A Look Down The Trail

In mid-April, the news broke in Missoula, MT that Undersecretary of Agriculture Mark Rey had been negotiating in secret with Plum Creek Timber Company on behalf of the Forest Service.  Behind closed doors for over a year, they sought to redefine road easements across public land to allow for residential development.  When county officials caught wind of the talks and informed Senator John Tester (D-MT), the backroom deal was, at least temporarily, delayed.  But with little zoning in place, the counties are in a vulnerable position.

Plum Creek, the largest private landowner in the country, owns 8 million acres of in- dustrial timberlands nationwide, with 1.2 million acres in Montana.  Much of it is located in the desirable, expanding, partially logged-over, fire-prone, wildland-urban interface.  During the past few years, Plum Creek has been selling these lands for subdivisions.  

But then a little problem occurred.  Many of the roads accessing their property cross Forest Service land, so Plum Creek has easements, or rights-of-way (ROW), to use them.  The easements were initially granted for logging, but Plum Creek now asserts that they should allow access for residential development.  Such use was never considered when environmental analyses were conducted on the easements.  

There is no question that some form of access is legal.  Private landowners whose land is completely surrounded by public land are guaranteed reasonable access, typically defined as a road (although courts have ruled that non-motorized access is reasonable).  Nonetheless, the legal questions regarding Plum Creek’s national easement renegotiation remain unanswered, likely until the issue ends up in court.

If the agreement between Plum Creek and the Forest Service is adopted, the impacts to land, water, and rural communities will be great.  In the Seeley-Swan Valley of Montana, for example, most Plum Creek land sits in habitat corridors for the grizzly bear, protected by the Endangered Species Act (ESA).  For Rey to negotiate this profound change to road use without any analysis in accordance with the National Environmental Policy Act or the ESA is likely illegal, but again, the courts are likely to make that decision.

The complicating factors in the renegotiation of leases are too numerous to address here, but include the fact that most of the roads in question are not considered public, and can be closed or removed to protect aquatic and terrestrial resources.  This manage- ment authority would be limited by the renegotiation.  In addition, Plum Creek land in MT is assessed as “agricultural,” with very low property taxes.  Selling the land for residential use should require reassessment, which might make the idea less financially viable for Plum Creek, or even a severance tax.  Finally, zoning to prevent residential use is difficult for counties to impose, in part because Plum Creek (as the largest landowner in some counties) can protest and effectively veto it.  

To reduce the damage, county and state government should ensure that Plum Creek land is reassessed as residential for tax purposes; that zoning is put in place to limit the type of development; and that critical habitat is purchased through land trusts and other means to protect it.

There’s no question that Mark Rey overstepped his authority in trying to negotiate this backroom corporate giveaway to Plum Creek with no public involvement.  But there’s also no question that the subdivision threat to these lands existed long before this deal was undertaken, and the affected states and counties must move quickly to limit the damage that could occur if such large amounts of forest undergo a wholesale conversion to residential use.