from timberlands to subdivisions

Officials Challenge Mark Rey on Plum Creek Road Easements

By Matthew Frank, 4-29-08

	Caption: 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. [End of article]

It seems to me Plum Creek is getting the best of the deal. After all they received all their land free and clean from the government in the first place and have made millions of dollars over the years on the timber sales. They should have to bear the cost of road maintenance to all of their "residential property" forever. It is a cheap price to pay for the millions of dollars they will be receiving from the sale of their "free land".

Plum Creek has done the same thing in eastern Washington,, they sold out and now all the property is Really private,, big homes mostly summer cabins,, they cut it into 21 acre parcels so they could keep it "timber land" thus taxes are pennies on the dollar,, there selling point

Much of the land that was deeded to Plum Creek was part of the railroad land exchange... Many of these rail lines never were completed (ie. hwy 12) but the companies still got the land....
Now they pocket exorbitant profits by cutting and selling merchantable timber and then selling the denuded corpse of land to real estate developers who make another windfall profit.. It's clear that a land ethic is absent from the management at this ex-timber company.

Great way to make a buck! .....Poor way to manage land!

You guys don't get it.
A combination of tax loopholes and punitive eco-politics brought this about.
One, REIT law means a tax rate of 15 percent on capital gains versus 35 percent on corporate income (plus gains on the stockholder's dividend).
Two, the litigation against Plum Creek, plus the shutdown of USFS competition, left PCT with a HUGE asset in standing overpriced timber. Sitting on that, if it was yours, would be stupid. The smart thing, which PCT did, was to go along with Bruce Babbitt's HCP offer, then slick off every stick it legally could and convert those into land someplace else without eco-risks. With the exception of Maine, where lynx seems to be a factor, PCT has cashed out its Northwest wood for ground and wood that is less likely to be tied up in court, or burnt down as seems to be the case.
So, you have an institutitional shift from integrated to a real-estate outfit, driven by tax loopholes. You have a major change in corporate culture driven by "timber bad" politics into "real estate."
Thing is, if the timber bigs had been left alone, or if those incompetent boobarinos in Congress hadn't left loopholes large enough to throw a million acres through, PCT and any number of other conversions to REITs (Boise, Potlatch) might just still be around for the long haul. Think about it.

This needs serious inquiry NewWest...take the lead. If road access agreements were "clarified" and wording was even changed ever so slightly, it invokes NEPA process and public involvment. Considering it was done behind close doors makes me think things were changed and clarified...

I'd love to see Mark Ray on the stand again...I think he is as dirty and the upper management of Plum Creek.

Why does Plum Creek do everything behind closed doors? I would like to know how much in taxes they have paid, on just the 1.2 million acres,,, I know they are in business,, but so what! maybe things need to change,, like taxing them accordingly,, I would hate to see PCT lose any money,,, they have ruined eastern Washington,,,after they raped it then sold it to real estate agents,,,

Hootin' tootin' Dave,

Since industry ramped up clearcutting in the 1960's there's been no "long haul," just liquidation. Babbitt only continued the Reagan-Bush I policy. They (Champion, Louisiana Pacific, Plum Creek, etc.) clearcut every acre they could and left for a better growing season and (3x) higher yield per acre per year. Ask Wisconsin about the long haul in select white pine. Ever seen a western red cedar seedling planted to regenerate a wet-area clearcut? Never going to happen.

What lawsuits v. Plum Creek? Montana has no forest practices laws. None. Mining (non-sustainable) old growth on free land made PC a bundle. But it's over, and it will be over on State lands soon as they follow Plum Creek's "highest and best use" creed. Real estate speculators are already slobbering over school trust lands to break up and sell. Corporate culture hasn't changed much, it's always been about the bottom line, and public policy has accommodated at every turn.

my goodness Rey seems to have already made up his mind about what can and cant be done...and all that can be done benefits PCT. Rey appears to show downright contempt at the fact he was pulled away to Montana again for another drubbing. This smells real bad.

If you read the actual proposed amendments, and the law that drives them, you see that PCT is not getting the best of the deal. USFS has many, many conditions on road use, maintenance, improvement, land use as to fire, fuels reduction requirements, signing, gates, archways, and foo fraw, all to minimize visual impacts along JOINT USE roads that access comingled land and the need for PUBLIC access across private land, and private access across public land that is guaranteed by prior easements and law, namely the Natl Forest Roads and Trails Act of 1964, and the Alaska Natl Interest Land Conservation Act of 1980, which was written to ensure Alaska Natives access to their soon to be deeded lands under the Native Lands Act that was required by Alaska's obtaining Statehood. A court case determined that law applied to all Federal lands.

It is probably good that a mediated agreement has been reached, and proposed, that will define PCT and USFS rights and responsibilities with their joint use reciprocal cost share road easements. A lot of what is written in the amendments at this time look right out of the USFS timber contracts. You know, the A clauses, the B clauses, and a zillion C clauses. The C clauses are the fancy footwork micro management requirements, and the others contractual boiler plate. PCT is, for the sake of saving a whole lot of their and your money in court, and most likely prevailing over time, (I think of the BLM losing at the Supreme Court last year on the how O&C;revested railroad lands are governed and for whose benefit), will give up a lot of value and freedom to meet the USFS demands. But you read the proposed amendment, and you tell me how you think PCT has gained advantages they could not win in court.

