AOCC Executive Director Doug Robertson had this to say about the ruling: “We appreciate the Ninth Circuit Court’s ruling that National Monument designations by the President under the Antiquities Act are not immune from judicial review.  Although we strongly disagree with the majority’s ruling that the Proclamation does not violate the O&C Act, Judge Tallman’s dissent signals that this Ninth Circuit Court ruling will not be the last word on this long-running dispute.  We also look forward to a decision in our case challenging the current Resource Management Plan for the O&C lands in the Washington D.C. Circuit Court of Appeals. This is an issue that is essential to O&C Counties. We knew when we first filed suit, that it may ultimately have to be settled by the U.S. Supreme Court.  We appreciate Judge Tallman highlighting the significance of O&C lands for the Counties and communities in which they are located, as well as the national significance of Presidential abuses of power under the Antiquities Act.”

Some key lines from Judge Tallman’s dissent include:

“This case arises from the protracted history of controversial land use decisions that have decimated Pacific  Northwest timber communities long dependent on logging and wood product sales to sustain them. The management of these vast swaths of federal land, removed from state and  local tax rolls, has had a checkered history to say the least, but also a devastating economic impact on these towns. The President’s unilateral action here favoring environmental conservation interests is the latest skirmish.”

“The majority opens with a sterile analysis of whether the O&C Act repealed the Antiquities Act. But whether the Antiquities Act and the O&C Act can coexist in the abstract is quite beside the point. Rather, we must decide whether Proclamation 9564-issued pursuant to the Antiquities Act-conflicts with the O&C Act. Even a perfunctory review of the plain text of the Proclamation and the O&C Act reveals an obvious conflict.”

“I am troubled by the President’s overt attempt to circumvent the balance struck by Congress and the majority’s haste in labeling that attempt with the imprimatur of law. The decision today continues a troubling trend of increased judicial deference to Presidential uses of the Antiquities Act.”

and

Restoring Sustained Yield Management  

Excluding O&C Lands from the 9.5 million acres previously designated as Northern Spotted Owl (NSO) Critical Habitat was a necessary first step for restoring sustained yield management as required by law.  Maintaining that exclusion will be essential to the development of a new resource management plan (RMP) with a sustained yield strategy for all timberlands.  Under a new RMP with a thoughtful sustained yield strategy, NSO habitat can be maintained and developed to provide higher ecological function than exists today.  With sustained yield management the O&C lands will continue to provide NSO nesting, roosting, foraging and dispersal habitat, as well as a broad range of other economic and environmental values.

The O&C timberlands encompass approximately 2.1 million acres in western Oregon that are administered by the Bureau of Land Management (BLM).  These lands are unique among federal lands with the O&C Act directing forest management under the principle of sustained yield (SY), annual harvest of at least 500 million board feet (MMBF), and 50 percent revenue sharing from the sale of that timber with the 18 O&C Counties.  SY management simply means a rate of harvest is in balance with and does not exceed the annual growth of the forest.  This annual productive capacity for the O&C is at least 1.2 billion board feet.  The 500 MMBF minimum harvest level under the O&C Act is a mere 40 percent of that productive capacity.   This modest level of SY management permits great flexibility for the forest to simultaneously provide multiple economic and environmental values for the local communities and the nation.

Total Standing Volume and Harvest – When the O&C Act was established in 1937 it was estimated that there was 50 billion board feet of standing timber volume.  Over the last 80+ years over 50 billion board feet has been harvested.   BLM has determined that over 73 billion board feet is standing today.  Over 50 percent of the O&C is currently “older forest” that is 80 years and older.  Over 23 percent of the forest is 160 years and older.   A full range of forest conditions, young to very old, can be maintained over time with sustained yield management.

Revenue – The current BLM SY strategy applicable to just 20 percent of the O&C land base is estimated to produce timber payments to Counties of $25.6 million dollars annually, if fully implemented.  That revenue level has yet to be realized from the 2016 RMP.  Harvest levels at the 500+ MMBF employing a wider range of SY practices would produce $75+ million in revenue to the Counties.  The increase in total timber revenue would add not only to the Counties’ 50 percent of revenue but also to the US Treasury as part of the 50 percent retained by the federal government.  The Counties’ share of revenue is utilized by each of the 18 O&C Counties to provide essential public services that meet the individual needs of the mostly rural communities.

