The intent of those agreements was to enable both the agency and the companies to cut timber and haul logs. But that intent was not spelled out in any specific way. Instead, the easements were written with the broadest of language.
Now, the breadth of that historic language is causing headaches for modern land managers, as forest values and uses change. In 1999, Plum Creek Timber Co. restructured as a real estate investment trust, turning to residential land sales to bolster its bottom line - and turning logging roads into subdivision gateways.
Neither wanted to test its opinion in court, however, because there was too much at stake for the loser. And so they talked.
Beginning in fall 2006, the agency and the company embarked on closed-door negotiations aimed at hammering out a middle ground. They succeeded, but just as they were finishing, word of the talks leaked.
County governments, among others, became alarmed. They worried the plan paved the way for wholesale conversion of forests into subdivisions. They worried about impacts to lumber mills, recreationists, wildlife and wildlands. They worried about wildfire and future forest management.
The counties, in particular, worried taxpayers would get stuck paying to provide emergency services and infrastructure maintenance to rural forest neighborhoods.
And so the door has not quite closed on the true nature of those decades-old road easements. The Forest Service has its legal opinion but others have theirs, as well. And now that the discussion is out in the open, the road rights are being tested, right here in Missoula.
Forest Service staffers who wrote the old road easements and cost-share agreements could not have imagined Gary Kauffman.
Kauffman, of West Glacier, is a textbook example of today's new forest values, and is the hinge upon which the initial debate turned. Back in the summer of 2006, he was closing a real estate deal with Plum Creek on timberland not far from Condon.
A real estate broker specializing in ranches and large properties, Kauffman wanted to build a cabin, maybe more than one, on a square mile of what had been industrial timberland.
The sale was part of a much broader trend. Plum Creek is the nation's largest private landowner, with 8 million acres, including 1.2 million acres in Montana. Nationwide, the company has targeted 2 million of its acres for sale in coming years, with an estimated value of $5.7 billion.
During the last five years, Plum Creek's real estate revenue has tripled, to more than $330 million annually.
Kauffman was scheduled to close on his purchase on Sept. 11, 2006, but there was one hitch. The driveway.
He wanted a clean easement, not encumbered by any old “cost-share” agreements.
But that, according to the Forest Service, was easier said than done.
“What they were trying to do,” Kauffman said of the agency, “was to attach conditions to a legal, insurable easement. My position was, you can't do that.”
Tim Love, district ranger on the Lolo National Forest's Seeley Lake Ranger District, wrote to Kauffman in late August 2006, noting that some of the Forest Service roads in question were closed in the winter - open only to snowmobiles and dogsleds.
“Winter recreation is an important portion of the local economy,” Love wrote, “and any limitations (such as plowing) on these activities will be controversial.”
In addition, some of the roads were gated to protect endangered species habitat, and opening them would require talks with the U.S. Fish and Wildlife Service. One road, in fact, was the subject of ongoing negotiations between Plum Creek and the agency; they were looking to remove the road entirely to protect sensitive streams.
None of which sat very well with Kauffman, who needed a driveway.
He wrote forest officials saying, “I plan on building a full-time residence on the property and will need full-time, wheeled vehicular access.”
Any road-use agreements Plum Creek had made with the agency did not apply to him, Kauffman argued, and regardless, the underlying legal easement was broad enough to grant him full road-use rights.
The easement promised a “perpetual” right to a road, “without cost,” for “all purposes deemed necessary or desirable Š in connection with the protection, administration, management, and utilization” of the property.
Kauffman had no idea as to the intent of the people behind the easement. He just knew what it said on that piece of paper.
“It seems to me,” Kauffman wrote, “that this is relatively straightforward.”
It was not.
As summer bled into fall in 2006, District Ranger Tim Love was researching Forest Service policies and positions regarding road access.
He wrote to Kauffman on Sept. 26, acknowledging that some people interpreted the easements broadly, to imply “the equivalent of ‘for all lawful purposes.' ”
“However,” Love wrote, “it is our position that such is not the case.”
