This is the third 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 examined 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 thirty-four pages of one of the two most consequential court rulings ever to affect the infamous O&C Lands. Source: US Supreme Court.
The previous Public Lands Blog post discussed the Ninth Circuit Court of Appeals opinion centered on how the Antiquities Act of 1906 intersects with the Oregon and California Lands Act (OCLA) of 1937. The District of Columbia Circuit Court of Appeals ruling on five related cases relied heavily on the reasoning in the Ninth Circuit ruling. In this post as in the last, I quote liberally from the DC Circuit Court of Appeals opinion (citations in text omitted) with a bit of commentary in between.
Figure 2. The North Fork Silver Creek Wild and Scenic River on the BLM’s Medford District. Source: Bureau of Land Management.
The Gist of the Five Cases: Are the OCLA, the ESA, the CWA, and the APA Reconcilable?
The DC Circuit opinion addressed two monument cases, two plan cases, and a must-sell case. The two monument cases were similar to what the Ninth Circuit addressed. The two plan cases (regarding 2016 Bureau of Land Management resource management plans for western Oregon) addressed not only the meaning of the OCLA but also the relevance of the Endangered Species Act (ESA) and the Clean Water Act (CWA) to O&C lands. Finally, the must-sell case addressed the Administrative Procedure Act of 1946 (APA).
In these consolidated appeals we face the question whether overlapping statutes that affect more than two million acres of federally owned forest land in southwestern Oregon are reconcilable and therefore operative. The appeals arise from three sets of cases filed by an association of fifteen Oregon counties and various trade associations and timber companies. Two of the cases challenge Proclamation 9564, through which the President expanded the boundaries of the Cascade-Siskiyou National Monument. Two others challenge resource management plans that the United States Bureau of Land Management (BLM), a bureau within the United States Department of the Interior (Interior), developed to govern the use of the forest land. The final case seeks an order compelling the Interior Secretary to offer a certain amount of the forest’s timber for sale each year. The district court entered summary judgment for the plaintiffs in all five cases. As detailed infra, we reverse.[emphasis added]
For the record, the O&C lands are also in northwestern Oregon.
The Two Monument Cases: The OCLA and the Antiquities Act
Regarding the cases alleging that the president’s expansion of the Cascade-Siskiyou National Monument conflicts with the OCLA, the DC Circuit Court found the OCLA and the Antiquities Act to be compatible.
We believe that the Antiquities Act and O&C Act are indeed compatible. We first observe that the 1937 O&C Act did not repeal the 1906 Antiquities Act, either explicitly or by implication. The O&C Act does not allude to the Antiquities Act, and the only evidence of implied repeal the plaintiffs point to—the O&C Act’s generic non-obstante clause—applies by its terms only to “Acts or parts of Acts in conflict with this Act.” The Antiquities Act, however, is not in conflict with the O&C Act. The O&C Act can reasonably be read in a manner that renders the statutes harmonious. Because it can be so read, it must be. [emphasis added]
The DC Circuit Court elaborated a bit on the Ninth Circuit Court findings and reasoning.
First, the text of the O&C Act provides that only the “portions of the” O&C land “which have heretofore or may hereafter be classified as timberland[]” must be managed “for permanent forest production . . . in conformity with the princip[le] of sustained yield.” In anticipating that only “portions” of the O&C land were to be classified as timberland, the Act necessarily implies that land may be classified as timberland or not. The land classified as timberland is subject to the statute’s “permanent forest production” instruction but land not so classified is not. See Murphy (“The Department’s duty to oversee the lands is obligatory (‘shall be managed’), but treating every parcel as timberland is not.”). The Act’s “or may hereafter” language indicates, moreover, that a parcel’s timberland classification is not fixed; it may be reclassified in the future. [emphasis added]
Figure 3. A rough-skinned newt, found in great abundance at Wasson Lake, part of the Wasson Creek Wilderness, on the BLM’s Coos Bay District. Source: Bureau of Land Management.
Again, the DC Circuit Court found that in the OCLA, Congress gave the BLM discretion to do what it wants to do, subject to other congressional statutes. The BLM is only as good as the presidential administration it serves under. The OCLA “timberlands” are what and where the BLM says they are, when the BLM says it.
The O&C Act’s text does not specify what officer or entity classifies O&C land, how land should be classified or what classifications exist aside from “timberland[]” and “power-site land[] valuable for timber.” Nor does the Act require a fixed proportion of O&C land to be classified as timberland. In fact, the Act does not define “timberland.” Given the Act’s classification ambiguities and our obligation to reconcile the O&C Act and Proclamation 9564 if possible, we believe the Act provides the Secretary with considerable discretion regarding the classification and reclassification of O&C land. [emphasis added]
Again, the BLM is in the driver’s seat regarding which O&C lands are “timberlands” and, indeed, what “timberlands” are.
