In re Appeal of Plum Creek Maine Timberlands, LLC

In re Appeal of Plum Creek Maine Timberlands, LLC, No. 72-12-10 Excv (Teachout, J., Jan. 27, 2014).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Essex Unit Docket No. 72-12-10 Excv
Docket No. 30-6-11 Excv
(same as 294-12-10 Oscv)
Docket No. 19-4-11 Excv
Docket No. 31-6-11 Excv
(same as 76-4-11 Oscv)
IN RE: APPEAL OF PLUM CREEK MAINE TIMBERLANDS, LLC
DECISION
Plum Creek Maine Timberlands, LLC, the owner of thousands of acres of timberland in
the Northeast Kingdom, appeals two administrative decisions that have the effect of removing its
lands from the Use Value Appraisal (UVA) program, which provides an owner with
advantageous property tax benefits for maintaining forest land under an approved forest
management plan.
The first is the Decision of the Commissioner of the Department of Forests, Parks and
Recreation (FPR) upholding an Adverse Inspection Report in which the county forester
concluded that logging occurred contrary to the approved forest management plan. The second
is the Decision of the Director of the Division of Property Valuation and Review of the Vermont
Department of Taxes (PVR) that, based on the FPR Decision, the owner’s property is removed
from the Use Value Assessment program and a land use change tax is due. The effect of the
decisions is removal of 56,604 acres of the owner’s land from the UVA program and loss of
eligibility for a period of five years as well as imposition of a land use change tax.
Because the owner’s lands lie in both Essex and Orleans Counties, there are actually four
decisions on appeal in this case, two for each county. By agreement, the two Orleans appeals
and the two Essex appeals were consolidated. The hearing commenced with a full-day site visit
on May 28, 2013, and continued on May 29, 30, 31, and June 3 and 4, 2013.
Appellant Plum Creek Maine Timberlands, LLC was represented by Attorneys David L.
Grayck and Kimberly B. Cheney. The State of Vermont was represented by Assistant Attorneys
General Michael O. Duane and Thea J. Schwartz. The Court has considered the evidence
presented at the hearing and the proposed findings and legal memoranda filed after the hearing.
The Essex County Assistant Judges participated in making findings of fact.1
1
While the lands subject to removal from the Use Value Assessment program under the PVR Decision are in both
Essex and Orleans Counties, the specific lands on which FPR found violations of the approved forest management
plan, and for which fact finding was necessary, are in the Town of Lemington in Essex County.
Based on the findings of fact and for the reasons set forth below, the Court does not
affirm the two administrative decisions. Rather, the Court determines that Plum Creek’s harvest
to date is in compliance with its approved forest management plan and has the potential to be in
compliance if the harvest is resumed and completed in accordance with the approved forest
management plan.
The Decision of the Commissioner of FPR is the initial critical decision because the
Decision of PVR is dependent on it, and therefore it is addressed first.
On an appeal, the Vermont Supreme Court and this Court “treat decisions within the
Department’s area of expertise with substantial deference.” Jones v. Dep’t of Forests, Parks and
Recreation, 2004 VT 49, ¶ 7, 177 Vt. 81 (citing Sec’y, Agency of Natural Res. v. Upper Valley
Reg’l Landfill Corp., 167 Vt. 228, 238 (1997)). In Jones, the Vermont Supreme Court reversed a
Superior Court ruling overriding the Commissioner’s decision. The Court stated “that courts are
not a higher environmental agency entrusted with the power to make environmental law and
policy, but rather exercise a narrow role in ensuring that the decisions of ANR are made in
accordance with law.” Id. ¶ 14 (citation omitted) (internal quotation marks omitted). The Court
discerned “no basis to conclude that the Department’s finding of a violation . . . was standardless,
unsupported by the evidence, or contrary to law.” Id. Thus, to the extent a finding or decision is
based on departmental expertise, this Court will not overturn it unless it is not based on
standards, or is unsupported by the evidence, or is contrary to law.
Findings of Fact
Use Value Appraisal Program; General Background
The UVA program was created in order to give a tax incentive to landowners to maintain
their open land in agricultural or forestry use. 32 V.S.A. § 3751. An owner who meets the
requirements of the program is able to pay property taxes based on the value of the property for
its current use (farming or forestry) rather than at the standard that would otherwise apply; that
is, the value if the property were put to its “highest and best use” value, which may be higher
than farm or forest use if the property has development potential. Id. § 3756(a) (Cum. Supp.
