Logging Laws on the Line: Proposals pit cash-strapped counties against environmentalists
With some low-population Southern Oregon counties on the verge of insolvency, the Oregon congressional delegation seems determined to get more money-producing timber harvests off the 2.4 million acres of federal Bureau of Land Management forests in Western Oregon.
Their actions including the advance of a sweeping logging bill in the House has made timber executives, environmentalists and rural residents all anxious, because nobody knows whether the bill will become law, and if it does what it will look like.
by Diane Getz
All the hard-fought rules governing logging on federal land in the Pacific Northwest for the past 30 years are up in the air.
Some provisions in House Bill 1526 would take Oregon's O&C lands back to the peak logging of up to 1.6 billion board feet a year during the 1980s, before a string of court cases found that the harvest was breaking environmental laws and dropped the cut by 90 percent.
The sweeping bill would jeopardize salmon, spotted owls, old growth and watersheds including those where most Oregonians draw their drinking water, said Sean Stevens, executive director of the Oregon Wild environmental group.
"It really is the worst attack on public lands across the country in a generation," he said.
But county officials and timber executives fear provisions that would allow environmentalists to defeat the purpose of HB 1526 and keep the cut below 200 million board feet a year leaving not enough logs for the mills or cash for the counties.
In the House, the O&C plan is being championed by Rep. Peter DeFazio, D-Springfield.
In the Senate, Sen. Ron Wyden, D-Oregon, is working on a parallel but unspecified bill. He said his measure would ensure the logging and suppress the litigation on the 2.4 million acres of Oregon BLM forests known as the O&C short for Oregon & California lands.
"The Oregon delegation is absolutely determined to fix this O&C situation. The alternative to not passing legislation is just completely unacceptable," Oregon's senior senator said. "If a bill doesn't pass, a bad situation gets worse. I'm not waiting for that catastrophe."
The O&C lands spread out across rural parts of Western Oregon in a checkerboard from Columbia County to the north to the Oregon-California border to the south.
The lands exist as they are because in 1866, Congress gave the Oregon & California Railroad every other mile-square section of land, so the railroad could sell the land to settlers to finance construction of the rail line. Later, the lands reverted to the government.
Today, in Lane County, there are 270,000 acres of O&C land, including dense Douglas fir, hemlock and cedar forests, according to the BLM.
Lane County mill owners such as Seneca Sawmill, Starfire Lumber and Swanson Group Manufacturing buy timber from the lands or hope to under the pending legislation.
The Eugene Water & Electric Board and the Springfield Utility Board draw water from rivers. Those waterways pick up sediment and residue from the land.
The House bill, introduced by Oregon Reps. DeFazio, Kurt Schrader, and Greg Walden, has been voted out of the House Natural Resources Committee and is expected to come before the full House in coming weeks.
"Everything is racing down the tracks and we're just trying to keep up," said Karl Morgenstern, EWEB's drinking water source protection coordinator.
Part of a larger bill
For all sides, the stakes are high.
The proposed O&C Trust, Conservation and Jobs Act that DeFazio fashioned is tucked inside a bigger logging bill promoted by Rep. Doc Hastings, a Republican lawmaker from Eastern Washington who has a 3 percent rating from the League of Conservation Voters.
The larger bill removes the legal clout that environmentalists have used to stop logging including in old-growth federal forests that are home to endangered species.
"It basically undoes Clean Water Act, Endangered Species Act, National Environmental Policy Act, etc., with the goal of really ramping up (the federal) timber harvest to fund local governments," Stevens said.
One provision, for example: If a federal official determines that a concern exists that proposed logging may affect the continued existence of any endangered or threatened species, the federal official "shall" issue a determination that the project will not jeopardize the continued existence of the species.
Clauses such as this make environmentalists call it the worst bill they've seen in many decades.
DeFazio isn't surprised by their reaction.
"If they are talking about the whole bill, I would somewhat agree," he said. "If they were talking about the O&C bill (inside the larger bill) I would disagree."
DeFazio, with an 89 percent rating from the League of Conservation Voters, said it's the best bill he could get in negotiation with House Republicans, and it includes environmental plusses.
"It would set aside a million acres of old growth. It would double the size of the wilderness on the Rogue River. It would (designate), finally, the Devil's Staircase wilderness," he said.
The bill would also add wild and scenic designation to 130 miles on the Rogue and Clackamas rivers.
Land designated for logging would be governed by the state's Forest Practices Act, which regulates logging on private land.
"We developed a bill that we think is balanced," DeFazio said. "It's not what I would have written but I'm in the minority. I had to work with (Rep.) Greg Walden who's in the majority."
High stakes for counties
But DeFazio is pushing a bad deal, Stevens said.
"Certainly he has problems with the larger bill, but you still have to ask the question: Who are you willing to cut the deal with, what package are you willing to give momentum to, by giving it your stamp of approval?" he said.
The stakes are also big for the 18 counties in Oregon that would get money from O&C timber sales. Federal logging revenue decades ago left Lane County government flush with cash. Those payments have since dwindled to a trickle, as O&C logging and temporary federal replacement money has all but dried up.
