O&C and Monumentizing: Dueling Rulings

From the SF Chronicle

I’m following up on Jon’s idea that laws help us figure out what are “right” decisions. I think the O&C story is a illustration of how the laws’ interpretation by the courts can be not particularly helpful if a decision has to be made in real time (that is, before the end of litigation, appeals and so on.) I know many TSW readers know a great deal about this..so hopefully can give us additional information and perspective. Here’s a link to this op-ed in the Mail-Tribune (from Medford? Hard to tell from website).

A federal judge’s ruling that 40,000 acres of former Oregon & California Railroad lands in the Cascade-Siskiyou National Monument must remain in timber production is far from the last word on this question, and even if it is eventually upheld, it would affect only a portion of monument land and perhaps much less than the 40,000 acres in the ruling.

Judge Richard Leon of the U.S. District Court in Washington, D.C., ruled in a case filed by the American Forest Resource Council, a timber industry group. The AFRC argued that the expansion of the monument declared by President Barack Obama in 2017 improperly overturned the intent of Congress when it passed the O&C Act in 1937, designating more than 2 million acres of forest in 18 Western Oregon counties for sustainable timber production. Congress had granted title to the lands in 1866 to the railroad company as incentive to complete the Oregon portion of the Portland to San Francisco railroad. When the company failed to sell the land to settlers as required, Congress took it back in 1916, and added more acres from a similar land grant in 1919. The O&C Act placed all those lands under the jurisdiction of the Interior Department to be managed by the Bureau of Land Management for permanent forest production.

This E&E News story is also interesting with more legal details..

Here’s AFRC’s side of the story (from their newsletter):
In late 2019, the U.S. District Court in Washington D.C. issued favorable rulings in two major cases enforcing the O&C Act. (October and November 2019 newsletters). The Swanson III case seeks to
require BLM to offer its declared allowable sale quantity (ASQ) each year, which is one of the mandates of the O&C Act. The other case involves challenges led by AFRC and the Association of O&C Counties to the 2016 Resource Management Plans (RMPs) for western Oregon BLM lands.

Judge Leon ruled in September, “Every year, BLM is required to sell or offer for sale an amount of timber that is not less than the declared annual sustained yield capacity of the timberland subject to the O&C Act.” He also found that “the record establishes that BLM has repeatedly failed to comply with the O&C Act’s timber sale mandate.” In November, he ruled that the 2016 RMPs violated the O&C Act’s mandate that all O&C timberlands “shall be managed” for “permanent forest production” under sustained yield principles. This is because the RMPs set aside 80% of the land base into “reserves” where harvest is severely curtailed.

The court instructed the parties to file proposals in these cases as to the appropriate remedy, which were submitted on January 27. The plaintiffs’ proposal, incorporating both Swanson III and the RMP challenges, involves preparation of an amended or revised plan, an ongoing requirement to sell the ASQ, and interim direction on volume while the plan is being reviewed. The government’s proposals ask in large part for the Court to return BLM to an open-ended administrative process while keeping the existing plans in place. Response briefs will be filed in late February and a final order could be issued any time after that.

In the November ruling, Judge Leon also invalidated President Obama’s expansion of the Cascade Siskiyou National Monument that encompassed about 40,000 acres of O&C lands. Both the government
and intervening environmental groups have appealed the ruling to the U.S. Court of Appeals for the District of Columbia Circuit, also called the “D.C. Circuit.” Resolution of the appeal is likely to take at least 12-15 months.

Does anyone know why the “government” chose to appeal the decision?

16 thoughts on “O&C and Monumentizing: Dueling Rulings”

  1. The O&C Act is very clear:

    “shall be managed, except as provided in section 3 hereof, 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.”

    The “not less than the annual sustained yield capacity” isn’t really open to interpretation.

    • Actually, it IS open to interpretation.

      Even Judge Leon agreed that it is acceptable under the O&C Act to depart from the “not less than one-half billion board feet” language when the actual sustained yield calculation is made in the applicable resource management plan. In fact, Judge Leon assented to BLM’s calculation that actual harvest can (and does) fluctuate up to 40% per year based on things like the market, agency capacity, and federal funding. The result is that BLM can and does offer for sale far less than half a billion board feet of timber per year (which industry decries).

