This article first appeared in the Northern Forest Forum, POB 6, Lancaster, NH 03584.
This fall a new forestry referendum will appear on the ballot in Maine. Probably no one would deny that the upcoming referendum is a consequence of the inability of the Maine Legislature to enact meaningful forestry reform legislation. It has been said by legal scholars that the function of the citizens' initiative is to permit enactment of laws which for political reasons the legislature cannot. They would argue that the initiative process is useful on those few occasions when the legislative process does not function properly.
This initiative uses a three-pronged approach. The first limits cutting levels, requiring that "total cutting activities and cutting activities for each species group may not exceed sustainable cutting levels for any rolling 10-year average." This section of the legislation applies only to land receiving a tax subsidy under the state Tree Growth Tax Law.
The second requires a permit for clearcutting that can be granted only if there is a silvicultural justification, no reasonable alternatives and no undue adverse ecological damage from the clearcutting activities. The third establishes a public process to implement the law through rulemaking.
One important thing to understand is that this referendum contains very little specific language about how the law will actually work. Instead, the law directs a Maine Council on Sustainable Forest Management appointed by the governor to come up with a set of science-based regulations to make the new law work. Because the regulations do not yet exist, it would be pure speculation to project what economic implications the referendum would have. If the referendum passes, the time frame for rules to be established is short - only six months after the effective date of the law.
Since we actively manage our woodlot and have enrolled it in the Tree Growth Tax program, I have wondered how the referendum proposal might affect us. What might the rules look like? Would we be adversely affected? The best approach to thinking about how small woodlot owners like ourselves might be affected is to consider how the referendum language might reasonably be implemented by the Council through rulemaking.
From a legal perspective, determining what is reasonable involves not just looking at the language of the referendum, but also understanding how courts interpret or construe laws. I say this because if the Council implements the referendum in one way and someone disagrees with the resulting rules, the law may be challenged in court. Then, particularly if the law's language is ambiguous, the court will construe the law.
Courts, including the Maine Law Court, have stated that while it is generally unnecessary to look beyond the language of a law to arrive at its purpose and intent, where different interpretations are urged, a court must look to reasons for the enactment of the law and the purposes to be gained by it and construe the law in the manner that is consistent with the purpose. So far, the aspect of the referendum that has provoked the most controversy is the one that limits cutting.
The language arguably is vague. Opponents to the referendum, including the Maine Forest Service, have interpreted the language to mean that in any year, a landowner could cut no more than the average of one year's growth for any species occurring on that landowner's land. They also maintain that landowners might have to harvest every year or lose that year's allowable cut. And all landowners would somehow have to prove that they were not overharvesting their wood.
Opponents rightly assert that enforcing these types of requirements for the more than 10,000 landowners under the Tree Growth Tax Law would be an administrative nightmare. On the other side, supporters of the referendum have said that the data shows that small woodlot owners as a whole are not cutting more than growth, and therefore they will not be impacted by the aspect of the referendum that requires sustainable cutting levels. However, they rightly point out that the most recent U.S. Forest Service inventory documented that overall, Maine forests are being cut faster than they are growing back.
If the referendum does pass, whether the law is an administrative nightmare or not will depend on the final regulations. Unlike the opponents, I do not interpret the plain language of the referendum as directed at the total cutting level on any one individual landowner's land. It would be extremely burdensome, from the standpoint of small landowners and from the standpoint of the Maine Forest Service, to have to determine for each small landowner the amount of growth and allowable cut at the ownership or stand level. Regulations requiring this level of bureaucracy would not be reasonable.
I think there is a more sensible construction of the law. Since the language contains no directive to individual landowners, the cutting limits referred to in the referendum refer to the sum total of cutting on all lands under the Tree Growth Tax Law statewide. This interpretation creates a lot of flexibility for the Council in implementing the law. It would allow the Council to craft regulations that address specific problem areas.
In construing statutes, most courts, including the Maine Law Court, have held that when one of several possible interpretations of a law produces an unreasonable result, that is a reason for rejecting that interpretation in favor of another which would produce a reasonable result. The interpretation that the referendum sets an overall goal, leaving how to get there to the rulemaking process, makes more sense.
