What to Do with Stranded State Trust Lands in Federal Conservation Areas?

I’m generally not a fan of Representative Chris Stewart (R-UT-3rd), who has a lifetime record of voting right on conservation issues just 3 percent of the time, according to the League of Conservation Voters. Now, though, he’s introduced a bill in the House that has merit. Stewart’s proposed Advancing Conservation and Education Act (aka ACE Act, H.R.244; 116th Congress) had a hearing in the Subcommittee on National Parks, Forests, and Public Lands of the House Committee on Natural Resources on June 18, 2020.

Figure 1. Representative Chris Stewart (R-UT-3rd). Source: Wikipedia.

The stated purpose of the bill is to “maximize land management efficiencies, promote land conservation, generate education funding, and for other purposes.” Who could be against the purposes expressed? But while the intent is excellent, the execution needs improvement.

The Problem Addressed by the Bill

The problem addressed by the bill is well explained in the findings section. Following is a list of the findings, with my commentary on each.

Congress finds that—

(1) at statehood, Congress granted each of the western States land to be held in trust by the States and used for the support of public schools and other public institutions;

A future Public Lands Blog post will examine state trust lands in detail, but for now suffice it to say that states carved out of the public domain were granted significant amounts of land upon achieving statehood. The granted lands were a varying number of 1-square-mile sections in each 36-square-mile (6-by-6-mile square) township. The amounts increased so that the most recent states received the most land (save for Hawai’i).

(2) since the statehood land grants, Congress and the executive branch have created multiple Federal conservation areas on Federal land within the western States, including National Parks, National Monuments, national conservation areas, national grassland, components of the National Wilderness Preservation System, wilderness study areas, and national wildlife refuges. 

Any executive branch actions were done under authority expressly granted by Congress. I wouldn’t consider a national grassland to be a federal conservation area, but whatever.

(3) since statehood land grant land owned by the western States are [sic] typically scattered across the public land, creation of Federal conservation areas often include [sic] State land grant parcels with substantially different management mandates, making land and resource management more difficult, expensive, and controversial for both Federal land managers and the western States;

Yep.

(4) allowing the western States to relinquish State trust land within Federal conservation areas and to select replacement land from the public land within the respective western States, would—

(A) enhance management of Federal conservation areas by allowing unified management of those areas; and

(B) increase revenue from the statehood land grants for the support of public schools and other worthy public purposes.

Amen on (A), but (B) can be achieved in a better way. The states should be given money, not federal public land, for their stranded assets within federal conservation areas.

Figure 2. A good—but not yet great—bill. Source: Congress.gov.

The Solution to the Problem

Land exchanges are the wrong approach because land exchanges are almost always controversial (all federal public lands have their constituencies). Rather than trade the stranded state lands for federal public lands elsewhere, the federal government should buy the lands over the next several years. If the states are given money for their lands, they can choose to invest the money in more land, or they can invest in another instrument that might offer a higher rate of return—resulting in more money for education.

How much money are we talking about to buy the stranded lands? The National Association of State Trust Lands (NASTL, formerly the Western State Land Commissioners Association) estimates that “there are nearly two million acres of trust lands and minerals trapped” in federal conservation areas.

Ryan Brunner, the South Dakota Commissioner of Schools and Public Lands and NASTL president, tells me that the problem is most acute in Arizona (~267,000 surface and subsurface acres and ~239 subsurface mineral acres), Wyoming (~240,000 acres), and Utah (~250,000 acres). He says that there are large amounts of stranded state lands within federal conservation areas in Alaska, New Mexico, and Colorado. He notes there are also trapped lands in California, Washington, Oregon, Idaho, and Montana. The NASTL survey was nearly a decade ago, so the two million acre number is probably higher as federal conservation areas have increased since then.

See Map 1 for a typical example of state lands within a federal conservation area. Let’s very generously assume that the average market value of an acre of stranded state lands is $500. (Much of the state land acreage within federal conservation areas is of low economic value, as is much of the federal public land in those areas). $500/acre  * 2 million acres = $1 billion. 

Map 1. The 99,428-acre Cedar Mountain Wilderness (green) was established in 2006 on lands administered by the Bureau of Land Management (tan). The hatched and blue squares are State of Utah lands. If only hatched, the state owns only the subsurface minerals. The pink is a military reservation. Source: Utah School and Institutional Trust Lands Administration.

The money for the federal government to buy the stranded state lands can come from the federal Land and Water Conservation Fund (LWCF), first established in 1965. Between 1965 and 2019, $40.9 billion went into the LWCF, while Congress spent only $18.9 billion. On average, Congress has been spending $407 million from the fund each year. The Great American Outdoors Act signed by President Trump on August 4, 2020, guarantees $900 million a year in funding for the LWCF. Setting aside the question of the unspent backlog, annual spending will now more than double. The new law says that if Congress doesn’t spend the funds in congressional appropriations bills, the federal agencies can spend them without further approval of Congress.

