.” Alas, as I don’t have a lifetime appointment with a lifetime salary and don’t get to wear a black robe, I must submit to the court’s ruling.
So if the BLM classifies any of those former granted lands as “timberlands,” the purpose of a “permanent source of timber supply” is the dominant use. However, if the BLM allocates any of said lands to uses other than “timberlands,” the timber dominant use mandate (and all those secondary uses such as watershed protection, stream flow regulation, local economic stability, and recreation) doesn’t apply either.
So what multiple uses are allowed on O&C lands not classified as “timberlands” by the BLM? All the multiple uses specified in the Federal Land Policy and Management Act of 1976: “including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values.” Recently, the BLM has issued a new regulation defining “conservation” as a one of the agency’s official multiple uses.
What About the Awful Ruling in Headwaters?
Hey, your honors in robes, what about that rather awful 1990 ruling of the Ninth Circuit Court of Appeals in a case called Headwaters? That ruling has been a major pain in the conservation ass.
Our earlier decision [1990] in Headwaters, Inc. v. BLM, Medford District, which dealt specifically with the O&C Act, does not counsel a different conclusion. To be sure, Headwaters held that “the O & C Act envisions timber production as a dominant use,” and rejected an environmental group’s proposal to exempt “certain timber resources from harvesting to serve as wildlife habitat” because it was “inconsistent with the principle of sustained yield.” But in Headwaters we never held that the O&C Act required timber production to be the exclusive use of O&C Land. Although saving the spotted owl might have been beyond Congress’s vision of “forest production,” the statute’s specific reference to “watersheds” and “recreational facil[i]ties” underscores that Congress contemplated alternative, secondary uses for the lands. Of note, Headwaters did not evaluate the O&C Act in the context, at issue here, of reconciling its statutory demands with the Antiquities Act. Ultimately, we affirmed BLM’s exercise of discretion to manage the tract of O&C Land at issue as it saw fit—in that case, for logging.
Our reading of the O&C Act does not diverge from Headwaters’s recognition of the discretion vested in the Department and BLM, a principle we apply here. We have repeatedly reinforced that the O&C Act grants the Department broad discretion to manage the lands in a flexible manner. . . .
Although in Headwaters we rather cursorily addressed the possibility of conservationist intent behind Congress’s rejection of clear-cutting, the historical record contains ample evidence of the government’s growing environmental concern. Without doubt, Congress intended to bestow significant discretion to the Department to manage the lands for posterity. [emphasis added]
Figure 6. The Upper Klamath Wild and Scenic River on the BLM’s Lakeview District in Klamath County, Oregon. Source: Bureau of Land Management.
What It All Comes Down To
So for the O&C lands it all comes down to what the BLM wants to do. As to what the BLM wants, it all comes down to the presidential administration, which all comes down to elections. As the court noted:
Together, these decisions reinforce our conclusion that the O&C Act’s plain text envisions economic, recreational, and environmental uses for the O&C Lands beyond logging and grants the Department significant discretion in how to achieve statutory compliance.
While the Endangered Species Act and the Clean Water Act command the BLM to create conservation reserves, the BLM has the authority to do so on its own.
The court goes on to describe and interpret the OCLA:
The O&C Act’s text, history, and purpose are clear that timber production was not the sole purpose that Congress envisioned for the more than two million acres of O&C Lands. Congress delegated ample discretion to the Department of the Interior to manage the lands in a flexible manner. [emphasis added]
So much for that holtz über alles thing.
Figure 7. Protected mature forest in the Table Rock Wilderness in Clackamas County, Oregon. Source: Bureau of Land Management.
To Be Continued
The next Public Lands Blog post examines the ruling of the US District of Columbia Circuit Court of Appeals on the OCLA.
For More Information
United States Court of Appeals for the District of Columbia Circuit. July 18, 2023. American Forest Resource Council v. United States of America.
United States Court of Appeals for the Ninth Circuit. April 24, 2023. Murphy Co. v. Biden.
Figure 8. A view from the BLM’s Nestucca River Back Country Byway. To the BLM, clear-cuts open up the view. Source: Bureau of Land Management.