2013).
This case concerns forest land, which is eligible for enrollment in the program only if the
land is subject to a forest management plan signed by the owner and approved by FPR. Id.
§ 3755(b) (Cum. Supp. 2013). Under UVA laws, rules, and procedures, owners of enrolled land
are required to file a forest management plan with FPR and obtain approval of the plan every ten
years. Id. There are approximately 14,000 forestry parcels in Vermont enrolled in the program.
The average parcel size is 110 acres.
Once enrolled, the forest land must be managed in accordance with the approved forest
management plan. Id. If it is not, and the Director of FPR so determines after inspection and
issues an Adverse Inspection Report, the owner must pay a land-use change tax, and the owner’s
parcel is removed from the UVA program and is not eligible for re-enrollment for a period of
five years, resulting in loss of the favorable property-tax benefits for that period. Id.
2
§§ 3755(b)(3), (c), (d). In this case, Essex County Forester Matthew Langlais estimated that the
tax benefit loss to Plum Creek would be approximately $800,000.
All UVA plans require a map of the entire enrolled lands. The map delineates separate
“stands” (areas within which the types of forest growth are similar) and outlines and numbers
them. The creation of stands within a parcel for purposes of a forest management plan is done
by taking aerial photographs of the owned lands and drawing outlines separating areas which are
characterized by similar types of forest growth into stands.2 As a result, the outlines of stands
are not simple geometrical shapes; their outlines follow the growth patterns of vegetation, which
are affected by topography, soil conditions, and other factors. The result is that stands can have
highly irregular shapes. The stands within a parcel or unit of a parcel are like pieces of a puzzle
that fit together within the outer boundaries of the unit or parcel.
The Northeast Kingdom has parcels of forestry land that are larger than parcels in other
parts of the state. In 2007, the Essex County forester, Matthew Langlais, developed a procedure
for large parcels that is a little different than the procedures generally used. Mr. Langlais, who
graduated from the University of New Hampshire with a BS in wildlife management and
forestry, started working for the State as a land stewardship technician in 1999 and became the
Essex County forester in 2006. The following year, he proposed a Large Landowner Alternative
strategy (LLA), which was discussed with FPR staff, landowners, and foresters. It has not been
adopted or approved by any legislative or rule-making authority. It is described and included in
FPR’s 2010 UVA Manual. It is available to landowners enrolled in the UVA program who own
contiguous blocks of forestland of 5,000 acres or more
The purpose of the LLA is to accommodate large landowners with respect to the cost and
level of detail that is required to prepare a forest management plan on the entire enrolled acreage
initially and every 10 years. Instead of incurring the time and expense to do a specific inventory
of individual stands in the acreage upon enrollment and every 10 years, large landowners are
allowed to submit a “10-year concept plan.” It is based on stratified data, or a random sampling
from groups of stands, without delineation of individual stands as required for a forest
management plan. It involves a lower level of data collection, and does not require a stand-
specific inventory of the type, quality, age, and size of the trees. The owner agrees to do no
cutting of trees while the LLA “concept plan” is in effect.
When an owner wishes to harvest or engage in other forestry practices, the owner is then
required to submit a map of stands and a stand-specific inventory in accordance with the usual
requirements of the UVA program, and obtain approval of an amended forest management plan
before any forestry activity can take place. Thus the expense of a stand-specific inventory and
development of a stand-specific plan is deferred until an owner plans a harvest or other forest
activity, but in the meantime, the owner does no cutting and has the tax benefits of the UVA
program.
The Acceptable Management Practices for Maintaining Water Quality on Logging Jobs
in Vermont (AMPs) apply to all lands enrolled in the UVA. The 2006 UVA Manual3 explains
2
There may be other ways of identifying separate stands but this was apparently the method used in this case.
