Commentary: Results of Oregon lawsuit could reshape public lands

Most of us first encountered Lord of the Flies in high school English class. It’s a story about what happens when the rules that hold a community together disappear – and how quickly order gives way to chaos.

That’s an uncomfortable analogy, but it’s one worth keeping in mind as a federal court considers a lawsuit recently filed in Oregon – a suit that has implications for hunters, anglers and everyone who depends on well-managed public lands. While the suit centers on a single federal timber sale, the legal theory behind it could create uncertainty for public land management across the country, including in places familiar to Outdoor News readers.

Many of us followed Congress’s decision earlier this year to overturn federal mineral lease withdrawals within the Boundary Waters watershed. That high-profile vote was part of a broader effort that has implications far beyond northern Minnesota.

The problem begins with the Congressional Review Act, or CRA, a 1996 law that requires federal agencies to submit new “rules” to Congress before they can take effect. For nearly 30 years, no one – including Congress or the agencies themselves – treated federal land management plans as rules under the act.

That stable understanding changed when Congress recently declared Bureau of Land Management resource management plans in Alaska, Minnesota, Montana, North Dakota and Wyoming to be “rules” and used the CRA to repeal them.

The immediate political debates surrounding the repealed plans received plenty of attention. The consequence of treating plans as “rules” did not.

The Oregon lawsuit challenges a BLM timber sale. It argues that the underlying 2016 management plan never legally took effect because it was not submitted to Congress as the CRA requires. Since BLM approvals must comply with valid management plans and no valid plan authorized the timber sale, the sale was unlawful and logging cannot proceed.

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The same argument applies to the hundreds of post-1996 land management plans that, like the plan in Oregon, were never submitted to Congress. That is why legal scholars, former federal land managers, tribal governments, conservation organizations and industries that depend on public lands all warned Congress that using the CRA this way could destabilize management across millions of acres of our public land.

If a court agrees with the plaintiffs’ reasoning, nearly every federal authorization issued under post-1996 management plans is vulnerable to challenge. That could include timber harvests, prescribed burns, wildlife habitat restoration projects, grazing permits, energy development, rights-of-way, ski areas, OHV management, recreation permits and countless other activities on federal lands. No one can yet predict who will bring suit, where it will land or what will be challenged. But the question is no longer hypothetical.

Imagine a prescribed burn delayed by litigation. A forest restoration or habitat restoration project held up for years. A timber sale challenged not because of its environmental impacts but because the underlying forest plan may never have legally taken effect.

Reasonable people can disagree about how our public lands should be managed. Those debates are healthy and necessary. But replacing decades of careful planning with years of legal uncertainty strips away the stable framework that allows those disagreements to be resolved. That helps no one: not conservationists, not the timber industry, not energy developers, not ranchers, and certainly not the hunters and anglers who simply want well-managed public lands.

The boys marooned on William Golding’s fictional island needed rescuing after the rules collapsed. Congress can still prevent that outcome here. The simplest solution is also the most responsible one: Restore the legal certainty that has governed public lands for decades by clarifying that land management plans are not subject to the Congressional Review Act.

This isn’t about politics. It’s about good governance.

Hunters, anglers, conservationists and industry might disagree over how public lands should be managed. But everyone depends on having stable rules under which those debates occur. Congress didn’t simply change those rules; it cast doubt on whether the rules existed at all.

That’s not a path toward better public land management. It’s an invitation to years of unnecessary litigation and uncertainty on lands that belong to all of us.

John Ruple is a research professor of law at the University of Utah’s S.J. Quinney College of Law where he directs the Law and Policy Program for the Wallace Stegner Center for Land, Resources & the Environment. He has almost 30 years of experience with federal public land management, including serving a Republican governor and Democratic president. He is writing in his personal capacity.