      • The “annual sustained yield capacity” itself is subject to interpretation by the BLM and there should be judicial deference to the agency interpretation. Historically the Forest Service has determined sustained yield after accounting for other resources, and I assume the same is true of the BLM. The law clearly supports that interpretation. First of all the O&C Act explicitly subordinates sustained yield to “protecting watersheds, regulating stream flow, and contributing to the economic stability of local communities and industries, and providing recreational facilities.” Those are all judgment calls to be made by the BLM, and it does that using its land management planning process. The sustained yield capacity would also be subject to reductions needed to meet requirements of ESA and any other applicable laws. If it chooses to meet those requirements by setting aside the most important watersheds, that seems to be within their discretion.

        (Note: the Forest Service planning directives to implement the 2012 Planning Rule purport to change the definition of sustained yield to be independent of other resource needs, but I believe that is an indefensible position.)

        • You’re right, Jon, that BLM does take into consideration other resources and restrictions from other laws, like the ESA, on their calculation of sustained yield. There are a number of Solicitors’ Opinions from the 1960s – 1980s that detail how this works, and why it is consistent with the O&C Act.

          Incidentally, the timber industry is challenging in federal court the BLM’s revised resource management plans on a number of grounds, including the way in which BLM calculated the sustained yield figure. Those cases are also in front of Judge Leon, who has ruled in their favor on this issue (remedy briefing is ongoing). I expect BLM to appeal.

        • There does seem to be a segment of society, on the far right, who feel that all our natural resources were put here for our use. (And some of them aren’t really religious). They think animals are just on their own, to deal with our ravenous resource consumption. We need to socially-evolve, to free our society from lucrative energy production. All we really need is a brand new ‘trick of Physics’ to have unlimited free clean energy.

  2. I have some experience with O&C issues, and in addition to having authored a law review on the subject (which I’d be happy to share with anyone with insomnia), I’m also counsel in the CSNM litigation discussed in the article: along with Earthjustice, I represent conservation organizations that have intervened in the litigation to support the expansion of the monument. (Yes, this puts us in the odd situation of agreeing with the Trump Administration on this one monument.)

    There are a couple of things to keep in mind here.

    First, we’re talking about Oregon & California lands, which are not national forest lands. They are multiple use lands managed by the BLM, but there is a long history of disagreement about that multiple use mandate. The timber industry, and, to be fair, the Ninth Circuit, argue that the Oregon and California Lands Act of 1937 is a “dominant use” statute that compels a high level of timber harvest on the 2.6 million acres of O&C lands. That said, the Ninth Circuit and timber industry misread the plain language of the O&C Act, which requires that the lands be managed for “permanent forest production,” not “permanent timber production.” Words matter, and if Congress had wanted to use “timber” in place of “forest,” it could have done so – but it didn’t. The legislative history of the O&C Act supports our view.

    Second, regardless, the litigation involving the CSNM is about the Antiquities Act, not the O&C Act. The Antiquities Act – and all case law interpreting it – is clear that the President has extremely broad authority to designate and expand (but not reduce!) national monuments. There is nothing in the Antiquities Act that conflicts with the O&C Act, and so the principles of statutory interpretation tell us the two laws must be read together. Hence our litigation position that the monument’s expansion was entirely legal.

    Third, this isn’t a situation where “real time decisions” need to be made about land management. President Obama expanded CSNM, and BLM hasn’t been precluded from making land management decisions about either the monument’s management, or management of the O&C lands outside of the monument.

    Really, this isn’t an issue about agency decision making, because POTUS was the decider, not the agency.

    And finally, yes, the article was from the Medford Mail Tribune, one of the papers in southern Oregon that has covered this issue for years. As the ed board correctly points out, there are 3 lawsuits (all brought by the timber industry) challenging the expansion of CSNM: the Oregon District Court ruled in favor of the monument’s expansion, whereas the DC District Court reached the opposite conclusion (but without any real rigor). All 3 cases are on appeal: one to the Ninth Circuit, and two to the DC Court of Appeals.

    • Thanks Susan! It’s an interesting discussion about “forest production”- if I thought about that area in the 30’s (almost 100 years ago now) I would have thought that Congress meant timber also.

