This is the first of two Public Lands Blog posts that examine the management (and mismanagement) of more than 2 million acres of federal forestlands in western Oregon, administered by the Bureau of Land Management. Part 1 examines the history of rampant clear-cutting of old-growth forests and vast windfalls of revenues to local counties as a result. Part 2 will examine the current threats to these public lands from the timber industry and local counties, and the opportunity that could present itself to secure permanent comprehensive congressional conservation of these imperiled lands.
Map 1. The maximum extent of the O&C and CBWR land grants. The map is a bit misleading. The granted lands were a checkerboard of every other section (1 square mile) of land. In the case of the O&C lands, it was every other section within 10 miles each side of the railroad line, for a total swath of 20 miles. However, many of those lands had already been conveyed to settlers and others in previous land disposal schemes, so an “indemnity strip” of 20 additional miles was added on each side, resulting in a 60-mile-wide swath. (BTW, I’ve never seen a demarcation of eastern and western Oregon as a north-south line through Mount Hood.) Source: Bureau of Land Management.
There may (or may not) soon be an existential threat to over two million acres of federal public forestlands in western Oregon administered (for now, at least) by the Bureau of Land Management. Northwest Forest War III may be in the offing, and such would be a good thing. What will start NWFW III will be a small portion of the overall timber industry (Big Timber) and a smattering of Oregon counties (the Addicted Counties).
Northwest Forest War I (1989–1995) started with the Oregon conservation community launching a guerilla campaign of resistance in occupied Oregon before being rescued by national conservation organizations that made old-growth forests a pressing national issue and resulted in the Northwest Forest Plan.
Northwest Forest War II (2013–2016) started with Big Timber and the Addicted Counties seeking to effectively privatize the majority of BLM lands in western Oregon. They failed, but the Oregon conservation community did not obtain comprehensive congressional conservation.
If Big Timber and the Addicted Counties do not adapt to a changed Oregon, they may end up starting NWFW III and giving the Oregon conservation community just the opportunity it needs to obtain congressional protection for the lands at stake.
Map 2. Bureau of Land Management holdings in western Oregon. The reconveyed CBWR lands are the same color as the revested O&C lands because the BLM routinely conflates them, though in terms of revenue sharing, the law does not. Not shown is the ~32,261-acre parcel of BLM lands, much of it covered in old growth, given to Native American tribes in 2018. The solid sections of O&C lands are a result of past land exchanges; originally they were all checkerboard. Source: Bureau of Land Management.
The Lands at Stake
The federal public forestlands at stake include the Oregon and California Railroad (O&C) revested lands, the Coos Bay Wagon Road reconveyed lands, Forest Service O&C lands, and public domain lands.
Oregon and California Railroad Revested Lands
BLM’s O&C lands total 2.1 million acres. It’s a complicated history, so let’s do a timeline.
• 1866—Congress offered every other section (1 square mile) of land within 10 miles of the track to the first company to successfully build a railroad from Portland to the California border (none of the O&C lands are in California). The Oregon and California Railroad was eventually built, slowed by the Panic of 1873 and plagued with rampant fraud, mismanagement, and bankruptcies. The Southern Pacific ended up owning the line. The railroad was granted 3.7 million acres of federal public lands (Map 1) and was to sell the lands to “bona fide settlers” for no more than $2.50/acre in no larger than 160-acre parcels.
The timber made the O&C lands worth far more than selling them to farmers for $2.50/acre, and farmers couldn’t farm them because they were steeply forested hillsides. Consequently, the Southern Pacific ended up selling some of the land to timber corporations in parcels of thousands or tens of thousands of acres at prices of up to $10 per acre.
• 1916—After a Supreme Court ruling that the Southern Pacific had violated and was violating the terms of the land grant, Congress took back more than 2 million acres that the SP still held, putting the lands in political and policy limbo.
• 1937—Congress enacted the Oregon and California Lands Act (OCLA), which directed (1) how the lands were to be managed, (2) how the counties that had not collected any property tax on the lands since 1916 were to be made whole, and (3) how the revenues from timber sales would be divvied up going forward.
The O&C counties would get 50 percent of the revenues from the sale of timber on their federal lands. To make up for the property tax revenues lost between 1916 and 1937, the OCLA required that 25 percent of gross timber revenues be paid to the counties until the counties were made whole. After the “back taxes” were paid off, the counties would receive 75 percent of timber sale revenues. The remaining 25 percent of the revenues would be deposited in the federal treasury, from which Congress would fund administration of the O&C lands.