Sustained Yield Curtailment – Since the early 1990s the Federal government’s policies and regulations have resulted in RMPs that have sharply reduced the O&C lands available for sustained yield management and have produced a fraction of the 500 MMBF minimum harvest level.  The curtailment of SY flows originally and primarily from the ESA listing of the NSO.

• Northwest Forest Plan/1995 RMPs allocated only 27 percent of the forest to SY management. The plan declared an Allowable Sale Quantity (ASQ) of 203 million board feet that was never produced by the BLM.
• 2011 Recovery Plan (RP) for the NSO established further SY restrictions. Legally, the RP is only supposed to provide advisory guidelines, but the guidelines have been treated and mandatory and binding:
  • Recovery Action 32 – Retaining essentially all older and structurally complex forest.
  • Recovery Action 10 – Retaining all NSO habitats within 1+ mile radius of nest sites.
  • No post fire salvage of timber.
• 2012 Critical Habitat (CH) 53 percent of the O&C was designated as CH for the NSO. 42 percent of this designation was not suitable habitat.  The CH designation incorporated the RP restrictions as assumed to be in effect.  The CH economic analysis assumed the effects from the RP were required and in place and discounted them as not being part of the CH economic impacts.
• RP/CH Effects – 2016 BLM RMP – Allocated only 20 percent of the O&C timberlands to SY management and declared an ASQ of 205 MMBF.
  • The BLM designed a Late-Successional Reserve (LSR) large block older forest network in which SY is precluded.
    • The BLM did not incorporate 483,000 acres of CH in the LSR design.
    • The BLM designated an additional 249,000 acres of LSR that was not CH.
  • 40 percent of the lands allocated to SY management were designated CH.
  • BLM assumed that the 35 percent of lands allocated to SY that contained owl sites were available for harvest when they declared the ASQ. Nevertheless, BLM has placed an indefinite deferral of harvest around owl sites (“No Take”) which if not lifted would result in a 50 percent reduction in the declared ASQ.
  • Recent years’ wildfires on the O&C have resulted in hundreds of thousands of acres of burned timber that was not salvaged due to the RP/CH. The BLM management strategy under the 2016 RMP is inadequate to get ahead of the wildfire problem in southern Oregon.

Recent Court Rulings – Several recent court rulings are setting the stage for restoring SY management on the O&C lands.

• November 2018 – Weyerhaeuser Co. v. U.S. Fish & Wildlife Service – The Supreme Court ruled that CH can only include land that is actual habitat at the time of the designation.
• November 2019 – O&C Counties v. Pendley – District Judge Leon ruled the 2016 RMPs violated the O&C Act. He stated all O&C lands timberlands “must be managed for permanent forest and the timber grown on that land must be sold, cut, and removed in conformity with the princp[le] of sustained yield”.  He has not yet ordered a remedy but will almost certainly order development of a new RMP.
• April 2020 – Council of Carpenters v. Bernhardt – The parties filed a stipulated settlement agreement in a long running case over the 2012 designation of NSO CH. The settlement required USF&WS to propose exclusions from the designation by July 15 and to finalize the exclusions by the end of 2020. Proposed exclusions were to be evaluated under ESA Section 4(b)(2): “The Secretary must designate critical habitat based on the best scientific and commercial data available after considering the economic impact, the impact on national security and any other relevant impact.” In early 2021, the O&C lands were excluded from CH.  The incoming Biden administration has sought to delay and is likely to seek reversal of the O&C exclusion from CH.

O&C – Sustained Yield Management Opportunity – Given the O&C Act’s minimum harvest level of 500 MMBF is only 40 percent of the capacity of these lands to produce timber, the current circumstances present a great opportunity to simultaneously provide multiple environmental values in addition to timber, jobs, and revenue.  These values include clean water, recreation, a wide range of wildlife habitats including NSO habitat, increased carbon storage, access to public lands and healthy forests.  A SY strategy that provides 500+ MMBF on the O&C can employ a variety of practices to simultaneously achieve these multiple objectives.  Possible SY strategies include:

