The lands (and the trees that grow on them) managed by the USFS and BLM are governed by numerous laws that require these lands to be managed sustainably. The O&C Act, which governs the management of over 2 million acres of federally owned forestland in western Oregon, is very specific on this point. It states that the O&C lands “shall be managed . . . for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the principal of sustained yield for the purpose of providing a permanent source of timber supply”. So what is the “principle of sustained yield”?
In its simplest form, this means that the federal agencies cannot cut more trees than it can grow. The next question is how one knows that they are doing this? That’s complicated. It is done by collecting reams of field data which are compiled and feed into computer models developed by teams of PhD’s from a wide range of specialties. Understanding the interplay between all of these biological, social and technical factors form the basis of Forestry Programs developed by our major universities. Short of that, I will give you my synopsis of a Sustained Yield 101 course. I will start by assuming that I own ten acres of land and want to grow Christmas trees to supplement my income. These same principle apply to growing trees to produce building materials.
To determine my “sustained yield” of Christmas trees, the first thing I need to know is the productivity of the soil. My ten acres consists of one acre of really good soil, eight acres of OK soil and one acre of rather poor soil. The next thing I need to know is how long it will take to grow the size of Christmas tree I want to sell. To determine this I need to know the characteristics of the trees I am going to plant (genetics), what supplements I might add to the soil (fertilizers), what management practices I will employ as the trees grow (thinning, weed control, etc.) and how big of a tree I want to grow. I then combine the soil productivity and the tree data to find out how long it will take to grow the size of tree I want and how many trees per acre I can expect to have.
Doing this I find that I can grow 1,500, six foot trees in five years on my one acre of really good soil, 1,250 trees on my OK soil and 750 trees on my poor soil.
I decide to start small and just plant my one acre of good soil. What is my sustained yield? Well it is 1,500 trees every five years. Most of the time, sustained yield is displayed on an annual basis and is referred to as the Allowable Sale Quantity (ASQ). This is because our federal forestland is also managed under another forestry principle which is called “non-decline, even flow management”. What this does is ensure that the communities and businesses that rely on a predictable, constant supply of timber will not be hurt by huge swings in the amount of timber being sold every year. On our case, it means that instead of selling 1,500 trees every five years we would sell 300 trees every year. (1,500 divided by five years) Our ASQ would then be 300 trees.
What would happen if I wanted to plant all ten acres? I could grow 1,500/acre on one acre, 1,250 /acre on eight acres and 750/acre on one acre. Doing the math, this pencils out to 12,250 trees every five years or an ASQ of 2,450 trees. In order for this to truly be sustainable, 300 trees would come off the one good soil acre, 2,000 from my eight OK soil acres and 150 from my one acre of poor soil. I would also have to immediately replant the acres that I cut. Planting baby trees is the heart of sustained yield management.
As you can see, calculating the sustained yield combines many factors and is based on the assumption that you start with bare land. What happens to the sustained yield when you start with land that already has trees on them? The answer is…nothing. Sustained yield is calculated on the potential growth based on the myriad of factors mentioned above. What existing trees do determine is when you can start selling at the sustained yield level. In our Christmas tree example, we can’t start until five years from now. When our federal agencies ask the same question, they look at the size of the inventory that they start with and determine if it can be metered out at the sustained yield level. If not, they must lower their ASQ until such time as the inventory is sufficient to maintain the sustained yield level. If the inventory is very high, they could actually sell more than their sustained yield level for a period of time but the principle of non-decline, even flow prohibits this. -Ross Mickey
The Council on Environmental Quality (CEQ) states in its 2007 publication A Citizens Guide to NEPA that “The environmental assessment (EA) is intended to be a concise document that briefly provides sufficient evidence and analysis”. In an attempt to meet that guidance and to comply with the National Environmental Policy Act (NEPA), the Medford BLM District compiled 1,559 pages of environmental analysis in 2016 in order to implement that year’s vegetation management program; a program that generated less than 60% of the District’s assigned timber outputs. So much for brief and concise.
So how did the Medford District digress from this simple guidance by the CEQ? How did brief and concise morph into embellished and verbose? The answer can partially be found by skimming through the 170 pages of written protests received in 2016 by the Medford BLM in response to the 1,559 pages of analysis. Many of the points embedded in these protests begin with phrasing such as “the EA failed to consider…” or “insufficient analysis in the EA…” Apparently not everyone shares the vision of brevity that the CEQ had in 2007; perhaps brevity is not in everyone’s best interest. The Code of Federal Regulations permits anyone the right to file a written protest to any BLM forest management decision. The Code of Federal Regulations does not however limit or cap the scale of these protests. In other words, you as a citizen can submit a ten-page protest or a 100-page protest; or a thousand-page protest for that matter. This last scenario is a bit absurd and may seem to be an exercise in futility, but considering that the BLM has taken the position that every single protest point embedded in each protest demands its own written response, you might reevaluate; that is if it’s in your interest to generate more paperwork for the BLM.