I have a problem with a contract that tells one party all the things they will do to prevent and fight fire, and then turns around a says the other party does not have any parallel responsibility for a reciprocal action, and, the first party has no recourse against the second party for damage. If that is in PCT's favor, you need to carefully explain to this ole dummy what advantage PCT gains from that clause. I sort of read it as the USFS has the right to let a fire go unfought adjacent to PCT or successor land, and if the fire burns PCT or successor land and assets, that's just life, live with it. So sorry. Too bad.

The one other thing that everyone has to realize that a lot of what Rey is talking about is already law, with adjudicated cases and decisions, and to go against that is folly in most cases. He is trying to ensure that the USFS stays out of court, if possible, on every land sale PCT proposes, due to their enforcement of the reciprocal road use agreements, and cost share. Why not put it all down in an amended easement now, and get on with the process? There is a great chance that PCT would win more in court than they gain in the smoke filled room scenario. And for those who can't follow my logic, the USFS stands to lose more in the court process than they would gain because there is a whole body of law as to easements that would not be covered in the NEPA process. PCT does have rights. Congress and the Constitution tend to give more rights to the people than they do to government, and like Rey says, the rat, keep it up folks and the USFS becomes a regulatory unit of government and not the habitat and ecosystem manager most think is their job. They are more than 50% regulatory already. And progressing. Keep pushing them.

PCT lacks a land ethic, and so does the USFS. But private resident family owners might not have that same disregard. The transition to resident stewardship represents an opportunity to instill a real land ethic, one of community, homeland, and vested interests in maintaining a sustainable environment not prone to frequent catastrophe.

The departure of PCT is no great loss to MT. The opening of lands to dispersed residences will be a tremendous economic gain. Timber farming will not disappear, trees will still grow, but the economy will not be dependent on the marginal productivity and poor business return that the timber-only strategy is limited to.

Residents will have to deal with the fire hazard, something the USFS cannot or will not do.

The land in question was inhabited by people for thousands of years. The last 100 years of dehumanization has led to multiple disasters. Making it a habitable place again is a worthy goal. It is time to take advantage of the opportunities presented, not to bemoan the loss of the short-lived imperialist/corporatist era.

You can use all the big words and quotes,, the bottom line is,,, PCT will sell it off as one big chunk and leave, some corporation will buy it up,, follow all the rules and split it into mega lots. I'm not sure how it works, here in washington, over 20 acres is considered timberland,, low taxes and big log homes,, and the USFS will save them, come fire season,,, 5000 homes and 3 million dollars,,, then you will have one hell of a time trying to even snowmobile on it,, I know I have been locked off of previous owned PCT land,, No trespassing signs go up,, no hunting,, nothing! if you think that PCT cares,, they don't,, Here , in eastern washington it is now call "Sapphireskies.net" .that is the reality. This is the way it will be,,, Montanaskies.net. You won't be able to fish,hunt or fart on it

Steve Kelly,

Serious, get your facts a bit more straight before you start a rant in some blog....With you saying that Montana has no forest practices laws throws your credability ou the window from the start.

The reason PCT finally sells and leaves are roadblocks by the public in harvesting timber on its private lands. The public is happy to recreate on those private lands leaving trash and ruts behind, but never want to see a tree cut. Well, those lands are forests and the point is to cut the trees so new ones can grow and sequester carbon. Oh, and by the way, supply wood fiber for the products each of you/us use every single day along with employment for hundreds of MT families. Keep trashing the company and then complain when it leaves that the forest has become asphalt and concrete.

Jeff,

Perhaps you could provide a citation for Montana's forest practices act. And who sued Plum Creek's logging operations on its corporate lands - ever? Nobody!

Montana never passed a forest PRACTICES law governing basic requirements like reforestation, limits on clearcutting, maintaining fish and wildlife habitat, snag retention, soils protection etc. There is a 50-foot streamside protection law, but it has plenty of loopholes, which has caused hundreds of streams to be listed as "impaired" due sediment pollution from poor forestry practices. There are unenforceable BMPs (Best Management Practices), which created yet another industry-inspired loophole in the state's (clean water) anti-degradation policy. Logging practices are exempt from non-point source pollution enforcement actions. Implementation of cleanup plans under the Clean Water Act, or TMDLs, are voluntary.

Steve,

First, If your refering to Forest Practices like Washington State...Montana isn't even close and thank God we aren't there. Have you ever tried to interporate the Washington Forest Practices Act or implement it for that matter? No wonder consultents are a dime a dozen in Washington...and do you think it really leads to better management?

Secondly, loopholes in the SMZ law? Tape measures don't lie man...

Lastly, are you saying we should tell people what they can and can't do on their own, private lands? If so, thoes aren't the values that Montana has adopted in it's consitution and laws...again, check yourself on the school trust land mission..."highest and best use" isn't even close.