For smaller counties in Southwest Oregon, the O&C payments were more essential. Not long ago, they made up 81 percent of Douglas County's discretionary budget and 75 percent of Josephine County's budget.
"You had communities that were very, very dependent on certain harvest levels and the milling operations and forestry operations that went with it. It established the vitality of these communities. That has been very much affected," said Allyn Ford, president of Roseburg Forest Products.
With residents unwilling to pay higher property taxes or other levies to make up the shortfall, rural counties face pot-holed roads and understaffed jails.
"Josephine County has real unemployment over 20 percent," DeFazio said. "They have no rural sheriff's patrols any longer. There's a horrible case (last spring) of a woman who was raped, who called 9-1-1, and they just said, 'Sorry we can't send anybody.' That can't prevail. They've formed posses. The sheriff is very concerned about the idea of armed citizens doing law enforcement. Curry County is actually probably in worse shape than Josephine County."
The prospect of greatly increasing logging on O&C lands brings the promise of money flowing into the anemic veins of the dependent counties paychecks for all sorts of timber workers spent in crippled businesses.
"In many of these communities there isn't much else there," Ford said.
With the stakes sky high for environmentalists and for counties and timber companies that want the logs Gov. John Kitzhaber convened a 14-member panel to take DeFazio's O&C proposal as a starting point and seek a compromise.
The group met behind closed doors for 16 days last fall.
"They really worked hard to try to make things happen," said Ford, one of the participants.
But they failed.
Timber interests argue that the O&C lands were meant to be privately owned, and they note that Congress in a 1937 law said the lands should be used to produce a "sustained yield" for timber companies to log and the counties to reap payments. That law conflicts with the federal 1994 Northwest Forest Plan, which also governs the O&C lands, and aims mainly to protect environmental values.
"The (O&C forests) do not have the same role as, say, the national forest," Ford said, "which were originally and still are federal lands. There was a basic disagreement on the purpose and role of the O&C lands.
"These lands are unique in terms of their historical relationship to the counties and to the dependent communities. This is not something that just fell out of heaven. There was a lot of history here," Ford said.
Environmentalists want to keep the O&C lands for the public under the Northwest Forest Plan and federal environmental laws that protect the woods and the wildlife.
"We have the Northwest Forest Plan because we have 30 to 40 years of out-of-control logging that lead to the problems with dirty streams and drinking water being impaired and impacts to owls, salmon and marbled murrelets," Stevens said. "We kind of binged out (on logging) in the '70s and '80s and we had to go into rehab, and we're still recovering."
Industry and the counties could have gotten behind the DeFazio bill, as long as it would yield 600 million board feet of logged timber a year, Ford said. Environmentalists weren't prepared to go over 250 million board feet a year.
"The people representing the environmental community want to set everything aside and, of course, the counties and the industry want to have a certain minimum income and harvest," Ford said. "You put the two together and we were significantly far apart. We were too far apart to put together a compromise."
State-hired consultants produced a 94-page report that details the conflicting views.
It includes seven options for regulating the O&C land while producing various levels of logging. Elements of those options are informing the effort underway in Congress.
"That's where it's going to have to be settled," Ford said. "We've got conflicting laws. We've got conflicting needs."
All say action is urgently needed.
Congress must act now on the O&C lands, both Wyden and DeFazio said.
Wyden said the current logging on O&C lands basically involves thinning and doesn't produce a long-term harvest. "In less than a decade, if you keep the current thinning-only approach to managing O&C lands, harvest levels completely fall off the cliff," he said.
DeFazio, meanwhile, warns of pending rulings by Judge Richard Leon of the U.S. District Court of the District of Columbia.
The rulings are expected to give the "sustained yield" required under the O&C Lands Act of 1937 precedent over more recent federal laws protecting endangered species and allow annual cuts exceeding one billion board feet.
Leon's first ruling is in a 2010 case brought by the American Forest Resources Council and individual companies, including Swanson Group Manufacturing.
Historically, timber issues have been decided in federal courts in the west where the forests are and appeals would go to the liberal-leaning 9th Circuit Court of Appeals in San Francisco. The outcomes of cases have generally favored environmental protection. Going to court in the nation's capital allowed industry to avoid that.
Leon ruled in June that the BLM must consider the target harvest levels in its management plans as a legally enforceable commitment.
A second case on the O&C question was filed by the trade group American Forest Resources Council and Lane County companies Seneca Jones Timber Co., Starfire Lumber Co. and Swanson Group.
"It seeks to ratchet things up even more," said Andy Stahl of the Eugene-based Forest Service Employees for Environmental Ethics. "It seeks to expand the court's order beyond the Roseburg and Medford (BLM) districts to include the Salem, Eugene and Coos Bay districts, and it seeks to retrospectively compel the BLM to sell the shortfall of timber since about seven years ago."
That ruling could allow historic-level cuts of 1.5 billion board feet annually, DeFazio said. "That's not sustainable. That would liquidate the old growth."