The timber cut was set at 500 million board feet annually until the secretary of the interior determined the “sustained yield.” At the time, the directed management was considered to be progressive, and current timber prices made the revenue-sharing formulas appear to be reasonable.
• 1953—Congress specified that approximately 500,000 acres of O&C lands administered by the BLM that were also within the boundaries of various national forests administered by the Forest Service were to be administered as part of the National Forest System, save for the timber revenue sharing formula, which would continue as for other O&C lands.
• 1983—The cut from BLM O&C lands peaked at 1,185 million board feet (mmbf).
• 1994—The Northwest Forest Plan provided for a cut of 211 mmbf—if Congress would fully fund it.
• 1995—present—A series of lawsuits (detailed in Part 2) have been brought by Big Timber and the Addicted Counties to revert to the bad old days of massive clear-cutting of old-growth forests.
Coos Bay Wagon Road Reconveyed Lands
In the same era, Congress made a land grant to build a road between Roseburg and Coos Bay. Same story: fraud and abuse. The Coos Bay Wagon Road (CBWR) checkerboard lands (Map 1) were “reconveyed” to the federal government in the OCLA of 1937 (~75,000 acres). However, in 1939 Congress set up a distinct—and to this day the only true—payment-in-lieu-of-taxes formula for CBWR lands. Up to 75 percent of gross timber receipts could be used to pay Douglas and Coos Counties the amount of money they would have received had the CBWR lands still been in private ownership. The actual payments averaged ~16 percent of gross timber revenues—a far cry from the 75 percent given to the O&C counties and even lower the 25 percent of national forest timber receipts that counties receive.
Forest Service O&C Lands
It turns out that Congress granted lands to the O&C railroad that were within proclaimed national forest boundaries—approximately 500,000 acres of land on the Rogue River–Siskiyou, Willamette, Fremont-Winema, Mount Hood, and Siuslaw National Forests. After World War II the BLM and the Forest Service were both trying to sell timber from the same lands. In 1953, Congress resolved the “controverted” lands issue by saying that in every way they are National Forest System lands, save for the timber revenue sharing formula that would remain the O&C formula.
Public Domain Lands
Besides the O&C and the CBWR lands, the BLM administers a third kind of public lands in western Oregon: public domain (PD) lands, totaling ~400,000 acres (lumped in with PD lands are ~13,000 acres of “other” public lands, which were acquired by BLM over the years). After the federal government obtained the lands by conquest and treaty, PD lands have never left the federal estate and have never been reserved as national forests, parks, or wildlife refuges. PD lands are not under the yoke of the OCLA, but the BLM tends to forget that and often conflates them with O&C (and CBWR) lands. Finally, the BLM administers ~69,000 acres of “split estate” (the BLM owns the underground minerals, if any; someone else owns the surface).
Big Timber + Addicted Counties + Bloated Bureaucracy = Timber-Industrial Complex
The fiscal and political effect of the OCLA of 1937 was the equivalent of the counties levying a tax on BLM timber of 75 percent of gross receipts. After World War II, demand for timber skyrocketed. During the boom of old-growth forest liquidation in the O&C counties, every county road was paved, the libraries were free and plentiful, the dumps were free, and property taxes were very low indeed.
In other words, the O&C counties received a huge money windfall, to which they became addicted. This helps explain why there is no daylight between the positions of Big Timber and the Addicted Counties. There should be, and there would be if several county commissioners were actually representing the interests of their constituents and not their own interest in not having the local timber baron fund an opponent in the next election.
Big Timber: American Forest Resource Council
A relatively small number of wood products manufacturing facilities in Oregon are still dependent on federal timber. The American Forest Resource Council (AFRC), based in Portland, represents these mills. Most Oregon mills are not dependent on federal timber.
Addicted Counties: Association of Oregon and California Counties
There are eighteen Oregon (and no California) counties that have Oregon and California Railroad (O&C) lands within their borders. They are every county west of the Cascade Crest save for Clatsop County, plus Klamath County. Their lobbying group is the Association of Oregon and California Counties (AOCC). Today, not every O&C county is a dues-paying member of the AOCC. Benton, Multnomah, Lane, and Clackamas Counties withdrew from the AOCC for a variety of reasons, including the AOCC’s advocacy of old-growth logging, the the AOCC’s failing to consult with the county before taking controversial positions, AOCC’s efforts to dismantle the Cascade-Siskiyou National Monument, and/or general dissatisfaction with the AOCC.
