The West Branch Project: Are Economic Interests Outweighing Conservation Goals?

By Phyllis Austin, Maine Environmental News ( 9/25/02

Release of the revised document has provided the first public look at the details of the long-controversial deal affecting lands around the West Branch of the Penobscot River and Moosehead Lake.

In the last several weeks, a must-read for people interested in the North Woods has been the final West Branch conservation easement agreement – now a large-scale privately funded project. Release of the revised document has provided the first public look at the details of the long-controversial deal affecting lands around the West Branch of the Penobscot River and Moosehead Lake. It insures better than "business-as-usual" harvesting practices on 282,000 acres of commercial forest. Still, it primarily protects the economic interests of the landowner, Merriweather LLC, over conservation of natural resources. A separate access easement will allow the public to continue to recreate on the land but gives Merriweather the right to shut off access under certain conditions.

Details of how the landowner and the easement holder, the Forest Society of Maine (FSM) will deal with sustainable forest management and a host of conservation issues has provided a forum for more criticism of the project, generating speculation that protection of resource values may have to be strengthened to attract the necessary private funding.

Due to delay in completing the agreement, the West Branch is now in direct competition for funding with the 200,000-acre Katahdin Forest Project, which is raising the standard for conservation easements. It has compelling selling points to conservation funders and was modeled after the new easement guidelines adopted by the Land for Maine’s Future Board (LMFB). It makes a commitment to forest sustainability and guarantees public access with no caveats, according to Tom Abello of The Nature Conservancy, a partner in the Katahdin Forest deal with Great Northern Paper Co.

Besides the landscape-scale easement, the West Branch Project includes a fee purchase of 40,000 acres in the Seboomook watershed and about 5,000 acres in the headwaters of the St. John River. But the fee side of the Katahdin deal is causing more excitement in the environmental community because it will buy outright 41,000 acres of one of the long-desired North Woods "jewels," the Debsconeag Lakes region. Sheltering part of the Appalachian Trail’s 100-Mile Wilderness, the area will connect "forever wild" Baxter State Park with the state’s Nahmakanta ecological reserve. In three years, after current timber harvesting contracts expire, the forest will be managed as a wilderness area.

The West Branch agreement between Merriweather and FSM took more than two years to negotiate and involved the state until earlier this year. It was signed in May. One month later, LMFB adopted its easement guidelines for projects seeking state taxpayer money.

Those guidelines are aimed at balancing "working forest" and conservation values and give the board a way to better evaluate the public benefits of easement proposals. While the West Branch agreement was negotiated prior to completion of the LMF guidelines, it is touted by supporters as generally following "the spirit and intent" of the board’s guidelines.

However, Roger Milliken, an LMF board member on the board’s easement subcommittee, disagreed. In a memo to colleagues dated Aug. 23, he criticized the West Branch agreement for its "broad and loose" language. Neither the easement purpose statement nor the forest management plan meet "the letter or spirit of our [LMF] guidelines," he asserted.

At the board’s Sept. 10 meeting, board member Walter Balgooyen said that "although there are a lot of similarities, the general trend of the West Branch easement is more narrowly focused on [commercial harvesting], whereas LMFB guidelines are more on conservation values." Marsha McKeague, also an LMF board member and woodlands manager for Great Northern Paper, commented that there are "differences in the language" on forest sustainability in the two documents. "You can certainly tell [the agreement] is written more from the perspective of [Merriweather], but whether it boils down to differences [with LMF guidelines] on the ground is hard to tell," she said.

Observers believe the agreement’s vagueness leaves much – too much -- to interpretation by the landowner and FSM, a private, non-profit entity created a number of years ago by forest landowners to conserve "working forests." FSM will have monitoring and enforcement oversight, but no one knows yet just how well it will perform on such a large tract.

In fact, it is a leap of faith that huge easements in Maine can be successful. Projects like the West Branch represent the scaling up of a tool used for decades to protect small acreages. The increasing number and complexity of big easement projects requiring pioneering systems and techniques help FSM and other easement holders with their oversight responsibilities.

The major reason for most easements is to preclude development, and a landowner sells that property right in exchange for payment of thousands or millions of dollars. The West Branch agreement means no residential, commercial or industrial development (except on a few small acreages) on forestlands in the Penobscot, Seboomook and St. John River watersheds. But there remain unresolved issues in the public arena with the agreement’s provisions on forest sustainability, subdivision and public access.