• No Harvest in Congressionally Reserved Areas, which might include Wild and Scenic River corridors, wilderness areas, and similar reserve designations that Congress has placed on certain parts of the O&C Lands.
• Maintain Tree Cover in Riparian Areas that are determined to be necessary for compliance with mandatory federal standards under the Clean Water Act. This can provide ecological values throughout the stream network to sustain water quality and fish habitat as well as NSO habitat.
• Extended Cycles of Harvest, which keeps trees on the landscape for 100 years or more. Landscape level concentrations of older forest habitats can be developed and maintained with extended cycles of harvest.  Developing and maintaining higher levels of older forest will continue to increase carbon sequestration over what exists today.
• Tree Retention – Retaining some live and dead trees with each harvest carries forward older tree structural attributes into the next generation of the forest. Retaining these structural elements greatly speeds up the time which an individual stand can become suitable NSO habitat.
• Thinning for Fire Resiliency – Fire exclusion practices and lack of harvest has resulted in high risk fire conditions in southern Oregon. Communities in that region have suffered from large wildfires and the associated health impacts from wildfire smoke.  Forest scientists have called for accelerated levels of thinning to reduce this risk by improving forest resiliency.  The roads network needed for forest management also facilitates access for fire fighters and control these fires before they become large.
• Wide Range of Forest Conditions – Different wildlife species utilize different forest conditions. Deer and elk, for instance, rely on younger forests as their preferred habitat.  Recreational users also seek out a range of forest conditions for hunting, fishing, and hiking.  SY practices can be employed to renew and sustain a wide range of forest conditions from young to very old on the O&C timberlands.

The AOCC website – has extensive information on the O&C and SY management.

• Background on SY Management – Link – SY Management
• A Scenario of Future O&C Management – Link – Scenario of Future Management

before

Members of the Congressional Western Caucus

For the Virtual Forum Titled

 “Impacts of a Weaponized Endangered Species Act: The Case of the Northern Spotted Owl”

June 16, 2021

Chairman Newhouse and Members of the Congressional Western Caucus:

My name is Tim Freeman. I am a County Commissioner from Douglas County, Oregon, and

President of the Association of O&C Counties (“AOCC”). Thank you for the opportunity to testify today regarding 30 years of failed federal policies regarding the Northern Spotted Owl.

The starting point was the ESA listing of the Spotted Owl, but on that foundation interlocking policies were built one upon the other like a fortress designed to defeat rational forest management.  The story is a long and bizarre one, with a Spotted Owl ESA recovery plan under which nothing has been recovered, designations of ESA “critical habitat” that include millions of acres that are not habitat and management plans under which 80 percent of the lands receive no management.  AOCC nevertheless remains hopeful that, with the help of the Congressional Western Caucus, the ship can be put right, with sustained yield management restored to the O&C lands.

AOCC was formed in 1926 to protect the interests of 18 western Oregon counties, including Douglas County, in the 2.1 million acres of federal lands known as the O&C lands.  These are among the most productive timberlands in the world, capable of producing more than 1.2 billion board feet of timber every year, forever.  For 50 years, the O&C lands were managed according to principles of sustained yield, to assure economic and environmental benefits in perpetuity.  All of that ended with the ESA listing of the Northern Spotted Owl. Since then, 80 percent of the lands have been placed off limits in “reserves”, and actual timber harvests have declined by more than 90 percent.  The O&C lands, which once paid their own management expenses and provided substantial revenue to both the counties and the U.S. Treasury, have become a financial drain on the Treasury and provide almost no revenue to counties.  The sad irony is that all the human sacrifice has done nothing for the owl, which has continued its decline for reasons wholly unrelated to timber harvest.

The O&C lands have a complicated history, having been part of a railroad land grant in the 1860s and 70s.  After nearly 40 years in private ownership the lands were revested back into federal ownership due to violations of the grant’s terms.  With the lands taken out of private ownership and off the property tax rolls in 1916, the O&C counties sought federal policies that would provide recompense for lost local tax revenues.  Congress finally arrived at a solution —a brilliant and creative solution that was supported by AOCC — in 1937.  Congress passed the O&C Act of 1937, which specifically mandates that all O&C lands be managed for timber production under principles of sustained yield to produce revenue for local governments and to provide a stable source of timber supply.  Under the O&C Act, counties are to be paid 50 percent of revenue from timber sales.  The key was sustained yield forestry, which would assure timber, revenue and community stability forever, with associated benefits for streams, recreation and other forest values.  The directive was to both use and protect the forest through the flexible precepts of sustained yield forestry.