3
It is the 2006 UVA Manual that applies to this case, since the actions at issue took place prior to the adoption of the
2010 UVA Manual.
3
the basis for this requirement: “It is the obligation of the landowner to ensure that significant
soil erosion and/or stream sedimentation does not occur on any lands enrolled in the Use Value
Appraisal program.” Exhibit 22a, VERMONT AGENCY OF NAT’L RESOURCES, USE VALUE
APPRAISAL PROGRAM MANUAL at 29 (2006). The Manual provides that the AMPs “shall be
employed to the maximum practicable extent” on enrolled parcels. Id. at 30.
The purpose of the AMPs is to protect water quality during logging operations. “The
AMP’s are intended to prevent ‘discharges’; that is mud, petroleum products and woody debris,
from getting into our streams, ponds lakes and rivers. They are also meant to maintain natural
water temperatures by requiring that trees be left along streams and other water bodies.” Exhibit
18, AMPs at 4. The AMPs call for three phases where they apply: planning for implementation
in connection with a project, implementation on the ground during a project, and close-out,
which involves stabilizing the site after a project.
History of the forestry land in this case
In 1998, Champion International Corporation, which owned 132,000 acres of forestland
in northeastern Vermont, sold its lands, which thereafter became three parcels that were acquired
respectively by the United States Fish and Wildlife Service, the State of Vermont, and the Essex
Timber Company, LLC.
In silviculture, which is the art, science, and practice of establishing, tending and
reproducing forest stands of desired characteristics, often to grow forest products of commercial
value,4 there are four stages in the cycle of production: regeneration (establishment of a new
forest), tree growth, tending (e.g., providing space if necessary), and harvesting. Forests can be
managed with even-age management, so that all trees are of the same generation and will grow
and be harvested all at the same time like a crop (or two even-age classes can be growing at the
same time), or a forest can be managed with uneven-age management, in which case there is a
variety of ages and sizes of classes of trees and more than two generations growing
simultaneously in a stand, so that periodic removal of trees is done in a manner to maintain
growth in the remaining multiple generations of growth.
Toward the end of its ownership, Champion had cut heavily to extract available forest
products from the land without building value for the future. Thus, the forest was in poor
condition for ongoing productivity. In addition, a significant ice storm in the area in 1998 had
caused considerable damage. Work was needed to promote new growth of desirable species and
a healthy forest. Any forest management plan would need to address these circumstances.
When Essex Timber purchased its portion of the former Champion lands, the Vermont
Land Trust and the Vermont Housing and Conservation Board purchased the development rights
and were granted a conservation easement. The easement runs with the land, and its primary
objective is to establish and maintain the land as a productive forestry resource. It also requires
that timber be harvested only in accordance with a forest management plan that fulfills the
requirements of the UVA program. The easement also requires that forest management activities
shall employ the AMPs. The Vermont Agency of Natural Resources, along with the Vermont
4
Promotion and maintenance of wildlife habitat can also be a goal of silviculture.
4
Housing and Conservation Board, also hold a public access recreational easement on the
property that permits recreational use in a manner that simultaneously protects the land for the
economic production of forest products.
In 2001, Essex Timber enrolled its acreage in the UVA. In 2007, its forest management
plan was approved by FPR. In September of 2008, Essex Timber sold its holdings to Plum
Creek Maine Timberlands, LLC. Plum Creek is the largest landowner in Vermont, and is quite
possibly the largest landowner in the United States. It owns and manages timberland in 19
states. This was its first purchase of land in Vermont. Prior to purchasing, its foresters and
managers became familiar with the requirements of the UVA program and the easements and
restrictions that burdened the land.
Plum Creek owns 86,212 acres in northeastern Vermont, consisting of the 56,604 acres at
issue in this case and 29,612 acres in other locations, also enrolled in the UVA program but not
part of this case. The 56,604 acres span eight towns in Essex and Orleans counties. The State
claims that Plum Creek owns a single parcel of 56,604 acres of contiguous land, but actually
there are two separate portions bisected by a north-south ribbon of land 200 feet wide owned by
Vermont Electric Transmission Company, Inc. (VELCO) on which is located a high voltage
power transmission line running from Canada toward the south.5
In October of 2008, Plum Creek formally adopted the 2007 Essex Timber UVA forest
management plan. Plum Creek representatives Mark Doty, Tim Dorrell, and forester
Christopher Fife met with Essex County forester Mark Langlais to discuss Plum Creek’s plans.
