Cut, Conserve, or Let ‘ er Burn -- Federal timberland law and policy in Western Oregon January 2014

1. Cut, Conserve, or Let ‘er Burn -- Federal timberland law and policy in Western Oregon January 2014 P

2. Tonight’s Agenda • Physical, Historical, Legal Description of the Oregon & California Railroad (“O&C”) Lands. • NEPA/ESA & their pervasive impact on law and management of O & C Lands. • Audience participation. Focused in-group discussion by perspective. • Select Lead Advocate during discussion. • Outline key points. • Successive 90-second oral arguments by Lead Advocates for each of the four perspectives. • “Vote” for the perspective you find most persuasive. • Comparison of principle current Congressional proposals. • A County Commissioner’s perspective. • Announcement of results of vote and presentation of award to Lead Advocate whose perspective secured the most votes. P

3. O & C Lands - Today M

4. O & C Lands - History

5. “Wilderness” = “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” Section 2(c) of the Wilderness Act of 1964. • Indians had been trammeling all over the land for at least 10,000 years. P

6. O & C Lands - History • The Oregon and California Railroad Act of 1866, Public Law 39-242 (July 25, 1866). • Authorized the state of Oregon to act on behalf of the Federal government to issue 3.7 million acres of land grants as compensation to private companies for the construction of a rail line from the California border to Portland. • Two RRs began construction. Merged to form Oregon and California Railroad Company. • Checkerboard landscape arose from grants of alternating square-mile sections. M

7. O & C Lands – Characteristic Checkerboard M

8. O & C Lands - History • 1869 Amendments Prescribed RR Company’s Obligations. • Land sales limited to 160-acre tracts: contributing to checkerboard. • Charge no more than $2.50/acre. • Sell only to “actual settlers.” • Between 1869 and 1908, the RR circumvented the requirements. • Sold larger blocks than allowed. • Charged more than allowed. • Sold to other than “actual settlers” – notably, timber companies. M

9. O & C Lands - History P

10. O & C Lands - History • Lawsuit • In 1908, Congress authorized a lawsuit by the United States to enforce the restrictions of 1869. • The U.S. Supreme Court ultimately sustained the government’s allegations that the RR violated the restrictions, but declined to order forfeiture of the remaining, unsold lands. • Reversion: Chamberlain-Ferris Act of June 9, 1916, ch. 137, 39 Stat. 218. • Reclaimed U.S. Title to all of the unsold O & C Lands. About 2.8 million acres remained. • Counter-stroke • The Southern Pacific RR successfully alleged the Act was an unlawful “taking.” • U.S. paid Southern Pacific $4,000,000. M

11. O & C Lands - History • Federal funds in lieu of taxes on reverted lands. • 1916 – 1926: Chamberlain-Ferris Act provided for counties, State, and the U.S. to share in timber revenues. • 1926 – 1939: Stanfield Act of July 13, 1926, 44 Stat 915 provided for payments from the U.S. General fund to counties, and for reimbursement of the GF from revenues from harvest. • Chamberlain-Ferris failed to produce revenue sufficient to match what counties would have received as tax on the RR, and the Stanfield Act resulted in ever-larger unreimbursed debt in the U.S. GF. M

12. O & C Lands - Today • O & C Act of 1937, 43 U.S.C. §1181a. • O & C Lands “shall be managed * * * for permanent forest production * * * in conformity with the principal [sic] of sustained yield * * * .” • Purposes: Source of timber; watershed protection; stream flow regulation; economic/community stability; recreation. • “not less than” specified amounts of timber “shall be sold annually, or so much thereof as can be sold at reasonable prices on a normal market.” M

13. O & C Lands - Today • O & C Act of 1937, continued. • Payments to counties based on gross revenue from timber harvests from O & C Lands managed by BLM. • 50% to counties. • 25% initially to the U.S. GF to cover the unreimbursed cost of the failed Stanfield Act. Later, these funds flowed to counties, which agreed to return them to the U.S. for expenses associated with managing the lands. • 25% to the U.S. for expenses managing the lands. • Payments to counties may be restricted, depending on whether the O & C Land on which a sale takes place is managed by the Forest Service (“controverted lands”) or by the BLM. • Douglas County Justice Center (1976) is an example of facility constructed with O & C revenues. M

14. O & C Lands – Today • Counties are not beneficiaries of a “trust.” “Whatever the Congress did to alleviate the loss of tax revenues suffered by the O & C counties when the O & C lands were revested in the United States was an act of grace on the part of the Congress. It conferred no rights upon the counties to the continuance of Congress' bounty. Congress could amend or repeal the Act in question without infringing any right of the counties.” (Emphasis added).“The appellants have no case.” Skoko v. Andrus, 638 F.2d 1154, cert. denied, 444 U.S. 927 (C.A.9, 1979). P