For decades after 1937, the O&C lands provided a steady supply of timber for domestic manufacturing and lumber markets, strong and vigorous economies and well-paying jobs in rural Oregon communities, income to the federal treasury, and financial support and stability for the 18 western Oregon counties—all while supporting some of the best fish and wildlife habitat in the lower 48 for iconic species like chinook salmon, blacktail deer, and Roosevelt elk.  It was literally a win-win, multiple times over.  That all changed dramatically with the listing of the Northern Spotted Owl in 1990.

The potential upending of the way of life in western Oregon counties was clear at the time of the listing, to the point that the rarely-used “God squad” was convened in 1991 to consider whether to exempt the Northern Spotted Owl from Endangered Species Act protections for pending timber sales.  Ironically, the Washington Post reported, in a November 20, 1991 article entitled “Spotted Owl in Hands of ‘God Squad’”, that then-Secretary of Interior Manuel Lujan Jr. was “anticipating an end to the spotted owl issue” and was quoted to state: “I look forward to the final resolution.”  Thirty years later, AOCC is still looking forward to a final resolution.

At one time, the “final resolution” was supposed to be the Northwest Forest Plan, a creature of the Clinton administration, which has been an epic failure and catastrophe.  The Northwest Forest Plan spawned lawsuit after lawsuit and has never come close to producing the timber volume promised to counties, rural communities, and the timber industry.  Now, 30 years later, the Spotted Owl is no closer to recovery than it was at the time of listing—because Barred Owl competition, not timber harvest, is its primary threat—while the myriad of benefits of the implementation of the O&C Act have been virtually wiped out.  We’ve gone from win-win to lose-lose.

The latest insult is hundreds of thousands of acres of acres of burned and dead O&C timber that is still usable but that the BLM refuses to salvage because they were once allocated to “reserves” based on Spotted Owl habitat needs.  Never mind that these habitat reserves are now mostly gray ash with black lifeless trees going to rot and to provide fuel for the next round of fires.  Logic plays no part in this discussion — misguided land use allocations based on elements of the ESA control, regardless of the results.

To put the harm to counties into perspective for you, in 1989, the year before the owl was listed, the O&C payments to counties totaled $109,911,000.  In today’s dollars, that is equal to the purchasing power $238,506,870.  The Spotted Owl was ESA listed in 1990 and, thirty years later, O&C timber receipts for counties have lately been about $25,000,000.  This massive, 90 percent reduction has been a loss to county general fund budgets that over time have been decimated by forced cuts.  As observed in a 2013 report from Oregon’s Governor:

“It is the discretionary general fund that counties use to fund services such as public safety, libraries and animal control in addition to making contributions to public health, assessment & taxation and many other shared services. When cuts must be made, they must come from this discretionary revenue. In four counties, O&C payments make up more than 50% of discretionary general fund revenue; and more than 20% in nine counties. These facts together demonstrate the historic reliance on timber payments to help fund local government services.”

Congress softened the fall somewhat with payments in lieu of timber receipts under the Secure Rural Schools legislation known as SRS.  It has been an almost constant struggle to keep that legislation alive, with seven different SRS reauthorizations over the last 20 years, each of which has reduced payments to counties.  The last renewal of SRS ended in 2020 with O&C payments approximately equal to the currently depressed O&C timber receipts.  SRS has not been renewed for 2021 or beyond.  

Meanwhile, the rise of lumber prices in the United States, due to demand that has severely outpaced the lumber that can be produced by manufacturers, has made international news.  Although Oregon remains the largest lumber producing state in the country, many dozens of sawmills were forced to close and thousands of well-paying jobs were lost as a direct result of the listing of the Spotted Owl.  Some counties, once wood products manufacturing centers, now have no mills at all.  As a country, we have lost infrastructure needed to domestically meet U.S. lumber demands at prices Americans can afford.  This is directly contrary to two of the foundational purposes of the O&C Act, which were to provide a “permanent source of timber supply” and “community stability.”

The relentless, ESA-based litigation by some environmental organizations has cowed the federal management agencies, who fear and avoid the controversies manufactured by those opposed to virtually all timber harvests.  The paradigm needs to shift.  The BLM, which manages the O&C lands, is legally obliged to manage according to principles of sustained yield.  Judge Leon of the federal District Court in the District of Columbia has ruled in favor of AOCC on that point and declared the BLM’s current management plan to be in violation of the O&C Act.

