If land ownership could be seen from the air, western Montana would look like a checkerboard: Parcels of national forest alternate with 1.2 million acres of private land, grants made to railroads in the late 1800s. Those grant lands are now part of the 8 million acres owned nationwide by Seattle-based Plum Creek Timber Company.
With logging in decline, Plum Creek sees its future in real estate. Last year, land sales made up about one-quarter of company revenues. But Plum Creek has a problem: It's not clear whether the company's customers can legally access their Montana properties over national forest roads.
For decades, the company has held easements on national forest roads that allow it to haul timber, but the question is whether those easements automatically permit residential access as well. Montana counties and conservation groups say they don't.
Mark Rey, undersecretary of Agriculture and former timber company lobbyist, says otherwise. Just to be sure, federal lawyers have drafted a proposed amendment to "clarify" the easements, after nearly two years of private meetings with Plum Creek. The 11-page amendment states clearly that the company can use old logging roads in Montana for commercial, industrial and residential development.
The amendment would also provide a template for similar Forest Service road easements across the nation. Critics note that the proposal has gone forward without county involvement, without public comment, and without study of the possible environmental impacts of granting blanket residential access over hundreds of miles of forest roads. "This was all done behind closed doors," says Jean Curtiss, Missoula County commissioner. "But it's affecting all of us. Let's talk about what's the best thing for us as a whole, not just for Plum Creek."
In 1964, Congress passed the National Forest Roads and Trails Act, which authorized a system of roads with easements for "all purposes deemed necessary or desirable."
Those purposes were defined as timber, grazing, recreation, fish and wildlife, and watersheds; subdivisions were not on the list. But the proposed amendment simply recognizes reality, says Tom Suk, a land specialist in the Forest Service's Washington, D.C., office: Private timberlands within national forests will continue to be converted into home sites. Those buyers have the right to access their properties, and so forest roads, one way or another, will become driveways. "We've clarified and redefined those easements to best protect the taxpayer and the government," says Suk.
Other Forest Service documents, though, have taken a much narrower view of such easements. In 2006, District Ranger Timothy Love wrote a letter to a Montana man considering the purchase of a Plum Creek inholding, warning that the company's easement applied only to "commercial road use for (managing and) hauling timber," not residential access. A 2007 agency memo to forest supervisors similarly notes that easements granted under the Forest Roads and Trails Act "do not usually provide sufficient‚ 'legal access' for all aspects of residential use. ..."
Because the proposed amendment would change the scope of the existing easements, says Jack Tuholske, a Missoula-based public-lands attorney, its potential environmental impacts must be studied under the National Environmental Policy Act. But Rey says that comprehensive environmental review of the amendment is unnecessary; since the easements have always permitted residential access, the studies done when they were first granted still suffice. Under the amendment, individual NEPA analyses will still be done on a case-by-case basis -- for example, if a particular road is improved from high-clearance to passenger-vehicle standards.
The amendment contradicts Forest Service precedent in other ways. Road easement discussions typically involve local governments, says NJ Erickson, land-adjustments group leader in the Pacific Northwest region. The 2007 memo notes that in easement cases where timberlands are being converted to housing, "it is critical that (the Forest Service) coordinate with other local road jurisdictions, such as counties." Montana counties weren't included in the Plum Creek negotiations, though.
Faced with the prospect of far-flung developments in which they have had no say, county commissioners worry about the burden on local services: road maintenance, firefighting, emergency medical services, law enforcement. For such concerns, says Rey, "the proper remedy is for the state of Montana to pass zoning authority."
Montana statute, though, lets majority landowners override any zoning change they don't like -- and Plum Creek owns 58 percent of the land in Missoula County. The law is unlikely to change anytime soon, says Tuholske: "The politics of land-use planning in the rural West, that's something counties are very slow to embrace." Counties in Oregon and Washington, which also have large swaths of private timberland, have stronger local and state land-use regulations and don't share the same zoning concerns.
The proposed amendment does provide some new benefits. The agency can direct homeowners to form road users' associations to pay for road upkeep. Homeowners must follow guidelines to reduce wildfire risk, and the federal government is released from any firefighting liability. But those gains will be forfeit if counties and environmental groups sue, says Rey, suggesting that the agency may simply abandon the proposed amendment.
In May, both Sen. Jon Tester, D-Mont., and the Missoula County commissioners sent letters to Rey, asking that his office produce copies of the affected easements. The commissioners also requested public hearings and changes to the proposed amendment, including requirements to consult with local government and to waive zoning protests. So far, says Curtiss, there's been no response.
If the amendment is not approved, the access issue will remain in its current gray area and the agency will go back to considering easements case by case. "We could end up in court on every single one," says Suk. "The cost would be horrendous." If the amendment does get implemented, lawsuits still seem inevitable. "It's a foolish legal position for the Forest Service to take," Tuholske says, "especially given their mission to protect these lands for all Americans, not enter into sweetheart business deals."
The author is HCN's associate editor. See a related story at blog.hcn.org/goat