MUSYA in light of O&C Act Harvest Mandate Case

According to a US court, the BLM has not met the requirements of the O&C Act regarding timber sales on the O&C lands it manages in Oregon:

Under the O&C Act, “[t]he annual productive capacity for such lands shall be determined and declared … [and] timber from said lands 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.” 43 U.S.C. § 1181a (emphasis added). The use of “shall” creates a mandatory obligation on the actor-in this case, BLM-to perform the specified action.

Thus, the language of this statute conveys a clear requirement: once BLM declares an annual sustained yield capacity, it must sell that amount or so much thereof as can be sold at reasonable prices on a normal market.

O&C Sustainable Yield Case – OEM_Opinion_06-26-13

The Multiple-Use Sustained-Yield Act of 1960 does not have a numerical mandate. It states, in part:

‘‘Sustained yield of the several products and services’’ means the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land.

Would a court be likely to rule that the US Forest Service has maintained “a high-level annual or regular periodic output of the various renewable resources”? How would a court interpret “high-level”?

5 thoughts on “MUSYA in light of O&C Act Harvest Mandate Case”

  1. In answer to your second to the last question, I answer “Maybe.” However, this is a district court opinion, and as the timber harvest advocacy site points out, “It will undoubtedly be appealed, and it may take some years before we actually see increased timber harvests…”

    The usual enviro suspects (K-SWild, ORWild, CascadiaWild) represented by the usual counsel (Earthjustice and WELC) intervened, so no doubt it will be a long legal fight over such a potentially drastic shift in how “sustained yield” is defined.

    Check out the George W Bush appointed judge’s background, Decent on prisoners’ rights, but not good on corporate rights. I.e., apparently a libertarian. I predict reversal by the D.C. Circuit, but it really depends on the panel, and that depends in part on whether any of Obama’s nominees ever get onto that bench.

  2. Re: “Would a court be likely to rule that the US Forest Service has maintained “a high-level annual or regular periodic output of the various renewable resources”? How would a court interpret “high-level”?”

    Who knows what a court would do, but it would make sense that “high-level” would have to be greater than 50% of sustained yield. Otherwise it would be a “LOW-level” 🙂

  3. I’m glad that “industry” was able to successfully demonstrate that the 1937 O&C Act was still a law, and that it wasn’t being followed. Of course, in the 20+ years it took to come to this realization almost all of the logging and sawmilling families, the timber processing communities, and the small businesses that depended on them, have collapsed. Too little too late — and it will undoubtedly be challenged by the litigation-dependent attorneys who make their living in this fashion anyway, as others have pointed out.

    Of far more personal interest to me was the second part of the ruling: “In these motions, the parties dispute the lawfulness of two federal agency actions: first, the failure to offer for sale a declared amount of timber from two western Oregon districts, and second, the development and use of an Owl Estimation Methodology. The Court holds that both agency actions were unlawful and, therefore, enters judgment in favor of plaintiffs on two of the five counts of the amended complaint.”

    Yes, the lawyers and their enablers will continue to litigate to stop active management of our federal lands in the western US — it’s how they pay the rent — but what are they going to do about that “unlawful” Owl Estimation Methodology? That shouldn’t be a legal issue so much as a logical and/or scientific question. The current operations have bordered on fraud (yes, I used Google to be sure, Matthew) and resulted in an unprecedented and destructive land grab of USFS and BLM forestlands by the USFWS (lynx and owls) and the National Marine Fisheries Service (frogs and fish) by using lawyers, in-house scientists, and the Endangered Species Act.

    At some point this whole costly house of cards will collapse under its own weight and hubris, and maybe this is the glimmer of light that will start that long-overdue process.

    And I’m hoping they appeal on the Owl Estimation ruling. At some point the self-anointed BAS tards should have their own day in court, trying to explain this self-serving nonsense to the American public.

  4. This judge’s simple-minded ruling failed to recognize that BLM has discretion (in fact a responsibility) to harmonize its many mandates.
    The o&C Act itself mandates not just timber production but also watershed protection and recreation.
    The Clean Water Act says that BLM “shall” maintain and improve water quality.
    The Endangered Species Act says that BLM “shall” avoid take of listed species and conserve/recover listed species.
    Previous courts have even upheld BLM’s discretion to manage BLM lands to avoid future ESA listing.

  5. TreeC123

    I don’t understand why you object to the court stating the obvious. The federal agencies aren’t meeting the requirements. They aren’t meeting the requirements because they are hamstrung by inharmonious laws. They are using their discretion/responsibility to “harmonize” their many incongruous mandates as best as they can.

    Do you not understand that there are times that managing for a minority component is unhealthy for the majority? Do you not understand that tradeoff’s have to be made between competing species and between contradicting laws?

    By the way, what are your personal qualifications in regard to understanding the infinite complexities of forest ecosystems? What gives you the knowledge and wisdom to second guess generally good and decent professionals?


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