From: Congressman Peter DeFazio ‪<or04ima@mail.house.gov>

From: Andy Kerr, The Larch Company <andykerr@andykerr.net>

Date: Fri, Oct 4, 2013 at 10:57 AM

October 22, 2014

Subject: Reply from Congressman Peter DeFazio

Subject: Response from conservationist Andy Kerr

Thanks for contacting my office in opposition to the O&C Trust, Conservation, and Jobs Act. I appreciate hearing from you and having this opportunity to respond.

I would appreciate your sharing with me the email response you are sending people that are in support of your O&C Trust, Conservation and Jobs Act.

Our public forests are in jeopardy and the status quo management is not sustainable. Over a million acres of old growth forests are just a court decision away from being logged and lost forever. The Republican House has refused to pass a single wilderness bill for the first time since 1964 — leaving the greater Rogue and Devil's Staircase unprotected. Lack of management in our federal forests has caused a significant decline in forest health, leaving millions of acres vulnerable to catastrophic fires.

The status quo presents far less jeopardy to public forests than your legislation.

I’m not sure what court decision you anticipate. While the timber industry recently won a lawsuit in Washington, DC pertaining to BLM Resource Management Plan logging levels, no injunction has been issued by the district court. If one is, our legal counsel is confident it would be overturned on appeal, since it would conflict with a unanimous and on-point Supreme Court ruling (written by that great conservationist, Justice Antonin Scalia). Furthermore, BLM can also mitigate the damage by adjusting its RMPs and associated timber targets to more accurately reflect the achievable timber outputs given the constraints of the Endangered Species Act and other requirements.

Congress has many problems, the failure to pass wilderness being just one of them. Wilderness can wait for a better opportunity that does not require sacrificing nearly two million acres of public forestland to industrial clearcuts. Neither the greater Rogue nor the Devil’s Staircase is currently threatened by timber sales, off-road vehicles or mining. Administratively, the lands are either Late Successional Reserves under the Northwest Forest Plan or designated Critical Habitat under the Endangered Species Act for the northern spotted owl.

The status quo has also left rural counties in western Oregon – also known as the O&C counties – in serious economic trouble.

These counties are in serious economic trouble because they are rural (think Great Plains states, eastern Oregon, Appalachia, etc.). These counties need to continue diversifying their economies so they depend less on resource extraction. Attracting diverse economic activity requires conserving public forests and the quality of life they represent. More logging isn’t the solution. In 2012, while there are half as many sawmills and workers as in 1995, sawmilling capacity is 25% greater than when the NW Forest Plan went into effect. See: https://static1.squarespace.com/static/573a143a746fb9ea3f1376e5/t/5741f3655f21e0f3cad8caa6/1362107440963/LOP19ORSoftwoodLumberMillingCapacity.pdf

Offering more logs is false hope at best.

While the rest of the state has slowly recovered from the 2008 recession, rural economies and communities have been left behind [http://www.oregonlive.com/politics/index.ssf/2013/08/rural_oregon_left_behind_in_st.html]. That goes for the seven O&C counties in southwest Oregon. 

Real unemployment in southwest Oregon is 20%. Nearly 24% of Oregonians in these counties are on food stamp programs and nearly 20% live under the poverty line. 

The poverty and food stamp rates in Multnomah County (aka Portland) are both higher than in Curry County (the most likely to go bankrupt). http://projects.oregonlive.com/maps/foodstamps/

Social ills and instability will continue as long as Oregon’s rural counties continue to hitch their economic wagons to the boom-bust timber industry.

County budgets have been slashed—making deep and painful cuts to critical services like sheriff's patrols, jail beds, and public health. As a result, violent criminals have been released from jail [http://www.huffingtonpost.com/2012/07/16/lane-county-oregon-releasing-inmates_n_1677546.html], some counties have no rural patrols [http://www.opb.org/news/article/josephine-county-tax-levy-would-add-deputies-fund-the-jail/], and counties have been forced to dramatically cut public health and public works.

These counties generally pay the lowest property tax rates in Oregon, which can generally be attributed to a relatively brief historical anomaly that caused a county revenue windfall generated by unsustainable clearcutting of vast tracts of public old growth forests that no longer exist. If the O&C lands were in still in private ownership and taxed at the same rate as private timberlands, they would be receiving ~$7 million in annual revenue. See Governor’s O&C Task Force Report. Compare this with your estimated $90 million below (which you appear to be low-balling).

How can this happen in our own neighborhood?

Because elected officials get re-elected offering false hope to struggling counties and their citizens who think that the good old days can return, and they can enjoy good government services without actually paying for them.

