If land ownership could be seen from the air, western Montana would
look like a checkerboard: Parcels of national forest alternate with
1.2 million acres of private land, grants made to railroads in the
late 1800s. Those grant lands are now part of the 8 million acres
owned nationwide by Seattle-based Plum Creek Timber Company.
With logging in decline, Plum Creek sees its future in
real estate. Last year, land sales made up about one-quarter of
company revenues. But Plum Creek has a problem: It’s not clear
whether the company’s customers can legally access their Montana
properties over national forest roads.
For decades, the
company has held easements on national forest roads that allow it
to haul timber, but the question is whether those easements
automatically permit residential access as well. Montana counties
and conservation groups say they don’t.
Mark Rey,
undersecretary of Agriculture and former timber company lobbyist,
says otherwise. Just to be sure, federal lawyers have drafted a
proposed amendment to “clarify” the easements, after nearly two
years of private meetings with Plum Creek. The 11-page amendment
states clearly that the company can use old logging roads in
Montana for commercial, industrial and residential development.
The amendment would also provide a template for similar
Forest Service road easements across the nation. Critics note that
the proposal has gone forward without county involvement, without
public comment, and without study of the possible environmental
impacts of granting blanket residential access over hundreds of
miles of forest roads. “This was all done behind closed doors,”
says Jean Curtiss, Missoula County commissioner. “But it’s
affecting all of us. Let’s talk about what’s the best thing for us
as a whole, not just for Plum Creek.”
In 1964,
Congress passed the National Forest Roads and Trails Act,
which authorized a system of roads with easements for “all purposes
deemed necessary or desirable.”
Those purposes were
defined as timber, grazing, recreation, fish and wildlife, and
watersheds; subdivisions were not on the list. But the proposed
amendment simply recognizes reality, says Tom Suk, a land
specialist in the Forest Service’s Washington, D.C., office:
Private timberlands within national forests will continue to be
converted into home sites. Those buyers have the right to access
their properties, and so forest roads, one way or another, will
become driveways. “We’ve clarified and redefined those easements to
best protect the taxpayer and the government,” says Suk.
Other Forest Service documents, though, have taken a much narrower
view of such easements. In 2006, District Ranger Timothy Love wrote
a letter to a Montana man considering the purchase of a Plum Creek
inholding, warning that the company’s easement applied only to
“commercial road use for (managing and) hauling timber,” not
residential access. A 2007 agency memo to forest supervisors
similarly notes that easements granted under the Forest Roads and
Trails Act “do not usually provide sufficient‚ ‘legal access’
for all aspects of residential use. …”
Because the
proposed amendment would change the scope of the existing
easements, says Jack Tuholske, a Missoula-based public-lands
attorney, its potential environmental impacts must be studied under
the National Environmental Policy Act. But Rey says that
comprehensive environmental review of the amendment is unnecessary;
since the easements have always permitted residential access, the
studies done when they were first granted still suffice. Under the
amendment, individual NEPA analyses will still be done on a
case-by-case basis — for example, if a particular road is improved
from high-clearance to passenger-vehicle standards.
The
amendment contradicts Forest Service precedent in other ways. Road
easement discussions typically involve local governments, says NJ
Erickson, land-adjustments group leader in the Pacific Northwest
region. The 2007 memo notes that in easement cases where
timberlands are being converted to housing, “it is critical that
(the Forest Service) coordinate with other local road
jurisdictions, such as counties.” Montana counties weren’t included
in the Plum Creek negotiations, though.
Faced with the
prospect of far-flung developments in which they have had no say,
county commissioners worry about the burden on local services: road
maintenance, firefighting, emergency medical services, law
enforcement. For such concerns, says Rey, “the proper remedy is for
the state of Montana to pass zoning authority.”
Montana
statute, though, lets majority landowners override any zoning
change they don’t like — and Plum Creek owns 58 percent of the
land in Missoula County. The law is unlikely to change anytime
soon, says Tuholske: “The politics of land-use planning in the
rural West, that’s something counties are very slow to embrace.”
Counties in Oregon and Washington, which also have large swaths of
private timberland, have stronger local and state land-use
regulations and don’t share the same zoning concerns.
The proposed amendment does provide some new
benefits. The agency can direct homeowners to form road users’
associations to pay for road upkeep. Homeowners must follow
guidelines to reduce wildfire risk, and the federal government is
released from any firefighting liability. But those gains will be
forfeit if counties and environmental groups sue, says Rey,
suggesting that the agency may simply abandon the proposed
amendment.
In May, both Sen. Jon Tester, D-Mont., and the
Missoula County commissioners sent letters to Rey, asking that his
office produce copies of the affected easements. The commissioners
also requested public hearings and changes to the proposed
amendment, including requirements to consult with local government
and to waive zoning protests. So far, says Curtiss, there’s been no
response.
If the amendment is not approved, the access
issue will remain in its current gray area and the agency will go
back to considering easements case by case. “We could end up in
court on every single one,” says Suk. “The cost would be
horrendous.” If the amendment does get implemented, lawsuits still
seem inevitable. “It’s a foolish legal position for the Forest
Service to take,” Tuholske says, “especially given their mission to
protect these lands for all Americans, not enter into sweetheart
business deals.”
The author is
HCN‘s associate editor. See a related story at
blog.hcn.org/goat
This article appeared in the print edition of the magazine with the headline Easing into development.
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