Roger Milliken evaluated the West branch easement as "weakest . . . in providing for truly sustainable forest management." There is no reference to sustainable forestry management in the easement’s purpose statement.

Roger Milliken evaluated the West branch easement as "weakest . . . in providing for truly sustainable forest management." There is no reference to sustainable forestry management in the easement’s purpose statement. The forest management plan commits the landowner to sustainable practices. However there is no quantifiable definition of sustainability for the landowner to follow or for FSM in evaluating the landowner’s compliance with the easement terms.

Milliken has seen one TIMO (timberland investment organization) management plan that called for harvesting more than twice the annual growth for the first 10 years and then no harvest for the second 10 years. "I have heard foresters call such short-term liquidation ‘periodic sustained yield,’ an oxymoron worthy of George Orwell," Milliken said in his memo. "I fear that such irresponsible management could fit within the current West Branch purpose."

Milliken also weighed in on the West Branch’s subdivision policy. The agreement would allow dividing the land into 15 parcels of a minimum of 5,000 acres. However the landowner could override that stipulation if "in its reasonable judgment, the action [would] not be inconsistent with the purpose of this easement," according to the document.

"I am concerned that 15 divisions is way too many," Milliken said. "The implications of monitoring an easement across 15 ownerships is staggering, not to mention 15 separate management plans, recreation fee policies, etc.," he said. FSM executive director Alan Hutchinson explained to the board’s easement subcommittee on Aug. 27 that if subdivision occurs, a "task force" would be developed to manage the situation, and also "we would deal one-on-one" on certain issues.

While an access easement provides for continued public recreational access on Merriweather’s property, Milliken said that the provision for terminating those rights sets "a huge precedent." It allows the landowner to shut off access in five years if current liability protection insured by state law is eliminated or weakened.

At the board’s Sept. 10 meeting, deputy attorney general Jeff Pidot informed the board that he has not been asked by the Department of Conservation (DOC) to do a legal review of the access easement, which will be "donated" to the state by FSM. There are "unresolved issues on access," he said.

A Complex History

At this point, taking in the history of the West Branch Project is challenging for many people, given the scope of the debate, the change of players, and the "politics" it has attracted.

Announced publicly in June, 2000, the proposal started out as the largest publicly funded easement purchase in the history of U. S. conservation, with the state as the holder and the federal government the major funder. (The earlier 750,000-acre Pingree Forest easement project was virtually all privately funded, and the private New England Forestry Foundation became the easement holder. The state was not involved.)

Originally, the West Branch Project was proposed as a conservation easement on 656,000 acres that would eliminate future development and insure strong, permanent protection of prized ecological and recreational resources. The federal Forest Legacy Program was expected to pay most of the projected $40 million cost, with some investment of state "land bond" money through the LMF program.

There were two landowners involved – Yankee Forest LLC and Great Northwoods LLC – each owning over 300,000 acres of former Great Northern Paper land. The project was to be in two phases. First, 70,000 acres of Yankee Forest land was to be sold to the state, with the second part of the deal to be a conservation easement encompassing about 600,000 acres of Yankee Forest and Great Northwoods.

Wagner Forest Management Inc. of Lyme, N. H., the agent for both Yankee and Great Northwoods, bargained hard, and negotiations were difficult. The state wanted more protection for conservation values than the landowner was willing to sell.

In August, 2001, Jeff Pidot, chief of the attorney general’s Natural Resources Division, wrote a memo to LMFB criticizing the draft West Branch easement agreement with the state for its heavy emphasis on commercial forestry. The primary purpose of a conservation easement, he said, "is to protect the property’s conservation values," not commercial forestry uses. Pidot was also concerned with the proposal’s weak language on public access.

It had already become public knowledge that Great Northwoods LLC was a subsidiary of McDonald Investment Company, Inc. of Birmingham, Ala. The company had bought 656,000 acres of Great Northern land from Bowater Inc., in April, 1999, and then sold about half of it to Yankee Forest. Just before Pidot’s critique of the draft West Branch proposal, Yankee Forest’s identity was unveiled. Yankee was a for-profit subsidiary of Yale University’s endowment foundation, according to federal tax records.