Plum Creek Senior Resource Manager Tim Dorrell signed the forest management plan on behalf
of Plum Creek, and it was approved by Mr. Langlais on behalf of FPR. Mr. Dorrell also signed a
document in which Plum Creek elected to participate in the Large Landowner Alternative
Strategy and agreed to its requirements.6
LLA concept plans require certain descriptions for the property but not as much
information as required for a forest management plan. LLA concept plans are permitted to use
“stratified random sampling” rather than the more detailed stand-specific inventory that is
required for the regular UVA program. Once a large owner seeks to pursue activity, it must file
an “amendment” to the concept plan. The amendment is called a “harvest prescription
amendment” and must include stand-specific information from a cruise and meet all of the
minimum standards for a forest management plan as described in the UVA Manual. A “harvest
prescription amendment” must be approved by the county forester before harvesting activity is
authorized. Harvesting must take place in accordance with the approved harvest prescription
amendment. Plum Creek agreed to these requirements when its agent signed the document
electing to participate.
5
The parties have addressed extensively the issue of whether the two areas bisected by the strip owned by VELCO
constitute a single “parcel” under Current Use Advisory Board Rules for the UVA program, as ruled by the
Commissioner. Because of the resolution of the appeals as described later in this Decision, it is unnecessary for the
Court to decide this particular issue.
6
The Court takes no position on whether FPR had the authority to adopt the LLA in the absence of statutory
authority or rulemaking. The issue has not been raised by any party in this case. It is not necessary to address it as
the allegation in the case is violation of an approved final forest management plan.
5
After Plum Creek adopted the Essex Timber plan and the LLA Strategy was approved,
Plum Creek’s forester Christopher Fife started working with Daniel Kilborn, Stewardship
Forester for the Vermont Land Trust, who was responsible for monitoring the Vermont Land
Trust easement, which also required compliance with the forest management plan. Mr. Kilborn’s
approval was required for any harvest. Plum Creek began to submit harvest prescription
amendments for specific areas within its holdings. Each area is called a “harvest unit” and has a
name and consists of several contiguous stands. Plum Creek submitted amendments for harvest
units in the towns of Averill, Brighton, Ferdinand, and other towns, and proceeded with work in
these units in 2009.
In mid-2009, Plum Creek identified the Clough Brook North unit in the town of
Lemington for harvest. The Clough Brook North unit includes six highly irregular shapes fitted
together in the manner of puzzle pieces which are stands numbered 24, 34, 43, 44, 46, and 54.
The Adverse Inspection Report in this case pertains to three of these six stands in the Clough
Brook North unit.
The stands at issue in this case are:
#34, consisting of 137 acres, and is generally in the shape of a butterfly;
#43, consisting of 115 acres in the shape of an “H” with wiggly outlines; and
#44, consisting of 37 acres in the shape of a plump, rectangular chunk.7
In October of 2009, Mr. Fife contacted Mr. Langlais to arrange a site visit in connection
with its application for approval of an amendment that would permit harvesting in Clough Brook
North. Plum Creek had employed Landvest, a company that provided contract forestry services,
and two Landvest foresters, both of whom had previously worked with Essex Timber on the
same land, worked on this project. A draft Harvest Prescription Fact Sheet was prepared on
behalf of Plum Creek and shared with Mr. Langlais, Mr. Kilborn, and Richard Greenwood (FPR
Forester) in preparation for the site visit.
On the site visit, the participants walked a loop through the unit to see if the stands were
described accurately and they reviewed the proposed prescription. Plum Creek agreed to
changes in the prescription for a couple of the stands. On November 5th, after the site visit, Mr.
Fife e-mailed updated maps to Mr. Langlais. Plum Creek obtained approval from Mr. Langlais
and Mr. Greenwood for a heavy cut permit in a portion of the unit,8 and obtained Mr. Kilborn’s
approval as required for the construction of two winter roads.
An Amended Harvest Prescription Fact Sheet, Exhibit 22, was prepared which includes
the forest management plan prescription for Clough Brook North that was approved on
November 16, 2009 by Mr. Langlais after the site visit. The last page is a map that includes, on a
portion of stand #43, an area outlined in red marked “OSR” (“overstory removal”). This became
known as the “OSR box,” and is discussed later. This resulted from notes and sketches made
during the site visit by one of the Landvest foresters. It was sketched on the map without the use
7
These descriptors were not part of the evidence in the case, but have been adopted by the undersigned during
review of the evidence to help distinguish them.
