2.0 Recitations

• 2.1 On April 13, 1994, the Secretaries issued the Record of Decision (1994 ROD) for planning documents known as the Northwest Forest Plan (NWFP) to govern the administration of 22.1 million acres of federal land within 19 national forests in western Oregon, western Washington and northern California administered by the U.S.D.A Forest Service (Forest Service) and the Bureau of Land Management (BLM) Coos Bay, Eugene, Lakeview, Medford, Roseburg and Salem Districts as well as a BLM district in California. The Forest Service and BLM when collectively referred to in the Settlement Agreement are referred to as the Agencies.


• 2.2 The NWFP created 10 million acres of reserves where development of late successional or riparian habitat is the primary objective and timber harvesting is only allowed if it meets the goals of accelerating the development of the late successional or riparian habitat.


• 2.3 The Secretary of the Interior, through the BLM, manages 2.2 million acres of forest land in western Oregon of which the NWFP designated 1.6 million acres in Late-Successional and Riparian Reserves. These BLM lands are subject to the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act (O & C Act), 43 U.S.C. § 1181a. In 1995 the BLM adopted the Resource Management Plans for its Coos Bay, Eugene, Lakeview (Klamath Falls Resource Area), Medford, Roseburg and Salem Districts that adopted the reserve designations and other standards and guidelines of the NWFP.


• 2.4 Programmed timber harvest in the NWFP occurs in the 22 percent of the total area designated as Matrix or Adaptive Management Areas (AMAs).


• 2.5 The NWFP established ten AMAs as units designed to develop and test new management approaches to integrate and achieve ecological, economic, and other social and community objectives. The AMAs have scientific and technical innovation as goals, with a guiding principle of allowing freedom in forest management approaches to encourage innovation in achieving the goals of the NWFP. The primary technical objectives of the AMAs are development, demonstration, implementation, and evaluation of monitoring programs and innovative management practices that integrate ecological and economic values.


• 2.6 The NWFP estimated an annual probable sale quantity (PSQ) of 958 million board feet to be taken from the matrix and the AMAs over the first decade that the NWFP would be in effect (the period ending April 13, 2004). In addition, approximately 100 million board feet of other wood products not considered as merchantable were estimated to be produced annually on Matrix and AMA lands. Representing neither minimum nor maximum levels, the PSQ reflected the Agencies’ best assessment of the average amount of timber likely to be offered annually in the NWFP area over the succeeding decade, following a start-up period.


• 2.7 Subsequent to the promulgation of the NWFP, the PSQ has been adjusted downward to 805 million board feet due to revised calculation of riparian reserves and adjustments to individual National Forest Land and Resource Management Plans and BLM Resource Management Plans.
• 2.8 A variety of factors have limited the ability of the Agencies to implement timber sales and produce the PSQ.


• 2.9 The objective of Late-Successional Reserves (LSRs) is to protect and enhance conditions of late-successional and old-growth forest ecosystems, which serve as habitat for late-successional and old-growth related species. Thinning (precommercial and commercial) may occur in stands up to 80 years old. The purpose of these silvicultural treatments is to benefit the creation and maintenance of late-successional forest.


• 2.10 The PSQ is based on the long-term sustained yield, from the lands suitable for timber production, from within the Matrix and AMA land use allocations. Harvest volume from treatments within LSRs and riparian reserves does not contribute to PSQ.


• 2.11 The Agencies estimate that 1.8 million acres of LSRs could benefit from thinning to enhance late successional conditions. Thinning one million of these acres could be accomplished with commercial timber sales.


• 2.12 The agencies estimate that with appropriate funding, thinning sales in the LSRs could produce approximately 4-6 billion board feet of timber over 20 to 30 years, after a start-up period.


• 2.13 The parties expressly acknowledge that in order to carry out the provisions of this Settlement Agreement, except for those obligations which can be accomplished in fiscal years 2003 and 2004 with funds budgeted for those years, additional funding targeted for the accomplishment of the objectives of this settlement will have to be obtained from Congress.