The DC Circuit Court held that even though the presidential proclamation expanding the Cascade-Siskiyou National Monument on O&C lands implicitly reclassified those O&C lands previously classified as “timberlands” (not all were) to be non-timberlands and thus no longer subject to the “shall be managed” provision of the OCLA, a national monument designation is nonetheless consistent with how the timberlands “shall be managed.”
In addition, the Monument’s expansion is itself consistent with sustained yield forestry. The expansion “provides vital habitat connectivity, watershed protection, and landscape-scale resilience for the area’s critically important natural resources.” It effectuates the Act’s aims of “protecting watersheds” and “regulating stream flow,” by protecting “hydrologic features” which are “vital to the ecological integrity of the watershed as a whole.” It also helps to “provid[e] a permanent source of timber supply” in the long term, by protecting the region’s water and endangered species—both essential to maintaining a forest’s vitality. Finally, the expansion provides recreational opportunities for residents and visitors (“Ornithologists and birdwatchers alike come to the Cascade-Siskiyou landscape for the variety of birds found here”; “The landscape also contains many hydrologic features that capture the interest of visitors”), consistent with the O&C Act’s aim of “providing recreational facil[i]ties.” [emphasis added]
Figure 4. One old-growth tree in the Valley of the Giants Outstanding Natural Area on the BLM’s Northwest Oregon District. Source: Bureau of Land Management.
For the DC Circuit Court, the bottom line in the monument cases is that the Bureau of Land Management has vast discretion in regard to the administration of O&C lands.
In sum, the O&C Act provides the Secretary three layers of discretion: first, discretion to decide how land should be classified, which includes discretion to classify land as timberland or not, second, discretion to decide how to balance the Act’s multiple objectives, and third, discretion to decide how to carry out the mandate that the land classified as timberland be managed “for permanent forest production.” [emphasis added]
The Two Plan Cases: The OCLA, the ESA, and the CWA
The two plan cases focused on the 2016 BLM resource management plans (RMPs) for western Oregon.
In the Plan cases, the plaintiffs contend that the 2016 RMPs violate the O&C Act because they place portions of O&C land in reserves where timber production is generally prohibited. Their challenge, however, fails for the same reason the Monument plaintiffs’ challenge to Proclamation 9564 fails: the 2016 RMPs do not violate the O&C Act. Rather, the 2016 RMPs are a permissible exercise of the Secretary’s discretion under the O&C Act. The 2016 RMPs also reasonably harmonize the Secretary’s O&C Act duties with her obligations under two other statutes—the ESA [Endangered Species Act] and the CWA [Clean Water Act]. [emphasis added]
The ESA of 1973 and the CWA of 1972 were enacted by Congress after the OCLA of 1937. The newer statutes did not exempt themselves from applying to OCLA lands.
First, the balance the 2016 RMPs strike between conservation and logging is a valid exercise of the Secretary’s discretion under the O&C Act. The Act, as we have explained, gives the Secretary discretion in classifying the land, balancing the Act’s multiple objectives and meeting the requirement that timberland be managed for permanent forest production in accordance with sustained yield principles. The 2016 RMPs fall well within that discretion. [emphasis added]
The 2016 RMPs established two main types of reserves: late-successional reserves and riparian reserves. As we noted earlier, late-successional reserves were created to preserve critical habitat for the northern spotted owl and other endangered and threatened species. See A. 3423 (“The objective of [l]ate-[s]uccessional [r]eserves . . . is to protect and enhance conditions of late-successional and old-growth forest ecosystems, which serve as habitat for late-successional and old-growth related species.”). Riparian reserves were created to “protect the water systems and their attendant species.” Both categories of reserves are consistent with the O&C Act.