The ACE Act should be modified to require that $100 million of the projected average of $593 million of new annual LWCF funding be spent each year acquiring state lands in federal conservation areas until all such lands are again federal public lands.

What are the political chances? Representative Stewart, whose idea the bill was, is in the minority in the House of Representatives at the moment (fortunately!). But Stewart is a member of the Interior, Environment, and Related Agencies Subcommittee of the House Appropriations Committee. The chair of that subcommittee is Representative Betty McCollum (D-MN-4th), a staunch public lands conservationist (rated as a 94 percent lifetime correct voter by the League of Conservation Voters). Now, a McCollum-Stewart bill offers a chance for both representatives to leave an enduring legacy of conservation and education.

Figure 3. Representative Betty McCollum (D-MN-4th). Source: Wikipedia.

Time for the Public Lands Conservation Community to Step Up

Some of my cynical conservationist friends may suggest that it’s not important to acquire these stranded state lands because they are indeed stranded and therefore under no threat of despoliation. To them I would say: 

•       Conservationists or our predecessors bled to get these areas established as federal conservation areas. The job is not done until they are entirely federal public land.

•       It’s the right thing to do morally. Through no fault of their own, the states have these stranded assets that are dedicated for public education.

•       It’s the right thing to do politically. As conservationists seek additional federal conservation areas, the presence of scattered state land holdings is often a political obstacle. Having an established and reliable mechanism for converting problematic state lands into higher conservation value federal public lands can result in more and larger federal conservation areas. (It’s a great day when the moral thing and the political thing coincide!)

State Trust Lands in Oregon Worth Acquiring by the Feds

Let’s close with some maps of various State of Oregon Common School Fund sections on and near national forests in southwest Oregon. These lands should also be acquired by the federal government for the benefit of this and future generations. There are other Oregon examples as well as similar cases in most of the western states.

Map 2. The lone state section (purple) is surrounded mostly by the Umpqua National Forest and Bureau of Land Management holdings. It is adjacent to the South Fork Cow Creek Unroaded Recreation Management Area. Conservationists are recommending that Senator Wyden introduce legislation making the South Fork of Cow Creek a wild and scenic river. Source: US Forest Service.

Map 3. The BLM land to the east of the state section is a research natural area and area of critical environmental concern. The Forest Service land on three sides is inventoried roadless area. Source: US Forest Service.

Map 4. Though the Minnow Creek Trail never comes within a mile of Minnow Creek, it’s still an important trail. The trailhead is on State of Oregon land that is surrounded on four sides by federal public lands. The trail is in the 3,423-acre Buckhorn Mountain Uninventoried Roadless Area. Source: US Forest Service.

Map 5. The BLM land to the east of the state section is a research natural area and area of critical environmental concern. The Forest Service land to the west is a protected area. The Nature Conservancy owns the adjacent private lands. It’s all a botanical wonderland. Source: US Forest Service.

Map 6. Conservationists are recommending that Senator Wyden introduce legislation making the South Fork of Sixes River a wild and scenic river. If this status is established, the state land would be within the protected corridor but not protected, as it is not federal public land. Source: US Forest Service.

Map 7. Senator Jeff Merkley has introduced legislation to expand the Smith River National Recreation Area into Oregon. Besides adding the Cedar Creek tributary (and many others!) to the North Fork Smith Wild and Scenic River, the legislation would facilitate conversion of the state parcel to federal ownership. Senator Ron Wyden is cosponsoring the legislation. Source: US Forest Service.

Amending the Eastside Screens, Part 2: The Science of Management and the Management of Science

This is the second of what were to be two but now are three Public Lands Blog posts that consider the desire of the Forest Service to amend a provision of the “Eastside Screens,” standards designed to protect public forests east of the Cascade Range. Part 1 examined the history, science, and politics leading up to the adoption of the Eastside Screens and their implementation since then. Part 2 explores issues both of management and of the science behind the management. Part 3 will suggest what the Forest Service could do to improve the Eastside Screens, in both the short and long term.

Figure 1. A low-intensity surface fire right now would knock back the young ponderosas and white firs that might otherwise compete with the old-growth ponderosa pines. Source: Larry N. Olson. (This image appeared in the book Oregon Wild: Endangered Forest Wilderness, Timber Press, 2004.)

In the beginning, the Forest Service created the “21-inch rule” as one of many rules in the Eastside Screens. The “Interim Management Direction Establishing Riparian, Ecosystem and Wildlife Standards for Timber Sales”—aka the Eastside Screens—has been in place as “interim” direction since 1995. At its core, the rule says: Thou shalt not cut down a live tree larger than 21 inches in diameter measured at breast height (DBH, or 4.5 feet above the ground) on the eastside forests of Oregon and Washington.” The rule generally ended the massive liquidation of old-growth trees that had always been agency policy.