Given that the regulations have not yet been written, I think opponents unreasonably interpret the referendum to contain a directive for each individual landowner to limit cutting levels for each tree species group. As with total cutting levels, the problem that has been documented regarding the species mix in the forest is the overall statewide decline in the stocking of certain species. Red maple and balsam fir are much more common in the northern forest today than they were in presettlement or colonial times. The frequency of their occurrence today is a direct consequence of the intervention of man in the forest.
Should we be "stuck" with the dominance of these less preferable species? I don't believe that such an outcome is required by the referendum's language, which states the overall goal that "...cutting activities for each species group may not exceed sustainable cutting levels..." The opponents' contention that woodlot owners are directed by the referendum to freeze existing proportions of all tree species is an unreasonable one that would be extremely burdensome and unenforceable.
One of the most common principles of statutory construction used by courts is that a statute or rule is construed so as to avoid an unconstitutional, absurd or unachievable result. If the referendum does pass, an effort must be made to ensure that the regulatory system is workable, understandable and not burdensome to administer. It's highly unlikely the Maine Forest Service, as the key law enforcement agency administering the law, will push for any absurd and burdensome interpretation of the law.
As a woodlot owner myself, I believe landowners are justified in adjusting the species composition of their woodlots in order to benefit wildlife and improve the existing mix of tree species that has resulted from poor forestry practices of the past like high-grading and clearcutting. The important thing is that such poor practices not continue.
The referendum also requires that rules be based on current scientific research. Perhaps the science will demonstrate that overall cutting levels in the state would be sustainable if cutting levels were based on minimum stocking levels and forestry practices included those that ensure adequate regeneration of shade intolerant species such as birch. This is certainly a more realistic way of achieving sustainable cutting levels than harvesting a small percentage of every species of wood every year and it is also a more sensible interpretation of what the referendum requires.
Maintaining minimum stocking levels would also encourage landowners to retain trees of longer-lived species that are now being over-harvested. Stocking levels would vary according to the composition of the forest, i.e., hardwood, softwood or mixed wood.
In any case, the rules would have to recognize the cycles of the forest and acknowledge that past practices should not determine the future forest.
One possible way to administer the new law for small woodlot owners would be to work within the existing framework of regulations. Small woodlot owners already must file a Notification of Intent to Harvest Forest Products form with the Maine Forest Service. The form could be expanded to include a Notification of Intent to Comply with the standards considered appropriate to small woodlot owners. Variances, including for clearcuts, could be requested and granted for sites constrained by unusual circumstances, but at least over-harvesting would not be the norm.
For large landowners who practice intensive management and already have detailed information about soil productivity and stand composition that is used in computer modeling of tree growth, it would be appropriate to have additional requirements to ensure cutting is not exceeding growth. A variety of recommendations undoubtably would be forthcoming in the rulemaking process set forth in the referendum. Techniques that could become more widespread include crop tree release, where a forester determines which trees to select for crop trees that will meet the landowner's objectives and which trees to mark for cutting to release those crop trees. Only trees in direct competition with the crop trees are removed.
The Council would also have to consider regulatory tools such as minimum stocking levels, or how many trees should be left after a cut; diameter limits for specific species that are being over-harvested; and increased buffers or protection for sensitive ecological features such as wildlife habitat and riparian zones. In addition, the Council would have something to say about the introduction of non-native species and genetically engineered trees, which could threaten sustainable harvest levels of native species.
It may be possible to incorporate into the regulatory process the efforts that landowners and environmental groups are making in the field of green certification. An examination of the standards being used by the Forest Stewardship Council (FSC) may show that woodlots certified by FSC are being harvested at levels within the requirements set out by the referendum's language. If that is the case, so long as the management plan approved by the certifier is being followed, a landowner could be exempt from the regulatory standards. Oversight would be provided by the certifier, not the State. The ability to develop a detailed management plan with attention to site-specific goals and conditions in conjunction with green certification might be an incentive for a landowner to go above and beyond the minimum standards developed under the referendum.
Other programs that could be incorporated into the regulatory process might include incentives for the creation of set-asides not to be managed for timber production and incentives for forest management techniques that increase carbon sequestration in the forest ecosystem.
