An analysis of the West Branch Easement language

By Mitch Lansky


Earlier this year, I wrote an editorial, published in the Bangor Daily News, questioning whether the proposed mega-easement on the land surrounding the West Branch of the Penobscot was a good deal for the public. I made (among others) the following points:

  • I questioned the use of the words "preserve," "protect," or "conserve," connected with actions that merely prevented seasonal camps, but allowed industrial-style logging. I pointed out that just the logging roads alone have removed far more land from production than any development in the unorganized territories. I also suggested that if what is to be protected is forest integrity, then heavy-handed management is far more of a threat than seasonal camps.
  • I wondered just how "threatened" from development lands could be where there are no public roads and no utility access and no nearby towns with schools or stores. To get to the West Branch lands, one has to drive on private roads through private lands.
  • I was not aware of any "sustainability" requirements, but if there were, what type of precedent does this set? What type of meaningful standards could be set, who would enforce them, and how much would it cost? Does this mean that it is acceptable for landowners to abuse their land unless the public pays them not to?
  • I was concerned that the public was asked to pay out big money for a project about which we knew so little. How was the land being appraised? What was the appraisal?
  • I suggested that there may be less-expensive ways to protect the forest or better uses for the same funds.
  • The response from the easement advocates (the Forest Society of Maine and the Northern Forest Alliance), in many cases did not address my concerns, but instead repeated their points:

  • They continued to talk about "preserving," protecting," and "conserving" land that I knew had a large portion that had already been roaded, clearcut, sprayed with herbicides, and, in some cases, planted to a single species of softwoods.
  • They insisted that the easement would prevent the development and fragmentation of the forest.
  • They insisted that the easement guarantees public access and recreation.
  • They claimed that the easement assures "sustainable" forest management.
  • They claimed that the easement protects special ecological resources (such as deer yards and riparian zones) far better than current state statutes.
  • They repeated that the easement is a bargain, compared to full-fee purchase.
  • They disputed that there were any other approaches (such as LURC zoning) that could protect any of these resources.
  • I have now read the easement document for phase I (around 65,000 acres). The language is clear that what is being "protected" is not the forest, but continued logging with few significant restrictions. The legislation that enables the spending of Forest Legacy money refers to protecting "environmentally important forest areas threatened by conversion to non-forest uses and for promoting forest land protection and other conservation opportunities." I have yet to be convinced that there is a serious threat to convert 70,000, let alone 650,000 acres to non-forest uses. Even "mini-kingdoms" do not remove forests. The forests are the green backdrop for the billionaire estates.

    The easement states (pg. 3) that "the Propertyís primary use shall continue to be productive timberland." The primary purpose of the easement, therefore is not to promote public values (such as biodiversity) but a private value (timber logging). There can be recreational development (pg. 2) only to the extent that it does not interfere with this primary use. Thatís what we already have. What is new, is that after paying millions of dollars for the easement, the state has the responsibility of managing the recreation, including paying all the costs. These costs include trash collection. The document states emphatically (pg. 9), "In no event shall the Grantor bear the cost of collecting, storing, or removing such materials." Indeed, if the state fails to come up with the money for trash collection, "the Grantor and the Grantee may mutually agree to close the Property to public use."

    While the document gives public access on the land, it does not grant access to the land, because access to the land is through other properties. The landowner can "Prohibit or limit motorized or vehicular access on and across the use of any roads or trails on the Property " (pg. 15) with some exceptions. Even on those exceptions, the landowner can prohibit access for a number of reasons, including "safety" or "to prevent damage to roads."

    The document does not prevent subdivision. It limits subdivision to six parcels. The document also does not prevent "development"--it only limits development to certain kinds that are compatible with logging and recreation. For example, for forest management activities, the landowner can (pg. 5) build such items as roads, fences, bridges, logging camps, and housing facilities, barns, garages, storage facilities, utility services, electric power lines and generation facilities, septic disposal facilities..." Those looking for value-added jobs will discover that there can be no sawmills or forest products processing or manufacturing facilities on the property.

    Under the easement, it is OK to store and to apply toxic substances (such as pesticides) as long as it is within the law (which is the situation now, I think). One item of good news--the landowner canít dump more than 10 cubic feet of hazardous materials per acre under the easement (pg. 8).

    For recreation, the Grantee can (pg. 6) build camp sites, septic and waste disposal facilities, boat ramps, landings, docks, parking areas, roads (including paved roads), bridges, or housing facilities for workers. Apparently the forest is "protected" or "preserved" with all the above, but not with seasonable camps.

    The Northern Forest Alliance, in a document outlining what ought to be in these mega-easements, suggested that, "where an easement addresses timber management and other extractive uses, the following issues should be addressed":

  • Long-term management goals;
  • Forest management planning process;
  • Identification and protection of significant sensitive areas;
  • Sustainable harvest levels;
  • Silvicultural systems;
  • Forest composition and age-class distribution goals;
  • Use of exotic invasive, or genetically modified species;
  • Chemical use.
  • The easement document lacks information on silvicultural systems (except in riparian zones), forest composition and age-class distribution, or any restrictions on invasive species or toxic chemicals (besides what is restricted under law). The landowner does need a plan (this is required under Tree Growth anyway), and the state can look at it, but the state (pg. 12) is "not entitled or required to approve the Forest Management Plan." Nor can the state tell the public what is in the plan. This is considered proprietary. If the landowner gets certified by, for example, SFI (which is industry based), then that is considered sufficient to qualify management as sustainable. The state "cannot unreasonably withhold approval of such certification."