The creation of the reserves can reasonably be viewed as an exercise of the Secretary’s discretion to reclassify O&C land as non-timberland, thus removing the land from the O&C Act’s “permanent forest production” mandate. The reserves also reasonably balance the O&C Act’s several objectives. Riparian reserves advance the aims of “protecting watersheds” and “regulating stream flow.” Those reserves, the 2016 RMPs explain, “provide substantial watershed protection benefits” and “help attain and maintain water quality standards, a fundamental aspect of watershed protection.” They also “help regulate streamflows by moderating peak streamflows and attendant adverse impacts to watersheds.” [emphasis added]
This is huge. Not only are conservation reserves not “timberlands” under the OCLA, they also “reasonably balance the O&C Act’s several objectives,” which apply only to those lands classified by the BLM as “timberlands” in the first place. The court continues to pile on, specifically in regard to timber supply:
Both late-successional and riparian reserves also advance the Act’s principal objective—providing a permanent source of timber supply—because a failure to protect endangered species (and their critical habitat) and water quality, both necessary for the continuing vitality of the forest ecosystem, would eventually limit the lands’ timber production capacity. (“Contributing to the conservation and recovery of listed species is essential to delivering a predictable supply of timber.”). In addition, if the Secretary were to threaten further the endangered species on O&C land, litigation would likely result and injunctions against timber sales sought, potentially disrupting timber production. (“Declining populations of species now listed under the Endangered Species Act have caused the greatest reductions and instability in the BLM’s supply of timber in the past”); (between 1999 and 2007, “legal challenges” and other factors “greatly reduced” BLM’s ability to sell timber); (timber production during the first decade after the NWFP’s promulgation was about one-half of what was expected due to litigation and ESA requirements, among other factors). [emphasis added]
Figure 5. The Rough and Ready Creek Area of Critical Environmental Concern on the BLM’s Medford District. Source: Bureau of Land Management.
Designating conservation reserves is not only allowable under the OCLA but also supported by the ESA and the CWA.
Second, both the ESA and the CWA support the establishment of reserves on O&C land. Late-successional reserves, as noted, were created primarily to preserve habitat for ESA-listed species. As the 2016 RMPs explain, northern spotted owls in particular require large, contiguous blocks of forest for habitat and late-successional reserves allow for the continuing existence of such blocks. Thus, the reserves are consistent with the ESA’s requirement that the Secretary ensure her actions are “not likely to jeopardize the continued existence” of any listed species or “result in the destruction or adverse modification” of the species’ designated critical habitat as well as its directive that the Secretary “review other programs administered by [her] and utilize such programs in furtherance of the purposes of [ESA].”
The ESA supports the creation of riparian reserves because “[p]roviding clean water is essential to the conservation and recovery of listed fish, and a failure to protect water quality would lead to restrictions that would further limit the BLM’s ability to provide a predictable supply of timber.” And, as the 2016 RMPs recognize, “[t]he system of late-successional reserves and riparian reserves, watershed restoration, and the other components of the [RMPs’] aquatic conservation strategy provide a sound framework for meeting Clean Water Act requirements.” In short, the 2016 RMPs are well within the Secretary’s discretion under the O&C Act and are consistent with the Secretary’s other statutory obligations. [emphasis added]
In short, the Clearcut Conspiracy is full of shit.
Figure 6. The Cow Creek BLM Back Country Byway on the BLM’s Roseburg District. Cow Creek is a tributary of the South Umpqua River. Source: Bureau of Land Management.
The Must-Sell Case: The OCLA and the APA
Finally, let us turn to the must-sell case (Swanson).
The O&C Act provides that “timber . . . in an amount not less than one-half billion feet board measure, or not less than the annual sustained yield capacity when the same has been determined and declared, shall be sold annually, or so much thereof as can be sold at reasonable prices on a normal market.” The Swanson plaintiffs contend that this language requires the Secretary to sell or offer for sale the declared annual sustained yield capacity—that is, the declared ASQ—every year. The Government contends that the O&C Act’s timber-volume provision is not enforceable via the APA [Administrative Procedure Act]. The Swanson plaintiffs’ claim is brought under section 706(1) of the APA, which provides that a reviewing court shall “compel agency action unlawfully withheld.” [emphasis added]
The court goes on for three pages to examine the APA, relevant case law, how the BLM prepares timber sales, and Swanson’s claims. It concludes:
The Swanson plaintiffs’ requested relief is targeted at the “continuing . . . operations of the BLM”—years’ worth of policy choices and site-specific decisions—rather than “some particular ‘agency action’.” They complain not that the Secretary failed to take a specific action but rather that she failed to carry out the O&C Act’s general directives. Their blunderbuss challenge to the BLM’s program is better aimed at “the offices of the Department or the halls of Congress, ” not at the court. [emphasis added]
So much for that holtz über alles thing.
Figure 7. In the Shotgun Creek area on the BLM’s Northwest Oregon District. The road is next to the rock pile, but what fun is that? It is well known that the larger the tires, the smaller the penis. Source: Bureau of Land Management.
To Be Continued
The next Public Lands Blog post recommends that Congress repeal the O&C Lands Act of 1937 and transfer all BLM lands in western Oregon primarily to the Forest Service to become part of the National Forest System or to the Fish and Wildlife Service to become national wildlife refuges.
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.