To illustrate, put yourself in the shoes of a BLM NEPA writer who just completed a 418 page EA (if you don’t believe me follow this link), who then, in response to the recently completed mammoth document, receives over 60 pages of protests with over 80 individual protest points embedded that warrant written response. The term blinded by paperwork comes to mind, or more accurately mired in paperwork. Now, put yourself in the shoes of an opponent/protestor of the BLM’s forest/timber management program. Suddenly the mire you created for the BLM doesn’t seem so bad, or futile. If halting the BLM’s timber management program is unattainable surely slowing it down is the next best thing.
As for our aforementioned BLM NEPA writer: following what must be an exhausting exercise in defending and justifying the recently completed 418-page behemoth in writing, and with the stack of last year’s EA’s, protests, and protest responses still sitting on your desk, that BLM NEPA writer gets started on writing next year’s EA’s. Make no mistake, the excessive and constantly expanding verbiage generated for each new BLM EA is indeed a function of years and years of protests demanding more and more verbiage. And really, what better way to undermine an agency’s ability, and desire for that matter, to operate efficiently than to force that agency into generating more paperwork? With 2017’s timber sale program just around the corner I can already hear the opposition to that program cracking their knuckles in anticipation.
–Andy Geissler, AFRC Western Oregon Forester
The Endangered Species Act (ESA) prohibits the “take” of any species listed as “endangered” but provides more latitude to species listed as “threatened”. The Northern Spotted Owl (NSO) is listed as a threatened species and therefore should not be subject to the take prohibition. The USFWS, however, has arbitrarily decided to extend the prohibition of take to all threatened species. This decision is currently being challenged in court. Until this issue is resolved, it is unlawful for anyone to take a NSO unless such take has been authorized by the USFWS via an incidental take permit or Habitat Conservation Plan. So what constitute a take?
Take is defined in the ESA as any activity that “harass, harm, pursue, hunt, shoot, wound” or “kill” a member of the listed species. The “harm” form of take includes land-use activities that indirectly affect listed species such that a “significant habitat modification or degradation … actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” The courts have further clarified what constitutes harm. To demonstrate harm to wildlife one must prove (i) there is or will be death or actual injury (ii) to an identifiable member of a listed wildlife species (iii) that is proximately caused by the action in question. Sadly, these three criteria are not being used by the USFWS when determining if any NSO’s will be taken on land managed by the USFS and BLM.
Since the early 1990’s, the USFWS has relied on two very simple standards to assess if take may occur. These are if the amount of “suitable” habitat falls below 50% of the acres in the immediate 1,000 acres around an “activity center” or below 40% within the home range which varies in size across its range. The USFS and BLM use these guidelines when designing projects and avoid doing anything that would reduce the amount of suitable habitat below these amounts.
One of the main problems with this one-size-fits-all criteria is that it doesn’t take into account the variation in habitat use within the different geographical areas and ecosystems that the NSO is found. These range from the dense Douglas-fir regions of Washington and NW Oregon, to the drier mixed conifer forests of SW Oregon and northern California to the lush redwood forests of coastal California. These criteria are especially problematic for the drier mixed conifer regions of SW Oregon and northern California. In this region, the natural forest conditions where over 90% of the historic NSO’s have lived do not contain the amount of habitat required to avoid “take”. According to the guidelines the owls that have lived there for many, many years should be dead.
This leads to a very bizarre scenario. Due to lack of management, much of the federal land in this region has become overgrown such that the likelihood of a catastrophic, uncharacteristic wildfires occurring is extremely high. The agencies need to reduce the amount of vegetation on these lands to a more historic level but in areas where NSO’s have ever been detected they are ham strung from doing so because these areas do not have enough habitat to meet the no-take standards. If the agencies pursue obtaining an incidental take permit so they can thin these forests (something the BLM is not allowed to do under its new RMP’s), one pair of owls can be “taken” thousands of times since every time habitat is removed (i.e. one tree is cut) from an area where the habitat is already below the guideline level, the USFWS considers that a take has occurred.