Now the Forest Service is proposing to “revise” the rule “in light of current forest conditions and the latest scientific understanding of forest management in areas that have frequent disturbances, like wildfires.” The leader of the agency effort takes great pains to say that the proposed change is narrow and surgical, and is based on the best available science. The agency has not yet publicly revealed the particular modification it will propose, but it will likely be an age-based cutoff rather than a diameter-based cutoff.

Just what age? The same age for all species? Will diameter (largeness) continue to count at all?

The 21-inch rule has both pluses and minuses. So would a rule based on age. But any rule should be based on science specific to the eastside forests and not extrapolated from science specific to the westside forests. And any rule should steer the agency to manage the eastside forests to serve their greatest need: more old trees, dead or alive.

Forest Service “Science”

The managers in the Forest Service’s National Forest System branch are relying on the scientists in the Forest Service’s research branch to produce the science to support the effort. Twelve scientists and other experts—all Forest Service employees—have produced a white paper entitled “The 1994 Eastside Screens—Large Tree Harvest Limit: Synthesis of Science Relevant to Forest Planning 25 years Later.” A problem with the white paper is that it makes numerous references to northern spotted owls. The very definition of the demarcation line between westside and eastside forests is that the former host northern spotted owls and the latter do not.

Furthermore, the white paper points out that livestock grazing, roads, and fire suppression are all problems in the eastside forests. Still, the Forest Service’s management branch has always refused—and continues to refuse—to address these issues.

As supporting resources for the plan amendment project, the Forest Service research branch offers up two chapters from its “Synthesis of Science to Inform Land Management Within the Northwest Forest Plan Area” general technical report, noting they are “relevant to” the Eastside Screens plan amendment project. While not irrelevant, the chapters are specific to the Northwest Forest Plan area—in other words, the westside forests. The absence of northern spotted owls is evidence that the eastside forests are significantly and materially different from the westside forests.

Perhaps because they were not given adequate time, the scientists have had to phone in the science. Where is the specific eastside forest research and synthesis?

The Administrative Elegance of the 21-Inch Rule

Inherently, bureaucrats want to maximize their discretion. They don’t like hard-and-fast rules that limit their actions. Managers argue that circumstances on the ground are varied and resist a one-size-fits-all approach.

Inherently, conservationists fear agency abuse of discretion and love unambiguously clear commands that limit agency discretion. Their experience has too often been that if Congress grants the agency discretion, the agency abuses that discretion.

Inherently, scientists know the world is neither black nor white, on nor off. So scientists tend to frame recommendations to agency managers in ranges rather than absolutes (for example, a riparian buffer should be between 150 and 300 feet, depending on . . . ). While scientists are correct in acknowledging varying conditions, they fail to recognize that bureaucrats are under pressure to achieve certain outcomes (for example, to get the cut out). Given those pressures, the 150 feet in the example becomes both the floor and the ceiling.

The administrative elegance of the 21-inch rule is that anyone with a D-tape (a diameter tape measure scaled in diameter though it actually is measuring circumference) will come up with the same result. No discretion is required, so no abuse of discretion is possible.

The Limits of the 21-Inch Rule

Not all old trees are large, and not all large trees are old. There is essentially a poor correlation between age and diameter (Figure 2). While trees all grow old at the same rate, trees grow large faster on more productive growing sites than on poor growing sites. In any forest, but perhaps especially in forests with fires of relatively high frequency but low intensity, both large and old are important.

Figure 2. The correlation between size and age for ponderosa pine in eastern Washington. Below the pink horizonal line are trees less than 21 inches (53.3 centimeters) in diameter at breast height. To the left of the vertical pink line are trees younger than 150 years old. Source: Robert Van Pelt.

The Eastside Forest Scientific Societies Panel recommended that the Forest Service no longer log large young, large old, and small old trees (see Part 1 of this three-part post). The 21-inch rule in the Eastside Screens means that the Forest Service does not allow logging of live large young and old trees, casting aside the small old trees. The agency now wants to log more large young trees and perhaps not log more small old trees.

Is Age a Better Management Metric Than Diameter?

Would an age-based cutoff for logging be a better management tool for eastside forests than a diameter-based cutoff? Yes and no.

First we have to consider whether an age-based cutoff can ever be as precise as a diameter-based cutoff. Remember: if discretion is required, abuse of discretion is always possible.

Before the early 1990s, to assess a tree’s age, one had to either core the tree with an increment borer or cut down the tree and count the rings before bucking it up and hauling it away, an option disfavored by wildlife everywhere. Regarding the first method, large trees need a big increment borer that requires massive strength to overcome the stresses put on it by a very large mass of wood, and the core often breaks even if the borer can reach the center of the tree.

Since the early 1990s, scientists have figured out ways to approximate the age of a tree just by assessing its looks. As trees age they tend to take on similar characteristics at similar times. One interesting metric is the size of the largest bark plate or patch of bark between the cracks in the bark. Robert Van Pelt of the University of Washington has done pioneering work on the metric. But this metric is not precise, and as Figure 3 shows, relying on bark plates to identify trees under a certain age for cutting can result in trees older than the cutoff age being logged.

