Tester Concerned With Plum Creek Plans

By Jamison, Michael

KALISPELL – Months of closed-door talks between the U.S. Forest Service and Plum Creek Timber Co. have some Montana leaders worried the company is quietly paving the way toward wholesale conversion of forest land into residential real estate. The Forest Service, however, insists the private negotiations have served only to “clarify” decades-old road easements, and do not create any new access rights.

“But you can’t get anywhere without a driveway,” said Aaron Murphy, “and it does appear that the reason they’re doing this is to open opportunities for residential development.”

Murphy, a spokesman for Sen. Jon Tester, D-Mont., said the senator has fired a letter to Agriculture Undersecretary Mark Rey, asking that the access negotiations stop until local stakeholders can be included. That letter, Murphy said, was prompted by concerns initially raised by county governments, among others.

All three Missoula County commissioners signed a letter to Tester earlier this month, saying they had caught wind of talks between Plum Creek and the Forest Service aimed at amending longstanding road easements.

Since the 1960s, the Forest Service has engaged in reciprocal agreements with adjacent landowners, hammering out shared use and maintenance obligations for forest roads that crisscross property lines. Many have long assumed those agreements to allow only “limited” access – the right to haul logs, for instance, but not to develop real estate.

In their letter, the commissioners wrote “it appears that the Forest Service is now considering amending those agreements to allow residential use of the roads for private land development, without consultation with local governing bodies.”

That’s a problem for counties, because subdivision of timberland means more taxpayer costs, in terms of providing services to far- flung neighborhoods. It also means more firefighting costs, as homes pepper the woodsy “wildland-urban interface,” and less access for hunters, anglers and recreationists – not to mention less working forest supplying logs to sawmills.

Missoula County’s commissioners said they were “extremely concerned” that easements to haul timber might be amended to allow residential development without any public input.

Tester responded by writing a letter to Rey late last week, asking that “all negotiations on this agreement cease until there is an adequate process for the public and interested parties to be fully involved in this matter.”

The senator also asked for a copy of the new easement plan and requested an assessment of taxpayer costs related to the agreement.

Rey, however, insists the concerns are baseless. In a six-page summary of the new agreement, Rey noted that negotiations began in the fall of 2006.

The intent: to answer whether existing forest road easements “permitted the use of the roads for accessing residential and commercial development,” in addition to historic timber uses.

The Forest Service was interested in opening talks, Rey said in an interview Tuesday, because as Plum Creek moves to sell its lands his agency wants assurances that the old road maintenance agreements will be upheld by future landowners.

And Plum Creek was interested because the company wants clear right of, access across Forest Service lands.

“Not everyone agreed on the meaning of the original easement language,” said company spokeswoman Kathy Budinick. “The easements were not clear, so we got together and made them clear.”

She bristles at the notion of “closed-door meetings,” saying that although the public wasn’t included, the decisions were reviewed by officials up and down the federal chain of command.

The negotiations, Rey said, in no way expand the company’s rights. Plum Creek, he said, has always enjoyed full access, whatever the land use. (That is a considerably broader interpretation than is held by many, including Tester.)

According to Rey, the new agreement merely confirms Plum Creek’s existing “right to future subdivision and development of lands,” guaranteeing “access for ,subdivision, sale and development.”

That, Rey said, is nothing new. If it were new, he noted, the public would have been involved.

The newly “clarified” agreement also ensures public roads will remain open to the public; establishes a shared program for paying maintenance costs; ensures that future landowners will abide by those rules, as well as by “fire-wise” covenants; and requires Plum Creek or subsequent landowners to pay for upgrades to rough forest roads.

“This is just an update to an existing bilateral agreement,” Rey said, and as such does not require public involvement.

“Everyone who needed to be involved was involved,” Budinick agreed.

“But,” wrote Missoula County commissioners, “the significance of Plum Creek’s ownership in Montana – over 1.2 million acres – and the development that could happen on those lands in concert with Forest Service assistance reinforces the need for an open public process with local government at the table.”

Too much is at stake, they wrote, and as Murphy said, “you can’t get anywhere without a driveway.”

The continuing debate underscores an increasing interest in Plum Creek’s plans in general, and in the arcane business of easements in particular.

Last winter, the Forest Service granted the company an easement west of Whitefish, a move some are now threatening to challenge in the courts. And at the state level, “the whole issue fits into a much bigger picture of reciprocal access.”

So said Mary Sexton, director of Montana’s Department of Natural Resources and Conservation. Like the Forest Service, her department shares forest roads with Plum Creek, and has entered into reciprocal easement agreements with the company.

Historically, she said, the two-way access was for logging, but now the company wants broader access – driveways, to be specific – and that initiates a full public review by her office.

The state, likewise, wants broader access across company lands – for logging, but also for public recreation, among other uses.

“We’re very public about that process,” Sexton said.

Throughout western Montana, Plum Creek is asking for enhanced residential access, Sexton said. Up around Seeley Lake. In the Swan Valley. Up the Blackfoot, and out near Potomac. North of Missoula, and out on the Clearwater State Forest. Along Placid Lake. Around Whitefish.

“Their whole real estate program depends on where they can get solid access,” Sexton said. “Getting legal easements is the critical key.”

Which is exactly why county commissioners and U.S. senators are suddenly so interested in the banalities of real estate easement law. The road easement is the hinge upon which much of the future forest swings.

Plum Creek, Murphy said, owns 1.2 million acres in Montana, about 8 million acres nationwide, and is the country’s largest private landowner. The company has identified some 2 million of those acres for possible sale (estimated value $5.7 billion), but won’t say exactly which acres those are. Another million acres soon could be added to the “for-sale” list, according to Plum Creek’s 2007 annual report.

That same report shows the company’s real estate revenue tripling over the past five years, to more than $330 million annually. Some lots sold for more than $10,000 per acre, surely meeting the company’s stated goal of “determining the highest value of an acre of land then capturing that value – that’s what we do!”

As to what the Forest Service will do, in light of Tester’s letter – “I’ve read it, and we’ll respond,” Rey said.

And he, for one, has a suggestion for what local governments should do – because the road easements, he said, cannot be made surrogates for solid local planning.

“The better discussion to be having,” Rey said, “is a discussion of local zoning. If the state or county or city don’t want something to happen, they should just execute their land-use or zoning authority.”

Copyright The Missoulian Apr 16, 2008

(c) 2008 Missoulian. Provided by ProQuest Information and Learning. All rights Reserved.