Victory! Plum Creek Drops Easement Change

It was good news that Plum Creek saw the wisdom of not consummating a deal with the Forest Service that would have led to both bad publicity and legal challenges that were likely to succeed. There is still a need, however, for continued vigilance with respect to Plum Creek's plans to undertake large-scale residential development in the beautiful forests of western Montana. The land use battle now shifts to the county level, where in some places planning and zoning are being introduced for the first time. For example, Missoula County will soon review the proposed Seeley Lake Regional Plan, which covers the magnificent drainage of the Clearwater River. Plum Creek has a well-known desire to build hundreds of residential units in the area, which provides habitat for numerous endangered, threatened, and special status fish and wildlife species. Unfortunately, the planning and zoning laws in Montana are notoriously weak. Because Montanans have historically cherished their property rights, the State and counties have imposed only the most minimal limitations on environmentally damaging land uses. This limited approach to environmental regulation and land use planning has left vast swaths of ecologically sensitive landscape without the protections that can be imposed through land use planning and zoning. And Plum Creek, as one would expect, has every intention of exercising its property rights to the fullest extent as Missoula County and other counties attempt to introduce zoning and planning onto Plum Creek lands. Thus, traditions and legal rules reflecting the values of yeoman ranchers and farmers will now be invoked by a large corporation in pursuit of profits. (Plum Creek is actually a “real estate trust,” and not a corporation; as a result, it enjoys lower federal tax rates.) The proposed Seeley Lake Regional Plan, recently delivered to the Missoula County Planning Board from the volunteer Seeley Lake Community Council, will be the subject of intense controversy. Although the draft plan would allow Plum Creek to build hundreds of residential units either spread throughout large forested areas or, through the use of "clustering," in high concentrations within a larger area, Plum Creek has said that the proposed plan is unfairly restrictive and does not allow for as much new residential development as Plum Creek would like. In voicing these complaints, Plum Creek has either expressly or impliedly relied on a threat to exercise a power it enjoys under Montana statutory law. This power allows Plum Creek, as an owner of more than 50% of the forest land in a proposed zoning district, to veto a zoning decision duly enacted by a democratically elected board of county commissioners. This tilted regulatory playing field gives Plum Creek something approaching a feudal lord's power to "dictate terms" to Missoula County and other similarly situated counties. Such a state of legal affairs is simply unacceptable. If Plum Creek's current vision becomes reality, the face of western Montana will be changed for the worse forever. Although Plum Creek, like any private land owner, has a constitutional right to voice an objection to any zoning action that would eliminate all reasonable economic use of its property, Plum Creek has no inherent right to undertake significant amounts of residential development in sensitive forests that include some of the most precious habitat in the lower 48 states. Continued timber harvesting with appropriate mitigation may be a less impacting land use in these areas; and it is presumptively an economically viable use as the traditional use for many decades. The fact the Plum Creek could make more money more quickly building houses than cutting trees does not give Plum Creek a legal right to build those houses regardless of the environmental consequences and the economic and fiscal costs associated with increased service demands in remote areas. Nor does Plum Creek have any reasonable investment-backed expectation of a right or privilege to pursue residential development in forested areas based on past actions of, or decisions by, Missoula County or the State of Montana. It is certainly true that the demand for wood products may be down temporarily. This fact, however, does not give Plum Creek the right to demand governmental cooperation in the liquidation of its assets by selling off forests for development. Paradoxically, despite Montana's traditional solicitude for private property rights, Montana's constitution, adopted in 1972, includes language elevating environmental values to a higher level than can be found in any other state constitution. In Montana, each resident has an alienable individual right to a clean and healthful environment, and the Legislature has a constitutional duty to make this right real and enforceable. The Legislature is also required to "provide adequate remedies for the protection of the environmental life support system from degradation" and to "provide adequate remedies to prevent unreasonable depletion and degradation of natural resources." The Legislature has obviously failed in these duties. On paper, Montana has the best constitution in the country on the subject of the environment. In practice, Montana is way behind most other states in actually protecting the environment. The Montana statute giving Plum Creek this veto power is of dubious legal validity in light of such inspiring constitutional language. The veto statute flouts environmental values by allowing large landowners to resist governmental attempts at environmental protection in favor of the pursuit of private profit. The statute is also patently undemocratic in that it creates a preferred class of citizens who can resist the exercise of governmental power and authority in a way that no ordinary citizen can -- and at the expense of the environment. Further, the statute delegates what amounts to unbridled legislative power to private parties (including, as a practical matter, corporations) who are free to pursue their naked self interest at the expense of the public welfare. Similar statutes in other states have been struck down in court. Because the Montana Legislature has fallen short on its duties under the 1972 constitution, some bold lawmaker should take up the cause of modernizing the state’s planning and zoning laws During the current legislative session. The first target should be the statute giving Plum Creek the veto power described above. This statute effectively gives a huge for-profit business the ability to resist environmental regulation it does not happen to like. The wishes of the rest of us don’t matter; nor do the environmental consequences of such a veto. This kind of situation is unthinkable in most states. If the Legislature doesn’t act, the question of whether this statute is lawful will inevitably end up in court. There the statute seems doomed. In the meantime, Missoula County should complete the planning process for the Seeley Lake Regional Plan area with the determination not to be steamrolled. Missoula County staff and officials must proceed through the process of formulating zoning on Plum Creek lands and elsewhere with strict adherence to principles of state constitutional law requiring a high level of environmental protection. As of a subdivision of the State of Montana, the County has a duty to act within this constitutional framework that governs the state government itself. At every step, the County should interpret the applicable planning and zoning statute against the environmentally protective policy framework of the state constitution. Thus, to the extent that a particular Montana planning or zoning statute might seem to fall short of sufficiently ensuring environmental protection, the County should construe any ambiguities or vagueness in the statutes in a manner that facilitates, rather than thwarts, the overriding state policy goal of environmental protection. The County should also refuse to be intimidated by the threat of a veto by Plum Creek of the zoning necessary to make the Seeley Lake Regional Plan an enforceable regulatory document. Rather than assume that the veto statute is lawful and thus be cowed by a threat, County officials should adopt a final version of the plan that embodies the public interest as they perceive it. They should let the judicial and political chips fall where they may with respect to the veto issue.