Andy Kerr

Conservationist, Writer, Analyst, Operative, Agitator, Strategist, Tactitian, Schmoozer, Raconteur

Public Land Conservation Grand Bargains, Part 2: Using History as a Guide

This is the second of three Public Lands Blog posts that examine the increasingly difficult political decisions facing Oregon’s public lands conservationists. Part 1 posed a still hypothetical—but prospectively probable—public lands conservation package that contains some great, some good, some bad, and some ugly provisions. Part 2 examines what Oregon public lands conservationists have done in the past when faced with such choices. Part 3 will wrestle with the devil of principle and the angel of pragmatism and make recommendations.

Figure 1.  The chamber of the United States Senate. A younger Senator Ron Wyden (D-OR) is sixth from left in the third row back.  Source: Architect of the Capitol.

Figure 1. The chamber of the United States Senate. A younger Senator Ron Wyden (D-OR) is sixth from left in the third row back. Source: Architect of the Capitol.

In Part 1, we described a hypothetical national public lands conservation and management omnibus package and posed the question of what position Oregon public lands conservationists should take. In this Part 2, we examine some historical Oregon examples in search of guidance.

To recap, the hypothetical deal detailed in Part 1 for Oregon includes

•       a record-sized expansion of wild and scenic rivers (WSRs) in Oregon that includes protective buffers double the normal width and permanent protection from hardrock mining for all WSRs,

•       a (good if not great) grand bargain centered on public lands in the Owyhee Canyonlands,

•       congressional authorization of the Cascade-Siskiyou National Monument to remove the threat of Trumpian de-proclamation,

•       a (great if not superb) grand bargain centered on public lands in and around Mount Hood, and

•       a permanent congressional ban on oil and gas drilling offshore Oregon.

Similar packages are included from California, Colorado, New Mexico, Washington, and several other states—among them states with Republican senators who nonetheless want more protected public lands in their states. This prospective omnibus package includes one truly excellent bill that would provide for the permanent funding of the Land and Water Conservation Fund, which the public lands conservation community has made a top priority.

The bad stuff includes

•       facilitating a gas pipeline through Denali National Park to make it easier to de-gas Alaska’s North Slope (and over-gas the climate) for use by foreign countries,

•       overturning administrative protection for roadless areas in the Tongass National Forest to enable an increase in clear-cutting of old-growth rainforest to aid a pathetically small and economically unimportant timber industry in southeast Alaska,

•       putting a road through designated wilderness in the Izembek National Wildlife Refuge to allow Peter Pan Seafood to fly its goods to market,

•       allowing states to take over and increase leasing of oil and gas on federal public lands, and

•       further subsidizing the use of coal by funding federal research to extract rare earth minerals from coal so we can more cheaply read the rising CO2 numbers on our cell phone app.

Some Oregon public lands conservation history may be interesting, if not particularly helpful in addressing the next omnibus public lands package in Congress. Though Mark Twain never said it but is often credited with saying it, “History does not repeat itself, but it often rhymes.” Following is my very personalized summation of selected Oregon public lands conservation provisions enacted into law since I started my conservation career during the Ford administration. As you will see, they have evolved from politically simple and clean to complex and dirty.

Endangered American Wilderness Act of 1978

Ah, the first wilderness bill I worked on, and it was a clean wilderness bill. No bitter pills to swallow. Of course, it wasn’t big enough and we lost some acres from the bill, but it was a very good bill for its time. In Oregon, we returned French Pete to the Three Sisters Wilderness, established the Wenaha-Tucannon and Wild Rogue Wildernesses, and expanded the Kalmiopsis Wilderness.

Oregon Wilderness Act of 1984

Nearly one million acres were conserved, mostly as wilderness, in 1984. Not only wasn’t enough wilderness conserved, also included was a legislative provision that shielded the Forest Service from having to consider the wilderness option until national forest plans were “revised” according to the National Forest Management Act (so-called “release” language). At the time, it was expected the forest plans would be revised in not more than a decade. Today, most national forest plans in Oregon have still not been revised.