The easements, he said, were designed “for the expressed purpose of timber management and utilization (harvesting).”
The road rights, Love concluded, “are not for all lawful purposes that included residential use, but are restricted to the purposes intended by the parties and revolving around resource management.”
And as to the cost-share agreements that were overlaid atop the legal easements, Love noted that the company had only paid its share of maintenance insofar as it wanted a limited use - namely, logging. His was a position shared by others in the agency, including the people who wrote the agreements in the first place.
“The easements were granted with timber management and only timber management in mind.”
So said Bill Worf, who from 1969 to 1981 was the Forest Service's regional director of recreation, wilderness and lands. It was a job that put him in charge of the staff negotiating road rules.
“The companies basically had a right to cut and harvest and haul timber,” Worf said.
It was a pay-to-play sort of deal. If the agency planned to run 50 log trucks a day over a shared road, and the company only wanted to run 25, then the agency paid a greater proportionate share of construction and maintenance costs.
Likewise, if the agency wanted a long-term road that would handle public cars and trucks - which it often did - and the company wanted a short-term road designed for log trucks - which was usually the case - then the company paid only for the minimal use it wanted.
“They essentially chose how much access right they wanted by how much of the cost-share they were willing to pay,” Worf said. “And they always negotiated for minimal costs, minimal rights.”
“The basis for the cost-share was very clear,” he said. “Now, they're saying those easements and agreements aren't clear, and they have the right to do whatever they want. That's absolutely incorrect. They negotiated specific rights, and those rights did not include subdivision access.”
Trouble is, the intent of people such as Worf is not precisely spelled out. Certainly, it can be inferred by looking back to the original cost-share agreements, which show who paid for what, but the underlying easements aren't that specific.
Kauffman - no stranger to real estate law - understood that lack of specificity to mean he had unfettered access. He bought the land late in 2006 and assumed the courts would support him, if necessary, even though the Forest Service never actually acknowledged his position as correct.
For four decades or more, pretty much everyone in the agency had assumed they knew what those easements meant - limited access - but no one had ever asked the experts. Jim Snow is just such an expert. He's a lawyer, the top lands lawyer for the U.S. Department of Agriculture.
“I've been here 34 years,” Snow said, “and this is the first time this question's come up.”
It came all the way up from the Seeley Lake Ranger District to land on Snow's Washington, D.C., desk.
If Worf could not have imagined Gary Kauffman 30 years ago, Snow certainly could today.
Plum Creek, alarmed by Kauffman's access snag and not wanting to repeat the experience on every forest road across
8 million acres, “brought the issue to a head,” Snow said. “And the way they did it was they hired a very powerful Washington, D.C., law firm.”
At first, the agency's response was to lean on the presumed initial intent of the easements, Snow said. But the company wasn't going to let it go at that, and pushed for a careful legal review of what, exactly, the easements actually said, regardless of what they might have meant.
And that review, Snow said, resulted in unequivocal clarity - the access is for all purposes, Love's letters aside.
“Generally speaking,” said Mark Rey, “we don't encourage our district rangers to practice law.”
Rey is Agriculture undersecretary, and has been at the center of the issue for months. A former timber industry lobbyist himself, Rey now is negotiating with the timber industry on behalf of taxpayers.
“We needed clarity on this issue,” Rey said.
Federal law requires public land agencies to provide “reasonable access” to land-locked private parcels, and it was time to negotiate what “reasonable” meant.
The Forest Service, Rey said, was motivated to the talks not only by Snow's legal opinion, but also by a fear that it could find itself negotiating not with one company, but with thousands of new homeowners.
Rey wanted assurances that the road-use agreements would be transferred to those new owners, and that the Forest Service would retain certain rights - the right to set speed and weight limits, to close roads in emergencies, for instance - and hand off certain liabilities - the cost of road upgrades and maintenance. He wanted assurances the roads would remain open to the public.
In addition, the Forest Service pushed Plum Creek to require “firewise” covenants of new landowners, and to limit the agency's firefighting obligations in these forests-turned-neighborhoods.
