Agriculture Undersecretary Mark Rey, however, has said he will not release that paperwork, and the impasse appears bound for court, “I would think sooner, rather than later, depending on the response we receive,” said County Commissioner Jean Curtiss.
On Wednesday, Curtiss joined the rest of the commission in firing a letter to Rey, outlining county concerns.
The letter followed an April meeting at which Rey received an earful of county concerns regarding his negotiations with the timber company.
At issue is Rey's proposed plan guaranteeing Plum Creek access across Forest Service roads, for purposes including residential subdivision of forest land. Rey, a former timber industry lobbyist himself, has for 18 months been meeting with the company to “clarify” dozens of decades-old road easements.
Many believe those easements are limited in scope - providing access for timber harvest but not for real estate subdivision.
Rey and the company, however, contend the easements are universal in scope.
The question is not whether Plum Creek has access to its property - federal law guarantees that. The problem, rather, is whether the scope of that right is assumed, or will be established through a public process.
If universal access is assumed, as Rey suggests, then the value of the company land increases considerably, and the path is paved for wholesale conversion of forest into subdivision.
During his meeting with commissioners, Rey touted his plan as a boon for taxpayers, saying Plum Creek had given voluntary concessions in return for a solid acknowledgement of rights it already held.
The company, for instance, agreed to require “fire-wise” standards in the new forest neighborhoods, he said, and to create homeowners' associations that would cover future road-maintenance costs.
But county officials from throughout western Montana remained concerned. Plum Creek is the country's largest private landowner, with 8 million acres nationwide and 1.2 million acres in Montana. About 2 million of those acres have been targeted for possible sale, but the company will not say which acres.
That's a headache for county planners, who worry local taxpayers will be forced to subsidize Plum Creek's real estate operations, in terms of providing urban services to distant neighborhoods. Counties also worry about future firefighting costs, as more homes are built in the forest interface.
Officials brought those concerns to Rey at last month's meeting, and he advised them to present his office with their suggested changes to the plan he's already hammered out with Plum Creek.
The reply, outlined in Wednesday's letter, asked Rey to table the plan until all the documents - all forest road easements and related paperwork - could be reviewed.
It is impossible, the commissioners wrote, to amend an existing document without knowing what that existing document says. Not providing those documents up front, they warned, would leave the negotiations “fatally flawed.”
“That's our belief, and our legal counsel's belief,” Curtiss said.
Rey, though, has said he will not provide each and every easement. The county referred to that “inability or unwillingness” in its May 7 letter, saying its ability to provide comments or suggestions is hampered by the lack of information, as well as transparency.
The commissioners also warned that Rey's plan with Plum Creek may interfere with recent national forest planning efforts - a process designed to guide forest management in future years, but which has not considered conversion of forest land into real estate.
Once the documents at issue are in hand, the commissioners said, and the impact on forest plans has been assessed, then the entire process should be opened for public review. National environmental laws require public participation, the commissioners wrote, especially when the plan could impact endangered species protections.
At the least, they argued, Rey should hold additional public hearings in each county affected by the plan.
Specifically, the commissioners want the plan to jibe with existing Forest Service road-easement policy, which states, in part, that easement rights “do not include the right to use the road for access to developments used for short- or long-term residential purposes,” until the rules of the road first can be negotiated.
Rey has pointed to original easement language guaranteeing Plum Creek access for “the protection, administration, management and utilization” of the land. He has left out the rest of the paragraph, however, which says “but not including the right to permit use of said road by the public, except for use as a trail.”
That kind of omission is precisely why county officials say they want all the original documents for full review.
Counties also want a hand in crafting the future rules of the roads, and asked that forest roads be brought up to county standards before residential use is allowed.
Rey has said counties should look to their own regulations - subdivision and zoning rules, for instance - rather than relying on federal access easements to curb rural sprawl. The counties cannot always do that, however, as state law allows large landowners such as Plum Creek to veto local zoning attempts. And so the May 7 letter asks Rey to include a provision in the plan in which the company waives its right to protest future zoning.
The company has said it will not support such a clause.
In addition, the commissioners said they are beginning the process of initiating countywide interim zoning should Rey's plan take effect, a move the company is sure to protest.
Previously, Rey all but invited the counties to sue him over the plan, saying “you would not be the first county commissioners to sue me.”
The county's legal team has indicated that option surely is on the table, but the commissioners want first to explore further talks with Rey and the company. In their letter, county leaders said they look forward to Rey's response regarding their suggestions.
But the undersecretary has said his timeline for resolving the dispute is “weeks, not months,” which most agree would not provide counties enough time to review all the documents, even if Rey provided those papers.
“I would think he should be able to get back to us pretty quickly on this,” Curtiss said of the county's suggestions. And if the answer is not satisfactory, “we may have to involve the courts. It might come to that.”
Reporter Michael Jamison can be reached at 1-800-366-7186 or at mjamison@missoulian.com.
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