8
A special permit is needed for a heavy cut, or clearcut, in addition to the prescription.
6
of precise GPS data, but based on agreements reached with Mr. Langlais and Mr. Kilborn during
the site visit.
Following approval, Plum Creek contracted with Landvest to lay out markings for the
prescriptions on the ground. This included, for example, marking trees that were to be left
standing with blue “X’s,” and marking required buffer corridors along streams. Plum Creek then
contracted with a logger, a new one with whom it had not previously worked, to do the cutting
pursuant to the prescriptions.
On January 15, 2010, Mr. Kilborn of the Vermont Land Trust sent a letter approving the
plan for Clough Brook North and other units from the VLT perspective. Mr. Fife contacted Mr.
Kilborn to arrange to meet on site to review progress of the active harvest, and a site visit was
arranged for January 26, 2010.
On that day, Mr. Fife, Mr. Langlais, Mr. Greenwood, Mr. Lemire (Landvest Forester),
Mr. Kilborn, and Mr. Costner from the Vermont Housing and Conservation Board met at the
Lemington Town Clerk’s office and drove first to another harvest and then to the harvest site at
Clough Brook North. Active logging was going on. They made a large loop through the unit,
crossing in a zig-zag pattern through stands #34 and #43. The ground was covered with snow,
and it had rained hard the previous day, saturating the soil and causing large amounts of water to
flow freely and overflow stream beds and a road.
Mr. Langlais expressed concern about whether the level of tree cutting that had occurred
so far in stand #34 was too heavy. In addition, there were concerns about AMP violations at
stream crossings and at the landing. For example, the logging contractor had put down brush and
crossed a stream at the top of the hill in violation of AMP standards, and had equipment closer to
water than AMPs allow. There was a skidder rut near a stream, and more stream crossings than
Mr. Langlais thought there should be. Mr. Langlais testified that he saw sediment and mud
where equipment had crossed a stream; Mr. Fife testified that he saw no mud in the water
although he acknowledged that there were AMP stream crossing violations.
When they arrived at the landing late in the day, they saw in the pile of cut trees, ready to
go to the mill, 6-10 trees marked with blue “X’s.” While what they had seen throughout the site
visit had raised some moderate concerns about whether there was full compliance with the forest
management plan, this sight raised alarm with everyone, as it suggested excessive cutting in
disregard of the prescription.
That night Mr. Fife went to the logger’s home and stopped all cutting on #34. He also
arranged for reparations at the AMP violation sites, scheduled a meeting for the next morning,
and then e-mailed Mr. Langlais and Mr. Kilborn summarizing what he had done and his plan for
immediate action. The next day he arranged for Landvest to do a cruise of #34 to determine the
extent of cutting to date and notified Mr. Langlais that he had done so. The logger removed all
stream crossings that constituted AMP violations. Mr. Fife arranged for all foremen to have GPS
devices,9 had the 50’ buffer zone from streams specifically marked (previously only the
9
It is extremely difficult to know what stand you are in at any particular location in the three stands of the unit,
largely because the boundaries of the stands are irregular wandering lines and changes in growth patterns, which
might otherwise help to define stand boundaries, are not distinct. This difficulty of determining stand location was
7
centerline of streams had been marked and loggers were instructed to stay 50’ back), assigned a
new Landvest forester to the unit, and required that all stream crossings be marked by the
forester. Based on what they had seen, everyone—including Mr. Fife, Mr. Langlais, and Mr.
Kilborn—had concerns about whether the level of cutting on #34 was too heavy and whether the
outcome standards for the stand could be met if logging continued given the level of cutting that
had already occurred. There was also concern about the AMP violations.
Mr. Fife also took action for other stands on which cutting continued by reviewing the
AMP book page by page with logging contractors, providing GPS devices to all cutting
equipment operators, and further marking trees. He notified Mr. Langlais of the actions being
taken. After January 26, 2010, Plum Creek stopped work in stand #34 except for processing
previously cut wood. On February 2, 2010, all work on the whole unit was completely shut
down by Plum Creek and has not resumed since, pending resolution of the issues in this case: 1)
whether excessive cutting occurred contrary to the forest management plan, and 2) whether the
AMP violations constitute noncompliance with the forest management plan.
