Supreme Court Sides With State In Current Use Ruling

Sep 23, 2016

The state and the owner of tens of thousands of acres of land in the Northeast Kingdom are awaiting yet another court decision on a timber harvesting violation under the state’s Current Use Program.

The state originally penalized the company by removing a significant parcel of land from the tax-saving program. The company appealed that decision. It won a lower court ruling. But this month, the Vermont Supreme Court overturned the ruling and sided with the state. 

One more court decision remains. That will be about how Plum Creek Timber Company, which is now part of Weyerhaeuser, should be penalized under the state’s Current Use program, which provide tax incentives for landowners to keep their land in farming or forestry.

Nearly three years ago, a Vermont Superior Court found the company was not in violation of its forest management plan for cutting that occurred in late 2009.

The cutting was done on 137 acres of a larger parcel of more than 56,000 acres.

But this month, the Vermont Supreme Court overturned that decision and sided with the state.

The High Court found that the Vermont Department of Forests, Parks and Recreation was correct in citing the company for violating its forest management plan.

“Potentially, had it not ruled this way, the implications would call into question the department’s ability to established consistent standards for forest management and to enforce those consistent standards across the state,” says Forest Parks and Recreation Commission Michael Snyder.

In its ruling, the Supreme Court remanded the case back to Superior Court for it to determine the penalty for the violation.

The state has held that all 56,600 acres in the parcel should be removed from the Current Use Program for five years; a penalty that the company and some legislators said was excessive.

There have been efforts at the Statehouse – prompted by the Plum Creek case – to revise the rules to make them less punitive. 

“Our position all along has been the law is the law and it's very clear,” says Snyder. “It says the entire parcel shall be removed, that’s where we’ve been. I think the right thing for us to do is let the legal process play out and then we’d be, as ever, ready to do our part in making adjustments according to what the courts decide."

In a detailed and strongly-worded dissent, Supreme Court Justice John Dooley criticized the majority for both the narrow standard he says was used in reviewing the case and for reaching a decision that was not based on the facts in the case.  

Dooley said the justices had been overly deferential to the state’s argument, writing, “The majority has largely ignored the glaring holes in the Commissioner’s decision because of its holding that deference controls everything.”

A representative of the company said in an email that the company is disappointed in the ruling and will carefully consider its options and next steps.

If the entire parcel is taken out of Current Use for five years, the loss of tax benefits could cost the company more than $800,000.

According to the state, nearly 2 million acres of forestland is enrolled in Current Use, known formally as the Use Value Appraisal Program.