For many years, Yale’s School of Forestry has been a leading proponent of sustainable harvesting practices. The revelation that sustainable management of Yale’s West Branch lands wasn’t being guaranteed in the proposed easement intensified the debate in Maine and caused a stir among the university’s students and forest school alumni.

Meanwhile, Congress’ House appropriations committee was getting antsy about the $17 million it had set aside in fiscal 2000 for the West Branch easement. If the West Branch Project wasn’t going to fly, other states wanted the money. Federal investigators were sent to Maine last winter to look into the situation as part of a larger Forest Legacy review.

Last December, the state finally presented its easement proposal to Yankee Forest and agent Wagner Forest Management. Meanwhile, the Legacy investigators concluded in their report released in April that the deal was restructured because the state couldn't come up with its share of the easement cost -- $10 million – by the May 30 deadline imposed by the appropriations committee. "The new scheme [by the landowner] could potentially result" in Forest Legacy funds protecting "significantly less acreage than originally expected," they said.

In June, FSM and the state announced that a West Branch "option agreement" had been concluded between the landowner and the Forest Society. It was a significantly revised document that converted the West Branch Project into a largely private deal, eliminating the state as a partner. There was also a new landowner name on the document, Merriweather LLC. Whether the entity is still Yale’s endowment or a new owner remains a mystery. Even LMFB has been unable to learn the identity of the owner.

The option agreement has three parts – a fee purchase, a conservation easement and a public access easement. A closing is scheduled for Dec. 31, 2002, and all three agreements must be signed simultaneously or the whole project is off. The fee purchase of 47,000 acres by the state will cost $22 million, with $20 million to come from the Forest Legacy Program and $2 million from the state. The Forest Society of Maine will need to raise $10 million to buy the conservation easement from Merriweather and is seeking money from private sources.

The current stock market problems are shrinking donations for conservation and many other projects across the country. Now that the West Branch is banking on charitable financing, the project faces challenges. Insiders also talk about a "North Woods fatigue" in the philanthropic world because of so many easement proposals already – and more in the pipeline all the time.

Added to the West Branch’s woes is its unusual distinction of so much negative criticism. Besides Milliken and Pidot’s memos and newspaper articles are letters from Jym St. Pierre, Maine director of RESTORE: The North Woods, questioning the project. There is also an LMF document comparing its guidelines with the West Branch agreement.

Some people in the environmental community are tired of the severe scrutiny of the West Branch Project. They believe that Maine will be a better place with the deal than without it, and they see some critics motivated by special interest in other land protection proposals. Although the conservation easement falls short of a best-of-all-worlds deal, it has many attributes, environmental observers point out, such as preventing development and continuing traditional recreation. Without the agreement, Merriweather’s West Branch lands would be fair game for the real estate market, they speculate.

Advocates also note that the West Branch agreement is much stronger than the $28 million Pingree Forest Project. The no-frills easement eliminated development but didn’t restrict land management. Public access was allowed to continue as long as it wasn’t abused, and the landowner reserved the right to control it.

However, forest sustainability was already being practices on the Pingree lands, which were certified as "green" some years ago by the independent Forest Stewardship Council and the industry-created Sustainable Forestry Initiative. The Pingree family also had owned the land for generations and had much goodwill in the Maine community when the easement was announced. They pushed the environmental organizations to be enthusiastic about the project in order to achieve fund-raising goals.

Unlike the Pingrees, the West Branch landowner took actions that fueled the flames of suspicion. Besides the secrecy surrounding the landowner’s identity, agent Wagner Forest Management also kept out of the public eye almost completely, increasing the sense that Mainers don’t know who they’re dealing with and whether to trust them. Also, the landowner raised access fees, angering local sportsman and threatening the livelihoods of businesses behind the gates.

There was muted criticism of the limited Pingree deal that helped to raise expectations of the next large project in the wings – the West Branch. Environmental and state negotiators were hoping to raise the bar for easement standards. They saw the big easements projects as evolutionary in achieving public conservation benefits.

The West Branch vs. LMF

Environmental and state negotiators were hoping to raise the bar for easement standards. They saw the big easements projects as evolutionary in achieving public conservation benefits

At its last board meeting, LMF members considered the document comparing their conservation easement guidelines with the West Branch easement. But they discussed it only briefly. The board felt that it was not in a position to give an opinion on the West Branch agreement because it was substantially completed before the adoption of LMF guidelines. Also, the board was not being asked to apply any funds for that part of the project.