• 2.14 The Forest Service and BLM expected to use AMAs to explore alternative ways of managing, and the Agencies developed plans for the management of AMAs. In upholding the NWFP, the Federal District Court for the Western District of Washington specifically noted that alternatives designed to increase timber harvest could be tested in the AMAs.


• 2.15 A model was developed to evaluate outputs from silvicultural practices and resource values on private/federal land exchanges in the Umpqua Basin which is the Multi-Resource Land Allocation Model identified in §349 of the Department of the Interior and Related Agencies Appropriations Act, 2001, Pub. L. 106-291 (October 11, 2000).


• 2.16 AFRC has pending a case in the United States District Court for the District of Columbia currently captioned American Forest Resource Council et al. v. Clarke, Civil No. 94-1031 TPJ (D.D.C.) (the AFRC O & C case), appeal pending No. 02-5024 (D.C. Cir.). The Second Amended Complaint in the AFRC O & C Case asserts 15 claims for relief alleging that in approving the 1994 ROD the Secretary of the Interior violated the Federal Advisory Committee Act (FACA), 5 U.S.C. Appendix 2; the O & C Act; the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321, et seq.; the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §§ 1701, et seq. and the Federal Records Act (FRA), 44 U.S.C. §§ 3101, et seq. The O & C Act claims allege that the NWFP cannot establish reserves on O & C lands, and that the NWFP eliminates sustained yield timber harvest management of the O & C lands in violation of the O & C Act. The federal defendants have filed an answer to the Second Amended Complaint denying all such allegations.


• 2.17 The Counties filed an action against the Department of Interior captioned Association of O & C Counties v. Babbitt, Civil Number 94-1044 (the Counties O & C case), in the U.S. District Court for the District of Columbia also challenging the management of BLM lands in Oregon and California under the 1994 NWFP Record of Decision. In their complaint, the Counties alleged violations of the O & C Act, FLPMA, FACA, and NEPA. This action was settled by parties in 1997, and the matter was dismissed without prejudice. A copy of the settlement agreement (Counties O & C case Settlement Agreement) is annexed as Exhibit A. As part of the Counties O & C case Settlement Agreement, the plaintiffs in the Counties O & C case agreed to forbear from filing challenges "based on the allegations of violations made in the complaints in the present cases or on any allegations substantively similar to those made in those complaints prior to the year 2001." Counties O & C case Settlement Agreement ¶ 1. In another provision of the Counties O & C case Settlement Agreement, the BLM agreed that "in any major revisions to the [BLM Resource Management Plans], the range of alternatives given detailed consideration would include an alternative that emphasizes sustained-yield timber production on the O & C lands, except insofar as limitations on timber management on the O & C lands would be necessary to comply with the Endangered Species Act, Clean Water Act, or any other law to which management of the O & C lands must adhere." Id. ¶ 2.


• 2.18 Although neither the Secretary of Agriculture nor the Forest Service are defendants in the AFRC O & C case, or were defendants in the Counties O & C case, they are undertaking the obligations herein in the recognition that the NWFP is an integrated plan for management of BLM and Forest Service lands within the range of the Northern Spotted Owl, and that were AFRC to succeed in their O & C Act claims, or were the Counties to succeed in a new action raising a similar challenge to the management of O & C lands, a larger burden would fall on the Forest Service to meet the ecological objectives of the NWFP.


• 2.19 BLM Resource Management Plans in western Oregon would normally come up for revision every 15 to 20 years.


• 2.20 The O & C Act provides in part that O & C lands shall be "managed . . . for permanent forest production, and the timber thereon shall be sold, cut, and removed in conformity with the principle of sustained yield for the purpose of providing a timber supply, protecting watershed, and contributing to the economic stability of local communities and industries." The O & C Act has been interpreted by the United States Court of Appeals for the 9th Circuit in Headwaters, Inc. v. Bureau of Land Management, 914 F.2d 1174 (1990).


• 2.21 To avoid further costly litigation, and without admission of any liability or wrongdoing by either party, the parties to the AFRC O & C Case desire to settle the claims raised in that case, and the parties to the Counties O & C Case desire to amend the Counties O & C case Settlement Agreement to modify the obligations and remedies set forth therein to conform to those set forth in this Settlement Agreement.