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O&C Forests And The D.C. Courts

In a November EW Viewpoint, Congressman Peter DeFazio brought up a talking point he’s mentioned almost every time he discussed his controversial O&C trust plan: cases in the U.S. Court of Appeals for the District of Columbia Circuit that he says could affect what happens to the publicly owned O&C forests. 

DeFazio argues that a plan needs to be put in place before the Supreme Court winds up deciding how the O&C forestlands would be managed. With the recent end of the Senate filibustering of President Barack Obama’s appointments to the D.C. Circuit, one question that has arisen is whether Democratic appointees might affect how the O&C lands play out in that court. 

The D.C. Circuit Court has been dominated by Republicans, but within three days of ending the Senate’s ability to filibuster nominees, the balance became 6-4 in the Dems’ favor. Patricia Millett and Cornelia “Nina” Pillard were appointed last week, and the nomination of Robert Leon Wilkins is expected to be voted on later this week — all had been blocked by Senate Republicans.

The primary forces behind the bipartisan House (DeFazio) and Senate (Ron Wyden) O&C plans are also Democrats, but Andy Stahl of Forest Service Employees for Environmental Ethics says that the most recent D.C. court decision on the O&C issue in June wasn’t about politics but about the word “shall.” 

Stahl says the case hinged on a portion of the 1937 O&C act that says “That timber from said lands in an amount not less than one-half billion feet board measure, or not less than the annual sustained yield capacity when the same has been determined and declared, shall be sold annually, or so much thereof as can be sold at reasonable prices on a normal market.” 

U.S. District Judge Richard Leon ruled the BLM failed to comply with timber harvest requirements under the federal O&C Act. (Judge Leon also notably ruled Dec. 16 that the National Security Agency’s bulk collection of phone records violates the Constitution’s ban on unreasonable search.) “I don’t think that interpreting the word ‘shall’ is a partisan issue,” Stahl says. Stahl provided the original framework in which the current DeFazio O&C Trust, Conservation and Jobs Act has its basis.

DeFazio writes that without legislation, this and other D.C. Circuit cases “could subject the O&C lands to 1980-era logging levels, which would mean the liquidation of irreplaceable old-growth forests.”

Doug Heiken of Oregon Wild, which has been outspoken in its criticism of the DeFazio bill, agrees with Stahl that the chances of the new appointees affecting the O&C case decision are small. “We don’t know the politics,” he says. “It’s too speculative.” 

But he says in the end, he doesn’t think the O&C cases in the D.C. court have much merit in the first place. Heiken says they conflict with cases that have been ruled on by Ninth Circuit Court of Appeals, and he expects that the D.C. court will find the Ninth Circuit “more compelling than Judge Leon.”