Plum Creek, in turn, was motivated by Gary Kauffman, and others like him. The company did not want to battle for access road by road, spokeswoman Kathy Budinick said.
Also, the appraised value of company lands would increase - perhaps by a billion dollars or more - if deeds came with firm and permanent easements.
And so the agency and the company talked, rather than litigate, “because no one could predict what the outcome might be,” Snow said. “We cut a deal.”
And because of Snow's legal opinion, they cut that deal in private, and no one knew.
Snow's position, outlined in a three-page legal summary, is essentially that the easement language is “unambiguous,” and so original intent need not be considered. “Unless the deed is ambiguous,” he wrote, “there is no basis for looking beyond the words of the instrument to ascertain its meaning.”
If the closed-door negotiations had resulted in new rights, or broader rights, Rey said, then the talks would have required public participation. But if, as Snow concluded, the access rights were there all along, then to simply clarify those rights does not require public participation.
And that, finally, is what so irritates the people left to live with the results.
“This issue is so huge,” Flathead County Commissioner Joe Brenneman said, “so overwhelming for local citizens and governments, that it requires total transparency. For them to make a private deal and act like we all don't exist is ridiculous. I mean, let's not pretend forest road policies from 30 or 40 years ago are relevant today.”
When Missoula County commissioners caught wind of the talks between Rey and Plum Creek, they fired a letter to Sen. Jon Tester, D-Mont.
“It appears that the Forest Service is now considering amending (road) agreements,” the commissioners wrote, “to allow residential use of the roads for private land development, without consultation with local governing bodies.”
There were, it turns out, legal opinions other than Snow's.
Commissioners said they were “extremely concerned” that what they viewed as timber-hauling easements might be amended to allow residential development, without any public input.
Tester responded in a letter to Rey, 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.”
Rey, for his part, immediately promised to meet with county officials, to “answer questions, talk through the issues and provide information.”
That offer was a welcome step for counties worried about the cost of fighting wildfires in those new neighborhoods, and the cost of providing services so far from the infrastructure of town.
But those are county problems, not federal problems, and Plum Creek is not required to consider taxpayer costs when selling land.
Both the company and the agency have suggested counties should not try to use federal road easements as a surrogate for local planning, but should instead use tools such as zoning.
Federal forest road easements, relative to subdivision growth, “are not the tail that's going to wag this dog,” Snow said. “Perhaps the counties and state should look at zoning regulations.”
But as Missoula County's Chief Administrative Officer Ann Mary Dussault pointed out, the law provides large landowners like Plum Creek the right to veto any local zoning attempt - a right the company has said it will exercise if forced by neighboring residents.
Dussault has proposed that Rey's new easement agreement include a provision in which the company - and its future real estate buyers - waives the right to protest zoning, but neither the company nor the agency have any desire to implement such language.
“I fail to understand why that would be something the federal government should be involved with,” Rey said. “That's a county and local government process.”
And so Missoula and Flathead counties continue to fight for a narrow reading of the easements and agreements, despite Snow's universal-access opinion.
“This will affect the public in fundamental ways,” Brenneman said. “But they aren't going to tell the public about it? That's absurd. I guess that sort of arrogance shouldn't surprise me anymore, but I can't help but think some good-faith transparency would have helped us avoid a lot of headaches.”
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Ellwood wrote on Jan 31, 2009 11:57 AM:
A few years ago, during a November meltdown, the footings of our bridge (we own it, but it sits on the easement) washed out. We asked the USFS to help us pay to resurrect the bridge. They declined, using as their reasoning, "We have other ways to get into your property."
Last year, some USFS workers drove in uninvited and asked to thin the surrounding forest. We pointed out that they had accessed our land by using our bridge without permission. However, we did agree to let them use the bridge so they could thin for fire prevention.
This is a give and take situation and the USFS needs to be less arrogant.
My question is this: Is there any recourse for folks like us who are fighting to stay afloat in a tanking economy, and now have to pony up even more money to the Federal government just so we can legally drive to/from our home? "