There can be a positive ending to this 30-year tale of woe.  Judge Leon’s ruling has opened a door and the agencies should be encouraged to explore ways in which sustained yield can be used to both keep the promises to counties of revenue and community stability while also protecting and increasing spotted owl habitat.  It is not an either-or proposition.  For a deeper dive into the possibilities, AOCC invites you to explore its website and a scenario of future sustained yield management that increases owl habitat while achieving economic objectives:  http://www.oandc.org/proposed-future-management/   For more details regarding restoration of sustained yield management without the artificial, unproductive and unnecessary limitations of an ESA “critical habitat” designation, please see the attached document produced by AOCC’s staff.

Thank you for your interest in the O&C lands and the ESA-caused plight of the counties in western Oregon.

The O&C lands are required by federal law to be managed by the BLM for sustained yield timber production.  The 18 Counties with O&C lands in them are entitled to 50 percent of the proceeds from the sale of timber from the lands, with the remaining 50 percent returned to the U.S. Treasury.  Counties have relied on their share of harvest receipts to provide essential public services since 1937.  AOCC has argued since 2012 that designation as critical habitat interferes with sustained yield management as required by law.

“NSO habitat will be maintained and even increased through sustained yield management on the O&C lands” said Rocky McVay, AOCC’s executive Director.  “A new management plan will be prepared in the near future and serve as a fresh model for how to support the needs of the NSO.  This is an opportunity to demonstrate how sustained yield management can provide both economic as well as environmental benefits” said McVay.  AOCC has long espoused sustained yield management as a means of achieving a full array benefits from these forestlands.

Removing the redundant and unnecessary “critical habitat” label will allow focus on how sustained yield strategies can maintain and increase NSO habitat.  As three examples: (1) Sustained yield strategies that employ extended cycles between harvest can provide substantial amounts of high-quality habitat over time.  (2) Most of the existing high-quality spotted owl habitat on the O&C lands is fragmented.   Sustained yield strategies can help overcome this fragmentation by designating older forest emphasis areas that improve habitat quality and concentration over time.  (3) Much of the O&C lands are in fire-prone condition with existing high-quality habitat at risk due to high fuel loads.  Management to improve fire resiliency while producing timber is a cost-effective method for maintain and improving high quality habitat over time.

“A new BLM plan offers an opportunity to go beyond inflexible land use designations to recognize how sustained yield management can simultaneously improve habitat levels at the landscape scale and reduce losses from wildfire, all while producing timber and revenue needed by communities and the nation” commended McVay.  For the outline of one of many possible sustained yield management scenarios designed to provide a wide range of environmental benefits while still complying with the O&C Act, see the following:

http://www.oandc.org/proposed-future-management/

Eliminating ridged labels like “critical habitat” on the O&C lands is a necessary first step to achieving the promise of sustained yield.

O&C timber receipts have been an important component of County budgets since 1937.  Historically, payments exceeded $134 million annually, in current value dollars.  (See p. 18, Governor’s O&C Lands Report, Tuchmann and Davis, 2013.)  In recent years, the Counties share of O&C receipts has been less than $25 million.  The adverse impact on the Counties ability to provide public services has been dramatic.  At the same time, the reduced availability of timber to supply mills has caused mill closures and the loss of tens of thousands of irreplaceable jobs.

The exclusion of O&C lands from NSO critical habitat follows a 2019 decision in favor of AOCC in Association of Oregon & California Counties v. Brian Steed, et al.  USDC, District of Columbia Civil Case No. 16-1602 (RJL).  The Court in that case held that all O&C timberlands must be managed by the BLM according to the principles of sustained yield, and that ESA restrictions do not eliminate the BLM’s obligations to manage for sustained yield.  “The exclusion of O&C lands from NSO critical habitat was the logical next step for the government to take, to restore O&C lands to the kind of management federal law requires,” said Commissioner Freeman.

“After 80 years of sustained yield management over half of the O&C timberlands remain late-successional forest.  Sustained yield management of these lands can continue to provide many forest values, including older forest conditions, while simultaneously supporting the social and economic needs of the rural communities in Oregon,” said Commissioner Freeman.  “We are happy to see rational and positive decision making by the federal government.  It has been a very long process and there is still more to do before communities start seeing the results of better management, but this is a major step in the right direction.”

For additional information, contact Rocky McVay at 541-412-1624 or Rocky@blupac.com.