from timberlands to subdivisions

Officials Challenge Mark Rey on Plum Creek Road Easements

By Matthew Frank, 4-29-08

	Agriculture Undersecretary Mark Rey, overseer of the Forest Service, in Missoula Monday fielding questions about ongoing negotiations between the Forest Service and Plum Creek on amending forest-road easements. Photo by Emily Haas.

The dust kicked up by closed-door negotiations between the U.S. Forest Service and Plum Creek Timber Company to amend forest road easements brought Agriculture Undersecretary Mark Rey to Missoula Monday, where he apologized for keeping western Montana counties in the dark but did little to ease concerns that local communities will increasingly bear the burden of Plum Creek's transition into residential real estate.

Rey, a Bush Administration appointee and overseer of the Forest Service, said he's "extremely sensitive" to the effects the development of Plum Creek's timber lands could have -- increased firefighting in the wildland-urban interface, road maintenance and other public service costs, plus environmental impacts -- "but that sensitivity does not empower me to write new laws," he said, and in the end Plum Creek can do whatever it wants with its land.

"You ought to think harder about executing these responsibilities yourselves," he said, whether through zoning or other means.

Rey acknowledged where this controversy may be headed: court. "We get sued a lot," he said. "I don't expect this will be any different."

Plum Creek owns 1.3 million acres of land in Montana, and many of those acres in the fast-growing western portion of the state are proving to be more valuable as subdivisions as Montana's timber industry flounders from the effects of the housing downturn and dipping lumber demand in general. The company owns 58 percent of the private land in Missoula County.

At the crux of the controversy is the 1964 Forest Roads and Trails Act (FRTA) that set the framework for how reciprocal access between public and private lands is negotiated. The question (according to an internal government document) is:

"Simply stated, whether the grant of a FRTA authorized road right of way easement to Plum Creek (or its predecessor) granted only rights to use the roads for resource management purposes, primary timber hauling, or whether the grant could encompass road uses for residential and commercial development of appurtenant private lands?"

	Missoula County Commissioners Jean Curtiss (near), Bill Carey, and Missoula County Attorney Fred Van Valkenburg. Photo by Emily Haas.

The Forest Service and Plum Creek began negotiations in 2006 to clarify the old cost-share easement agreements (of which there are about 200 in Montana, Rey said) to ensure that Plum Creek could gain forest road access for any purpose, including real estate development. But others, including most at Monday's meeting, believe the negotiations should involve the public. The issue came to a head about two weeks ago when commissioners caught wind of the talks and Montana Sen. Jon Tester subsequently wrote Rey asking him to "stop hatching a secret, closed-door plan that could alter the landscape of Western Montana without local input."

Much of the controversy is based on interpretation. Plum Creek, and Rey, take the typical easement's language -- "…Grantee shall have the right to use the road on the premises without cost for all purposes deemed necessary or desirable by Grantee in connection with the protection, administration, management, and utilization of Grantee's lands or resources…" -- to mean that it can use the roads for whatever purpose. At the time of the its drafting, however, the thought of timberlands being converted into residential property was "absurd," as Flathead County Commissioner Joe Brenneman put it Monday.

Rey, a former timber industry lobbyist, said the language is "unambiguous and express." But as some pointed out, that's inconsistent with the stated need for the easements to be clarified. Instead, the update is for the "convenience of the federal government," Rey claimed.

He repeatedly said his hands were tied, but was pressed to challenge that assumption by the two dozen or so state officials and county commissioners from around western Montana. Brenneman urged Rey to pursue the idea that the easements were never intended for real estate use in the first place. Missoula County Commissioner Jean Curtiss said the Forest Service's goal should be to not put people in places that are threatened by fire and to not negatively impact the environment. Montana Department of Natural Resources and Conservation Director Mary Sexton said, "We would err on the side of going through the NEPA process."

	Mark Rey flanked by Jim Snow, attorney for the U.S. Department of Agriculture. Photo by Emily Haas.

James McCubbin, Deputy Missoula County Attorney, agrees with the view that amending the easements is a "significant action" under the National Environmental Policy Act (NEPA) and should trigger an environmental assessment -- an assessment that would consider the environmental effects of more heavily used forest roads.

Moreover, McCubbin, responding to Rey's statement that he would supply only samples of the affected easements to the counties and not all, said he could not fully review the plan without all the paperwork.

"You can't agree to amend something when you don't know what you're amending," he said.

A handful of officials pushed for access to all of the documents, but Rey said he didn't think that was necessary -- nor timely.

For McCubbin and Curtiss, it's curious that Rey is rushing to get the amendment done before the end of his term. "Why is he so eager to get this done?" McCubbin asked. Curtiss said the process should be slowed down to allow for a NEPA review. "We have all kinds of resources to protect," she said. "None of that gets weighed."

One of the tensest moments of the meeting was Curtiss's response to Rey's offer to testify before the Montana legislature on zoning. "We have a biannual legislature," she said, "so I think you'll be out by then."

Rey did ask the counties to provide him with feedback on the amendment. "Tell me what your substantive concerns are so we can try to accommodate that," he said. "If more public involvement is a part of that, then we'll entertain that."

But Rey warned that any compromise would have to be approved by Plum Creek. There are two choices, he said: put the process in motion, or sit on it and "let Plum Creek pursue whatever it wants to pursue."

"If there are things we can do together, short of depriving Plum Creek of (its basic) rights, I am happy to do that," he said.

At the outset Rey said the purpose of the meeting was not to solicit public input, but at the end of the meeting members of the public did have a chance to speak up.

City Councilman Jason Wiener asked Rey if the public process of the original easement addressed the environmental effects of subdivision traffic. "It may or may not have," Rey said.

One man said the process appears to be an effort to defend the priorities and interests of Plum Creek, and that "future generations of Montanans (will be dealing with the consequences) when you return to being a lobbyist for the timber industry."

"What you're really asking me to do is change the process, whether or not I have the ability to do that," Rey responded.

Clark Fork Coalition staff attorney Matt Clifford said he disagrees with Rey's assertion that the language of the original easements is unambiguous and that his hands are tied. "It seems to me you've made a choice here," he said.

Local attorney Jack Tuholske said that NEPA requires a supplemental review with new information and changed circumstances. "At a minimum, the Forest Service…is obliged to do a supplemental environmental analysis," he said.

Rey then welcomed a lawsuit, but warned: "Consider the cost of success. You're going to convert the Forest Service into a regulatory agency."

Click here for an internal review of the law concerning cost-share easements involving Plum Creek, and here for the proposed amendment developed by the Forest Service and Plum Creek.

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