    The document does set a minimum average stocking level--below which the landowner should not go (unless there is a good excuse, such as an insect or disease outbreak that requires salvage). This level is less than 12 cords to the acre. If this volume is to be compared to government figures for stocking in this state, one would use a different method of inventory calculation (pg. 40)--which would bring this "sustainable" level down to 12 cords to the acre. The state average, according to the most recent Maine Forest Survey, is 16 cords to the acres. In New Hampshire, it is 26 cords to the acre. The average volume removal per acre in Maine is less than 12 cords.

    There is nothing in the document that prohibits abusive highgrading (where the species and quality and value all diminish)--as long as the cutting leaves an average above the minimum average volume standard. While some may argue that setting a minimum average volume is an attempt to prevent liquidation, 12 cords to the acre average is so low that it, combined with highgrading, could be considered evidence of liquidation. Someone with a woodlot that was so poorly stocked would have to wait decades before being able to make a decent commercial cut.

    The riparian zone management requirements are more strict than the stateís. The document states that in LURCís 250 buffer zones, the first 50 feet will not be cut. Outside of that, the document lists minimum stocking standards for hardwoods, mixedwoods, and softwoods, and suggests that selection be the primary method of harvest. Unfortunately, the documentís standards are below recommendations from the Maine Council on Sustainable Forest Management to have 65-70% of full stocking. For softwoods, the document sets a minimum standard of 85 square feet of basal area per acre, which is at the C-line for stands averaging 6 inches in diameter--about 40% of full stocking. The document makes no mention of restrictions from harvesting around small streams or headwater streams, even though the editorial from representatives of the Forest Society of Maine, promised such protections.

    The document promises to create and sustain a minimum of 4,500 acres of "mature forest" suitable for deer yards. The property currently has 9,200 acres managed as deeryards. Trees over 35 feet tall are considered "mature."

    I have heard a number of prices for the 70,000 acres deal for phase I (which includes a few thousand acres of full-fee purchases, such as Big Spencer Mountain) The lowest is 8 million dollars. This averages out to around $114 per acre--more than half of what the landowner paid for the land ($226 an acre). Is this a good deal? What this figure does not include are the annual costs from managing recreation (and collecting trash) and monitoring the easement agreement. Of course, the state is given the right to collect recreation fees (pg. 17), which is on top of gate fees paid to get on to the industry roads and the taxes paid to purchase the easement.

    One thing rarely mentioned in discussions on this easement is the fact that the West Branch of the Penobscot and Lobster Lake already have 500 foot easements on them. Also, although easement supporters state that LURC is inadequate to protect public values in the West Branch region, a number of water bodies in the region are currently classified as "remote ponds" or otherwise classified to restrict development. In these areas, therefore, the "development" would have to go beyond the beauty strips into the heavily cut forest. It strains credibility to think that every and all acres are subject to a serious development threat.

    The public really ought to know who did the appraisal, how the appraiser arrived at such a high price, what methods were used, and what appraisals went to what areas. I would not normally spend millions of dollars on something without knowing what I was getting for the money and without knowing if that was a fair price. It is unfortunate that so much of this discussion has been based on peopleís assertions without letting the public see the details. The USDA OIG (office of inspector general) did an appraisal of a Forest Legacy easement purchase on Hancock Timber lands in Vermont and found that the state had grossly overpaid. The original appraiser had, in essence, come up with the price that the landowner wanted, rather than what the easement was really worth. Because of this, the state had to repay the federal government the difference. With more public scrutiny, we could avoid such an embarrassment.

    Based on my reading of the easement document, I am underwhelmed by the language that will supposedly protect public values. The easement as written seems more like a subsidy than a purchase of public values. It sets a bad precedent, telling the public that it is acceptable for landowners to abuse the forest and public values unless they are paid not to. We cannot afford to buy acceptable management on all the beauty strips and deeryards in the state, but this is what the easement precedent is suggesting what we must do. The document also seems to be creating roadblocks to real conservation, protection, or preservation by stating that this land shall forever be primarily used for timber harvesting.

    The document is subject to amendment if both parties agree (pg. 29). This may be good or bad, depending on the degree that the parties are negotiating to improve protection of public values. Given the secrecy involved in the negotiations and the resistance of the state to provide documents, even when confronted with FOIA requests), this does not help inspire confidence that future amendments will necessarily be for public good..

    Unfortunately, this payment could turn out to be a perverse incentive for heavy logging. The landowner normally makes money from cutting (the dividends) and selling off land (capital gains). If the forest is better stocked than when originally purchased, the capital gain (and thus the profit) would be larger. With the easement payment, the landowner can make more money cutting, have the same or lower stocking than when the land was purchased ( at $226 an acre) and sell for the same or less than the original purchase price--and still make a sizeable profit. The easement essentially cuts the original purchase price in half.

    I have painfully learned (and I have the stitches in my head to show it) that you should look before you leap. More public discussion of this deal now would hurt less than the consequences of a bad deal.