O&C Lands Act, Part 1: Neither 11th Commandment Nor 28th Amendment

This is the first in a series of four Public Lands Blog posts regarding the infamous “O&C” lands, a variant of public lands administered by the Bureau of Land Management in western Oregon. Part 1 sets the stage with a brief history and description of recent epochal events. Part 2 examines a recent ruling by the US Ninth Circuit Court of Appeals. Part 3 examines a recent ruling by the US District of Columbia Circuit Court of Appeals. Part 4 recommends repeal of the O&C Lands Act of 1937 and transferring administration of all BLM lands in western Oregon to either the Forest Service or the Fish and Wildlife Service.

Top Line: By letting stand two federal appeals court decisions, the US Supreme Court dealt a body blow—fatal, we can hope—to the Clearcut Conspiracy’s fantasy of holtz über alles (“timber above everything else”) on ~2.1 million acres of federal public forestland in western Oregon.

Figure 1. A rather small locomotive of the Oregon and California Railroad. Source: Bureau of Land Management.

Ever since I began my public lands conservation career during the Ford administration, a congressional statute enacted in 1937 “relating to the revested Oregon and California Railroad and reconveyed Coos Bay Wagon Road grant lands situated in the State of Oregon” has been the bane of my existence. In the mid-1970s, I discovered that the low-elevation old-growth-forested federal public lands just a few miles from where I grew up—and another 2.1 million acres administered by the Bureau of Land Management (BLM) in western Oregon—were not just your run-of-the-mill federal public lands but rather were exalted “O&C” lands.

According to my sources at the time, the O&C lands were the result of an Act of Congress so special that it effectively served as an 11th Commandment and a 26th (now 28th) Amendment. In all matters, the timber supremacy of the Oregon and California Lands Act (OCLA) of 1937 ruled! My sources of this information were the BLM, Big Timber, the western Oregon counties that received three-quarters of the timber revenues from the clear-cutting of old-growth forests (hereafter Addicted Counties), and all of Oregon’s congressional delegation (all collectively hereafter the Clearcut Conspiracy). Notice that I don’t list the judiciary as a source at that time—more on that later.

From 1937 until 1990, the Clearcut Conspiracy was successful with its holtz über alles narrative. Since the 1990s, especially during Democratic administrations, the BLM is no longer part of the conspiracy, but the agency still loves to log mature and old-growth forests and uses the OCLA as both a sword and a shield. Today, most members of the Oregon congressional delegation are not members of the Clearcut Conspiracy. The two unreconstructed holdouts are Representatives Cliff Bentz (R-OR-2nd) and Val Hoyle (D-OR-4th). (As to the latter, see this C-SPAN video [starting at 1:17:50] where Hoyle parrots the Clearcut Conspiracy’s talking points.)

Figure 2. The bane of my existence. Source: United States of America.

A Brief Synopsis of the O&C Lands

In 1866 Congress granted 3.7 million acres of public domain lands in western Oregon to facilitate the construction of a railroad from Portland to the California border. The Oregon and California Railroad line was built south as far as Medford before running out of money, at which point Southern Pacific Railroad took it over and finished the line into California.

Southern Pacific also sold huge blocks of the granted land to timber speculators. This violated the terms of the land grant, which specified the land could be sold only to bona fide settlers in 160-acre parcels for no more than $2.50 per acre. A series of lawsuits ensued, and eventually the Supreme Court directed that the granted lands that had not already been sold by the railroad into private ownership be returned to the government.

In 1916, Congress took back (after paying the Southern Pacific for them) the unsold 2.8 million acres of granted land and placed them under the jurisdiction of the General Land Office of the Department of the Interior. It further required that the General Land Office clear-cut these “Oregon and California Railroad Revested Lands” (a.k.a. O&C lands) as rapidly as possible and then sell first the timber and then the logged-off lands at auction.

Mostly the lands just remained in political and policy limbo, and in 1937 Congress enacted the Oregon and California Revested Lands Act (OCLA), a statute to retain in federal ownership the 2.7 million acres of land that were still unsold and manage them for multiple forest products (not just timber). The law also compensated sixteen western Oregon counties that could no longer collect property taxes on these again-federal lands.