Figure 3. While bark plate width is a better predictor of tree age than tree size, where the management line is drawn is critical. In the sample above, if the age cutoff were 150 years, the maximum bark plate width on trees marked for cutting would be 15 centimeters (2.54 cm = 1 inch, so ~6+ inches). In this sample graph, three trees over 150 years old and up to 225 years old with bark plates just under 15 centimeters in width would be logged using such a metric.

Another issue is that a diverse, healthy, and ecologically useful forest has trees in all cohorts. If the Forest Service cuts most of the small young trees because they are below a certain age, there might not be enough of the large young, large old, and small old in the future. Of course, the reason eastside forests are in such a state is that the Forest Service overcut the large—be they young or old—trees before the Eastside Screens were put in place. In most stands (outside of roadless areas, of which there is precious little acreage), the largest and oldest trees were the trees not worth taking the first (or second or even third) time, but are the trees that were next to be cut.

Then there is the fact that relying on any single metric for conservation is rarely a good idea. The Eastside Forest Scientific Societies Panel report suggested no longer logging both (1) any tree of any species 150 years old or older; and (2) any tree 20 inches DBH or larger. No, “20 inches” is not a typo. In fact, when the Forest Service chose their Eastside Screens, they specified 21 inches. In this case, the Forest Service took an inch and countless board feet went to the mill. Size matters. The Forest Service also decided that only live trees would fall under their 21-inch rule. The scientific societies panel report did not exclude dead trees in their recommendations.

The Need for More Old Trees

Eastside forests need more old trees, dead or alive. In general, due to fire exclusion, high-grade logging, and livestock grazing, the eastside forests (save for those at high elevations) have fewer large and old trees than they used to, but often more trees overall. This is because exclusion of relatively frequent but low-intensity fire (caused in part by the introduction of livestock) has interrupted the periodic natural thinning of stands. The result is that younger trees (sometimes ponderosa pine but often white or grand fir) are crowding out residual live old-growth ponderosa pine trees, turning them prematurely into snags—often not by fire but by insect or pathogen. In the normal course of events, these old-growth ponderosa pines would, on average, have another several centuries of life.

Don’t get me wrong. I love snags. Some of my best friends are snags. There is more life in a dead tree than a live tree. Eastside forests need more snags, especially large snags from old trees. However, eastside forests are also dramatically depauperate of very large old-growth ponderosa pine (aka yellowbellies).

The judicious killing of younger competing trees—whether by fire or chainsaw—can allow the older and larger trees to live. Please notice that judicious killing does not necessarily mean cutting down the trees, bucking them into logs, and hauling the logs to the mill. It can and often has, and that can be okay. However, a tree can also be killed in various ecologically friendly ways, including but not limited to

• reintroducing fire into the forest stand in ways that will kill most small trees and spare most large and old ones (Figure 4);

• letting forest fires burn to the same effect;

• gridling the tree so it dies from the outside in to become a useful snag;

• blowing the top off a tree so it dies from the inside out to become a useful snag;

• scorching the tree with a backpack flamethrower while on snowshoes to limit collateral damage;

• cutting the tree down and leaving it as terrestrial large woody habitat; and/or

• cutting the tree down and placing it in a nearby stream for large woody aquatic habitat.

Figure 4. The National Park Service, in this case in Crater Lake National Park, is reintroducing fire into fire-excluded stands without having to thin first. The Park Service is comfortable with fire, while the Forest Service still is not. Source: Elizabeth Feryl, Environmental Images. (This image appeared in the book Oregon Wild: Endangered Forest Wilderness, Timber Press, 2004.)

Conservationists’ Concerns

While the Eastside Screens provide guideposts for land managers, the Forest Service scientists recommend that the Forest Service land managers have carte blanche. The rationale is that forests are complex and differ depending on latitude, elevation, aspect, species, precipitation, temperatures, and other factors, so one rule does not fit all. That is true, but one rule is superior to no rules.

Out of concern that the revision process is being driven by political and economic considerations, is dismissing the work of independent scientists, and is going forward at a time when public engagement is difficult, twenty-seven national, state, and local organizations (Figure 5) have jointly sent a letter to the Pacific Northwest Regional Forester that opens as follows:

For 25 years, these rules have provided a safety net for old-growth forests, large trees and structure, and wildlife in Eastern Oregon and Washington. They have also made it easier for conservationists, Tribes, local elected officials, logging interests, and the Forest Service to find common ground based on a clear understanding of what is and is not allowed on our public lands.

