AOCC lawsuit before Supreme Court

“At least we’re going to get a look,” he said. “It’s a very steep climb to get in front of the Supreme Court. We’re in the queue. We’ve got our fingers crossed.”

Robert “Bob” Main, a Coos County commissioner and vice president of AOCC, said the 1937 O&C Act designated 2.2 million acres of forest land in western Oregon for the sole benefit of the Western Oregon counties.

“In the mid 1980s, Coos County received logging receipts of $25 million (in today’s dollars) for the general fund,” Main said in an online statement. “Now, the county receives almost nothing” because “Washington D.C has constantly reduced the harvest of O&C timber to almost nothing.”

Because of the lack of logging receipts, Main said, Congress passed the Secure Rural Schools Act (SRS), “which was a small stop-gap fund for the counties.” The SRS Act expired this year, he said, and the county doesn’t have that funding source any longer.

He said AOCC wants “to bring back the economic vitality that we had in the ‘60s, ‘70s and ‘80s.”

The commissioner told the Rotary Club of Coquille on March 6 that 26 federal legislators had filed amicus (friend of the court) briefs supporting the AOCC’s case. The Pacific Legal Foundation also filed an amicus brief.

The AOCC’s battle to retain timber sales revenue for its member counties began in 2016, when the U.S. Bureau of Land Management (BLM), which manages the timberlands formerly owned by the defunct Oregon & California Railroad (O&C), developed a new “resource management plan.” That new plan stripped Coos County and the 17 other member counties of timber sales revenue from about 2.2 million acres in Western Oregon.

Robertson said the BLM’s 2016 plan included “reserves” on 80 percent of the O&C lands “in direct violation of the O&C Act,” which Congress adopted in 1937. “Reserves are basically no-touch areas,” he said, adding, “A no-touch reserve is a clear violation of the act. You can’t take 80 percent of the land base out of production.”

The BLM’s management plan “clearly overrode congressional intent,” Robertson said. “That’s one of the areas we want to emphasize (before the Supreme Court).”

Not only did the BLM adopt a management plan discounting the O&C forest lands, but in 2017, during the waning days of the Obama Administration, the president adopted an executive order adding more than 40,000 acres of the O&C timber land to the Cascade/Siskiyou National Monument. That prompted AOCC to file another lawsuit. The organization challenged the administration and the U.S. Department of the Interior (BLM’s parent).

“Prohibition of timber management and harvest within the monument “clearly violates the requirements and mandates of the O&C Act,” Robertson said, adding that Obama clearly misused and abused the intent of the 1906 Antiquities Act while also violating the separation of powers.

“The executive order overrides and ignores congressional legislation and federal law directing how this category of timber land is to be managed,” he said.

AOCC filed both lawsuits in the Federal District Court in Washington, D.C. In 2019, Judge Richard Leon joined the two lawsuits into one and ruled in AOCC’s favor. In addition, Robertson said, the judge ordered the BLM to begin an effort to create a new management plan or change the current plan so it would conform to the O&C Act.

“BLM generally ignored the judge’s order,” he said. “This was clearly AOCC’s biggest legal victory, confirming that the O&C Act is unambiguous and means what it says.”

In 2021, on the last day an appeal could be filed, Robertson said, the government appealed Judge Leon’s ruling to the U.S. Court of Appeals in the nation’s capital. The appellate court conducted an oral hearing on the case in November 2022.

“It was clear the three-judge panel had little understanding of timber management or the requirements of the O&C Act,” he said. “After the hearing, the AOCC and the American Forest Resources Council, which had a similar case before the court, anticipated that Judge Leon’s decision would be overturned and committed to join forces. Indeed, in April 2023, the appellate court overturned the judge’s ruling.

“On April 25, 2023, a divided three-judge panel of the Ninth Circuit Court upheld President Barack Obama’s expansion of the Siskiyou National Monument to encompass approximately 40,000 acres of O&C timberlands. All three judges unanimously rejected the Biden Administration’s argument that the proclamation was not judicially reviewable,” the AOCC said in a news release.

However, Robertson said, the judges split 2-1 on the question of whether the proclamation’s prohibition of commercial timber harvest on lands congressionally designated for permanent sustained yield timber production in the O&C Act was unlawful.

“Judge Richard Tallman filed a strong dissenting opinion criticizing the majority for relying on a “sterile analysis” that ignores the “obvious conflict” between the O&C Act’s timber production mandate and the presidential proclamation prohibition of precisely the same activity.”

So, in November of last year, the partners filed a petition to take the case before the nation’s highest court.

If the Supreme Court takes the case, it would hear the legal challenge in the next term, which begins Oct. 1. And if the AOCC and its member counties prevail before the Supreme Court, the O&C forest eventually would be back into timber production, as the congressional act of 1937 intended.