The House Committee for Agriculture and Natural Resources recently advanced House Bill 3103, which contains new regulatory requirements and avenues to sue the state over logging on state forests.

The bill requires the state forester to set a “sustainable timber harvest level” a minimum of once every ten years but also requires the level be re-established any time there is a change in forest management or any time a fire, landslide or wind event changes the conditions of state forest land.

Anyone familiar with forest management in Oregon will know that changes in forest conditions and associated management changes are annual occurrences. Not only does the statute require an annual establishment of a timber harvest level for state lands but also requires this “sustainable timber harvest level” be established through administrative rule.

An administrative rule requires notice, comment, and public meetings. There are a host of detailed and involved rulemaking requirements. This extensive process will be required every time a new harvest level is established.

Further, the state can be sued every time this level is established or not established, not just for procedural defaults in the rulemaking process, but also over compliance with the numerous, vague criteria in the statute.

The Oregon Department of Forestry, the timber industry and conservationists are going to disagree on what constitutes an appropriate level of “sustainable harvest,” and it will likely take years of litigation to cement interpretations of all these differing terms.

The bill also expressly authorizes injunctive relief pending the resolution of disagreements over the sustainable harvest level, which could result in the suspension of all timber harvest of state lands until the court agrees on a final number.

Given that this will take years, and will likely advance to higher courts, it is incredibly likely some area of state forest will burn in the meantime, prompting the entire process to start over, or another round of litigation to start in parallel. 

Section 3 of HB 3103 provides a specific right of action to sue the state if it fails to set or revise this harvest level. So anytime the forest conditions change on any state forest lands — which happens every year — the timber industry could sue the state for brushing off or failing to establish a new harvest level.

This would follow numerous full administrative rulemaking processes; notices, comments, all day public meetings. You can smell the public tax dollars burning.

Finally, the bill allows lawsuits against the state for failing to manage state forest land in line with the sustainable harvest level. It is unclear how this provision would work; and across what time frame? What if no one is buying the timber given pricing concerns or a decline in housing construction given market turmoil?

The provision again explicitly allows for judicial injunctions, but again, it is unclear how this provision would even work. Injunctions prevent activities, they cannot require the government to plan and auction timber sales to unwilling buyers. The uncertainty and vagueness will again require decades of judicial explanation and intervention.

The entire purpose of the state securing a Habitat Conservation Plan for state forests is to put to bed the decades of legal fighting over logging on these public lands. It will provide protections for older forests and waterways and provide a sustainable and predictable supply of timber. 

As an environmental attorney who has sued the Department of Forestry for illegal logging, you might think I would be all for new ways to sue the state, but I have a family and friends, and do not want to spend the remainder of my days litigating these arbitrary cases. …

The only thing this bill will do is provide a non-stop stream of work for timber industry lawyers that will happily con some rural school district into spending its last penny chasing an unattainable goal. It is an obvious waste of public time and money.

Nick Cady is the legal director of Cascadia Wildlands, a grassroots conservation organization that defends and restores Cascadia’s wild ecosystems based out of Eugene.