The letter goes on to allege that the process is being rushed, the effort relies on flawed science, and the public trust is being violated. It asks that the process be suspended and that any change in the rules be done through a process that is “balanced, transparent, comprehensive, and scientifically sound” and that “prioritizes wildlife protection, climate resilience, and public consensus.” Earlier, Oregon Wild, on behalf of some other organizations (including The Larch Company, my LLC), sent extensive “scoping” comments to establish standing and preserve their interests in the event of a legal challenge.

Figure 5. Organizations—including The Larch Company (moi!)—that signed a joint letter to the Forest Service critical of efforts to change the Eastside Screens. Source: Oregon Wild.

Part 3 of this Public Lands Blog series will offer recommendations on what course the Forest Service should take regarding the 21-inch rule and eastside forests in general.

Another Northwest Forest War in the Offing? Part 2: Current Threats and Perhaps an Epic Opportunity

 This is the second 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 examined the history of rampant clear-cutting of old-growth forests and vast windfalls of revenues to local counties as a result. Part 2 examines 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.

Fig. 1. If Big Timber and the Addicted Counties get their way, large-scale old-growth forest liquidation will resume on western Oregon federal public lands administered by the Bureau of Land Management. Source: Bureau of Land Management.

To review, the fate of more than 2 million acres of federal forestlands in western Oregon turns on the question of how the Oregon and California Lands Act (OCLA) of 1937 is to be interpreted. These three basic positions have been taken:

• The conservation community sees a multiple-use statute—although a less-than-fully-encompassing one—and see that multiple-use statute alongside other applicable statutes, including but not limited to, the Endangered Species Act, the Clean Water Act, and the Antiquities Act.

• 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.

Figure 2. Prior to Northwest Forest War II, old-growth forest liquidation was rampant. Just three logs on a loaded log truck means that they undoubtedly came from an old-growth forest. Source: Bureau of Land Management.

War by Litigation

Big Timber (in the form of the American Forest Resource Council, AFRC) and the Addicted Counties (in the form of the Association of Oregon and California Counties, AOCC) have brought a series of legal cases that have successfully (so far and in some courts) relitigated matters of law that previously went against them. One needs a scorecard to make sense of it all, particularly as over the decades, various courts have found, among many other inconsistencies, that

• the OCLA is a timber-first statute;

• the BLM (forced by the Clinton administration’s secretary of the interior, Bruce Babbitt) can place off-limits to logging large late-successional (mature and old-growth) forest reserves and riparian (streamside) reserves on O&C (and CBWR) lands, using its authorities under the Clean Water Act and the Endangered Species Act;

• the BLM must sell a very large amount of timber, despite the Clean Water Act and the Endangered Species Act;

• a president, using powers granted by Congress, can establish a national monument including O&C lands; and 

• a president cannot establish a national monument on O&C lands if those lands have commercial timber potential (most do).

This all has not yet been sorted out.

Following is a summary account of the pertinent OCLA legal cases and their current status. There are the resource management plan cases, the Cascade-Siskiyou National Monument cases, and the northern spotted owl critical habitat case.

The Resource Management Plan Cases

1995 RMPs. In 2015, Big Timber challenged the BLM’s 1995 resource management plans (RMPs), which in effect outline how the Northwest Forest Plan (NWFP) is to be followed on BLM lands. Yes, Judge William Dwyer of the US District Court for Washington had ruled in 1995 that the NWFP was legal for BLM lands, but wait a decade and try again in a different court. Big Timber’s court of choice was the US District Court for the District of Columbia, in most particular Judge Richard J. Leon. Judge Leon found that the BLM had violated the OCLA by not offering the maximum amount of timber that it said it would in its RMPs. (In earlier legal battles, Big Timber’s judge of choice, Thomas Penfield Jackson, sat on the same district court.)

2016 RMPs Case 1 (Big Timber). In 2016, Big Timber (different plaintiffs) challenged the BLM’s 2016 RMPs, which in effect withdrew the BLM from the NWFP but nonetheless resulted in a net increase of “reserves” from approximately two-thirds to three-quarters of the BLM lands in western Oregon. Big Timber asked the court to overturn the RMPs and force the BLM to revise them in order to offer for sale the maximum amount of timber possible as OCLA requires. Judge Leon might well grant their wish.

2016 RMPs Case 2 (Addicted Counties). In 2016, the Addicted Counties filed an essentially identical challenge to 2016 RMPs Case 1. Legally and politically, there is no daylight between Big Timber and the Addicted Counties. This is also before Judge Leon.

2016 RMPs Case 3 (Conservation Community). In 2016, several Oregon conservation organizations challenged the 2016 RMPs’ halving of the riparian reserves of the 1995 RMPs (which were in alignment with the NWFP), for failing to consider the environmental consequences for Forest Service timberlands of the BLM pulling out of the NWFP. Alas, this suit was lost in the District Court for Oregon and is on appeal to the US Ninth Circuit Court of Appeals.

The Cascade-Siskiyou National Monument Cases

In 2000, President Clinton proclaimed the Cascade-Siskiyou National Monument, which included both BLM O&C and public domain (PD) lands. Big Timber and the Addicted Counties groused but did not sue.