The stage was set. Between 1937 and 1989, the Bureau of Land Management, successor to the General Land Office, and the rest of the Clearcut Conspiracy interpreted the 1937 statute as holtz über alles. Vast swaths of generally low-elevation old-growth forest were clear-cut and replaced with monoculture plantations of Douglas-fir.

Map 1. O&C lands administered by the BLM (dark orange), mostly in a checkerboard pattern with private timberland (white), some in a checkerboard pattern with BLM public domain land (yellow); “controverted” O&C lands administered by the US Forest Service (dark green), mostly in a checkerboard pattern with regular USFS lands (light green); Coos Bay Wagon Road (CBWR) lands administered by the BLM (burgundy). Source: Congressional Research Service.

In the early 1990s, multiple lawsuits to protect the northern spotted owl and other species resulted in dramatic drop-offs in O&C logging levels and payments to counties.

In 1995, President Clinton issued the Northwest Forest Plan (NWFP), which kept logging levels relatively low.

In 2016, the BLM abandoned the NWFP and continued with a management regime that resulted in the loss of mature and old-growth forests and trees but also kept logging levels relatively low compared to historical levels. The Clearcut Conspiracy (which the BLM and much of the Oregon congressional delegation were no longer a part of) sued.

In 2000, President Clinton proclaimed, pursuant to the Antiquities Act of 1906, the Cascade-Siskiyou National Monument, which included some infamous O&C lands. The Clearcut Conspiracy did not challenge the proclamation. In 2017, President Obama expanded the Cascade-Siskiyou National Monument to include more O&C lands. This time, the Clearcut Conspiracy did sue.

In 2024, the US Supreme Court let stand two 2023 decisions from two federal courts of appeal that found the Clearcut Conspiracy’s lawsuits to reimpose holtz über alles were without merit because that interpretation of the OCLA was wrong all along.

For more details on the history of the infamous O&C lands, see my Public Lands Blog post “Another Northwest Forest War in the Offing? Part 1: A Sordid Tale of Environmental Destruction, Greed, and Political Malfeasance.”

Figure 3. Old-growth logs are still coming off BLM holdings in western Oregon. Source: Bureau of Land Management.

The Lands at Issue

There are three variants of the “O&C” lands (Map 1):

1. O&C lands administered by the BLM, mostly in a checkerboard pattern with private timberland, some in a checkerboard pattern with BLM public domain land.

2. “Controverted” O&C lands administered by the US Forest Service (USFS), mostly in a checkerboard pattern with regular USFS lands.

3. Coos Bay Wagon Road (CBWR) lands administered by the BLM.

Under contention in the Clearcut Conspiracy suits were 2,084,884 acres of BLM O&C lands, lands revested from the land-grant-violating railroad. Also contested were the 74,547 acres of CBWR lands (Map 2), similarly reconveyed to the federal government for similar reasons at a similar time and administered the same as the O&C lands.

Map 2. The Coos Bay Wagon Road Lands, an even more obscure variant of federal public lands administered by the BLM.Source: Bureau of Land Management.

Somewhat in the mix, as they are intermixed with BLM O&C lands, were 394,578 acres of BLM generally forested public domain lands in western Oregon, lands that have never left the federal estate. For a long while, the BLM treated these western Oregon public domain lands the same as it treated its O&C lands.

Not under legal contention were the 492,000 acres of Forest Service O&C land shown in Map 1, which are national forest lands in every way except that counties benefit from these lands according to the O&C revenue-sharing formula rather than the regular national forest revenue-sharing formula.

Timber Above All Else?

It has long been the contention of the Clearcut Conspiracy that the OCLA outranks any other congressional statute, enacted prior or subsequent to 1937. Let’s drill down on that contention and see how the judiciary has responded. A basic rule of judicial interpretation of statutory construction is that if Congress intended a new statute to negate an existing statute, it would either repeal the older statute or explicitly say that it didn’t apply where the new statute applied. In a series of court cases from 1990 through the present, the judiciary has found that the OCLA doesn’t outrank other laws—especially, but not exclusively, those congressional statutes enacted after 1937.

