Oregon lawsuit could upend federal management of public lands

A new lawsuit challenging a logging project in Oregon threatens to unravel the management plans governing hundreds of millions of acres of federal public land.

At stake are thousands of leases and permits covering billions of dollars of economic activity — including mining, drilling, grazing, logging, ski resorts, wind and solar projects, outdoor recreation, hunting and fishing. If successful, the lawsuit could throw the management of huge swaths of the West into chaos.

Some experts fear the new legal uncertainty around federal agencies’ management authority could unleash a tsunami of lawsuits targeting everything from mining to the conservation of wildlife habitat.

“They’ve opened Pandora’s Box here,” said Susan Jane Brown, the attorney who filed the lawsuit and serves as principal at Silvix Resources, a nonprofit environmental law firm.

“When you throw that whole system into chaos, it’s a problem whether you’re the oil and gas industry or the timber industry or someone who wants to take a fall hunting trip. There’s a lot at stake here.”

The legal battle stems from Republican lawmakers’ recent use of the Congressional Review Act, a previously obscure tool, to push for more mining and drilling on public lands overseen by the federal Bureau of Land Management and the U.S. Forest Service.

Under President Donald Trump, Congress has aggressively used the review power granted by the 1996 law to revoke decisions made during the Biden administration, including financial regulations, energy efficiency standards and auto emissions rules.

Some legal experts contend that by using the law to target public land policy, Congress unwittingly invalidated hundreds of land use plans, along with decades worth of permits and management decisions. The Oregon lawsuit is the first to test that theory in court — but public lands advocates don’t expect it to the be the last.

“This is incredibly destabilizing for anyone that cares about public lands, whether you care about those as an industrial developer or a wilderness advocate,” said John Ruple, research professor of law at the University of Utah’s Wallace Stegner Center for Land, Resources, and the Environment.

Over the past year, legal experts, agency veterans, conservation groups and industry leaders have warned that Congress was using the Congressional Review Act in a way that could undermine land use plans across the country. Oil and gas drillers could have their permits challenged in court. Ranchers could lose their leases. And understaffed federal agencies would have to redraft hundreds of plans that typically take years to complete.

“This has been flying under the radar,” said Michael Carroll, a land management campaign director with the Wilderness Society, an environmental group. “[Congress] basically opened themselves up to multiple lawsuits from any number of stakeholders calling into question whether or not an agency has the authority to issue permits.”

The Congressional Review Act

The three-decade-old Congressional Review Act requires new regulations issued by federal agencies to be submitted to Congress before taking effect. Congress then has a review period of 60 working days during which it can vote to revoke them.

This review power was rarely invoked until Trump’s first term, when Republicans used it to overturn 16 regulations. The GOP has been even more aggressive in Trump’s second term, overturning 23 rules so far, including conservation standards for water heaters, overdraft lending regulations and restrictions on pollutants in tire manufacturing

Until recently, management plans for federal public lands were not considered “rules” subject to congressional review under the law. Agencies have issued well over 100 such plans since 1996 without ever submitting one to Congress. Those documents guide the work of agency officials who oversee specific areas of land, often covering millions of acres.

Created after years of public meetings and local feedback, they determine which landscapes will be leased for oil and gas drilling, protected for endangered species or open for off-road vehicles, along with a multitude of other uses.

But last year, Republicans asked the Government Accountability Office, a nonpartisan advisory agency for Congress, to affirm a sweeping new view of the Congressional Review Act. The office found that certain management plans were subject to review because their land use decisions “prescribed policy,” and determined that lawmakers’ queries about those plans had opened the 60-day review “clock” in each instance.

Using this new interpretation, Republicans in the past two years have revoked plans that restricted mining and oil production on federal lands in Alaska, Minnesota, Montana, North Dakota and Wyoming.

But the repercussions could go well beyond those specific plans.

None of the plans issued by federal land managers over the past 30 years was ever submitted for review, because no one at the time considered them to be rules. In other words, hundreds of plans covering millions of acres of land could be deemed invalid under the new congressional interpretation.

Oregon lawsuit

Now, a lawsuit in Oregon will put that argument to the test. Cascadia Wildlands, a conservation group in the Pacific Northwest, has filed a complaint challenging a timber harvest on Bureau of Land Management land in western Oregon. That logging project was approved under a management plan that was issued in 2016.

Since Congress now considers such plans to be rules, the plaintiffs argue, the 2016 plan never took effect because it was never submitted to Congress.

Cascadia Wildlands has fought numerous legal battles over logging projects approved by the Bureau of Land Management. If the lawsuit over the management plan is successful, said Nick Cady, the group’s legal director, the same theory would give them leverage to block any logging project issued under the 2016 plan.

“They let the genie out of the bottle,” Cady said. “Instead of just letting [the Congressional Review Act] move forward with whatever Republicans choose to select, it’s worth curbing that by pointing out that it can point both ways.”

If the plan is struck down, activists of all types could use that precedent to challenge any activity on public land governed by a management plan that hasn’t been reviewed by Congress.

“It is a target-rich environment if our lawsuit is successful, and even if it’s not successful we’ve already demonstrated that there’s a lot of interest here,” Brown said. “This is what happens when you overturn longstanding precedent and throw spaghetti at the wall.”

Cady and Brown said they hope their case compels Congress to revise the Congressional Review Act to exempt public land management plans.

Stateline reporter Alex Brown can be reached at abrown@stateline.org.

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