Can We Really Trust the O&C Trust Act?

by Margaret Goodwin

The timber industry appears to be supporting the O&C Trust, Conservation, & Jobs Act, sponsored by Congressmen DeFazio, Schrader, and Walden. It seems they don’t have many options. Since the adoption of the Northwest Forest Plan (NWFP), our timber industry has been choked into submission by environmental litigation, and is now a faint whisper of the driving economic force it once was in rural Oregon.

The O&C lands are unique among federal lands because they were dedicated by Congress in 1937 to “permanent forest production” for the purpose of contributing to the economic stability of the O&C counties. In these counties, the vast majority of land is owned by the federal government. Federal land is exempt from property tax, and there’s not enough private land that can be developed or put into production to sustain a local economy.

Congress initially made “payments in lieu of taxes” to these counties, but later determined it was more cost-effective to dedicate the O&C lands (a mere 7.4% of the federal lands in Oregon) to permanent sustained-yield timber production, providing revenues to county governments and supporting productive industries that drive local economies and create jobs.

In 1994, the O&C lands were subjected to the NWFP, to be managed as critical habitat for the Northern Spotted Owl. Since then, environmental activist organizations have litigated nearly every O&C timber sale into oblivion. The environmental litigants don’t even have to win, they just delay and drive up costs until the sale is abandoned because the costs of litigation exceed the revenue from the sale.

Under the O&C Trust, Conservation, & Jobs Act, approximately half of the O&C lands would be put into a trust, managed under the Oregon Forest Practices Act rather than the NWFP. The O&C Trust would be managed by a board of trustees appointed by the governor, with 50% of the revenues going to the O&C counties. It’s important to note, however, that the bill doesn’t specify any minimum harvest levels, or minimum annual revenues or distributions.

In theory, at least, this would allow half of the O&C lands to be used as all of them were mandated to be used in the O&C Lands Act. From the perspective of the dying timber industry, and the O&C counties that are teetering on the brink of insolvency, half is better than nothing. If the lands continue to be managed as they are today, the timber industry in Oregon will soon be completely destroyed.

However, the hopes of the timber industry, and of the O&C counties, to restore even 50% of what is legally due us under the O&C Lands Act may be overly optimistic. If Governor Kitzhaber’s recent appointment of an environmental activist to the Oregon Forestry Board is any indication, he’s likely to stack the deck on the O&C Board of Trustees with like-minded people as well.

Another consideration is that the environmental litigants have already claimed the O&C Trust won’t provide enough “protections” for these lands. They haven’t targeted the Oregon Forest Practices Act in the past, but nearly 1.5 million acres of public land makes it a much bigger target. And, when they train their lobbying and litigation guns on that, it will put private timber lands in the crosshairs, too. They are very well-funded, and have a long track record of success in blocking timber production.

The bargaining chip that has been promised the environmental lobby to enlist their support for the bill is that it also sets aside about 5% of the O&C lands to be designated Wilderness and/or Wild & Scenic. Those lands would be permanently withdrawn from any production of any kind, as well as from recreational pursuits that require vehicle access.

The travesty here is that the vast majority of lands this bill designates as Wilderness or Wild & Scenic don’t even meet the federal criteria for those designations. In 2007, the BLM listed all O&C lands that meet federal criteria for Wilderness and Wild & Scenic Rivers. Fewer than 10% of the lands this bill designates as Wilderness meet the federal criteria for Wilderness. Fewer than 20% of the creeks this bill designates as Wild & Scenic Rivers meet federal criteria for Wild & Scenic designation. To allow the federal government to conveniently ignore its own criteria for the sake of political expediency sets a very dangerous precedent.

The bill would transfer the remainder of the O&C lands from BLM to US Forest Service jurisdiction, where they would be managed for “old growth,” as defined by a panel to be appointed by the governor.

If existing law were followed, all of the O&C lands would be managed for permanent, sustained-yield timber production, and would be exempt from the NWFP. The litigation arises because the NWFP designates these lands as critical habitat for the Northern Spotted Owl. However, the Endangered Species Act (ESA) states that economic impact must be taken into consideration before specifying any area as critical habitat, and that any area may be excluded from critical habitat if the benefits of exclusion outweigh the benefits of including it.

If any lands qualify for exclusion from critical habitat based on economic impact, the O&C lands do. The reason the O&C counties have been receiving federal subsidies is because O&C timber receipts declined to the point of insignificance after the NWFP was imposed. With the subsidies now gone, and no O&C timber revenues to replace them, many of our counties are facing imminent insolvency. That’s a significant economic impact.

The real solution is to comply with the O&C Lands Act, and to exclude all O&C lands from critical habitat according to the applicable provisions in the ESA. There are plenty of other federal lands available to designate as wilderness. The O&C lands are already dedicated by Congress to permanent forest production for the economic stability of the O&C Counties. What part of “permanent” doesn’t Congress understand?

Reference: OSU map of O&C lands