Take, for example, these statutes subsequent to the OCLA of 1937: the Administrative Procedure Act of 1946 (APA), the National Environmental Policy Act of 1970 (NEPA), the Clean Water Act of 1970 (CWA), and the Endangered Species Act of 1972 (ESA) (all as amended). If Congress had meant to exempt the O&C lands from those later statutes, it would have said so when it enacted those statutes. Congress did not. Yet it took a series of court cases, starting in 1989, to conclude that APA, NEPA, CWA, and ESA all apply to O&C lands.

As for laws enacted prior to 1937, let’s consider the Antiquities Act of 1906, in which Congress granted power to the president to proclaim national monuments on federal lands. The Clearcut Conspiracy claimed that the OCLA precluded the proclamation of national monuments on any O&C lands that had any timber on them. Most recently, the courts found that the Antiquities Act does indeed apply to O&C lands. (See my previous Public Lands Blog post, “Cascade-Siskiyou National Monument: Safe from Big Timber, Threatened by the BLM.)

In only one statute, the Federal Land Policy and Management Act of 1976 (FLPMA) (as amended), did Congress address how that statute and the OCLA were to be reconciled. Section 701(b) of FLPMA says that the OCLA prevails over FLPMA “in the event of conflict with or inconsistency between this act and [the OCLA] . . . insofar as they relate to management of timber resources.” Then senior Oregon US senator Mark O. Hatfield (see my Public Lands Blog post “Mark Odom Hatfield, Part 1: Oregon Forest Destroyer”) made sure that this clause was included in FLPMA. Hatfield won and old forests lost.

Figure 4. The northern spotted owl, which requires old-growth forests for its survival. Source: Bureau of Land Management.

What Does the OCLA Actually Require?

What does the OCLA require of the BLM insofar as the 1937 statute relates to the “management of timber” on O&C lands? Remarkably, the courts had never clearly ruled on whether the OCLA itself contains an holtz über alles mandate. Between the BLM’s revising of western Oregon resource management plans in 2016 and President Obama’s expanding the Cascade-Siskiyou National Monument in 2017, the Clearcut Conspiracy went all in on a judicial strategy to, once and for all, determine that (1) the OCLA is exalted above all other statutes, and (2) the OCLA is understood as stipulating that logging should reign supreme over all other uses.

Over the many decades since 1937, the BLM’s own lawyers (“solicitors”) have opined to varying degrees at various times that the OLCA is a “dominant use” statute where logging is superior to other uses, rather than a multiple use statute where timber supply is one use equal to the other named uses of protecting watersheds, regulating stream flow, contributing to local economic stability, and recreation. In its 2016 plan revisions, the BLM essentially still interpreted the OCLA as timber first—but tempered by all those other congressional statutes, in particular ESA and CWA (but not FLPMA).

The Clearcut Conspiracy’s legal blitzkrieg consisted of a total of six lawsuits, five of which were filed in the US District Court for the District of Columbia. As the US Court of Appeals for the District of Columbia Circuit explains:

The appeals arise from three sets of cases filed by an association of fifteen Oregon counties and various trade associations and timber companies. Two of the cases challenge Proclamation 9564, through which the President expanded the boundaries of the Cascade-Siskiyou National Monument. Two others challenge resource management plans that the United States Bureau of Land Management (BLM), a bureau within the United States Department of the Interior (Interior), developed to govern the use of the forest land. The final case seeks an order compelling the Interior Secretary to offer a certain amount of the forest’s timber for sale each year.

The Clearcut Conspiracy won all five cases filed in the District of Columbia at the district court level, where the conspiracy had successfully shopped for a favorable judge, but then lost all on appeal to the appeals court.

As for the sixth lawsuit, the Murphy Company and Murphy Timber Investments, LLC, filed suit in the US District Court for the District of Oregon contesting the expansion of the Cascade-Siskiyou National Monument. Murphy lost at the district court level and also in the US Ninth Circuit Court of Appeals.