It would be refreshing if the USFWS, USFS and BLM utilized the standards set forth in the ESA and clarified by the courts when deciding if an activity will take a NSO by determining that there is or will be death or actual injury to an identifiable NSO that is caused by the removal of habitat instead of relying on their one-size-fits-all criteria. It would also be nice if the general public and judges realized that the USFWS is not using this criteria and that when they issue an incidental take permit to allow the take of NSO’s that the number of NSO’s that will be there after completing the project will be the same as were in the area prior to the action and the same NSO can be taken thousands of times.
I am an environmentalist. I also work for the timber industry. Some people might see that as a contradiction. But in the timber industry, that’s the norm.
I grew up in Springfield exploring Oregon’s incredible natural treasures. I have hiked Oregon’s volcanoes, rafted down our state’s wild and scenic rivers, got lost in the woods, and swam and fished in our ice cold lakes.
I plan on living in Oregon for the rest of my life and hope to share these same, amazing experiences with my kids and grandkids. My coworkers and colleagues feel the same way. That’s exactly why we work for the timber industry: to keep Oregon’s forests healthy, the environment clean, and to ensure our rural communities are vibrant and safe.
But we have a lot of work to do if we want to protect Oregon’s special places. The truth is, our state is facing an environmental crisis. Climate change, disease and bug infestations, drought, and catastrophic wildfires are threatening Oregon’s public forests and the extraordinary economic and ecological benefits they provide.
The impacts of our forest health crisis are already apparent in California, where more than 65 million trees are dying or dead. Leaders in California are asking the Federal government for emergency relief to treat and replant its dying forests. But under current Federal rules and regulations, it would take years and tens of millions of taxpayer dollars before restoration work could even begin.
The more likely scenario will be for millions of California trees to rot, burn, and spew stored carbon dioxide into the atmosphere – to say nothing of the economic loss and public safety risk. With the resulting lack of replanting and a changing climate many of these forests will instead become brush fields.
Oregon should take note and then take action. Now, more than ever, we need a plan to save Oregon’s public forests through proactive management and local and regional partnerships. Congress has passed new laws, such as the Good Neighbor Authority, that would allow the State of Oregon to work hand-in-hand with the Forest Service to thin hundreds of thousands of acres of unhealthy forests before it’s too late.
Under current policy, Federal agencies are only treating hundreds of acres at a time. That’s not good enough. Oregon has 30 million acres of forest land and the Federal government owns more than 60 percent. In order to avoid California’s fate, land managers must increase both the pace and scale of forest restoration projects. Additional tools and money are needed from Congress to accelerate planning processes and implementation of work in the woods.
If Oregon takes action now, it can also help avert another crisis: the economic and social collapse of our rural communities. As the Portland metro-area continues to pull itself out of the Great Recession, rural Oregon is being left behind.
Real unemployment in southern and eastern Oregon communities is still in the double-digits. The number of students eligible for free or reduced lunches in rural Oregon – a key indicator of poverty – is staggering. Sadly, more than 63 percent of kids in my hometown school district, Springfield, are eligible for the program.
In places like Josephine County, a county that recently lost its last remaining sawmill, one in four Oregonians lives in poverty and 30 percent rely on food stamps. To make matters worse, essential county government services like law enforcement, search and rescue, mental health, education, and roads – are being slashed as county revenues from federal timber sales remain at historic low levels.
Oregon’s timber industry is perfectly positioned to help the State of Oregon solve the looming environmental crisis and our state’s rural economic crisis. Our industry could put thousands of unemployed and under-employed Oregonians back to work thinning our forests, transporting materials to local facilities, manufacturing carbon friendly wood products, and generating renewable energy by using every scrap of wood that comes from our forests.
Exciting new advances in technology, engineering, and architecture put Oregon’s timber industry at the forefront of innovative and game-changing products, such as cross laminated timber. As Portland continues to grow up and out, Oregon could use its own raw materials, made by local workers, in local mills, to build some of the most sustainable and beautiful buildings, schools, and houses in the United States.
Oregon faces serious ecological and economic challenges. But these challenges provide very real opportunities to protect our incredible natural treasures for current and future generations, grow our economy, and put rural Oregonians back to work. Now is the time for a vision and action, or else we may watch our state’s unparalleled natural beauty go up in smoke with the fate of Oregon’s rural communities not far behind.
by Matt Comisky
AFRC Washington State Manager
What can we do about it?
In part 2 we covered some of the reasons you should care about the TLT program. In part 3 we will identify some ways to address the issue. While well intentioned, this program is broken and needs a tune up. Much like a new car off the lot, TLT was a shiny new program that worked at the time. Many miles later, it needs new tires, brakes, and transmission work to carry it over the future miles it must travel. The agency does need a mechanism to reposition underperforming assets just as any other trust manager would consider. But this system needs to be reformed for the benefit of the beneficiaries both today and tomorrow. But what can we do about it?