The other main aspect of the referendum, the idea of requiring permits for clearcuts, is not new. In its most recent forest practices rulemaking, the Maine Forest Service proposed a permit requirement for clearcuts greater than 75 acres. The timber industry was very much opposed, citing the precedent that would be set by public involvement in the process on a parcel by parcel basis, fearful that environmentalists would abuse the intervention process. To this day, no permit is required for any clearcut and a harvest plan is reviewed by the Forest Service only for clearcuts greater than 75 acres. In addition, at the request of the timber industry during the rulemaking, the regulations now accept as a silvacultural justification for any clearcut over 20 acres the fact that a plantation or forest stand has been previously treated with herbicides or any other precommercial silvacultural activity such as mechanical thinning or timber stand improvement. No reason need exist for a clearcut of 20 acres and under. Clearcuts that are 5 acres and under are not even considered to be clearcuts by the Maine Forest Service regulations.
I admit I still have questions about the wording of the referendum and what it all means. For example, is the tying of cutting levels to "the average annual growth during the past 10 years" intended to disallow overly optimistic estimations of growth as well as projections based on conversion of natural stands to intensively managed plantations? Ultimately, the Council would have to decide whether the 10-year "look-back" period is used to define limitations on future cutting activities or whether it is used to check the progress that is being made toward achieving sustainable cutting levels under the regulations.
It does appear that the purpose of a 10-year "look-back" period stems from a motivation to develop a more cautious type of forestry, inclined to maintain the integrity of the forest ecosystem, instead of a forestry driven primarily by the need for an economic return.
Can this referendum address other problems in the forest? Does it result in good management? Is it possible to mandate good management? Or does that require a paradigm shift that is outside the ability of any government to create or to regulate? I don't have good answers to these questions. Will the forest of the future be better off than it is today? I don't know the answer to that either, but I think that if the referendum passes, society may be telling us that should be our goal. I do think that the forest of the future will be different from the way it is today. It could change as a result of the referendum, but also because of many other human- induced factors: the trend toward forest certification, changing markets for particular forest products, global warming, corporate decisions in a global economy and public land acquisitions. And, of course, natural influences like fire, drought, windthrow and insect mortality always change the forest.
If nothing else, the referendum means the establishment of a new process for forest practices regulation, one that relies on scientists from a number of relevant disciplines. Of course, since the Council is appointed by the Governor, his choices for the panel will have an impact on the outcome of the rulemaking process. However, the establishment of the Council would lay the ground work for ongoing discussions on forest practices, and additional rulemakings that could address problems in the future. If not during this governor's administration, then in subsequent ones, the rules can change.
In conclusion, the ideas I have explored above are just that - ideas. If the referendum does pass, it will be up to the public, the Council and perhaps, ultimately, Maine courts, to decide how to implement it. Until election day, I will continue to listen closely to the debate about the upcoming referendum. At present, though, I must say that I do not believe it is the disaster that many in the timber industry would have small woodlot owners and the voting public believe.
The author is an attorney in Wilton, Maine.
Vermont has, of course, passed into law a permitting process for clearcuts. It was passed into law following the recommendation of the Forest Resource Advisory Council, now disbanded, but periodically re-awakened to consider forest policy changes. What has been the result of this law and what lessons may Mainers, considering their referendum, draw from it? I hear several forms of praise and criticism of the "heavy cutting law." One result was that it was politically fatal to several legislators who supported it in the face of rather strident protest.
If one looks closely at the protesters, you can begin to appreciate that they were a mixed bag of skeptics of government, people who believe there is an inherent right to treat land as the owner wishes, and, most tellingly, many of the bosses who are locally powerful in the distribution of pulp tickets and other means of controlling the market for wood. There is indication that some of the protest was leveraged by such economic power. This is usually called the "old boy network."
Small scale loggers who laugh at the law see several problems with it: one, that cutting practices have changed little, and two, that its passage "alienated everybody." Some loggers are also extremely skeptical of the forestry profession and question anything that may require their services. But small independents themselves have been little impacted, one way or another. They continue to see landowner decisions as the key when bad log jobs occur: landowners get greedy and want revenue maximized.