RESTORE’s St. Pierre submitted five pages of questions for the board, continuing his untiring effort to raise public policy issues. The questions were not intended to try to scuttle the easement, he said, but insisted that the landowner should be more forthcoming about the project.

Jeff Pidot commented that his "sense is that [LMFB] is not a forum for probing" the easement because it is now between the landowner and FSM. The state will become the holder of the access easement, he noted, and pointed out that he has not been asked to look at it from the "state's" perspective. "We should do that," he said. "There are unresolved issues on access."

Roger Milliken agreed that the board is not the forum for continuing to debate the easement "but where is the forum?" he asked, rhetorically. Pidot responded, "There aren’t other public forums. This is the only public forum."

Tim Glidden, executive director of the LMF office, advised that the appraisal of the fee lands is expected to be completed by the end of this year. Then LMFB will decide whether to release the $1 million toward the purchase. West Branch advocates said there’s a possibility they may ask for additional public money. If that happens, observers said there would have to be substantial revisions favoring conservation, and a new request would open the door to more probing by the public.

Jerry Bley developed the comparison of the West Branch easement and LMFB guidelines and Glidden added further comments. The analysis looked at the three major components of the documents – forest sustainability, subdivision/development and public access.

Forest Sustainability. Jerry Bley characterized the final agreement as staying close to the "overall approach" of sustainability. But, as Roger Milliken pointed out, the purpose statement is too "brief, vague and general" to insure "true sustainable forest management."

Tim Glidden pointed out in his commentary to the LMF board that the West Branch easement does not mirror LMF’s guidelines in providing a discussion of "forestry principles" that give "explicit guidance and standards for the practice and evaluation of commercial forestry under an easement. The West Branch easement’s management plan includes mention of most (if not all) of the essential natural resource values [water quality, rare and endangered species, biological diversity and scenic quality] but does not include a clear duty to protect or conserve these values" beyond a general reference, he added.

The specific language of the West Branch easement requires the property be managed so that it "has the perpetual ability to produce forest products . . . provides a renewable and long-term source of forest products . . . and maintains forest productivity."

The LMFB guidelines call for "utilization of silviculturally sound forestry methods that allow for a continuing, renewable and long-term source of forest products and assure the sustained ability of the Protected Property and its soils to support healthy and vigorous forest growth and allow for a continuing, renewable and long-term harvest of forest products."

The West Branch plan requires an overall projection of growth and harvest but it is 10 years shorter than required in the LMF guidelines (20 versus 30 years). LMF requires that the projections be broken down by species groups, but the West branch easement does not – just a total projection. Milliken’s memo made the point that without specific species information, a landowner could estimate an annual average growth rate for all species and end up severely degrading a certain kind of species, such as spruce sawtimber.

The West Branch easement requires that all forest operations follow a 10-year management plan prepared by a licensed forester, and the forester must "attest" that the plan is in compliance with the easement; the LMF guidelines do not.

On "green certification," the West Branch easement and LMF guidelines provide third-party certification as an option for demonstrating compliance with requirements of the forest management plan. However, under the West Branch easement, the certifier would not evaluate the forest management plan as required under LMF guidelines. Roger Milliken said the West Branch language is "inadequate" on that issue. LMF specifically limits easement holder approval of a certification program to three years, but the West Branch doesn’t specify a term.

The compliance review process for the forest management plan and the annual meeting to discuss issues are generally the same in both documents. The West Branch easement protects the confidentiality of the landowners’ proprietary information, whereas there is no such mechanism in LMFB guidelines.

Public Access. The West Branch easement assures public vehicle access on designated roads, whereas LMF guidelines only require pedestrian access. LMF’s definition of traditional recreation uses is more expansive than in the West Branch easement, such as bicycling, horseback riding and camping.

Both documents allow for the landowner to charge fees to cover costs. But only LMFB guidelines require that all fees also be approved by the easement holder.

The West Branch easement and LMF guidelines provide the landowner the right to restrict public access for safety and environmental reasons, although the LMFB guidelines require 30-day written notice for such closures except in emergencies.