In response to what had been seen on the January 26, 2010 site visit, there was a lot of
activity in the following three weeks related to the concerns about both overcutting and AMP
violations.
Landvest conducted its cruise to measure the level of cutting that had occurred up to that
point on stand #34.
A site visit was held on February 9, 2010 to address the AMP violations. In addition to
Mr. Langlais and Mr. Fife, it was attended by Jeff Briggs, FPR Forester responsible for AMPs,
and Reginald Smith from the Agency of Natural Resources, who is in charge of enforcement of
AMPs for the State of Vermont. The locations and nature and extent of specific violations were
reviewed on site, and remedial measures already completed were reviewed. There was too much
snow to observe underlying soil and water conditions. It was left to Reginald Smith to determine
whether enforcement action would be pursued.
On February 10 and 12, 2010, Mr. Langlais returned to stand #34. He walked the
perimeter of what he felt had been cut too heavily and made a GPS map of it, and measured RBA
within that area using the recognized technique of prism sampling. In applying the technique, he
identified 36 spots in the 91 acres he identified, created a grid, downloaded it onto a GPS device,
measured trees within a radius around the 36 spots, entered the data into a State forest
examination software program, and obtained a measurement of remaining standing timber for the
portion of the stand he suspected was cut contrary to the forest management plan. This process
produced a measurement that was below the prescription for the stand.
On February 18, 2010, Mr. Briggs wrote to Mr. Fife specifically identifying AMP
violations that had been found at the site visit on February 9th. Under the general heading of
“Sediment/Slash in Brook,” 5 AMPs that had been violated were identified and 5 remedial
actions were required to be completed for closeout: waterbar installation, removal of temporary
apparent on the site visit. When the undersigned judges asked at different spots what stand we were in, the foresters
and others present often could only answer the question after consulting their GPS devices, into which they had
loaded stand location information, rather than being able to answer from observation.
8
structures and restoration of channel; stabilization of banks and seeding and mulching; grading
of log landing; and stabilization of exposed soil by seeding and mulching. There was no
description of any discharges or degradation of water quality resulting from the violations.
Also on February 18th or 19th, two meetings were held on the issue of the extent of
cutting on stand #34: the first at the Vermont Housing and Conservation Board office in
Montpelier and the second at the county forester’s office in Saint Johnsbury. In one of those
meetings, Mark Doty, Tim Dorrell, and Christopher Fife from Plum Creek met with Mr.
Langlais, Ginger Anderson (Chief of Forest Management for FPR), and Kathy Decker from FPR
to review the measurements taken by both Mr. Langlais and Landvest following the January 26th
site visit.
The prescription called for a residual basal area (RBA) measurement (described more
fully below) after harvest of 30–40. Mr. Langlais measured 19 in the cut portion of the stand and
determined that this meant that the stand had been cut contrary to the prescription. Landvest
agreed that on the portion where cutting had occurred, the measurement was 19, but found that
the RBA measurement for the stand as a whole was 35, and that the work was in compliance
with the prescription for the stand. Mr. Fife was given a draft of an Adverse Inspection Report
alleging that Plum Creek cut contrary to the forest management plan. The issue of the measure
of RBA on stand #34 remains in dispute between the parties, and is addressed below.
On March 17, 2010 and April 13, 2010, Mr. Langlais conducted measurements for RBA
on stand #43 using the same technique he had used for #34, and he did the same on March 26,
2010 for stand #44.
A site visit was held on April 19, 2010 for follow-up on the AMP violations. It was
attended by Mr. Smith, Mr. Briggs, Mr. Saborin (ANR forester), and Mr. Doty from Plum Creek.
On April 26, 2010, Mr. Langlais sent to Ginger Anderson of FPR the Adverse Inspection
Report that was later appealed and underlies this case. Plum Creek was not notified of this
action or sent a copy of the Report at the time although the Report was apparently also sent to
PVR.