In 2017, President Obama expanded the Cascade-Siskiyou National Monument. Hedging their bets, Big Timber sued in both the US District Court for Oregon and the US District Court for the District of Columbia (different plaintiffs). The Addicted Counties also sued in DC (same judge). Their complaints are essentially interchangeable.

Judge Michael McShane in the District Court for Oregon found the monument expansion to be legal and that O&C lands could be included in a national monument. Judge Leon in the District Court for the District of Columbia found the opposite. Appeals in the respective courts of appeal are ongoing.

The Northern Spotted Owl Critical Habitat Case

In the US District Court for the District of Columbia, Big Timber seeks to overturn the critical habitat rule issued by the Fish and Wildlife Service that specified critical habitat (CH) necessary for the conservation of the Endangered Species Act–protected northern spotted owl (NSO). No decision yet. A lot of public forestland (BLM and Forest Service) has been designated NSO CH. Though filed in 2015, the case has still not been decided on its merits (or lack thereof).

Figure 3. A one-log load circa 1960. Source: Umpqua Valley Museums.

How the Cases Could Go

In the end, the interests of the conservation community could prevail on appeal in both the Ninth Circuit in the West and the DC Circuit in the East. Ironically, our interests and those of the federal government are the same. In all cases—save for the conservation community suit against the BLM—the position of the federal government is that Big Timber and the Addicted Counties are wrong. Even under this horrible president, the federal government seeks to maintain its discretion and prerogative. 

Yes, the Trump administration is arguing in federal courts in Oregon and in Washington DC that the president can proclaim a national monument, while simultaneously arguing in the District Court for Utah that a president can shrink national monuments previously proclaimed. Yes, the Soda Mountain Wilderness Council, the primary advocate for the establishment of and continuation of the Cascade-Siskiyou National Monument, has intervened in the cases in defense of defendant Donald J. Trump.

Go Trump administration! (Actually, Trump administration, just go.)

On the other hand, consider this a gentle warning to the Oregon and national public lands conservation community. A gentle warning in the same vein as my Nest® smoke detectors’ gentle voice warning that it has detected some smoke in the kitchen, which permits me a chance to remedy the chicken (organic pasture-raised and slaughtered by vegan virgins, of course) that is burning in the oven before the devices simultaneously clang and yell at me.

Big Timber and the Addicted Counties could legally prevail. The courts, especially the appeals courts and higher, are being populated with Trump-appointed conservatives (often in fact corporate socialists or libertarian extremists). Precedent isn’t as precedential as it used to be under this presidency, as this president has especially packed the courts of appeal and higher.

The ramparts are staffed. Oregon Wild, Klamath-Siskiyou Wild, Cascadia Wildlands, Klamath Forest Alliance, and others are challenging bad BLM timber sales.

Lawyering the conservation community’s way through the O&C litigation quagmire are the most able Susan Jane Brown of the Western Environmental Law Center and Kristen Boyles of Earthjustice. If the Oregon conservation community fails to prevail, it will be because of conservative activist judges, not our lawyers.

What the conservation community is now doing is exclusively defense—defending a status quo BLM management of O&C (and CBWR, and PD) lands that while far better than what it used to be is far from what it should be.

Figure 4. If the tree is heavy enough, it will press down on the bar of the chainsaw that is killing it, thereby requiring a hydraulic assist. Source: Bureau of Land Management.

When Handed Lemons, Make Lemon Mojitos

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 that may or may not be legal. Depending on the outcome of the pending litigation, the Oregon conservation community should be prepared to seize the opportunity to secure enduring protection for BLM lands in western Oregon.

If there is no legal license to log the crap out of most BLM lands in western Oregon, the conservation community should complement our site-specific challenges to bad BLM timber sales with increased advocacy for additional areas of wilderness, wild and scenic rivers, national recreation areas, legislated areas of critical environmental concern, and other comprehensive congressional conservation for 2.6 million acres of federal public lands in western Oregon.

If it turns out there is a legal license to log the crap out of most BLM lands in western Oregon, the conservation community must seize the once-in-a-lifetime opportunity to secure enduring comprehensive congressional conservation for each and every damn acre of BLM lands in western Oregon.

Thank you, Big Timber and the Addicted Counties, for starting another Northwest forest war.

NWFW III will be fought more locally than nationally in equal parts. If Big Timber and the Addicted Counties feel besieged now, just wait. They will rue the day they tried to reclaim the bad old days and not adapt to changing times.

The Oregon and the national conservation community will take to the streets, the trees, and the Congress. Its ranks will swell with a new generation of public lands conservationists who first came to love forests for their unique ability to store and sequester otherwise atmosphere-endangering carbon.

Roadmap to a Sane Resolution to NWFW III

If massive clear-cutting of old-growth forests resumes big-time on federal public lands, it will be up to the Oregon congressional delegation to put an end to it, once and for all. Let’s look at the positions of the Oregon congressional delegation on old-growth logging.

