Now some people don’t agree with the concept of Place-Based Bills (or PBB’s as I call them). I am not an ideologue about that. But I do think that if you have one that trades more wilderness for more management, then you should get what you trade. I apologize to those offended by my mixing of Latin and Spanish in the title..
Check out this op-ed that a group of us had in the Oregonian last Sunday.
Here’s the link.
Timber production deserves equal treatment on public lands: Guest opinion
(I didn’t like this title as it sounds like we think harvesting and wilderness have equal value; our point was that if you do a deal, there should be ways to make sure that each side actually gets what’s in the deal. Oh, well. I do appreciate the Oregonian printing it, though!)
By Robert Malmsheimer, Sharon Friedman, Jay O’Laughlin and Paul Adams
As Oregonians consider ways to promote the sustainable use of the O&C lands and other publicly owned forests and provide communities with sources of jobs and income, we ask you to critically consider an important problem and a new idea to address it. Negotiated, place-based bargains, such as Rep. Peter DeFazio’s O&C Trust, Conservation and Jobs Act, legislatively designate some lands as wilderness or similar “set-asides” (e.g., old-growth, stream buffers), while requiring timber harvesting on other lands. Although this may seem like a reasonable “trade,” in reality it is not equitable.
The problem is in the legal protections of the bargains themselves. The lands designated by Congress as wilderness and other set-asides will have little or no management, and we have nearly 50 years of judicial decisions interpreting the Wilderness Act of 1964 to safeguard this expectation. However, the same is not true for the agreed-upon timber harvesting. While the language in most of these place-based proposals limits, or makes more difficult, some types of legal challenges, it does not prevent them. Nor does it ensure that judges will enforce the bargain that forest management proponents faithfully negotiated.
Is there a solution? Yes. In order to guarantee that the lands designated for the management and production of forest products are not subject to appeals and litigation, these legislative proposals must include language that explicitly states that actions authorized in these bargains are not subject to judicial review. Such language would prevent litigation.
How would it do so? This concept has a precedent in section 706 of Public Law 107-206, which authorized the Forest Service to respond to a severe beetle outbreak, including requiring timber sales in the Black Hills National Forest, while simultaneously expanding the Forest’s Black Elk Wilderness area by 3,600 acres. This exchange was upheld in Biodiversity Associates v. Cables (2004), thereby safeguarding an equitable bargain in the Black Hills.
Some may criticize this proposal, arguing that using such legislation will lead to “logging without laws.” But that is not so. By requiring the public land managers to comply with all current environmental laws (e.g., National Environmental Policy Act, Clean Water Act, Endangered Species Act), the agency still must undertake relevant environmental analyses and follow all relevant resource protection directives. While the judicial system would not be available to address agency failures, the political system, through Congress and the administration, would do so. More important, such failures are unlikely because the resource professionals who manage our public forests have extensive expertise and experience incorporating environmental protection into land management.
Lacking such a guarantee for timber production, the two sides to a place-based bargain have agreed to inequitable deals. One has guaranteed that some lands will be managed as wilderness and the other has provided no comparable safeguard. There is simply no assurance that the lands designated for forest management will actually produce anything but continued legal conflict; conflict that keeps public land managers from sustainably delivering community, social and economic benefits for Oregonians.
Robert Malmsheimer is a professor of forest policy and Law at the SUNY College of Environmental Science and Forestry in Syracuse, N.Y.
Sharon Friedman retired from the Forest Service as director of planning in the Rocky Mountain Region and currently runs the “A New Century of Forest Planning” blog (forestpolicypub.com).
Jay O’Laughlin is a professor of forestry and policy sciences at the University of Idaho.
Paul Adams is a professor and extension specialist in the OSU College of Forestry.