      Do you have any insights as to why the Trump Administration’s DOJ would seem to be on the same side as environmental interests in this case?

      • Yes. The government’s support of the CSNM expansion is consistent with their legal position on the Utah monuments, which is that POTUS has broad discretion to designate and alter monuments. The conservation community believes that this is not completely correct, and that the Antiquities Act is a one-way lever: it allows for the designation and expansion, but not reduction, of monuments.

        Thus, under DOJ’s legal theory, they are defending CSNM because what Obama did (e.g. alter [expand]) is consistent with what Trump did with the Utah monuments (e.g. alter [reduce]).

        There are a number of law reviews that discuss this one-way lever issue, including this one from Squillace et al.: https://www.virginialawreview.org/volumes/content/presidents-lack-authority-abolish-or-diminish-national-monuments

  3. The annual productive capacity of the O&C lands is 1.2 billion board feet, and annual harvests in the last 25 years have averaged about 200 million bf. A colleague who worked for BLM told me a few years ago that 750 million bf could be harvested annually while also meeting the needs to manage water, habitat, recreation, etc.

    • That sounds about right. Part of the issue, though, is that the volume isn’t evenly distributed across the O&C estate. Much of the O&C lands in northwest Oregon have been heavily harvested, whereas much of the remaining volume is located in southwest Oregon; and that volume is generally older forest (160+). So, while there is standing volume to be harvested, it is of the kind that is society and wildlife value; and people will sit in trees to protect.

      There’s also an issue of whether the traditional view of “sustained yield” continues to have utility in a climate-constrained world…

      • Will the traditional view of “sustained yield” continues to have utility in a climate-constrained world? Absolutely. Sustained yield means that forest managers consider future conditions. For example, some foresters and land owners in Oregon are considering increasing seedling and tree spacing, in anticipation of changes in rainfall and higher temperatures, and perhaps looking at planting stock that is better able to handle future conditions.

        • Thanks, Susan.. your comment about sustained yield reminds me that we never knew what was going to happen in the future (and still don’t) and yet different communities have way different ways of dealing with it.

          Historical Oregon story: at one time folks in the Regional Office wanted to put gains from tree improvement into models for the future (I think the idea was that we could then cut more sooner). Pete Theisen, the Regional Geneticist at the time, said “let’s wait til we see the increases on the ground.” Of course, if we’re going to be really careful we’d wait until the sawlogs from a stand made it to market to take credit for anything (invasive species, fire, climate change, policy changes, no money for thinning could all mess with our predictions). Like our friends in climate modeling, you have to come up with something to base decisions on, but you never really know for sure. I think it’s hard for anyone to be flexible in predicting and yet hold these same predictions loosely.

          • “Allowable cut effect:” “Allocation of anticipated future forest timber yields to the present allowable cut; this is employed to increase current harvest levels (especially when constrained by evenflow) by spreading anticipated future growth over all the years in the rotation.” https://forestryforum.com/dictionary/display.php?action=view&id=18&from=action=search%7Cby=A

            I remember it being seen as a justification for logging more old growth. I think it was also known as the “earned harvest factor,” and that term is found in some R6 forest plans. I don’t know why existing timber scheduling models would be different, but with less old growth I suspect the effect is less pronounced due to limits of current and expected future stand conditions. Of course, the Forest Service is no longer following an even-flow sustained yield policy, which would probably increase the effect. (I’m saying this from very old timber modeling memories, and it would be great to hear from someone currently doing this.)

        • I don’t disagree with you on this point, Steve (that replanting regimes should likely change due to climate change). My larger point – although I didn’t state it originally – is that we may need to designate some lands as climate refugia or carbon sinks, particularly those highly productive and carbon-sequestering older forests on public lands, in order to adapt to climate change. Relatedly, natural disturbances (e.g. fire) can be expected to escalate due to climate change (actually, this is already happening). Undoubtedly either or both of these considerations will force a change the sustained yield calculation, because those forests can no longer yield a very high level of timber as they did in the past.

          • Susan, if natural disturbances (e.g. fire) can be expected to escalate due to climate change, then active forest management, including timber harvesting (thinning, variable-retention harvesting) — not everywhere, of course — can help them survive those disturbances and to function as climate refugia in the future.


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