During Northwest Forest War II (2013–2016), Democrats Ron Wyden and Jeff Merkley introduced legislation that would have protected all moist forest stands on BLM lands more than 80 years old and in dry forest stands all trees more than 150 years old. Representative Earl Blumenauer (D-3rd) has called for the permanent protection of all older forests. Representative Suzanne Bonamici (D-1st) doesn’t have a lot of federal forestland in her district, but her environmental positions tend to track those of Blumenauer, Wyden, and Merkley. While on the wrong side during NWFW II, Representatives Kurt Schrader (D-5th), Peter DeFazio (D-4th), and Greg Walden (R-2nd) still had legislation that would have protected trees more than 120 years of age in western Oregon BLM forests.

The Oregon congressional delegation will either rise to greatness and leave a great conservation legacy or fall from grace and leave a despicable legacy. I’m betting on the former.

Here’s the roadmap:

•       Abolish the Oregon and California Lands Act.

•       Expand the National Forest System by transferring ~2.4 million acres from the BLM to the Forest Service.

•       Expand the National Wild Refuge System by transferring ~0.2 million acres from the BLM to the Fish and Wildlife Service.

•       Take the $100 million that would be saved annually by such transfers and pay the Addicted Counties one last big check they don’t deserve.

•       Dedicate the former western Oregon BLM forestlands to the storage and sequestration of carbon for the benefit of the climate, biological diversity, and watershed integrity for this and future generations.

Thank you, Big Timber and the Addicted Counties, for never adapting to a changed Oregon. The Oregon conservation community wouldn’t be able to do this without your help.

NWFW III will be the best so far.

Figure 5. Growing up in timber country, I never believed the maxim that the smaller the penis on the man, the larger the bar on the chainsaw. This one (bar, that is) is at least 48”. Unfortunately, 72” bars are still being manufactured. Source: Bureau of Land Management.

The Presidency in 2020: To Be Decided by 538 Votes Cast in 51 Elections

The Presidency in 2020: To Be Decided by 538 Votes Cast in 51 Elections

We don’t have one national election for president in 2020. Rather we have fifty-one elections (in fifty states and the District of Columbia) that will decide the next president of the United States. Today, we can predict with certainty the total number of votes that will be cast for the presidency: 538.

That is 2 votes for each state (equaling the number of US senators), additional votes equaling the number of members of each state’s delegation to the House of Representatives (435 total), plus the 3 electoral votes cast by DC (which we can hope will someday be the state called Douglass Commonwealth).

Figure 1. Electoral votes allocated by states. Source: Wikipedia.

What Does This Have to Do with Public Lands?

The US Constitution’s property clause (Article IV, Section 3, Clause 2) says:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; . . .

Regarding the property clause, the Supreme Court has found that “[t]he power over the public land thus entrusted to Congress is without limitations” (United States v. Gratiot, 39 U. S. 526 [1840]). However, Congress has delegated much of its power over the public lands to either the president (for example, the power to establish national monuments and to proscribe oil and gas development in areas of the ocean), the secretary of agriculture (the National Forest System, administered by the USDA Forest Service), and—mainly—the secretary of the interior (the National Park System, the National Wildlife Refuge System, Bureau of Land Management holdings, and such).

Cabinet secretaries are nominated by the president and confirmed by the Senate. With its current cabinet and their predilections, the Trump administration is an existential threat to public lands as we know and love them. This is mainly because Trump has blown through so many norms (“a standard or pattern, especially of social behavior, that is typical or expected of a group”). No previous president would even have considered trying many of the things Trump has gotten away with (for me, shrinking national monuments comes immediately to mind). Imagine him in a second term.

To protect the public lands for this and future generations, we must put the current administration out to pasture.

The Popular Vote Doesn’t Matter

Just ask Andrew Jackson (1824), Samuel Tilden (1876), Grover Cleveland (1888), Al Gore (2000), and Hillary Clinton (2016). They all received the most votes from voters but lost in the Electoral College vote.

Figure 2. The 2016 presidential election. Though receiving more popular votes, Hillary Clinton (blue) received only 227 electoral votes. Trump (red) received 304 votes. Colin Powell received 3 votes, while John Kasich, Ron Paul, Bernie Sanders, and Faith Spotted Eagle each received 1 vote. Source: Wikipedia.

Electoral votes in most states are winner-take-all, save for Maine (4) and Nebraska (5), which give two votes to the statewide winner and a vote to the winner of each congressional district. From an Electoral College standpoint, any popular vote above the 50 percent plus one vote required to win the Electoral College votes in the forty-eight states where a plurality win is good enough, is a vote that makes no difference. As Clinton showed, one can get millions more popular votes than her opponent, but if those extra votes are in blue states, they are for naught.