"I'm hoping that after the first court decision, some of these groups will become a little more realistic," DeFazio said. "There is a real threat out there. What I'm offering in terms of protecting the old growth, adding substantial wilderness, protecting the Rogue and managing in younger stands is a pretty good trade-off.
"To move this forward, it's critical. The counties need a long term, predictable, sustainable base of revenues. This isn't everything the counties need. We're never going to get back to the (1980s) levels, which were hugely rich for the counties. We can't go to that level of harvest. But we can sustain a level that exceeds today's levels particularly with courts beginning to force the BLM to do that."
Striving for certainty
But Stevens of Oregon Wild doesn't believe Leon's first ruling will stand on appeal and the second is even less likely to survive.
"Even if you give it a 50-50 chance, which is better odds than it has, you still have to ask the question: What's the piece of legislation that I should pass to address that threat?
"What DeFazio has said is, 'There's a big threat here of increased logging, so I'm going to (pass a bill to) really increase logging to solve the problem,'" Stevens said. "He's pointing out a problem and creating his similar problem."
Wherever the lines and distinctions fall in the final bill, it's widely agreed that Congress will seek to make the result ironclad and lawsuit-proof.
"That level of certainty has to be as reliable as the one Judge Leon has provided or the industry won't accept it," Stahl said.
"Similarly, environmental interests have to be confident that the lands to be preserved actually will be preserved. They'll be happy with a couple wilderness areas, but, for the balance of the land, all this bill is giving them is the status quo, which is subject to whimsical change by the Forest Service. The level of protection for the protected lands needs to be made more robust," he said.
Certainty, however, has not been found in the federal forests and the logging industry for decades.
In the years of the Great Recession, home sales plummeted, lumber prices dropped and finished lumber piled up around sawmills. Prices can be tanked by a glut of Canadian timber arriving on the market.
The housing market has been picking up steam for the past year, leading some to expect upward demand for lumber, bringing bigger bids for saw logs.
But, since May, the Federal Reserve allowed interest rates to increase, provoking by July a sharp drop in new home sales and threatening demand for lumber.
DeFazio's bill builds in protection from market depressions. It requires the trust that's managing the logging to accumulate a $125 million reserve fund that would pay counties even when log prices were too low to sell at a profit. "And then when the price goes back up, they'd have a backlog of timber to put on the market," the congressman said.
Stevens wonders if a big increase in logging would solve the counties' money problems.
"The financial straits that some counties are in are serious," he said. "The question is: Do you use the same thinking as we did 30 years ago to fund them by unsustainably extracting resources re-creating the boom-bust cycle? The economy of the future is not going to be timber centric, so why force it to be again?"
A plan for compromise
The congressional legislation is making so many people in Oregon anxious because, like a blindfolded juggler, they're not sure what elements are in play or where they are.
"With the DeFazio, Schrader, Walden bill they've laid their hand on the table," Ford said. "Everybody is waiting for Senator Wyden to see what he is proposing."
The delegation's plan is for the full House to pass the DeFazio bill, and for Wyden to introduce his bill and guide it through the Senate. Then, representatives of the two chambers including Wyden and DeFazio will hammer out a compromise.
So far, Wyden has only talked in generalities about what he wants done on Oregon's O&C forests.
Wyden said he's not interested in removing environmental protections from the lands because earlier attempts including the so-called salvage rider legislation in the 1990s didn't increase the harvest and only kept the lawyers busy.
Wyden said he doesn't want to put federal land into a trust for logging although he's not opposed to dedicating some lands to logging and other lands for preservation.
"In these kind of contentious natural resources issues, nobody gets exactly what they want," he said. "Nobody gets exactly what they think they deserve. The question is: Can you get what you need?
"The environmental community has a strong point with respect to not setting aside the federal enviornmental laws. People have a right to protest at a timber sale. But they don't have a constitutional right to a five-year delay."
Wyden said he'd unveil his bill in the "next several weeks."
"We're just trying to figure out where to draw lines between lands that are suitable for harvest and lands that need to be protected for old growth and clean water," Wyden aide Tom Towslee said. What's the chance of passage?
Based on the legislative track record thus far, the website GovTrack.us gives the bill a measly 5 percent chance of passage.
Most congressional lawmakers are unfamiliar with the O&C lands, since they are located only in Oregon. That hinders and helps the bill's chances.
Because the problem is exclusive to Oregon, lawmakers far removed may not know or care about what happens.
But because the problem is exclusive to Oregon, DeFazio said he could talk his Republican counterparts into old growth protections and wilderness designations that they would never agree to if they would set a precedent for all federal lands nationwide.
"It's not part of the national forest system. It's not part of the national park system. It is the O&C lands only," he said.
Also, the Oregon delegation is aligned in favorable positions in their respective chambers.
Wyden is chairman of the Senate Energy and Natural Resources Committee. Walden is in the House Republican leadership. DeFazio is the ranking member of the House Natural Resources Committee.
Now is the best chance for passage, DeFazio said. "If not now," he said, "never, probably."
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