Judge says O&C lands in Cascade-Didkiyou National Monument can be cut

by MARK FREEMAN Mail Tribune, for Herald and News 11/28/2019

MEDFORD — A federal judge has ruled that almost 40,000 acres federal land permanently set aside for logging are illegally managed within the Cascade-Siskiyou National Monument and must remain in timber production.

In a reversal of other recent case law, Judge Richard Leon of U.S. District Court in the District of Columbia ruled that Congress’s intention to allow logging on federal O&C Act lands trumps President Barack Obama’s use of the Antiquities Act to expand the monument on lands east of Ashland just before he left office in 2017.

Obama’s proclamation extended the monument to 113,013 acres of Bureau of Land Management lands where no commercial logging is allowed.

But Leon’s ruling states a president’s proclamation does not override the Congressional mandate that O&C lands be managed for permanent forest production under a sustained-yield principle that logging volumes can continue in perpetuity.

1940 legal opinion

The ruling follows a 1940 Department of Interior internal legal opinion that O&C Lands can’t be given monument status by presidential proclamation.

The ruling does not strip the lands out of the monument, but determines they must be treated as originally intended for timber production.

“Congress could have expanded the monument, and that would have changed the O&C Act,” said Travis Joseph, president of the American Forest Resource Council, which filed the suit. “The president can’t do it unilaterally without Congress. We think that’s an important distinction.”

Joseph said the recent monument expansion included about 40,000 acres of O&C Lands.

Leon’s ruling is in direct contrast to a decision in an identical case settled earlier this year in U.S. District Court in Medford.

In that case, U.S. Magistrate Judge Mark Clarke ruled that Obama properly stayed within constitutional principles of the Antiquities Act and did not exceed his statuary authority in adding O&C Act lands into the monument.

Clarke’s ruling references past federal court rulings that have deemed that O&C lands are not set aside exclusively for maximum timber production and can be set aside as preserves. Clarke’s ruling was finalized by U.S. District Court Judge Michael McShane last spring.

‘Cut every last stick’

Dave Willis, Soda Mountain Wilderness Council chair and longtime monument-area advocate, said Leon’s ruling leans on a view that O&C Lands exist only to “cut every last stick” and denies presidential power to protect sensitive and unique areas from natural-resource extraction.

“The implication of his interpretation of the 1937 O&C Act would bring us to the Dark Ages all across Western Oregon,” Willis said. “Old-growth trees will be falling like dominoes and endangered species would be pushed closer to extinction.

“These are public lands owned by all of us, not just a few timber companies,” Willis said. “We’re going to continue fighting for this place.”

Willis said the ruling shows a need to revamp the O&C Act to 21st century realities.

Willis said the ruling will be appealed to the federal D.C. Court of Appeals.

Leon also ruled that BLM’s Western Oregon Resource Management plans, called RMPs, fail to meet the mandate of the O&C Act.

Joseph said the District of Columbia is a prudent venue for the suits because that’s where the O&C Act and the monument expansion decisions were made.

Clinton’s monument

While the court ruling addresses only the O&C Act lands added by Obama, it does not address management of the 40,156 acres of former O&C Act lands within the original monument footprint created by President Bill Clinton in 2000.

The Clinton expansion was never challenged based on the O&C Act argument. Joseph said he does not know why it was not challenged at the time, but that was before the 1937 government opinion on placing O&C Act lands within monument protections had come to light.

The original 66,000-acre Cascade-Siskiyou National Monument was designated by Clinton to protect what he called its “spectacular biological diversity.” A 2015 scientific study recommended a larger expansion than Obama signed to ensure that biodiversity is protected, especially when considering the threats of climate change.

The monument’s 113,013 acres are within a footprint that covers about 137,500 acres. Private lands, including more than 2,000 acres of Murphy timberland, inside that footprint remain private and are not subject to monument rules, which ban commercial timber harvest but would allow well vetted noncommercial cutting.

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