Loggers often refer to a frustrating situation: they will cut properly, for growth, only to be followed by an operator who comes in and takes the cream. Large scale operators with big equipment also offer economies of scale to landowners, which may really mean that their equipment is so big, and debtload so great, they must cut wood, even at a loss, to create cash flow. This of course means they also cut when weather and soil conditions may not be appropriate - increasingly true in our mildening winters.
It is true that small scale loggers tend to be the ones concerned about the availability of sawtimber, but they do not see Vermont's law as having done much to protect it. Administratively, the Department of Forests and Parks resisted the cutting law. Their report on its administration notes its cost () for which no new funds have been allocated. Individuals within the Department have, over time, expressed dissatisfaction with having to respond to public complaints about cutting, and mystification with why the legislature and members of the public ever supported restricting clearcuts.
The inventory numbers for Vermont look good at the coarse scale, although Department officials also express concern about timber quality and species shifts (ie, red maple overtaking sugar maple). I think this dissatisfaction is the nub problem with the heavy cutting bill, which relied on a politically accomodative, rather than scientiufically based, analysis of what problems are caused by clerarcutting and which of these can be constitruionally redressed by regulation.
This is where any effort in Maine will run into problems, too: the idea that political appointees who are assigned to assure the buttering of their particular interest's toast can emerge with guidelines to improve practices. I offered this criticism to the rules committee and was asked to define what I meant by science. My answer (whatever it was) was met by the rather sneering (I thought) comment that abstract academics would be devising rules. Not so, I replied, there are academics with dirt under their nails. I will defend my thesis: that we could come up with a way to assess long term impacts of clearcutting and devise rules to limit these.
This, in turn, opens me to the most telling criticism of any cutting bill: why permit a practice like clearcutting at all? This, in fact, is the closing of the logical loop that led to the political compromise of Vermont's bill: rather than respond to groups that called for banning clearcuts of a certain size (and the Commissioner of Forests and Parks expressed his belief this was the easiest thing to do) FRAC decided political compromise was best. The hope then, was that there would be an open, honest, non-political rulemaking. This hope was misplaced.
Some good things may have emerged from this bill: some believe it has kept out fly-by-night operators or speculators from Maine. What is missing across the region, however, is a pro-active means of implementing what good forestry is all about. There are lots of worthy organizations addressing this, and NARP, the publisher of the Forum, supports the activity of several, indirectly and directly.
However, the very best landowners, foresters and loggers have to be troubled by the default practices of the day. We fail young people at the secondary level, in this regard: Vermont's Northeast Kingdom, epicenter of clearcutting, lacks a quality vocational program that combines biological understanding of the forest with sound forestry education. Such efforts as exist are starved for resources or are supplied under-motivated students. A kid from the suburbs is more likely to get a basic education in such matters. This is indeed a crime, and is at the heart of the problem.
Many take the professionalism that should be in the natural resources sector seriously, but the college-focused educational apparatus usually does not regard logging or farming as a viable livelihhod, and therefore invests little in such education.
To return to the matter of Maine's referendum: the big fish, the large operators and landowners, will do all they can to stir up opposition to the initiative from the smaller landowners. This is how they always get off the hook. I hope the small fish do not rise to this bait, and let the big boys butter their own toast like the real men they are. I personally have concluded that the most effective approach to regulation is at the wood pile: put the burden on those who purchase the big piles of it that sit in Rumford and Berlin and so on.
Industry's SFI (Sustainable Forestry Initiative) is naturally a skillful pre-emptive defense against this (and in my area SFI has been characterized as a company procurement forester riding around in the pick-up all day with a local pulp ticket distributor who gives word of mouth voucher for woodcutters, with little on-site inspection).
We would all be better off cooperating on a shared goal that regulations may complement, if well and honestly designed: better forestry, good economic opportunities in our depressed rural areas, and, most of all, a clearer understanding of the forest as a natural ecosystem that deserves both the outright protection of reserves, and the commitment to sustainable forestry. No one can say with certainty what sustainable forestry is, but we do know what it is not. We should act accordingly.