The Clearcut Conspiracy was left with just one more option: a hail-Mary pass to the nine members of the US Supreme Court seeking review of the six cases it lost. The Supremes declined. As I speculated previously, perhaps the destructive majority on the court felt that this O&C matter was small beer compared to all the other potential damage they want to do.

In the next two Public Lands Blog posts, I examine in detail the rulings of the US Ninth Circuit Court of Appeals (Part 2 of this series) and the US District of Columbia Circuit Court of Appeals (Part 3 of this series). I go so deep on these rulings because they make clear that the Clearcut Conspiracy’s fantasy that the OCLA of 1937 is a combo 11th Commandment and 28th Amendment is and always has been just that—a fantasy.

Figure 5. An adult coho salmon scaling Lake Creek Falls to return to its place of birth to spawn. Source: Bureau of Land Management.

Take a Bow

Special thanks are due to Kristen Boyles of Earthjustice and Susan Jane Brown, then mostly of the Western Environmental Law Center and now of Silvix Resources. These extraordinary lawyers represented “the wilds,” a.k.a. Oregon Wild, the Klamath-Siskiyou Wildlands Center, and Cascadia Wildlands. The several cases in two judicial circuits were as long and arduous as the stakes were high. The most able counsel of these two lawyers helped ensure that the courts eventually got it right.

For More Information

Blumm, Michael, and Tim Wigington. 2013. “The Oregon & California Railroad Grant Lands’ Sordid Past, Contentious Present, and Uncertain Future: A Century of Conflict.” Boston College Environmental Affairs Law Review.

Kerr, Andy. 2020. “Another Northwest Forest War in the Offing? Part 1: A Sordid Tale of Environmental Destruction, Greed, and Political Malfeasance.” Public Lands Blog.

———. 2020. “Another Northwest Forest War in the Offing? Part 2: Current Threats and Perhaps an Epic Opportunity.” Public Lands Blog.

Riddle, Anne A. 2023. “The Oregon and California Railroad Lands (O&C Lands): In Brief.” Congressional Research Service R42951.

Robbins, William G. “Oregon and California Lands Act.” Oregon Encyclopedia. 

Scott, Deborah, and Susan Jane Brown. 2006. “The Oregon and California Lands Act: Revisiting the Concept of ‘Dominant Use’.” Journal of Environmental Law and Litigation.

United States Court of Appeals for the District of Columbia Circuit. July 18, 2023. American Forest Resource Council v. United States of America.

United States Court of Appeals for the Ninth Circuit. April 24, 2023. Murphy Co. v. Biden.

A Public Lands Conservation Agenda for the New President

The climate, the oceans, species, watersheds, ecosystems, landscapes, cultures, and economies that depend on federal public lands all depend upon the 45th president of the United States having a bold public lands conservation agenda.

While the Property Clause (Article 4, Section 3, Clause 2) of the United States Constitution vests the power over federal public lands with Congress, as the legislative branch Congress cannot be expected to oversee the day-to-day operation of the federal public lands. Therefore, Congress has broadly set policies and then directed specified entities in the executive branch to carry them out. For example, the vast number of congressional statutes pertaining to the National Forest System make reference to the secretary of agriculture (or in some cases the chief of the Forest Service) as the responsible official empowered and directed by Congress to carry out the statute. As most federal public lands are under the jurisdiction of the Department of the Interior, the secretary of the interior (and occasionally the director of the Bureau of Land Management, the Fish and Wildlife Service, the National Park Service, and so on) is similarly empowered or directed.

Though these cabinet officers or agency heads are appointed by the president, they must be confirmed by the Senate before they can assume the office. When it comes to federal public lands, these public land officials have two masters, the president who gave them their job and the Congress—in particular the committees of jurisdiction (the House of Representatives’ Committee on Natural Resources and the Senate’s Committee on Energy and Natural Resources)—who gave them their marching orders.

In some cases, Congress has granted the president certain powers over federal public lands, most notably to proclaim national monuments or to allow or disallow the development of offshore oil and gas. The president and her cabinet and agency heads should use these and other powers granted to them by Congress to advance the cause of conservation of the public lands for the benefit of this and future generations.