15. O & C Lands - History • 1969 National Environmental Policy Act (NEPA). • 1979 Endangered Species Act (ESA). • Northern Spotted Owl v. Hodel, 716 F. Supp. 479 (W.D. Wash. 1988)(Forest Service failed to comply with the ESA in reaching its decision to deny ESA protection to the Northern Spotted Owl). • April, 1993: Presidential “Forest Conference” in Portland. Established assessment team. • July, 1993: Report of the Forest Ecosystem Management Assessment Team. Initiated a forest planning process that ultimately yielded the Northwest Forest Plan. P

16. O & C Lands - History • Northwest Forest Plan. • Record of Decision (“ROD”) issued in 1994. • The Northwest Forest Plan required federal agencies to “survey and manage” lands for ESA impacts on 400 species of plants and animals. • 2001 – 2007: Federal agencies proposed a series of amendments to the “survey and manage” and other parts of the Northwest Forest Plan. • The Plan has been an unqualified success – for attorneys. As of 2010, the Northwest Forest Plan had been a central issue in 83 lawsuits. P

17. O & C Lands - History • Northwest Forest Plan . . . continued • Amendments to the “survey and manage” requirement caused agencies to be sued by people seeking to protect species and by people interested in increasing harvest. The parties to that dispute settled, and their agreement was embedded in a consent decree. • Timber industry associations and companies challenged other aspects of the Northwest Forest Plan on the ground that its provisions were contrary to the sustained yield requirements of the O&C Act of 1937. In the last week of his tenure, President Bush’s administration satisfied industry objections to the Northwest Forest Plan by adopting the Western Oregon Plan Revision (“WOPR”). P

18. O & C Lands - History P

19. O & C Lands - Today • WOPR . . . Is dead, no, it is alive, no, it is dead. • July, 2009: President Obama’s administration “withdrew” the WOPR. • March, 2011: Industry interests win a federal trial court ruling in D.C.: The withdrawal ordered rescinded and WOPR reinstated because the administration didn’t adhere to statutory procedures for amending the Northwest Forest Plan. • Sept. 2011: Environmental interests win a federal trial court ruling in Oregon: the WOPR itself violates the Northwest Forest Plan. P

20. O & C Lands - Today • Northwest Forest Plan . . . Is dead • April, 2013: the 9th Circuit Court of Appeals concluded that the trial court abused its discretion in approving the settlement agreement of the “survey and management” provisions of the NW Forest Plan. It “reversed” the consent decree and remanded the lawsuit to the trial court. Conservation Northwest, et al v. U.S. Forest Service, et al (D.R. Johnson Lumber Company, Intervenor-Defendant-Appellant), ___ 9th Circuit __ (No. 11-35729). P

21. O & C Lands - Today • A pending case is requiring participants in the policy debate to check their hole card. • Does the O&C Act impose a mandate on the BLM to have harvested more – much more -- than it did in 2004, 2005, 2007, and 2009? • June 26, 2013: Answer = Yes. Swanson Group Mfg., et al v. Salazar, et al, U.S. District Court for the District of Columbia, Civil Case No. 10-1843. P

22. O & C Lands - Nature

23. O & C Lands - Nature

24. O & C Lands - Community

25. O & C Lands - Community

26. O & C Lands – Economics

27. O & C Lands – Economics

28. O & C Lands - Economics

29. O & C Lands - Policy

30. O & C Lands - Policy

31. O & C Lands - Nature

32. O & C Lands - Nature

33. O & C Lands - Nature

34. O & C Lands - Nature

35. O & C Lands - Credits Photo Credits: Department of Interior, Bureau of Land Management, Various Oregon Regional and Field Offices, http://www.blm.gov/wo/st/en/bpd Library of Congress (image of United States Senator Mitchell) O & C Lands Report, E. Thomas Tuchmann, Forestry & Conservation Finance Advisor, Office of Governor John Kitzhaber, and Chad T. Davis Senior Policy Analyst, Oregon Department of Forestry (February, 2013) O&C Sustained Yield Act: The Land, the Law, the Legacy, 1937 – 1987, U.S. Department of the Interior, Bureau of Land Management.

36. O & C Lands – Selected Sources • O & C Lands Report, E. Thomas Tuchmann, Forestry & Conservation Finance Advisor, Office of Governor John Kitzhaber, and Chad T. Davis Senior Policy Analyst, Oregon Department of Forestry (February, 2013) • O&C Sustained Yield Act: The Land, the Law, the Legacy, 1937 – 1987, U.S. Department of the Interior, Bureau of Land Management. • The seminal “Northwest Forest Plan” document: RECORD OF DECISION for Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl, April 13, 1994. http://www.reo.gov/library/reports/newroda.pdf. • Horvat, Ashley N., "The Northwest Forest Plan: Up to our Neck in Owls?" (2010). Honors Theses. Paper 1397 (Tallies litigation under the Northwest Forest Plan).

37. January PresentationTeam Pete Shepherd Karen Moynahan Gary Reuter Mark Comstock Dick Cowan Spencer Taylor Trevor Findley Andrea Tang