Unless one wins the Electoral College, one doesn’t get to govern, no matter how worthy and just the policy proposals. However, given the existential threat Trump poses to the public lands—or to [fill in the blank]—the consequences of winning (or losing) are just more important in 2020.

“Electability” Boils Down to the Ten States in Play

In 2020, electability will boil down to who wins the Electoral College votes in ten states. (See Figure 3.) The blue states will most likely vote Democratic (209 votes), while the red states will most likely vote Republican (204 votes). It is the toss-up gray (some prefer the resulting mix of purple) states that will decide who is the next president of the United States (125 votes).

Figure 3. The states in play. Click on the source link to go to an interactive version where you can change the colors on the map and see what it takes to get to 270 electoral votes. (Hint: try doing it without Florida.) Source: Taegan Goddard’s Electoral Vote Map.

In each of the ten toss-up states, the margin of victory for the winning presidential candidate in 2016 was less than 2 percent. Trump is defending six of these states he won in 2016: Arizona (11), Florida (29), Michigan (16), Pennsylvania (20), Wisconsin (10), and North Carolina (15), for a total of 101 votes. The Democratic nominee will be defending four states: Maine (4), Minnesota (10), New Hampshire (4), and Nevada (6), for a total of 24 votes (in 2016 Clinton received 23 of these votes because Trump won in Maine’s 2nd congressional district). 

Is It Time for Reform Yet? 

As some states continue to increase population faster than others, the likelihood that the winner of the popular vote and of the Electoral College vote will not be the same person will increase dramatically in the years to come. It’s only two of three modern data points, but two of the last three presidents were losers in the popular vote.

Figure 4. Population per electoral vote by state. As the extremes of California and Wyoming show, it is not one person, one vote in the Electoral College. Source: Wikipedia.

Just as we went to the direct election of senators in 1913 with the Seventeenth Amendment (previously senators were elected by their respective state legislatures), we need to amend the US Constitution to provide for the direct election of the president. Getting such an amendment through the Senate and ratified by three-quarters of the states is a heavy, if not impossible, lift, given the power of the small states (see above).

An alternative might be the National Popular Vote Interstate Compact, which would bypass amending the Constitution in a creative use of the constitutional provision that says states have vast power to set the terms of federal elections in their states.

However, reform will not occur by the first Tuesday in November—er, I mean by December 20 (the day George Washington died), 2020, when the members of the 2020 Electoral College gather in their respective state capitals to officially elect the next president of the United States.

To Boot, the Gerrymandered Senate Is Likely to Worsen

They would do more if they could, but Oregon’s Democratic senators, Ron Wyden and Jeff Merkley, are able to achieve less lasting congressional conservation for Oregon’s federal public lands because they are in the minority in the Senate.

In the 2018 election, Democrats running for the US Senate received twelve million more votes than Republicans running for the US Senate. The result is that Republicans hold fifty-three seats to the Democrats’ forty-seven.

For the US Senate, gerrymandering is baked into the US Constitution, and gerrymandering is likely to become more anti-Democratic Party over time. According to David Birdsell, dean of the Marxe School of Public and International Affairs at Baruch College, by 2040 it is likely that 70 percent of Americans will live in fifteen states. They will be represented by thirty senators. The other seventy senators will represent 30 percent of Americans. The red-blue / urban-rural / liberal-conservative / coast-flyover divides will increase.

Some kind of Senate reform should also be undertaken.

Who Am I Supporting for President?

In case you couldn’t tell, I will not be voting for Donald John Trump.

I also won’t be voting for a third-party candidate, because in the U.S. winner-take-all system, such a vote is effectively a vote for the major party candidate you most don’t want.

However, by the time I vote in the Oregon presidential primary on May 19, all but five presidential primaries or caucuses will already have been done, so my vote is not likely to be consequential.

So vote schmote, who am I supporting for the Democratic nomination for president? Earlier, I sent money to Washington governor Jay Inslee, wanting him to advance in the presidential debates to bring attention to the existential threat of the climate crisis. He is now seeking another term as governor. I’ve not yet given money to any other candidate, but I want the Democratic nominee to be the one most likely to garner at least 270 votes in the Electoral College.

While this election, like nearly all elections, is about turning out the base, this Electoral College election is all about swinging enough of the swing states to the Democratic column. This can be done by either a more massive turnout of base Democratic voters than base Republican voters in those swing states or appealing to enough “moderates” in those states that Donald Trump needs to go. These moderates include a significant number of Democrats who voted for Obama twice and Trump once. Such moderates also include Republicans who held their nose and voted for Trump, but more against Hillary Clinton. One can only hope that the Trump stench is so horrible and pervasive that it cannot be staunched by merely holding one’s nose. However, the Democrats must offer an alternative acceptable to these swing voters in the ten swing states.

Over a beer (perhaps we would need two), we could debate which Democratic candidate has the best chance of doing that. For the reasons stated herein, I will insist on limiting the discussion to the candidate’s electability in the ten states in play.