New Plan for BLM O&C Lands

The saga of BLM’s O&C lands continues. Criticism from all sides, so maybe the latest plan has a chance of survival. But it still does not satisfy the O&C Act’s mandate to harvest the sustained yield.

BLM plans to increase Western Oregon timber harvest; counties, including Lane, still plan to sue

21 thoughts on “New Plan for BLM O&C Lands”

  1. Don’t have figures for BLM lands, but according to USFS, FIA Preliminary Report 1999-2007, the U.S. Forest Service (national forests have the large majority of federal timberland in Oregon) is harvesting 6% of the annual growth on unreserved timberlands. 36% of the annual growth dies. Seems like Congress should be looking at the management of national forests, where the real problem is, rather than the BLM.

  2. Does anyone still think the O&C Act of 1937 is the only law relevant to BLM’s western Oregon forest management? Under Bush, BLM tried to short-circuit compliance with the Endangered Species Act. That didn’t work out so well.

      • The O&C Act has to be harmonized with all the other laws that BLM must also follow – ESA, CWA, FLPMA, etc. In light of BLM’s discretion to find harmony among its many legal mandates, no court has found BLM in violation of the O&C Act.

      • I reckon some federal judges will have the last word on whether the BLM plan violates the O&C Act. So far, however, that’s proven to be a losing argument since it was first advanced in the mid 1980s.

  3. BLM’s new plan is pretty bad for conservation interests.
    1) Stream buffers are cut in half and no longer adequate to ensure dispersal of terrestrial wildlife across the land. The plan essentially allows clearcutting of older forests that are currently protected as streamside reserves.
    2) The plan eliminates the 80 year limit on the age of stands that can be logged in reserves. In fact, there is no limit on the size or age of trees that can be logged in reserves. 73 mmbf/year is expected to come from logging in “protected” reserves. That’s more than 14,000 log trucks per year.
    3) They threw out the “survey and manage” requirements that are intended to protect rare wildlife that may be in the path of logging. Three different federal courts have said those requirements are fundamental to the Northwest Forest Plan.

    • Actually, those are really great developments:
      1. Current riparian reserve rules are excessive. Research shows that the majority of riparian benefits are realized with 50-100′ buffers (depending on site-specific conditions). Sorry, 2nd law your fear mongering related to the clearcutting of old growth adjacent to streams is bogus.

      2. The 80-year cut off in LSRs is ridiculous. Science does not support this arbitrary age limit.

      3. The survey and manage requirements were also absurd. We used to survey for old-growth obligate species in 80-year old second growth. That seemed a little silly to me.

      This is all good stuff.

  4. I sense that some contributors argue that BLM’s efforts to determine sustained yield on O&C can only use wood production calculations. I would argue that they must weigh all factors related to sustainability, including clean water, wildlife, fish etc. Including such variables will reduce sustained yield calculations dramatically.

    And here’s a thought — maybe instead of trying to appease all sides and making everybody upset, maybe BLM should’ve picked a “winner” and gone to court with the losers.

    • We’ve been through this before in this forum. Andy brings up a good point for discussion: What is to be done when laws conflict? In this case, Andy said, the O&C Act of 1937 conflicts with the Endangered Species Act. I say, maybe so, but the O&C Act is still the law. Jim offers another point about “sustainable” applying to values other than timber. However, the law clearly focuses on timber production. Here are the key passages:

      O&C lands “shall be managed, except as provided in section 3 hereof [this section, related to homesteading, was eliminated], for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the principal 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 facilities.”


      “The annual productive capacity for such lands shall be determined and declared as promptly as possible after the passage of this Act, but until such determination and declaration are made the average annual cut therefrom shall not exceed one-half billion feet board measure: Provided, That 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.”

      Does the text of the ESA say it supercedes all other laws that might be in conflict with it? If not, what is to be done? Well, one might revise the O&C Act.