Much of the problem stems from the decades-old debate over how we balance the preservation of our environment for future generations and the preservation of rural, timber dependent communities through sustainable forest management. Unfortunately for O&C counties, this debate has largely been defined by the extremes. 

The root of the problem is the enormous windfall of money these counties enjoyed from their share of logging revenues off public lands during the clearcutting epidemic that ravaged Oregon in the 1970’s and 80’s. This allowed for extremely low local property taxes, and almost no taxes on private timberlands. Direct federal subsidies perpetuated this funding model after 1994, but now these payments from US taxpayers are expiring. Rather than addressing these facts, some politicians prefer to scapegoat conservation as “extreme” and promote the notion that a return to aggressive clearcutting will solve county budget woes.

For two years I have worked with a bipartisan coalition on a plan to break this gridlock and help counties on the brink of financial disaster. The House solution isn't perfect, and it's not the bill I would have written if I were in the majority party – but it is the best shot we have to move something forward that protects both our conservation values and vital public services out of the hyper-partisan House of Representatives. 

What gridlock? The agencies are meeting their timber targets—which are based on congressional appropriations—by focusing on thinning dense young tree plantations. Even a dramatic increase in logging will make barely a dent in the financial needs of the counties. It’s a waste of time trying to fund the counties via logging, especially when better solutions are available outside of the forest.

While it is true that the House Republican leadership supports your approach, only 17 of 200 Democrats in the House voted for your bill, so it’s not particularly bi-partisan. Your bill is perfectly awful (see below).

Clearcutting vast swaths of public forest, along with the clean water, salmon habitat, and tourism and recreation economies it sustains is not a good idea. That your bill enjoys support from the House Republican leadership is not evidence of bi-partisanship, but rather of how extreme this proposal is.

The White House has already threatened a veto of your bill. Do you think your Republican allies will vote for a revised, less-terrible Wyden bill?

The bill is now before the Democratically-controlled Senate where I expect Chairman Ron Wyden will make changes to the bill. We share common objectives — he agrees we need financial certainty for the counties and we also need certainty to protect old growth and special areas. As a member of the majority party in the Senate, he will craft a different approach, but I fully expect we would be able to reconcile any differences between the two bills so it can be signed into law.

Unfortunately, the O&C bill has been grossly misrepresented by some in the press and in campaigns launched by groups that support the status quo or want to end all logging on public lands.

I don’t know of any mainstream conservation organization that wants to “end all logging on public lands.” Nor do I know of any conservation organization that favors the status quo. As to any misrepresentation of your bill, such is by you not us (see above and below).

The following email addresses many of the misconceptions. Here's the bottom line: this bill is a work in progress, and I will continue to work with stakeholders and the public to strengthen conservation victories included in the bill. 

While one can put lipstick on a pig, it is still a pig. Conservation groups at the local, state, and national level have refused to work with you on your legislation because it is so extreme, and so anti-environmental, as to be unsalvageable.

FACTS ABOUT THE O&C TRUST, CONSERVATION, AND JOBS ACT (OCTCJA)

MYTH: The plan is unbalanced and devotes most O&C acres to timber production.

According to Erik Fernandez of Oregon Wild, your bill would affect 2,781,900 acres of land:

• BLM O&C (2,210,000 acres)

• BLM PD (223,400 acres)

• BLM CBWR (73,000 acres)

• USFS O&C (estimated 250,000 acres); and

• USFS non-O&C (2,500 acres)

Of those lands:

• 101,900 acres become Wilderness and/or Wild and Scenic River (the excellent);

• 976,000 would be transferred to the Forest Service (the good);

• 34,000 acres would be transferred to two Native American tribes (the bad); and

• 1,670,000 acres would go into your timber trust (and the ugly).

38.7% of the land would receive a somewhat elevated conservation status and 61.2% of the land would be effectively privatized and subjected to industrial clearcutting and herbicide spraying.

Counting 100-year rotation clearcuts in a timber trust some kind of “conservation” is just wrong and is nothing short of cooking the books to make your proposal look less bad. For Pacific Northwest forests, where old-growth trees can be 500 years or more old, 100 years is not a particularly long time. Half your lands would be managed on an estimated 40-year clearcut rotation because that would generate maximum revenues, as your legislation requires above all else.

Your legislation says in one place that half of the lands will be managed on a 100- to 120-year rotation. Yet the obligation on the trust board to maximize revenues means no acre will be allowed to grow over 100 years.