On the matter of termination of access, Jeff Pidot said in his Aug. 22 memo that the landowner’s right in the matter "is worrisome." Maine’s current landowner liability statute is the most protective in the nation, he said, but it "will inevitably be amended over time," he said. "No one can know whether the holder will be able to meet the landowner’s requirements for protection equivalent to the current statute. I assume that the conservation easement community would not be happy to see such a provision become standard," Pidot said. "I trust that such a provision will not find its ways into easements acquired by the state in the future."

On dispute resolution, the West Branch easement contains a lengthy section that appears to require mediation and arbitration in all non-emergency enforcement situations. LMF guidelines do not contain similar provisions and would allow the holder to enforce the easement directly through court action, though mediation is not precluded.

Subdivision. The West Branch easement prohibits residential, commercial or industrial uses except for forest management activities and documented existing uses, such as deer hunting guide tent camp. But it also allows for permanent structures such as storage sheds and communications systems. Any structures not directly related to forest management must be "minor" ones for recreation, such as campsites and boat launches.

LMF guidelines also prohibit residential, commercial and industrial development but are more restrictive on forest management structures, allowing for only "minor or temporary structures.

While the West Branch allows 15 divisions of the property, LMF guidelines do not provide specific guidance on the number of subdivisions which should be allowed. But the summary said that the one per 18,800 acres "appears to be as strict as any easement held by the state or currently under consideration."

The LMFB guidelines require holder approval for all boundary line disputes, whereas the West Branch easement only requires approval for disputes involving more than 100 acres.

In the West Branch agreement, mining is prohibited except for sand and gravel extraction for use on the property, access roads to the property, lease areas and reserved areas not included in the easement and for incidental barter or sales. LMFB guidelines have a blanket prohibition on surface alterations, with exceptions for roads and gravel pits, whereas the West Branch easement simply prohibits mining. LMFB recommends surface acreage limits on gravel pits whereas the West Branch limits gravel mining by restricting it to on-site and relates uses and prohibiting commercial use.

The conservation easement covers all of Merriweather’s land except the lands to be sold to the state; five existing commercial and residential leases; 40 acres around the St. Zacharie border crossing station for future development; 40 acres along the Golden Road for future development of a wood processing facility; and 20 acres on Penobscot Lake for future residential use by the landowner.

Will there be guaranteed motor vehicle access to the easement lands; why is there no public recourse for the fee rates or gating roads; how will the easement add to the existing protections for state and federally listed species, such as Canada lynx, bald eagle and wood turtle?

In his Sept. 10 letter to LMF, St. Pierre urged the board to seek answers to questions about the West Branch project, such as the identity of the landowner, which roads the public will be allowed to drive vehicles on, and whether any of the fee lands are likely to be designated as wilderness, ecological reserves or backcountry/non-mechanized recreation.

On the matter of state review, St. Pierre noted that when the West Branch project was first proposed, the state was going to hold the conservation easement, and the DOC and attorney general’s office reviewed and commented on various drafts. With FSM now holding the easement, the state has been told it has no say over the terms. "Does this make sense?," he questioned. St. Pierre said the DOC and the attorney general’s office should scrutinize the terms of the easements to make sure there are no legal problems and to affirm that the public is getting its money’s worth.

St. Pierre had several questions relating to development allowed in the easement. How is leaving four five-acre lots on Penobscot Lake for future residential use consistent with the ban on development around that area, he asked. As for the 40-acre site on the Golden Road reserved for a wood processing mill, St. Pierre advocated for pinpointing where it might be. "The wrong location chosen could have a major impact on the public values of the property," he said. "Will the public have any say in the siting?"

Among the other questions he posed were: will there be guaranteed motor vehicle access to the easement lands; why is there no public recourse for the fee rates or gating roads; how will the easement add to the existing protections for state and federally listed species, such as Canada lynx, bald eagle and wood turtle?

None of St. Pierre’s questions were addressed by the board.

Other Maine Environmental News stories on the West Branch Project:

Federal Investigators Weigh in on West Branch Project (Phyllis Austin, Maine Environmental News, 8/2/02)

More Questions Raised About West Branch Project (Phyllis Austin, Maine Environmental News, 6/26/02)

West Branch Project In Trouble (Phyllis Austin, Maine Environmental News, 5/8/02)