The next day, April 27, 2010, Mr. Briggs sent a letter to Plum Creek notifying it that
based on the site visit of April 19, 2010, Plum Creek was in compliance with the AMPs with
respect to the previously identified violations. Plum Creek never received any notice of violation
or enforcement action or communication of any kind from Mr. Smith, and has not had further
AMP issues since, although it has continued harvests in other lands under the UVA not related to
the 56,604 acres involved in this case.
In a letter mailed May 20, 2010, FPR notified Plum Creek of its “cut contrary”
determination with respect to 139.54 acres on the three stands at issue in this case, and failure to
implement AMPs. It gave notice of removal of acreage from the UVA for both reasons. By
letter dated May 24, 2010, the Division of Property Valuation and Review notified Plum Creek
that as a result of the FPR Adverse Inspection Report, its property would be removed from the
UVA. The reference was to Plum Creek’s property in the Town of Lemington. Plum Creek
owns a total of 9,915 acres in Lemington. By letter of July 9, 2010, PVR notified Plum Creek of
9
the removal of 56,604 acres from the UVA program on the grounds that PVR considered all
Plum Creek adjacent lands in the UVA to be contiguous and thus constitute a single “parcel.”
Plum Creek appealed these decisions. The appeal of the Adverse Inspection Report was
to the Commissioner of the Department of Forest, Parks, and Recreation Sarah C. Clark. On
November 30, 2010, the Commissioner upheld the Adverse Inspection Report in a written
Decision, which was appealed to the Superior Courts in both Essex and Orleans counties where
affected lands lie. The subsequent Decision of March 31, 2011 of the Commissioner of the
Vermont Department of Taxes, upholding PVR’s decision to remove the 56,604 acres from the
UVA for five years and assess a land use change tax, was also appealed to the Superior Courts in
both counties. By agreement, the Orleans appeals were transferred to Essex County and all
appeals consolidated into this present action.
The Vermont Land Trust had Plum Creek hire an independent third party to inventory
selected sites within the Clough Brook North unit and on other unrelated lands to check
regeneration at the selected sites in connection with VLT’s monitoring of its easement. Dirigo
was the contractor hired and it measured RBA at the requested locations. In general, its
measurements taken at the locations in dispute in this case were similar to Mr. Langlais’s figures
in the alleged cut-contrary subareas Mr. Langlais measured for stands #34 and #43, and closer to
Plum Creek’s forester’s figure in the cut portion of stand #44.
In September of 2011, Plum Creek hired forester Robert Holleran to do a cruise of stands
#34, #43, #44, and #24 for an independent evaluation of whether the harvest to date was in
compliance with the forest management plan. Mr. Holleran obtained a degree in forestry from
the University of Maine in 1982 and has been a consulting forester in Vermont for 30 years. He
manages approximately 50,000 acres of forest land in Vermont, primarily southern Vermont. He
has prepared hundreds of forest management plans for properties enrolled in the UVA. His
typical client has 100–200 acres enrolled in the UVA, consisting of 4–5 stands. As a result, he
measures basal area in all stands on each parcel every ten years. He has leadership roles in
various professional forestry organizations in Vermont.
In conducting his cruise, he used the standard technique of prism sampling, which Mr.
Langlais had also used. For the stands as a whole, he measured a plot for every 3 ½ acres; in the
alleged cut-contrary areas, he measured a plot for every one acre. This is much more intensive
sampling than is usually done for a forest management plan, which can be based on a plot for
every 10 acres. His specific results and opinions are discussed below. In general, he concluded
that the harvest to date on the alleged cut-contrary stands is in compliance with the forest
management plan and the goals of the prescription for each stand is being achieved and will be
achieved if the harvest is resumed and completed.
There is evidence that prior to January of 2010, Mr. Langlais notified Plum Creek that he
had concluded that it was cutting out of compliance with approved plans at one or two other
sites, but he did not file Adverse Inspection Reports. Instead, the issues were discussed and
apparently resolved. It is a reasonable inference from the evidence that Mr. Langlais was
worried that Plum Creek might be embarking on a pattern of cutting more heavily than its plans
allowed, and since it owned a lot of land and was expecting to do a significant number of
harvests over a long period of time, it was important to require compliance and set enforcement
10
expectations clearly. This would have been a legitimate concern. Despite this, there is no
evidence that Plum Creek was seeking to circumvent program requirements or get away with
knowing violations of the plan. If that were the case, it would not have invited Mr. Langlais, Mr.