      • Steve, I didn’t say the O&C Act and ESA conflict. They don’t. Nor has any judge ever said otherwise. In fact, just the opposite, e.g.,:

        In Portland Audubon Soc’y v. Lujan, 795 F. Supp. at 1500-02, the court required the BLM to prepare supplemental environmental impact statements for timber management plans in Western Oregon to address new information regarding the presence of northern spotted owls. The court further held that O&CLA does not allow the BLM to avoid its conservation duties under NEPA or ESA, nor does it prevent injunctive relief when those duties have been breached. Id. at 1505-07. An injunction that prohibited logging on portions of O&CLA land was issued. Id. at 1510. In affirming the district court, the Ninth Circuit stated: “We find that the plain language of [O&CLA] supports the district court’s conclusion that the Act has not deprived the BLM of all discretion with regard to either the volume requirements of the Act or the management of the lands entrusted to its care.” Portland Audubon Soc’y v. Babbitt, 998 F.2d at 709. Seattle Audubon Soc’y v. Lyons, 871 F. Supp. 1291, 1314 (W.D. Wash. 1994).

        • I stand corrected, Andy. My main concern is compliance with the O&C Act. But I may be biased, as I and several relatives live in an O&C counties that would benefit from additional revenues.

  5. Steve Wilent: ” But it still does not satisfy the O&C Act’s mandate to harvest the sustained yield.”

    To tie together Jim, Andy and 2nd’s points, there is no legal mandate to harvest a particular volume.

    Here is the O&C Act language:
    “… the timber thereon shall be sold, cut, and removed in conformity with the principal 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 facilities . . .(43 U.S.C. §1181a)”

    There is ample discretion, and probably an obligation, for the BLM to determine what is sustainable based on these criteria (and other laws like ESA).

  6. I read yesterday’s newspaper story about the new BLM forest plan for Oregon’s O&C lands and the reactions of those interviewed for the story were utterly predictable. E.g.:

    An environmental group said the new plan “made improvements” to protect clean water and fish but it still places “too much value” in subsidizing county governments. We need some reality here — all governments are subsidized by the taxpayer! Though there are a couple agencies (e.g., O&C lands and the national forests) capable of paying their own way, they’ve been regulated out of even doing that which makes those agencies heavily subsidized by the taxpayer as well. While contributing little to the local economy or local governments, the federal lands are further subsidized by using the roads and other services provided by the local taxpayer. Oregon is heavily dependent on property taxes and, anytime a landowner within any county is not a taxpayer, the other taxpaying landowners are left to make up the difference. Any time a large landowner is not a taxpayer, they become a burden on the local taxpayer.

    This same individual goes on to say that, “due to rapacious logging of private and state lands, all of the burden for conservation is placed on federal lands.” Apparently the fact that private lands are growing timber faster than it is being harvested or that Oregon’s Forest Practices Act requires snags, wildlife trees, and logs be left after a harvest; scenic corridors along roads; riparian areas; etc. have no “conservation” value.

    Sen. Wyden says legislation is “the only way to take this discussion out of the courtroom and actually create jobs, protect Oregon’s treasures and improve the health of the forests”. That is great, empty rhetoric because our elected officials have been “legislating” for years and they have yet to have either the wisdom or the political courage to actually manage our federal forests in a way that balances our social and economic needs with the environmental needs of our forests.

    Rep. DeFazio says it “moves us further from a balanced sustainable plan based on modern forest science”. He then goes on to say the BLM “makes minimal use of Norm Johnson and Jerry Franklin’s ecologically-based forest management strategy.” [He seems to feel Johnson and Franklin’s strategy is the only viable management scheme.] One part DeFazio got right is that it is “likely to reduce the already minimal supply of sustainable harvest, jeopardizing more jobs, rural communities and small efficient mills.”

    Today’s newspaper has a story about central Oregon’s Warm Springs tribal sawmill going belly up. In all of central and eastern Oregon, there are only a few mills left. It is likely no coincidence that the forests of central and eastern Oregon are mostly federal.

    I might add that the O&C’s 2.5 million acres were once privately owned and paid taxes. Under the new plan, three-quarters of that will be “locked up in reserves for fish, water and wildlife”. The morass of federal forest land management continues and local communities are left holding an empty bag.

  7. I don’t see a conflict with ESA. I think you have to read this language in two parts:

    1. Manage in conformity with the principle of sustained yield (not in conflict with ESA).

    2. When logging occurs, do it only for these listed purposes (not in conflict with ESA).

    If you run them together it creates an appearance of a conflict that isn’t real.