Since 1984 some roadless areas have been lost, while others haven’t been. Due to an administrative rule imposed during the waning days of the Clinton administration, some level of protection against logging Forest Service roadless areas has been gained. Some of the roadless areas we were fighting for in 1984 are protected wilderness today.

Release language (we watered it down to “sufficiency” language) was the political price Senator Mark Hatfield (R-OR) required to get the OWA of 1984. Nationally, the Oregon compromise broke a political logjam that resulted in 8.2 million acres of wilderness in 178 units being established nationally in 1984, the best acreage year since the Wilderness Act of 1964—save for the anomalous 1980 when Congress established ~61 million acres of wilderness in Alaska.

Looking back, accepting the 1984 Oregon wilderness deal was strongly worth it, though more costly than we thought it would be.

Omnibus Oregon Wild and Scenic Rivers Act of 1988

Before Senator Hatfield changed the political riverscape of wild and scenic rivers in 1988, the way to a wild and scenic river was to first get an act of Congress to require a land management agency to study the possibility and report to Congress, and then another act of Congress to actually protect the river segment. Wild and scenic river bills were few and generally were limited to a single river segment. Progress was glacial. Hatfield’s omnibus bill blew out that political model and established 1,441 miles of wild and scenic rivers in Oregon, none of which had congressionally studied, and most of which were opposed by the federal land management agencies.

The only problem with the bill itself was that it didn’t include enough river miles. However, the bill came at a price. In 1988, the Oregon stream that was most threatened with being dammed was the Upper Klamath River. Hatfield really didn’t want to save the Klamath, so he saved forty-some free-flowing stream segments elsewhere in Oregon. Hatfield was also advocating the completion of a dam on Elk Creek, a tributary of the Rogue River. The senator from Big Timber, as chair of the Senate Appropriations Committee, was concurrently bankrolling massive old-growth forest liquidation.

Saving lots of wild and scenic rivers but damming the Klamath and clear-cutting Oregon was a political quid pro quo equation in Hatfield’s personal political ledger. In 1988, the omnibus wild and scenic river bill was easy and virtuous to support, but it gave Hatfield political cover to do his other bad things. In the end, conservationists stopped much old-growth logging by other means. As of January 2019, the breeched Elk Creek Dam is within the Elk Creek Wild and Scenic River.

Omnibus Parks and Public Lands Management Act of 1996

For a quarter century, conservationists fought to save the magnificent old-growth forests in the Opal Creek area from being clear-cut. It finally happened in 1996 as longtime Senator Mark Hatfield (R-OR) was retiring. 

In that same bill was a provision giving several thousand acres of federal public lands to the Coquille Tribe. At least Hatfield constrained the management to being consistent with adjacent public lands in the Northwest Forest Plan. (Senators Wyden and Merkley struck that protection in 2018, though.) As I sat in Hatfield’s personal office in Portland, I knew the man was more committed to the land giveaway to the Coquille Tribe than he was to saving Opal Creek. Though I took some crap from public lands conservation purists, I took the deal.

Steens Mountain Act of 2000

The Steens Mountain Act wasn’t an omnibus bill but it did address several subjects in the same geographic area. On the whole, the Steens bill was a very strong net gain for conservation with a million-acre mineral withdrawal, a half-million-acre special management area, more than 100,000 acres of wilderness (some of it statutorily livestock free), many miles of wild and scenic rivers, and other good provisions.

Even though there was a net loss of public land in some legislated land exchanges, the total amount of the wilderness resource (designated wilderness, wilderness study areas, and roadless areas) increased significantly. While lobbying for that bill, I consulted with the bighorn sheep, the greater sage-grouse, and the redband trout, and they all said to go for it.

