State To Appeal Loss In Major NEK Forestry Case

Feb 21, 2014

A long-running legal battle between the state of Vermont and its largest private landowner is headed to the Vermont Supreme Court. And the outcome of the case could have a lasting impact on a popular conservation program, according to a state official.

The case hinges on trees, or rather the lack of them, on a 137-acre parcel of land in a sparsely populated town in the heart of the Northeast Kingdom.

The land is owned by Plum Creek Timber Company, a firm headquartered in Seattle.  And regulators at the Agency of Natural Resources say that in late 2009, loggers employed by Plum Creek cut too many trees on the parcel in Lemington, in violation of its state-approved forestry management plan.

The ruling rocked the forestry world in Vermont, not so much because of the scope of the alleged heavy cut, but because of the severity of the punishment. Though the timber harvest occurred on 137 acres, state officials responded by pulling the contiguous acreage owned by Plum Creek out of a tax relief program known as Current Use.

The land withdrawal totaled more than 56,000 acres, and would have cost Plum Creek nearly $900,000 in additional tax liabilities over five years. So the company appealed the state's action. And late last month, a judge in Essex County Superior Court ruled in the timber company’s favor.

"In general, it appears that the court held us to a different and higher standard based on the number of acres involved in this particular case." - Michael Snyder, Forest and Parks commissioner

But the case is far from over. the state has appealed the ruling to the Vermont Supreme Court. And Michael Snyder, the commissioner of the Department of Forest, Parks, and Recreation, says the judge got it wrong.

“In general it appears that the court held us to a different and higher standard based on the number of acres involved in this particular case,” Snyder says.

In her ruling, the judge agreed with a forestry expert hired by Plum Creek, who said the cut wasn’t nearly as severe as state regulators said it was.

But Snyder says portions of the judge’s 25-page decision make it clear that the severity of the punishment handed down on Plum Creek influenced her ruling. In her decision, Judge Mary Miles Teachout said the examinations undertaken by the state to determine whether there was a heavy cut were “not as thorough as they should be where the consequences are so severe.”

Snyder says language like that suggests that the significance of the sanction unduly influenced the judge’s deliberations on whether Plum Creek had violated its forest management plan in the first place.

“We understand that some see that (penalty of pulling all the land from Current Use) as disproportionate, and we sense that owing to that the court again held us to a different standard because of that,” Snyder says.

But Teachout documents heavily her rationale for overturning the state’s ruling against Plum Creek. In evaluating the testimony of two expert witnesses in the case, she says she found the evidence presented by the forester testifying on behalf of Plum Creek to be more “credible and reliable.” And she says the measurements used by Plum Creek’s witness to refute the state’s allegations were more “solidly grounded in facts” than those used by the state forester.

The case is about more than a 56,000 acre parcel in Essex County. Forestry experts say the integrity of the Current Use program is at stake, and that the ruling could erode a program credited with helping conserve more than 2 million acres of forest and farmland in Vermont.

Jim Wood, a longtime Vermont forester who formerly managed the tract where the alleged heavy cut occurred, says that the Current Use program falls apart if landowners don’t adhere to its rules.

“To have violations against the current use program and then the state takes actions, but then to have essentially somebody get away with it? That does not bode well for the overall program and what the program means,” Wood says.

Snyder says it’s too early to assess exactly what the decision means for Current Use. But he says the implications could be far reaching.  A spokesperson for Plum Creek says the company appreciates the Superior Court ruling, and that it respects the state’s decision to appeal.