Given the fiduciary obligations your legislation imposes on the trust board, it doesn't matter whether the trust board is public or not. Even if your legislation didn’t require the Governor to stack it with people representing counties and timber (which it does), management of the lands will be no less horrible than if it didn’t have one member representing the public and one scientist. The Governor could appoint seven clones of John Muir and, under the provisions of your bill, they would have to order timber management that produced the most revenue, no matter how horrendous the clearcutting and herbicide spraying (as long as it is legal under the Oregon Forest Practices Act, and no lower regulatory bar exists). If the trust—in contrast of their fiduciary obligation, managed lands on a 120-year rotation—they would lose a slam-dunk lawsuit by country beneficiaries, which are generally the only ones allowed to sue under your bill.

FACT: Here's the breakdown.

The bipartisan O&C bill deals with 2.8 million acres of forest land in Western Oregon. Under this compromise bill, 77 percent of those lands will be set aside in a conservation area or managed under a long rotation of over 100 years. The remaining 23 percent of lands will be managed by a public board under sustainable and scientific forest management practices.

MYTH: The plan includes a few minor conservation victories and fails to protect drinking water.

The plain language of the DeFazio O&C clearcutting plan states that only 101,900 acres becomes Wilderness and/or Wild and Scenic Rivers, while 1.7 million acres would be clearcut (at the rate of 25,000 acres annually).

Your bill in no way “adds protection to key watersheds and fish bearing streams.” It would reduce current riparian protections by one half and further fragment key watersheds. The net affect of your bill will be to degrade water quality both instream and going into municipal water systems.

Much old growth forest is left unprotected in your bill. The logging trust would sacrifice old growth in four ways:

(1) Your logging trust would include an additional 198,000 acres of mixed-age forest that BLM classifies as having a stand age of less than 125 years, but in fact includes a mix of ancient trees far older than 125 years that survived the stand-replacing event that BLM counts from.

(2) Your logging trust includes 291,500 acres of native mature forest (80-125 years old), which has—and is gaining each year it is not logged—old growth characteristics.

(3) Your logging trust totally fragment the current Late Successional Reserves (LSRs) system, which is intended to re-establish large blocks of old-growth forest. Though they include many stands less than 125 years now such are necessary remedy the current deficit of old-growth forest.

(4) Your bill would transfer 6,600 acres of forests over 125 years of age to Native American tribes, where they will in all likelihood be clearcut. In addition, 4,000 acres of stands less than 125 years old, but with a significant component of old-growth trees would also be transferred.

Furthermore, outside the trust, protection remains uncertain for the over 800,000 acres of 125+ year old stands transferred to the Forest Service. First, stands >125 years, but not meeting the definition of “old growth” would receive no explicit protection under the bill. Second, even stands qualifying as old growth are protected only from “harvest” but not protected from any of the other myriad threats they may face, e.g., from road construction, mining, fuel reduction logging, OHV developments, salvage logging, viewshed “enhancement,” burn-outs, firelines, etc.

FACTS: The DeFazio O&C plan adds to wilderness, adds protections to pristine rivers, adds protections to key watersheds and fish bearing streams, and protects old growth forests.

Wilderness Protections

• •    1,200,000 acres of remaining mature and old growth forests on O&C lands would be permanently, federally protected from clear cuts and harvest for the first time ever;

Save for 101,900 acres to be designated as Wilderness and Wild and Scenic Rivers (some of which is already National Forest System land and not all of which is mature and old-growth forests), the remainder of BLM lands transferred to the Forest Service (~976,000 acres) would me managed under the Northwest Forest Plan, as it now is by BLM. The NWFP allows logging on much of the lands in question. There would be no elevation of conservation status for these lands as the Forest Service could decide later to increase logging on these lands.

Your bill would establish a new bureaucratic process to first determine what old growth is and then protect it. This assumes the panel you establish doesn’t so narrowly define old growth as to only include the most grand of the forest type.

• •    90,000 acres – or a 230 percent increase – in new wilderness on the O&C Lands 

Percentages can be misleading as this one is, especially when your denominator is mostly an alternating checkerboard of federal and private land that wasn’t ever suitable for Wilderness designation. The areas you propose as Wilderness and/or Wild and Scenic River are not currently threatened by the land management agencies. The Senate is in the process of enacting them into law without holding them hostage as part of a terribly anti-environment anti-public lands bill. A more illuminating percentage is that your bill would effectively privatize 58% of BLM lands in Western Oregon.

◦                      58,000 acres would be added to the existing Wild Rogue Wilderness;

This conservation benefit is not outweighed by the more than 23,000 acres of new clearcuts that would occur each year on your timber trust lands.

