Western Oregon BLM Federal Public Forestlands:

Revisiting the Concept of "Dominant Use"

The timber industry believes the Oregon and California Lands Act of 1937 (OCLA) is the 28th Amendment to the Constitution, while the O&C Counties believe it to be the 11th Commandment. Conservationists argue OCLA was the first enactment by Congress of a federal public lands management statute that requires multiple-use and sustained yield. Interpretation of what the O&C Lands Act means started before its enactment in 1937 and continues to this day. Congress should repeal the statute, transfer the lands to the Forest Service to be managed as National Forests and provide compensation-in-lieu-of-taxes to the O&C counties in a different manner.

The statute states that the O&C lands:

shall be managed...for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the principal [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 facilities. 43 USC § 1181a

The timber industry is presently litigating a case in the U.S. District Court for the District of Columbia (you may want to ask them why they didn't file their case in the US District Court for Oregon, the judicial district in which all the O&C lands are located) that asks the court to interpret OCLA not only as a Timber First! statute, but as a Timber Only! statute. Industry argue that BLM must get the cut out despite any other federal statute, including, but not limited to the Endangered Species Act, Clean Water Act and Antiquities Act (congressional delegation to the President to proclaim national monuments).

The Defendant-Intervenors' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgement and in Support of Cross Motion for Summary Judgment (25 double-spaced pages) makes the conservationists' case that the timber industry should not prevail in their latest litigation. It was filed by Kristen Boyles, Esq. of Earthjustice and Susan Jane Brown, Esq. of Western Environmental Law Center on behalf of several conservation organizations.

Congress has treated the O&C lands as other federal public lands. For example, it acted on many occasions to designate Wilderness and Wild and Scenic Rivers that contain O&C lands (see Transferring Western Oregon Bureau of Land Management Forests to the National Forest System [since publication on 2007, Congress designated the Soda Mountain Wilderness within the Cascade-Siskiyou National Monument, that includes a checkerboard of O&C and PD (public domain) BLM lands]). In congressional debates before enactment of the statute, through a long line of interpretations by lawyers for the Interior Department to a string of court cases, it is clear that OCLA is neither an Amendment nor a Commandment, but just a statute.

Also attached is an article that appeared in the Journal of Environmental Law and Litigation by Deborah Scott and Susan Jane M. Brown (the former holds a law degree and certificate in environmental and natural resource law from the Northwestern School of Law of Lewis and Clark College, magna cum laude and the latter is a professor at that law school, as well as a staff attorney for Western Environmental Law Center and former Legislative Counsel to Congressman Peter DeFazio).

Word on the street is that the O&C counties are contemplating an even more creative lawsuit that would claim that OCLA must be interpreted as a fiduciary trust. While I would never oppose anyone's right to have their day in court, I suggest it is time for Congress to repeal OCLA and transfer Western Oregon BLM lands to the National Forest System to be managed by the USDA Forest Service. There are better ways for Congress to provide compensation-in-lieu-of-taxes to the O&C counties.