The Steens bill was a grand bargain where all the Steens interests knew exactly what was being done for them and to them. Driving it was a threat by Clinton’s interior secretary, Bruce Babbitt, that he would have Clinton do a national monument on his way out the door. The local land and cattle barons’ fear of a Clintonian national monument was greater than conservationists’ hopes for one. A deal was negotiated (not collaborated on) and then legislated.

Omnibus Public Lands Management Act of 2009

2009 was a good year for Oregon public lands conservation, bringing several wilderness areas and wild and scenic rivers on and near Mount Hood, new wildernesses elsewhere, expansion of the Elk Wild and Scenic River, and more. It was also very good for the federal public lands in other states, all a result of pent-up political demand by senators to generally conserve (and sometimes squander) public lands.

The most odious provision in OPLMA, inserted by Senate Energy and Natural Resources Committee chair Lisa Murkowski (R-AK), allowed the secretary of the interior to exchange land in the Izembek Wilderness and National Wildlife Refuge to facilitate the aforementioned market road. So concerned was Defenders of Wildlife that it opposed the entire OMPLA. Other national conservation organizations chose to look the other way because the language said the secretary “may” (not “shall”) exchange the land. Murkowski wanted “shall,” but at the time she was not in the majority, and the Senate committee majority (Democratic) staff ensured that the word was “may.” Murkowski took “may,” as it was all she could get. And there was then a Democratic administration.

What Murkowski didn’t count on was the thorough analysis that then Interior Secretary Sally Jewell did that documented that the land exchange was not in the public interest (her finest hour in a mediocre tenure). All that went out the window when Trump’s secretary of the interior Ryan Zinke crawled out from under a rock and into office. Zinke ignored Jewell’s analysis and simply imposed a land exchange. The U.S. District Court in Alaska later overturned Zinke’s decision, but the Trump administration is not giving up. Murkowski, now in the majority, may be wanting to include a legislative fix to get her road through the wilderness and refuge.

John C. Dingell Conservation, Management, and Recreation Act of 2019

The previous omnibus public lands package took a decade to reach fruition, the time necessary to develop the senatorial demand to build enough horses that could be traded. Inserted into the Dingell Act was a pared-down version of the Oregon Wildlands Act proposed by Oregon’s Democratic senators ,Ron Wyden and Jeff Merkley. Though we didn’t get all that was in the bill originally (protected areas for the Rogue Canyon and Molalla corridor and additions to the Wild Rogue Wilderness were dropped at the last minute), let alone all that we wanted, Oregon public lands did well (~30,000 acres of wilderness, ~256 miles of wild and scenic rivers, and some other good provisions). Also on the plus side, the flagship provision was the permanent reauthorization of the Land and Water Conservation Fund. Since first enacted in 1965, the LWCF had periodically expired, and congressional campaigns were waged to get another short-term reauthorization.

However, a provision inserted at the insistence of Senator Murkowski could result in the loss of up to a half million acres of federal land in Alaska—including in all but one of its several national wildlife refuges. So one cost of elevating the conservation status of certain public lands in Oregon (and several other states)—along with the permanent authorization of LWCF—was the demotion of the conservation status of certain public lands in Alaska.

Only after the Dingell Act became law was there any media coverage of this Alaska public lands giveaway. There are several reasons for it.

First, most conservation organizations were happily working on their own placed-based conservation provisions and were blissfully unaware. Not that their awareness would have likely made a difference in the end.

Second, the national conservation groups, many of which were quite politically invested in LWCF and in need of a political win, did their calculus and looked the other way on the Alaska public land giveaway.

Third, at least one reporter (and probably more) didn’t report Murkowski’s Alaska land grab story lest they be labeled racist. The nominal reason for her provision was to allow the heirs of Native Alaskans who did not avail themselves of an earlier giveaway program to now get those lands. The public has more tolerance for the loss of federal public land if it is going to Native Americans, even though the land may end up as mismanaged as it would be in the hands of non–Native American private interests.

In Part 3, we shall wrestle with the devil of principle and the angel of pragmatism and make some recommendations as to how the Oregon public lands conservation community should proceed.