Legal History of O&C Lands
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The O&C lands in Oregon were revested in 1916 under the
"Chamberlain-Ferris Act". This act distributed timber sale revenues to
the O&C Railroad, the federal treasury, and the O&C Counties,
such as Douglas County. In 1926 the "Stanfield Act" redistributed the
funds, authorizing lump-sum transfers of $7 million to the O&C
Counties at a rate of $500,000 per year. But this was not satisfactory
to the O&C counties because the Acts did not mandate enough cutting
and they didn't get enough revenue.
In 1936 Congress overhauled the timber management and revenue
distribution scheme by enacting the Oregon and California Railroad and
Coos Bay Wagon Road Grant Lands Act of 1937 (O&C Act). It allows
the federal government to pay fifty percent of gross timber revenues
directly to the O&C counties, plus twenty five percent (for unpaid
Railroad property taxes) to O&C lands. In 1953 congress directed
25% of the revenue would go to road building and other capital
improvements on the O&C lands, leaving only 50% paid to counties.
These payment schemes tied timber harvests to county revenues and made
county government a champion of increased logging.
This lasted until the "Secure Rural Schools and Community Self-Determination Act of 2000".
Because of decreased timber revenues (most of the old-growth was cut
and wildlife was going extinct on O&C lands), Douglas County
Commissioners pushed to decouple timber harvests from county revenue.
The "Secure Rural Schools" act provides direct payment to counties from
the federal government, in lieu of taxes. Douglas County received
$28,631,173 for O&C lands (and an additional $21,394,579 for Forest
Service lands for a total of $50,025,752) in their most recent annual
payment. But this act expires in 2006, which could explain why the
counties want to go back to increased O&C logging/payments, instead
of lobbying congress to renew the Rural Schools Act. (Click here to see an overview of
the Rural Schools Act).
O&C Act of 1937
Section 1181(a) of the 1937 O&C act reads that O&C lands "Shall
be managed... 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 streamflow, and
contributing to the economic stability of the local Communities and
industries, and providing recreational facilities."
The UofW College of Law booklet says: "...nothing in the statute or
legislative history supports the conclusion that the word "forest"
actually means "timber."... The text plainly requires BLM to manage the
O&C lands for permanent forest production, on a sustained yield
basis, for five related purposes: (1) to provide a permanent timber
supply; (2) to protect watersheds; (3) to regulate stream flow; (4) to
provide recreational facilities; and (5) to foster economic stability
for local communities."
Although the O&C Act includes multiple-use principles, BLM
maintained that the Act established timber production as the dominant
use for the O&C lands, and until the Northwest Forest Plan, managed
the O&C lands to maximize timber production without equal
consideration of other forest uses.
In 1976 the Federal Lands Policy Management Act (FLPMA) was passed for
the Department of Interior (the counterpart to the National Forest
Management Act for Forest Service lands). The FLPMA language exempted
O&C lands "insofar as they relate to management of timber resources
and disposition of revenues...". The Department of Interior interpreted
the O&C Act as "a dominant-use statute" and that FLPMA did not
apply to O&C lands.
In 1989, Headwaters sued the BLM over the Wilcox Peak timber sale,
claiming that FLPMA applied to BLM timber sales on O&C lands. They
also claimed that the BLM violated the O&C Act by failing to
administer the O&C land for multiple uses. They lost in district
court and the ninth circuit, which concluded in 1990: "Congress
intended to use 'forest production' and 'timber production'
synonymously. Nowhere does the legislative history suggest that
wildlife habitat conservation or conservation of old-growth forests is
a goal on par with timber production, or indeed that it is a goal of
the O&C Act at all. The BLM did not err in construing the O&C
Act as establishing timber production as the dominant use."
Then the Portland Audubon sued the BLM and had better results. In 1993
the 9th circuit court of appeals upheld a lower court's ruling that BLM
was violating NEPA and the O&C Act. BLM had claimed that the
O&C act required them to log 500 mmbf a year,
and that implementing NEPA would illegally reduce that volume. The
courts ruled that the O&C Act gave BLM discretion to sell less than
500 mmbf. The court also concluded that nothing in the O&C act
authorized a NEPA exemption for O&C lands. The 9th circuit noted
the differences in the Headwaters and Audubon NEPA claims -Headwaters
was on a single sale, while Audubon's was on the RMP.
The Uof W law booklet says:
"The implication of Portland Audubon Society for the BLM was obvious:
The agency could no longer use the O&C act to exempt timber sales
from the requirement of federal environmental status like NEPA and the
ESA... Portland Audubon Society confirmed that BLM management of the
O&C lands was subject to the same environmental constraints and
judicial review as other public lands."
The Northwest Forest Plan and O&C lands
In 1994 Judge William Dwyer (RIP) ruled in Seattle Audubon Society v.
Lyons that the O&C lands could be included in the Northwest Forest
Plan. The timber industry had argued, among other things, that the
O&C Act prohibited LSRs and RRs on O&C lands. The court
rejected this claim for several reasons.
First, the ESA specifically requires all agencies to ensure that their
activities do not adversely affect listed species. Second, cases like
Portland Audubon confirm that the BLM must fulfill conservation duties
imposed by other federal laws, such as NEPA. According to Judge Dwyer,
the plain language of both the ESA and the O&C Act gave the BLM
sufficient discretion to change management policies to comply with the
ESA and other conservation statutes. Third, the O&C Act required
BLM management to "look not only to annual timber production but also
to protecting watersheds, contributing to economic stability, and
providing recreational facilities." Therefore, Judge Dwyer reasoned,
the O&C Act gave the BLM authority to manage O&C lands for
habitat conservation.
The district court noted that the LSRs and RRs on O&C lands were an
integral part of the NWFP. Because the government conceded that the
plan was just barely sufficient to satisfy the requirements of the ESA,
the district court determined that "any more logging sales than the
plan contemplates would probably violate the laws. Whether the plan and
its implementation will remain legal will depend on future events and
conditions."
Without the O&C reserves, Judge Dwyer concluded that he would be
obligated to remand the entire plan for revisions designating
additional non O&C reserves. The court explicitly recognized the
critical role of the O&C reserves to the viability of the Northwest
Forest Plan.
The district court made clear that the BLM's management of the O&C
lands enjoyed no special exemption from federal environmental laws.
Despite the Headwaters court's interpretation of the O&C act as a
dominant-use statute, and regardless of any effects on the agency's
ability to maintain a high level of timber production, the BLM must
manage the O&C lands for non-timber uses when required to do so by
federal environmental laws like NEPA and the ESA.Derailing the Northwest Forest Plan
The Uof W law school booklet reviews the effects of losing the O&C
lands to a proposed 1996 state land transfer, which would have been
similar if they were removed from the NWFP under the current court
settlement.
The removal of the O&C lands would have three major consequences
for the NWFP. 1) revisions in the NWFP would generate renewed legal
battles over old-growth management and wildlife protection in the
Pacific Northwest. 2) it would frustrate federal efforts to protect and
recover listed species by nullifying section 7 of the ESA on O&C
lands, and 3) habitat conservation goals established under the NWFP
would be unattainable.
Download 2003 Settlement Agreement