◦                      32,000 acres of some of the last remaining old growth in Oregon's Coast Range and permanent protection for Devil's Staircase;

◦                      These are the only two wilderness proposals that have been allowed by the Resources Committee since the Republicans took control. They only made an exception because of the statutorily unique nature of the O&C Lands and they will continue to oppose individual wilderness proposals.

They made an exception because the saw the political opportunity to get the most ranking Democrat on the House Natural Resources Committee to favor effectively privatizing 1.7 million acres of federal public lands and all they had to do was acquiesce to a modest amount of Wilderness on lands with no mineral value and not likely to be logged anyway. You are being used as a tool to advance an extreme anti-environmental agenda by the House Republican leadership.

• •    130 miles of Oregon rivers added to the Wild and Scenic Rivers Act

Throughout your email you sometimes seem to use “O&C” to also include BLM lands other and the actual lands reconveyed from the railroad. Accuracy is important.

Your trust proposal would effectively privatize more O&C lands (or any public lands in Oregon) than has occurred over the last 100 years combined.

◦                      93 miles of the iconic Rogue River and its tributaries

◦                      21 miles of the Molalla River

Essentially all of the Molalla River is BLM Public Domain lands, not BLM O&C lands and should not be counted in your analysis.

◦                      15 miles of Wasson and Franklin Creeks, tributaries of the Umpqua River

These streams are primarily on the Siuslaw National Forest, very of little which is O&C land.

◦                      17 miles of the Chetco withdrawn from harmful suction dredge mining from out-of-state miners

The Chetco River contains no O&C lands and shouldn’t be counted in your analysis.

While we are reviewing your pending public lands legislation, why didn’t your include your legislation to expand the Oregon Caves National Monument in this bill? It could have provided another square centimeter on the fig leaf of conservation provided in this bill. If your logging trust bill as passed by the House becomes law, a significant acreage (all stands of trees under 125 years of age on the every other square mile of Forest Service O&C lands) proposed for protection in your Oregon Caves legislation will instead go to your timber trust.

◦                      Drinking Water Protections

◦                      300,000 acres of the O&C Trust lands of riparian reserves to safeguard drinking water and key watersheds. These buffers are four times the protection required under the Oregon Forest Practices Act

Anything looks good compared to the Oregon Forest Practices Act, as no lower regulatory bar exists. A more relevant comparison is to the Riparian Reserves established under the science-based Aquatic Conservation Strategy of the Northwest Forest Plan that re now in place. Your buffers would be one-half those under the current Northwest Forest Plan.

◦                      5 percent of net revenues will be dedicated to watershed protection on neighboring private lands in Western Oregon

Watersheds would be better served continuing under the Northwest Forest Plan and not clearcutting the crap out of them as your logging trust would do dedicating 1/20^th of the revenues to mitigation elsewhere. This provision is comparable to giving a double amputee one crutch.

◦                      A public board is required to initiate a public process for the development of an integrated Pest Management Plan

Your public board with their built-in conflicts of interest (a majority represent the timber industry or the financially benefiting counties), must—under the fiduciary obligations your bill would impose on the board and the trust lands—make decisions that maximizes revenues to the counties, even though it may not be in the interests of public health.

MYTH: The O&C plan take logging levels back to the peak logging levels of the 1970s and 1980s when we cut 1.6 billion board feet from the O&C lands each year. 

Let’s examine those historic levels to which you compare your bill. At the peak, two square miles of Oregon ancient forest was being clearcut each week.

The average amount of BLM timber cut each year from 1970 through 1989 was 0.998 billion board feet. The highest year’s cut was 1972 at 1.553 billion board feet. Perhaps you were thinking of 1964 when BLM cut 1.638 bbf [boosted by an orgy of salvage after the Columbus Day Storm of 1962. (Figures from Oregon Department of Forestry, so old that they are not readily available on their website [I can provide upon request]).

You seem to be downplaying the estimated annual cut. The Governor’s Task Force report estimated (“Run C”) 565 mmbf/year. Each 100 million board feet annually will come off of over 25,000 acres of clearcuts annually

FACT: The plan would produce an estimated 400-500 million board feet per year – 70 percent less than historic levels.

To put the proposal in perspective, more than 3,500,000,000 board feet of timber is logged each year in the State of Oregon. The O&C lands currently account for less than six percent of that total. Over 78% percent of the timber logged in Oregon comes from private and tribal lands.