  8. “Any time a large landowner is not a taxpayer, they become a burden on the local taxpayer.”

    Another opportunity for me to ask what added costs are incurred by a county to provide services to a national forest. There is some extra road use, fire control and law enforcement (but often there are reciprocal agreements). It doesn’t seem like the local costs would amount to that much, and there are at least some local economic benefits from non-local visitors to the public lands. What “burden” am I missing here?

    • If, in Oregon, a large landowner does not need to pay their fair share of property taxes and their costs “would not amount to that much” then it seems entirely reasonable that Weyerhaeuser or any other landowner (either large or small) ought not have to pay taxes since the services provided to them “would not amount to that much”. There seems to be a disconnect here that escapes me.

      A simple fact is that the land and its many resources are the basis of ALL life on this planet. Since humans are not hermits, this also means that the land must also support local communities. This is best done by factoring in social, economic, and environment factors. That a land management plan is skewed so heavily towards only the environmental side makes it a plan that ignores human dependence on natural resources.

      Or, do we merely put on the blinders and just import everything; i.e., out of sight, out of mind? That doesn’t seem very ethical.

      • That’s an interesting point. I’d like to know more about what amount of taxes are paid for private forest land, whether that is based on the cost of services provided, and how that compares to other sources of taxes in typical counties. But probably for another thread.

        • Our income taxes go to the state and property taxes go to the counties; Oregon has no sales tax. Thus, any time a land holder is NOT a taxpayer, the county loses any property tax that might have otherwise come from that property. In the case of the O&C lands, those were once private lands and, as with all other taxable properties, paid their fair share of property taxes. When they reverted to federal ownership, any tax revenues those lands had generated disappeared. Some Oregon counties have a very large proportion of the county in federal ownership (national forests and O&C lands). How the tax rate is determined is up to the county budgets and tax assessor.

  9. For what it’s worth, on June 26, 2013, District of Columbia federal district court Judge Richard Leon ruled that the Bureau of Land Management failed to comply with the timber harvest requirements of the O&C Act. He wrote:

    “Upon a review of the statutory language, legislative history, and related case law, the Court concludes that the BLM violated its mandated duty to offer for sale the annual sustained yield capacity of the Medford and Roseburg districts.”

    And although BLM has sonme discretion, “… despite its discretion with respect to many aspects of the timber sales, BLM is nevertheless required to sell or offer for sale at reasonable prices the annual sustained yield capacity, and it has failed to do so.”

    The court’s decision is here

    That decision was overturned in 2015 by the United States Court of Appeals, District of Columbia Circuit, with the court deciding that Swanson Group et al did not have standing — it did not rule on the question of the BLM’s statutory mandate for timber harvests. The text of the decision is here.

    By the way, that appeals court panel included Merrick Garland, President Obama’s nominee for Antonin Scalia’s set on the US Supreme Court.

    • Here’s what the district court said about sustained yield:

      “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.”
      “Plaintiffs recognize that O&C Act permits flexibility as to the timber sale volume; they
      acknowledge that BLM need not sell the ASQ each year but rather must “at least offer for
      sale” the annual sustained yield capacity. Pls.’ Mem. at 27. Indeed, BLM has discretion
      as to establishing the ASQ, selecting the timberlands, pricing the sale (at “reasonable
      prices on a normal market”), scheduling the sale, and even rejecting bids.”

      The real issue for the counties is establishing the ASQ, which the BLM has abundant discretion to limit. The issue decided in this district court case was only whether BLM had offered the established level of sustained yield. They had only done it once since 2004. The lesson for BLM should be to establish a sustained yield that is as low as possible.

      (Of course if the timber industry can’t show that it has a legal interest in the timber sufficient to get standing for judicial review, then BLM shouldn’t be concerned about claims that it’s not allowing them to harvest it.)

    • Regardless of the merits of Judge Leon’s decision, the DC Circuit court vacated it. In legal terms, Leon’s decision no longer exists. In contrast, the Ninth Circuit affirmed Judge Dwyer’s decision that I quoted earlier; it remains good law.


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