AFRC Explains Position as Government Slimdown Ends For A While

American Forest Resource Council just released this in their current email. It follows up on Andy Stahl’s post on the 15th, Guy Knudsen’s post on the 16th, and Steve Wilent’s post yesterday, and reveals the intent of industry in filing this action (not sure why the Edit function won’t allow me to put spaces between the paragraphs):
October 18, 2013
Contract Suspensions Overturned
On October 17, Oregon Federal District Court Judge Panner issued an Order which immediately lifted suspensions of federal timber contacts nationwide.
The Order came out of a lawsuit by AFRC, Murphy Company, High Cascade and South Bay Timber filed on October 14 challenging the government’s right to suspend contracts during the government shutdown which began October 1. The Order allowed purchasers and operators to return to work immediately without waiting for government authorization.
Also on October 17, letters were issued by the Forest Service and the Bureau of Land Management directing contracting officers to immediately begin notifying contractors that suspension orders were being lifted because the government shutdown has ended. The letters authorize issuing verbal notice with written follow-up. The government moved to dismiss AFRC’s case, saying the letters resolved the issue of shutdowns, but AFRC’s attorneys held out for a ruling that would allow an immediate return to work.
Judge Panner’s Order is a Temporary Restraining Order (TRO), common in the very early stages of litigation before there has been an opportunity for the Court to be fully briefed on the merits of the case. One of the criteria is that the plaintiffs must be likely to win the case in the end. The TRO ends October 28. Based on the letters to the field, the suspensions should be lifted long before the temporary order expires.
After, only about twenty minutes of argument, [sic] AFRC’s request for relief was granted in the form of a nationwide Order immediately lifting suspensions of all federal timber contacts. The Judge agreed with AFRC’s skepticism that the government could act quickly enough to satisfy contractors’ immediate needs to resume work. In deciding to issue a TRO so that work could resume on all contracts immediately, he noted the importance of taking advantage of fall weather when the woods are accessible to build a log deck before the winter snows and rains. Additionally, the Judge appeared to sympathize with AFRC’s argument that contractors should not have to wait on the federal bureaucracy to officially lift the suspensions, when contractors were ready and willing to resume work.
While Judge Panner’s ruling did not address the ultimate merits of AFRC’s case, it provides much needed relief to contractors and communities that depend on the national forests and BLM for timber harvest. AFRC must now decide how best to use this ruling and the pending case to prevent future contract suspensions in the event of another government shutdown.

The issue began on October 1, with Congress’ failure to reach an agreement to fund the federal government and allowed the first major shutdown of government services in nearly two decades. Because of this lapse in appropriations, and the Antideficiency Act, a law originally passed in 1870 which bars federal employees from spending money or creating an obligation without approval from Congress, federal workers were sent home and agencies like the Forest Service and BLM made plans to begin discontinuing the work of contractors. In the following days and weeks the two agencies began sending out suspension and stop-work orders to various contractors informing them that logging operations would have to cease.
AFRC took the position from the beginning that the Forest Service and BLM’s decisions to stop contractors from working was illegal, and would cause serious harm to mills who were in the process of building their winter decks. AFRC worked to communicate our members’ concerns throughout all levels of the agencies in an effort to keep contractors up and running to get work done before the weather changed.
On October 8, AFRC and the Federal Forest Resource Coalition (FFRC) joined in a letter to Undersecretary of Agriculture Robert Bonnie urging the Forest Service not to violate the terms of timber sale contracts and stewardship contracts by requiring purchasers and operators to suspend operations during the government shutdown. The same information was communicated to the BLM State Director Jerry Perez. Nonetheless, the agencies pushed forward with their ill-advised strategy, continuing to issue stop-work and suspension orders.
It was in response to the Forest Service’s and BLM’s refusal to recognize that there was no valid legal basis for suspending contract operations that AFRC joined the lawsuit.
Now that the federal government has re-opened and contractors are back in the woods, the dust has settled for the moment. Congress, however, has given the country few assurances this situation won’t happen again. The recently-passed budget deal merely extended temporary funding for the government until mid-January, making the possibility of another government shutdown a real possibility given today’s political climate. Regardless of what happens in Washington, AFRC’s positive legal result and the work it and its members put into achieving it should provide assurances that AFRC will be ready in the event another such shutdown occurs.
/Ann Forest Burns and Rob Molinelli AFRC
American Forest Resource Council
5100 S.W. Macadam Avenue, Suite 350
Portland, Oregon 97239
Phone: (503) 222-9505
Fax: (503) 222-3255
E-mail: info@amforest.org
www.amforest.org

3 Comments

  1. Thanks Bob. It will be interesting to see, if/when the fed govt shuts down again, if this issue is handled differently next time. It seems like the judge’s ruling was to spare the industry having to wait through the bureaucratic lag time of the federal re-startup, once that startup was a done deal anyway. But that’s not really the same thing as saying they should be able to harvest through an indefinite shutdown, so the main issue remains undecided (like they said, the judge didn’t rule on the merits). They exaggerate a bit when they say that “One of the criteria is that the plaintiffs must be likely to win the case in the end”, a more standard and accurate way to put it is that the applicant must demonstrate “a substantial likelihood of success on the merits” which is course a lower standard. It doesn’t really indicate that the judge is leaning one way or the other. Here’s a good reference on TROs if anybody’s interested:
    http://www.munsch.com/content/newsroom/documents/a_primer_….pdf So in a sense the AFRC got a “positive legal result”, but they may be back to square one if another shutdown occurs. We might start seeing language in FS contracts to preemptively head off such challenges in the future, if they think it’s important.

  2. I think there is language within the Timber Sale Contracts, which might, or might not cover such situations. Similar things have happened before, and a contract often holds both parties to responsibilities. I never needed to learn those provisions, dealing with field issues. Those things are mostly dealt with by Forest Service Representatives, Contracting Officers and farther up the chain.

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