Bloated Bureaucracy: Bureau of Land Management
The only significant federal forestlands not managed by the Forest Service as part of the National Forest System are BLM lands in western Oregon (Map 2). The BLM has minor forestland holdings in western Montana, eastern Washington, eastern Oregon, and Wyoming.) Congress generally funded BLM administration of these lands. It soon became the case that the BLM’s administrative costs equaled the 25 percent of gross timber receipts kept for the federal government. Congress had incentivized the bureaucracy to clear-cut old-growth forests. However, the BLM was still limited in the timber it could cut by the cost of roads and other administrative costs. After the counties were paid back for their twenty-one years of no property taxes between 1916 and 1937, they brilliantly (they pronounced it “magnanimously”) decided to “plow back” the additional 25 percent of timber receipts they were slated to receive to the BLM to build roads to access more old growth to clear-cut and sell.
The OCLA: A Dominant-Use or a Multiple-Use Statute?
Big Timber and the Addicted Counties would have us believe that the (Oregon and California Lands Act (OCLA) of 1937 (Figure 1) is sacrosanct, akin to an 11th Commandment and a 28th Amendment. That the timber provisions of the OCLA trump the Endangered Species Act, the Clean Water Act, and every other federal statute that came after 1937, as well as the Antiquities Act and every other federal statute that came before 1937.
Figure 1. The opening of the infamous Oregon and California Lands Act of 1937. Progressive in its time, but far past its expiration date. Source: Statutes at Large.
Big Timber and the Addicted Counties have always held that the OCLA is a law that requires logging forests and paying counties, that other uses of the lands are allowed or tolerated but timber comes first. Are they right?
Let’s examine the crux of the 1937 statute:
. . . such portions of the revested Oregon and California Railroad and reconveyed Coos Bay Wagon Road . . . shall be managed . . . for permanent forest production, the timber thereon shall be sold, cut, and removed in conformity with the principal [sic] of sustained yield for the purpose of providing a permanent source of timber supply, protecting watersheds, regulating stream flow, and contributing to the economic stability of local communities and industries, and providing recreational facilties [sic].
Overlooking that Congress didn’t know how to spell principle or facilities, how do you read the statute? Is it “timber-first!”? Or is it the first attempt by Congress at a multiple-use statute (though leaving out fish and wildlife)? Does “recreational facilties” mean just campgrounds or does it include trails and even large natural areas in which to recreate? Does “regulating stream flow” mean don’t clear-cut so much that streams dry up in late summer or cause floods downstream in early spring? Does “permanent forest production” mean something different from “permanent timber production?” Or does “forest production” include other products of the forest that are not measured in board feet, such as clean and plentiful water, beauty, and recreation? Three basic positions have been taken:
• The conservation community sees a multiple-use statute, albeit an inarticulately worded and less than fully encompassing one.
• Big Timber and the Addicted Counties see a timber-above-all-else statute.
• The BLM sees a timber-focused statute in the context of a United States Code that also includes the Endangered Species Act, the Antiquities Act, the Clean Water Act, and many other statutes that they must obey, follow, and/or enforce.
As mentioned earlier, a series of lawsuits has been brought by Big Timber and the Addicted Counties to enforce their interpretation of the OCLA. Part 2 will look at the current litigation morass. The bottom line is that having lost their social license to clear-cut older forests on public lands, Big Timber and the Addicted Counties are seeking a legal license to do so. If they prevail, NWFW III will commence.
Sources
• “The Oregon & California Railroad Grant Lands’ Sordid Past, Contentious Present, and Uncertain Future: A Century of Conflict” by Michael C. Blumm and Tim Wigington. Boston College Environmental Affairs Law Review 40 (2013).
• “The Oregon and California Lands Act: Revisiting the Concept of “‘Dominant Use’” by Deborah Scott and Susan Jane Brown. Journal of Environmental Law and Litigation 21 (2006).
• “Oregon and California Lands Act” by William G. Robbins. The Oregon Encyclopedia.
• “Overview of the Oregon and California (O&C) Grant Lands Act of 1937”. Bureau of Land Management.
• “Transferring Western Oregon Bureau of Land Management Forests to the National Forest System” by Andy Kerr. Larch Company Occasional Paper #2 (2007).
• “The Oregon and California Lands: A Peculiar History Produces Environmental Problems” by Paul G. Dodds. Environmental Law 17 (Spring 1987).
• “The Oregon and California Railroad Lands (O&C Lands): Issues for Congress” by Congressional Research Service (2015)
• “Taking Back Our Land: A History of Railroad Land Grant Reform” by George Draffan, Railroads & Clearcuts Campaign (1988).