The O&C lands currently account for less than six percent of the total because they are carrying most of the conservation obligation for imperiled species and water quality, thereby relieving state forestlands and private timberlands from more obligations than they would otherwise have. Private lands are bing unsustainably logged, first to cash in on the American housing bubble and now to cash in on the Chinese housing boom.

MYTH: The O&C plan will privatize the O&C forest lands and cut off access to the public.

This language in Section 312 of the bill is pretty convincing evidence of virtual-privatization: “actions on the O&C Trust lands shall be deemed to involve no Federal agency action or Federal discretionary involvement or control and the laws of the State shall apply to the surface estate of the O&C Trust lands in the manner applicable to privately owned timberlands in the State;”

Under your bill, the National Environmental Policy Act will not apply to the trust lands.

Nor with the consultation requirements of the Endangered Species Act (Sec. 7; the heart of the act). Your bill states, that for the northern spotted owl, Section 9 (the take provision) is complied with because your bill says so.

The Clean Water Act enforcement on your trust lands will also be more difficult than if they remain public lands.

Not much of the public will be wanting to recreate in clearcuts sprayed with herbicides.

FACT: No O&C Lands will be sold or privatized. All O&C Lands will remain in federal ownership and the public will retain access privileges.

MYTH: Congress could solve the county payments problem by assessing a tax on raw log exports or by banning log exports from private lands.

What have you done in this century in re log exports? They are still a job killer. As it “has been a disaster for our economy” (I generally agree, by the way), do you have legislation pending in Congress to leave the WTO? State government has the power to pass any number of measures to address log exports. What have you done to advocate for such measures?

You were not “able to prohibit exporting raw logs” from these lands as such is the case now and has long been. Preserving the status quo in this case is not a win.

Flooding the Oregon market with a dramatically increased supply of  logs from your logging trust logs will likely reduce the amount domestic mills are willing to pay for private Oregon logs—which could result in even more export of Oregon private logs.

FACT:  A tax on raw log exports is unconstitutional. Article I, Section 9, Clause 5 of the U.S. Constitution directly states "No Tax or Duty shall be laid on Articles exported from any State."

In 1994, I fought to ban log exports from both public and private lands. While I was able to pass a ban on exports off of public lands, I couldn't get a Democratically controlled Congress to agree to ban log exports off of private lands. Since then, the United States joined the World Trade Organization (WTO) which has been a disaster for our economy, exported millions of good-paying American jobs, and killed American manufacturing. The WTO prohibits the U.S. from banning exports of natural resources like raw logs, or coal.

MYTH: The O&C Plan would increase logging exports to China.

FACT: Since the land remains in federal ownership, I was able to prohibit exporting raw logs from the O&C Trust lands. The plan would continue the ban on exporting unprocessed logs from federal lands and impose penalties on businesses that violate the law and send family-wage jobs overseas. 

MYTH: The O&C Plan would not provide sustainable or permanent revenues to struggling counties.

These are the same counties that have the lowest property tax rates in the state, and where private logging corporations that are currently shipping raw logs (and jobs) oversees to China enjoy almost no taxation. Essentially privatizing public lands, and liquidating millions of acres of public forests, in order to preserve this unsustainable status quo is a betrayal of Oregon’s progressive values.

If the O&C lands were still in private ownership and taxed at the same rate as private timberlands, the counties would receive on the order of $7 million/year.

Peter, as a political ally from before you were first elected to Congress in 1986, I urge you to consider how your bill—and your obsession with rural counties clearcutting their way to prosperity—has made you a tool for the House Republican leadership in advancing their extreme anti-environmental agenda. Your bill will not solve county funding problems in the long term. But it will leave Oregon a much poorer place, and set dangerous national precedents for privatizing public lands and weakening environmental safeguards. It is time to wake up and realize that the reason Oregon conservationists hate your bill is not because they don’t understand it, but because they understand it all too well.

FACT: The DeFazio-Walden-Schrader plan will generate as much as $90 million a year for struggling rural Oregon counties. The bill also includes critical Secure Rural Schools transition payments that will sustain counties until the long-term management plan is implemented. Under this bill, failing, rural Oregon counties will receive an estimated $166 million for basic government services like education, roads, and law enforcement.

Sincerely,

Seriously,

U.S. REPRESENTATIVE PETER DeFAZIO
Fourth Congressional District, Oregon

CONSERVATIONIST ANDY KERR, Oregon

Please submit further correspondence by visiting the Congressman's website at www.defazio.house.gov

Please learn more about Rep. DeFazio’s conservation record, and particularly the legislation under discussion, at www.andykerr.net/defazio