In the near term, there are several different ways to work on effecting change to this program, but all require engagement. Just at different levels and with different groups that can help to create change. Either individually or as a group (PTA, School Board, etc.,) get involved with the Advocates for School Trust Lands (formerly CLASS) or the Washington State School Directors Trust Land Task Force. These are the primary groups engaged on many of these issues. Look for other groups advocating for the sustainable maximum management of DNR trust lands, such as your local beneficiary tax district. Talk to your legislative representatives. Tell them your concerns over specific parcels or the program. Comment to the Board of Natural Resources on the topic or when transfer parcels come up for approval by the Board. And express your concerns to DNR staff and the Commissioner of Public Lands throughout the process. Ask for more transparency. Advocate for a broader picture of the immediate, future, and unintended consequences of transfer of the proposed parcels. All before the decision is made by the legislature.
Soon AFRC hopes to bring forward some concepts and ideas to tune up the program. Concepts to protect the corpus of the trust, protect future generations while providing for the current, and to allow the trust manager, DNR, the needed ability to reposition assets for the benefit of the beneficiaries. Why do we care? Because without the vibrant customer base our members provide, the value of the trust asset is greatly reduced. The reduction in harvest volumes due to decreases in available acres means potential curtailments or shuttering of customer milling facilities. Which means a reduction or loss of customers who competitively bid on timber sales. This ultimately is not good for our members or the communities our members and their employees live, work and play in. Nor does it support the beneficiaries; schools, libraries, fire districts, etc. today or in the future. Maintaining the maximum working forest land base in Washington is good for today’s generation and tomorrow’s.
Why Should You Care About the TLT Program?
In part one we covered the basics and overview of the TLT program. In part 2 I am going to address the second question; Why should you care?
The answer; quite honestly the primary reason you should care about TLT is that it continues to erode the corpus (body) of the trust assets for near term gain at the potential detriment of future generations. So not only is the corpus of the trust eroded but the intergenerational equities (benefiting one generation over another) issue is also at play. But these are just the primary reason, there are many others, some broad and some finely nuanced, including the undivided loyalty concern.
What do I mean by erode the corpus of the trust? The corpus or body of the trust in this context is primarily timberlands managed by DNR. Under this program, the acres within the Common School trust are decreased through transfer or inter-trust exchanges. While providing the expectation of the agency buying replacement lands. In June of 2013 the DNR reported in its 2013-2015 Biennium TLT proposal document, there had been a disposal of 113,280 acres and only a purchase of 49,683 acres. This is a 66,772-acre loss of trust lands, mostly timber lands, from the TLT program alone. A decrease that is roughly 1.5 times greater an area than the City of Tacoma. This means that under DNR’s fiduciary obligation of inter-generational equities, today’s generation has been compensated but tomorrows generation may or may not be compensated through trust revenues. Especially in the current situation where the deficit of acquired lands is so large. While we are aware of some small acreage purchases since the 2013 report, we are working with DNR to learn what the current actual shortfall of replacement lands is. Reports published since the 2013-15 report have not included the totals for disposal and acquisitions under this program. It is our belief that the acquisition of lands still lags far behind the continued disposal, eroding the corpus of the trust.
The other nuance to this erosion issue is the inter-trust exchange process. I know this is going to be a bit dense in information but it is critical to understand this aspect of the process. Since Common School trust lands are the only ones which can be removed from trust status, other than County Trust lands re-conveyed to a county for park uses, TLT parcels which are not already Common School trust lands must be exchanged for similar value Common School parcels. For example, a 120-acre parcel of County Trust lands (State Forest Transfer lands) with high value timber is identified for TLT transfer. In order to accomplish this transfer, the 120 acres must be exchanged for Common School trust lands of the same value and preferably in the same rough geographical location. Often the Common School trust lands have younger trees growing on it. This means it takes more acres to create the same value. So the swap may equate to more like 120 acres in exchange for 250 acres of younger growth trees. While the dollar amount is the same, the county lands increase by 130 acres and the Common School decreases by 250 acres. The Common School trust gives up 250 acres in exchange for 120 acres that are then immediately transferred out of trust management. See the table below for the flow of acres.
This has impacts on both current and future generations. Also since most of DNR’s planning efforts are based on managed acres, this has varied impacts on individual trusts and ultimately the number of acres available for sustainably managed timber harvest. This process raises concerns over inter-generational equities, undivided loyalty, and preserving the corpus of the trust.
