JOSEPHINE COUNTY IS SUING THE FEDERAL GOVERNMENT
By Attorney Wally
Josephine County Legal Counsel
Nevember 6, 2016
Josephine County , OR. —Josephine County, through the County Commissioners who are its governing body, has filed to join two lawsuits that are currently pending in the U.S. District Court for Washington D.C. Both lawsuits allege that federal officials have failed to follow federal laws.
The United States Bureau of Land Management (BLM) maintains 2,557,800 acres of federal forest land in western Oregon, including 2,151,200 acres that are commonly called the “O&C Lands”. The property is so named because at one point it was briefly owned by the Oregon and California Railroad. Congress passed an act in 1916 that reclaimed the property for public ownership. Congress then passed the “O&C Act” in 1937. The O&C act (43 U.S.C. §1181a) specifies how the federal government is supposed to manage the property.
The O&C Act directs that a portion of revenue from timber sales must be returned to the 18 western Oregon counties in which the O&C lands are located. Josephine County is one of those counties. The O&C Act also directs that, “[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.” Sustained yield basically means harvesting the amount of timber that grows each year, and leaving the rest. For many decades after Congress passed the O&C Act, the BLM achieved an annual sustained yield production of 1.176 billion board feet of timber.
Many family owned forest-products businesses such as sawmills and plywood plants relied on timber sales from O&C lands for their supply of raw materials. These businesses employed large numbers of citizens who in turn paid taxes to fund their local governments and districts. Additionally, the governments of the O&C Counties enjoyed direct revenue from federal timber sales, which offset the taxpayers’ burden.
Swanson III Case
One of the cases that Josephine County has moved to join is the third in a series of related cases that began in 2010. The cases were brought by a coalition of local timber companies. Swanson Manufacturing Group, LLC from Glendale was one of the original plaintiffs, and thus the case is called “Swanson III” despite the fact that the only original plaintiff that the court continues to recognize is Rough and Ready Lumber. Josephine County moved to join the case in September of 2016. The BLM has opposed Josephine County’s presence in the case, and the court will decide the case’s fate in the coming months.
Swanson III is an important case because the court has previously issued a favorable ruling on the merits. The case is still pending while lawyers argue about technicalities, but in 2013 the court ordered the BLM to abide the legally required target for timber sales. In response to the court’s order, the BLM significantly increased its timber sale program for Fiscal Years 2014 and 2015 on the portion of the O&C property that was addressed by the ruling. The increased sales meant greater activity within the local timber processing industry, and greater revenue for county governments.
Through Swanson III, Josephine County is asking the court to apply its earlier ruling to all of the O&C property, and to order the BLM to temporarily offer even greater increased sales to make up for the years (2004-13) when the agency was out of compliance with federal law.
AFRC v. Jewell
The second case that Josephine County has joined is known as The American Forest Resource Council (AFRC) et al. v. Jewell. Like the plaintiffs in Swanson III, the plaintiffs in AFRC are asking the court to order the BLM to follow federal laws. However, while Swanson III challenges the BLM’s execution of an existing forest management plan, AFRC challenges the BLM’s adoption of a new resource management plan.
Getting favorable rulings on both cases is important not only because Swanson III addresses shortages that occurred in the past, but also because the AFRC court could order the BLM to continue with its current plan while the agency crafts its next proposal.
The Bureau of Land Management’s 2016 plan sets the sustained yield harvest level at 205 million board feet annually. That target is almost a billion board feet lower than the historical average for the O&C property. Thus, Josephine County and its co-plaintiffs are asking the court to order the BLM to abide the sustained yield requirements of the O&C Act. The Act also requires that until such time as the BLM becomes compliant, it must sell at least 500 million board feet of timber every year.
Josephine County is asking a court to order federal officials to follow existing laws. This is a common request which is very different from asking a court to strike down a law for unconstitutionality. The O&C Act directly benefits the citizens and taxpayers of Josephine County, and the Act should be applied in a straightforward manner.
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© 2016 Wally Hicks - All Rights Reserved
Hicks is Josephine County’s elected Legal Counsel. He previously
represented most of Josephine County in the Oregon House of Representatives.
He has also served as a Deputy District Attorney for Josephine County,
as an attorney in private practice, and as a Marine Lieutenant in the