What follows is a public lands conservation agenda that the next president could implement without any additional Acts of Congress. It’s unfortunate to have to assume Congress missing in action when it comes to the conservation of federal public lands, but it is. (I hear Congress was more dysfunctional just before the Civil War, but I wasn’t there.)

1. Keep it in the ground.

Federal public lands account for about a quarter of all U.S. fossil fuel production and therefore one-quarter of the carbon dioxide pollution from those sources. To help avert the worst effects of climate change, an immediate ban on new federal fossil fuel leases should be imposed, nonproducing current leases should be allowed to expire, and existing producing leases should be bought back. Doing such will not only help mitigate climate change, it will also prevent harm to the nature that depends on federal public land. Several conservation organizations, including the Center for Biological Diversity, are leading the Keep It in the Ground campaign for federal public lands.

2. Ban renewable energy development on federal public lands.

While less damaging to the climate, the supposed “green” electrons that come from renewable energy projects on federal public lands are better thought of as “light brown” electrons. Concentrated production of renewable energy from wind, solar, and geothermal is as damaging to nature as concentrated production of nonrenewable energy from coal, oil, and gas. Poxing the federal public lands with wind towers or covering them with photovoltaic panels renders that public land parcel worthless for conservation. Public lands have a higher and better use than industrial sites for any kind of energy development. For example, both the desert tortoise and photovoltaic panels find suitable habitat in the California desert. However, solar panels can live—better actually—on roofs in town, while the desert tortoise cannot.

3. Double the National Wildlife Refuge System.

Under existing congressional authorities, the secretary of the interior by secretarial order or the president by executive order can establish new or expand existing national wildlife refuges. These expansions can come from federal public lands currently administered by the Bureau of Land Management or encompass an area of nonfederal land so that the lands can later be acquired by donation or purchase from willing sellers.

4. Proclaim more national monuments.

In the Antiquities Act of 1906, Congress gave the president authority to proclaim national monuments. Hundreds of millions of acres of federal public lands in the U.S. Exclusive Economic Zone and many tens of millions of acres of onshore public lands are worthy of national monument designation. Most presidents have mostly proclaimed national monuments as they were leaving office; but given the general dysfunction of Congress, national monuments should be proposed and proclaimed early and often. For some onshore areas, it may be appropriate for the president to announce her intention to proclaim a national monument well in advance in order to spur Congress to act to conserve an area in ways that can be superior to a national monument proclamation. For example, President Obama’s interest in proclaiming a national monument in Idaho in 2015 prompted Congress to establish 275,000 acres of wilderness in central Idaho—a bill that had been languishing for nearly a decade.

5. Save Wyoming and Alaska federal public lands in other creative ways.

Part of the 1950 congressional deal to combine Grand Teton National Monument (est. 1929) and Jackson Hole National Monument (est. 1942) to create Grand Teton National Park excluded Wyoming from any future presidential proclamations of national monuments. In Alaska, since enactment of the Alaska National Interest Lands Conservation Act of 1980, the president’s authority to proclaim new national monuments is limited to ones less than 5,000 acres in size. Much of the 73 million acres of BLM holdings in Alaska and the 18 million in Wyoming are in need of elevated conservation. With the Antiquities Act rendered useless in these two states, the president could establish new national wildlife refuges or direct her secretary of the interior to do so. In addition, the president could issue executive orders directing the BLM to manage particular areas of public lands for conservation purposes and to prohibit harmful activities.

6. Keep it in the forest.

A very large fraction of the excess atmospheric carbon came not from the burning of fossil fuels but from the conversion of native forests to cities, farmlands, and clear-cuts. Forests on federal public lands need to be protected in order to remove excess carbon from the atmosphere and store it securely.

The United States owns tens of millions of acres of “moist” (not subject to frequent fire) forest types in southeastern Alaska, western Washington, western Oregon, northern California, northern Idaho, and northwestern Montana. These moist forests act as huge and secure stores of carbon, and they also sequester additional carbon back to the biosphere from the atmosphere. Most are within the National Forest System, but some significant areas are administered by the BLM. By executive order, the president could direct the secretaries of agriculture (Forest Service) and interior (BLM) to set aside “carbon reserves” that contain moist forests to conserve already-stored carbon and to maximally sequester additional carbon to help ameliorate the effects of climate change. Many of these moist forest stands consist of older (mature and old-growth) trees that are best suited to resist and adapt to climate change.