Additionally, there are concerns over the process the TLT program takes in approving the parcel list that is submitted to the legislature. Ultimately there is not an open public process which allows for public input and engagement on the program from a broad perspective. While it is true the agency sometimes holds local community education meetings for specific parcels, there is no opportunity to look at the big picture impacts to the trust and the beneficiaries. Because the complete appraisals are not conducted until after the legislature approves the list, it is not possible to fully understand some of the negative impacts. This is especially true with the inter-trust exchange aspect as those exchange acres are identified later in the process.
There is also controversy over the role the Board of Natural Resources plays in the approval of the list. While the Board has the general power to “[e]stablish policies to ensure that the acquisition, management, and disposition of all lands and resources within [DNR’s] jurisdiction are based on sound principles designed to achieve the maximum effective development and use of such lands and resources…” RCW 43.30.215(2). The Board prior to approval by the legislature only has informational briefings on the proposal. As described in DNR’s own documents the information is “…assembled into an informational package that is presented to the Board of Natural Resources and then to the Governor’s Office for submission to the Legislature.” The Board does not weigh in on the policy, documentation, appraisals, impacts to the trust or other issues of concern related to the TLT proposed package. No discussion. No in depth review. No vote. No Board Resolution. Usually just a head nod and DNR staff proceed. A transfer parcel list developed by DNR staff, appraised by DNR staff, and ultimately disposed of after funding from the legislature by DNR staff, with little to no input from the beneficiaries or the Board other than a rubber stamp of approval of one transaction at a time.
These are just a few of the reasons why you should care about this program. Ultimately the concerns over fiduciary obligation, intergenerational equities, and undivided loyalty, play heavily into the impacts to the trusts both for today’s generation and tomorrows. And I did not even cover the lost revenue when these parcels are no longer managed. In part 3 we will explore what we can do about it.
This is part 1 of a 3-part series about the Trust Land Transfer program in Washington State. In this series we will cover 3 basic questions. The first question will be “what is trust land transfer?” In our following post, we will explore “why should you or anyone care?” And in our third post we explore “what can we do about it?” Let’s get started.
What is Trust Land Transfer or TLT?
Trust Land Transfer Program or TLT as most people refer to it, is a Washington State Department of Natural Resources (DNR) managed program which began in the late 1980’s. The program involves DNR staff identifying (prior to each legislative biennium) certain trust lands that which they view as underperforming as revenue generators due to their difficulty to manage, but otherwise “provide greater social benefit through non-revenue generating activities.”
The list of candidate trust lands is reviewed by DNR staff, other agencies and the Commissioner of Public Lands. Staff presents the list to the Board of Natural Resources for informational purposes and once approved by the Commissioner it is forwarded to the Governor’s office. The list is submitted to the legislature, and approved lands are transferred out of the trust land base to conservation status under DNR management or other public agencies to be managed for non-revenue, generally conservation and recreational, purposes. The transfer package approved by the Commissioner, Governor, and Legislature is “authorized and funded as a section in the Capital Budget Bill.” The legislature funds the program by authorizing the transfer and providing an appropriation for the value of the land (which goes to the Real Property Replacement Account) and timber (which goes to the Common School Construction Account).
As the biennium proceeds individual transactions are brought before the Board of Natural Resources for approval of each transfer. In some situations, where the proposed TLT parcels are not currently Common School Trust, an inter-trust exchange must first take place. Typically, in these situations the parcels proposed for transfer are County trust lands. These lands must first be exchanged for Common School lands of similar value. Often the acres and timber age classes are different, but the dollar values are roughly the same. This creates potential issues of intergenerational equities, undivided loyalty, and erosion of the corpus of the trust. All issues we will explain in part 2 of this series.
Upon BNR approval of the transfers, and inter-trust exchanges if needed, DNR staff completes the necessary work to complete the real estate transactions. The appropriated funds are then distributed to the two accounts based on the values identified in the appraisal presented to the Board of Natural Resources.
One caveat to the program is the expectation that the parcels selected have an 80% “aggregate timber value” with 20% of the total value in the land. This is to assure the maximum amount of the appropriation is deposited into the Common School Construction Account. This does however create challenges when some parcels which are perfect candidates for this program have a lower timber to land value ratio. Often these parcels are viewed as unsuitable for the program and they remain in trust management status.
This covers the TLT program mechanics at a high level. While there is guidance in the selection of proposed parcels, there traditionally has been very little oversight of the true need to transfer parcels and whether DNR is adhering to its trust mandates. These mandates include its fiduciary obligations to generate revenue, undivided loyalty, inter-generational equities and to protect the corpus of the trust. In part 2 we will explore some of these issues in our effort to answer the question “why you should care?”