In 1990 the U.S. Fish and Wildlife Service, acting under the Endangered Species Act (ESA), listed the northern spotted owl as a threatened species, resulting in significant reductions in logging throughout the Pacific Northwest, including on the O&C Lands. The resulting national controversy led President Clinton to convene a forest conference in Portland, Oregon on April 2, 1993, which eventually resulted in creation of the Northwest Forest Plan (NWFP) in 1994. Development of the NWFP included direct guidance from President Clinton and information gathering by Vice-President Gore and much of the Cabinet, including the Secretary of the Interior.
Unlike all past management plans or practices before it back to 1937, the NWFP called for harvest levels on the O&C Lands that were far below the statutory minimums of the O&C Act. Indeed, timber harvest was immediately reduced by 82 percent and the planned sales volume was dropped to 211 million board feet per year, and soon after was dropped again to 203 million board feet per year. These reductions in timber sales and harvests were largely the result of removing the majority of the lands from sustained yield management, and placing them in reserves in which harvesting was prevented or severely restricted. On the 27 percent of the forestland that was allocated for sustained yield forestry, the planned management strategies were never implemented.
AOCC and the American Forest Resource Council (AFRC) initiated lawsuits challenging the 1994 NWFP for failure to comply with the statutory mandates of the O&C Act. The history of this protracted litigation culminated in a 2003 settlement agreement under which the Secretary of the Interior agreed to revise the resource management plans for the O&C by December 31, 2008. The Secretary complied with the settlement, completed a four-year planning process and then issued revised resource management plans in December of 2008. The 2008 plans increased the planned sustained yield timber harvest level to 502 million board feet, in compliance with the 500 million board feet minimum of the O&C Act.
Between 1994 and 2008, the Counties were compensated in part for the loss of timber receipts under the O&C Act by new legislation that authorized a series of temporary “safety net” payment programs. The first of these temporary programs was called the “owl region safety net” and was geographically restricted to areas that were affected by the NWFP. Other areas of the country began experiencing increasing harvest restrictions on National Forest lands for reasons other than the presence of spotted owls, and in 2000 Congress expanded the safety net payment program to encompass all Counties entitled to receive shared timber receipts from National Forests, as well as the O&C Lands. The new legislation was titled the Secure Rural Schools and Community Self Determination Act (SRS). SRS expired in 2006 and was reauthorized for one year, then reauthorized with substantial amendments again in 2008 for four years. After 2011 SRS was again reauthorized for short periods, with the final SRS payments made in 2015. Throughout the SRS program, payments to the O&C Counties were progressively reduced to levels much lower than would have been received from timber receipts had the O&C Lands been managed as they had historically under the O&C Act.
The 2008 management plan for the O&C Lands was expected to return O&C Land management and payments to levels acceptable to the O&C Counties. However, no sooner was the ink dry on the 2008 plans before they were withdrawn in 2009 by the Acting Assistant Secretary of the Interior in the subsequent presidential administration. The 2009 decision, in turn, prompted yet another lawsuit by timber companies challenging the withdrawal. The Court agreed with the timber companies and the Court reinstated the 2008 plans. However, the victory was temporary as the 2008 plans were subsequently vacated in 2011 in a separate lawsuit, resulting in reinstatement of the 1994 NWFP.
After the 2008 revisions were vacated and the 1994 NWFP was reinstated, BLM began yet another cycle of planning. Meanwhile, Oregon’s Governor and members Oregon’s Congressional delegation attempted to resolve O&C Land management issues. Governor Kitzhaber convened a blue ribbon panel that worked for many months during 2012 and 2013 to assist in the development of Congressional proposals to increase timber production on O&C lands. He recognized the challenge of gaining Senate approval for the trust concept (wherein the O&C forest would have come under management by a Board of Trustees) initially introduced in 2012 by Congressmen DeFazio, Schrader, and Walden. The trust proposal passed the House of Representatives in 2013, and again in 2014, but did not advance in the U.S. Senate. Oregon’s Senator Wyden subsequently introduced his own bill in 2013 and again in 2015, but it would have repealed the O&C Act in its entirety and for that and other reasons failed to gain support from most of Oregon’s O&C counties. The trust proposal approved by the House would have enabled harvests of at least 500 million board feet per year, and Senator Wyden’s bill was claimed to enable harvests of about 450 million board feet per year for at least 50 years, but neither bill could garner majority support in both chambers of congress.
No O&C bill reached the President’s desk while the BLM proceeded with its planning process that started in 2012, which resulted in new management plans adopted by the BLM in 2016. The 2016 plans, however, readopted the philosophy of the NWFP, and once again failed to meet the timber production mandates of the O&C Act. Instead of complying with the O&C Act mandate that the O&C Lands “shall be managed” for “permanent forest production on a sustained yield basis,” the 2016 RMPs actually prohibit sustained yield production on approximately 78 percent of the lands governed by the O&C Act, designating such lands as reserves for wildlife conservation (including conservation of the Northern spotted owl) and other purposes. Instead of ensuring a minimum harvest level based on the annual sustained yield capacity of the O&C Lands (which the BLM recognizes as 1.2 billion board feet per year) or “an amount not less than one-half billion feet board measure” as required by the O&C Act, the 2016 plans set the annual sales level at no more than 205 million board feet.
the United States Supreme Court made clear that the ESA “covers only discretionary agency actions and does not attach to actions . . . that an agency is required by statute to undertake once certain specified triggering events have occurred.“As it did in the case of the NWFP, the BLM attempted to justify its failure to comply with the O&C Act’s statutory mandates based on the requirements of the ESA. However, in the years since the NWFP was issued, the United States Supreme Court made clear that the ESA “covers only discretionary agency actions and does not attach to actions . . . that an agency is required by statute to undertake once certain specified triggering events have occurred.“ National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007). Applying this Supreme Court decision to the O&C Act leads to the conclusion that the ESA cannot trump the statutory mandates of the O&C Act, which expressly require that O&C Lands classified as timberlands “shall be managed” for the purpose of “permanent forest production” on a sustained yield basis, and the amount of timber sold each year from the O&C Lands shall not be less than one half-billion board feet or the annual sustained yield capacity of those forests.
On August 5, 2016, both AOCC and AFRC filed suit challenging the BLM’s 2016 plans. Thereafter, a coalition of environmental organizations filed a separate action challenging the 2016 plans on grounds that differ from those asserted by AOCC and AFRC.
AOCC’s litigation over the 2016 plans is expected to last several years and result in a judicial interpretation of the O&C Act’s interaction with the ESA that will set the course for a new era of management of the O&C Lands.