7.Keep it in the grass.

Temperate grasslands store more carbon on average than temperate forests, according to a report from the Intergovernmental Panel on Climate Change. The difference is that most of the carbon in a forest is aboveground, while most of the carbon in a grassland is belowground. Livestock grazing and other destructive agricultural practices have not only severely reduced aboveground carbon stores (otherwise known as plants) but also allowed the release of much belowground carbon. Carbon reserves such as those recommended for moist forest types could also be established to protect public land deserts and grasslands.

8. Raise royalties on federal energy revenues.

While the best thing for the world’s climate is for the federal government to collect no royalties from fossil fuel production on federal public lands as it should no longer be allowed, until that time the taxpayers should receive a fair return on something private entities are allowed to sell. A report by the Center for Western Priorities notes that the royalty paid to the federal treasury for fossil fuel production from federal lands is 12.5 percent of revenues. Compare this to the 16.75 percent charged by Wyoming, Utah, Montana, and Colorado, or the 18.75 percent charged by New Mexico and North Dakota, or the 25 percent charged by Texas for fossil fuel production from state lands. The federal government receives 18.75 percent for offshore oil and gas.

Besides representing a fair percentage of revenues, the royalty should factor in the social cost of carbon (SC-CO2). SC-CO2 is measured in $/tonne and includes—but is not limited to—the cost of changes in net agricultural productivity, adverse impacts on human health, property damage from flooding, and changes in the energy system due to climate change. It is the cost to society of placing CO2 in the atmosphere. Burning a barrel of oil (42 U.S. gallons) emits 0.43 tonnes of CO2. West Texas Intermediate (WTI Crude Oil, a benchmark for oil prices) is trading for around $50/barrel. Ifthe SC-CO2 is $36/tonne CO2, adding the social cost of carbon to the price of a federal barrel of oil would increase its price by ~$16. It probably wouldn’t offset the special tax breaks afforded to fossil fuel producers that are permanently embedded in the U.S. tax code, but it would help level the playing field for sustainable and renewable forms of energy.

9. Withdraw all scenic- and recreation-classified wild and scenic rivers from mining.

In its wisdom (pronounced “compromise”), Congress specified in the 1968 Wild and Scenic Rivers Act (WSRA) that only the segments of wild and scenic rivers classified as “wild” would be withdrawn from the application of the federal mining laws. Those segments classified as “scenic” or “recreational” are not protected by WSRA from mining. The difference is that a “wild” segment generally has no roads in its corridor, whereas a “scenic” segment may have a road crossing its corridor and a “recreational” segment a road along its corridor. If a stream is worthy of inclusion in the National Wild and Scenic Rivers System (NWSRS), it’s worthy of not being mined. Some—but far from all—such stream segments have been withdrawn from mining by the secretary of the interior under the 1976 Federal Land Policy and Management Act withdrawal provision for the maximum allowed twenty years. All of the NWSRS should be so protected from mining.

10. Link mineral withdrawals to management plans.

The Forest Service and the BLM develop land and resource management plans under the authority of the National Forest Management Act and the Federal Land Policy and Management Act (FLPMA), respectively. In such plans the agencies designate lands for conservation and sometimes prohibit such things as logging, road building, grazing, off-road vehicles, fluid mineral leasing, and other activities that would harm the values for which the area is being managed. However, under the Mining Law of 1872, an area of federal land may only be protected from hardrock (gold, etc.) mining if the area has been “withdrawn” pursuant to the withdrawal provision of FLPMA. The president should direct the BLM and the Forest Service to promptly apply to the secretary of the interior for such mineral withdrawals, and she should direct the secretary to promptly withdraw them.

“If you have built castles in the air, your work need not be lost; that is where they should be. Now put the foundations under them. ”

— —Henry David Thoreau, Walden: A Life in the Woods (1854)