Kilborn and others to the January site visit on such transparent terms. The evidence showed that
although mistakes were discovered on site, they were cause for concern to Plum Creek as well as
to Mr. Langlais, and Plum Creek took prompt, reasonable, and responsible action to correct its
methods of operation and evaluate the effect of the mistakes.
Facts relating to alleged violations on each of the three stands at issue
With respect to each of the three stands (#34, #43, and #44), FPR has made “cut
contrary” determinations, i.e., alleged failures to cut in compliance with the forest management
plan, and has also alleged AMP violations, which are also a basis for failure to comply with the
forest management plan. In this section, each stand will be addressed separately and the facts
reviewed with respect to both categories of violation.
The starting point is the Amended Harvest Prescription, Exhibit 22, which is the amended
forest management plan approved by Mr. Langlais on November 16, 2009. This document
includes pre-cutting descriptions of each of the six stands in Clough Brook North, desired goals,
recommended silviculture treatments for achieving those goals within each stand, specific
actions to be taken during the harvest, a Management Plan (Form 2, Pages 1 and 2) for each
stand, and attached maps. As stated on page 3 of Exhibit 22, the “Desired Goal of Harvest” on
Clough Brook North was:
• Capture value in declining timber;
• Retain good quality trees as seed source and retained value for the long term;
• Improve stand quality and provide openings for natural regeneration to occur where it is
deficient;
• Protect and release10 desirable advanced regeneration; and
• Protect riparian zones and wetland habitat.
In other words, the general goals were to cut in a manner to change a poor quality old forest into
a new forest through the creation of new growth. This would be accomplished by harvesting
damaged trees and large trees that would inhibit the growth of desirable young trees, promoting
the growth of desirable young trees, retaining trees that could provide seeds and shade for new
growth in a desirable growth pattern, establishing even age management on the stands with both
existing young trees and new growth, and optimizing conditions for growth for the future.
Stand #34 (Butterfly)
This stand consists of 137 acres and is more or less in the shape of a butterfly, with two
areas protruding out like wings from a center body, which is a small valley. One wing is a slope
that faces east, whereas the other wing is a west-facing slope. Each wing shows the effect of
different weather conditions and past weather events with resulting different impacts on forest
10
“Release” means to free a tree from competition from either neighboring trees or the forest canopy by removing
surrounding trees.
11
conditions. There was considerable ice damage on the western side from the 1998 ice storm.
There was quite a bit of variation in the understory throughout the stand.
The pre-harvest description in the Amended Harvest Prescription includes figures for
both basal area (BA) and acceptable growing stock (AGS). Basal area is used in forestry as a
measurement of the amount of growing stock in a forest. The number means the square feet of
area of growing stock per acre measured at a height of 4 ½ feet from the ground. AGS
represents the portion that is of commercial value. Not every tree is measured. Measurements
are taken from sample plots throughout the stand and extrapolated to estimate an overall figure.
For stand #34, the description portion of the Amended Harvest Prescription notes a total
basal area of 82, with 35 square feet of AGS. The 35 number for AGS is low, and indicates a
limited amount of saw logs and suggests the need to start a new stand. There was lots of damage
to trees, particularly ice storm damage on the western side, as well as general crown die-back,
with a majority of the overstory being unacceptable growing stock. There was quite a bit of
variation in the understory in terms of stocking of trees of the acceptable type for regeneration,
with small pockets of seedlings and saplings in a “patchy distribution around the stand.”
The prescription was for a goal of creating a new stand. The trees were not in condition
to provide good quality timber for future harvest so the purpose of cutting was to create
conditions for future growth. This was to be accomplished by a “two stage shelterwood”
treatment, which is done to establish regeneration, and means that damaged and other trees
would be cut to leave trees with good crowns and stems, appropriately spaced, to provide shade
and to “throw” enough seeds for a new generation of trees to be started. It produces an even-
aged forest.11
The prescription specified that the shelterwood would be “irregular in distribution” and
target certain species. Extensive cutting would be permitted in 1 or 2 patches where quality and
stocking were not sufficient for shelterwood. Birches were to be promoted over beech trees;
sunlight discourages beech and promotes birches, so open areas for sunlight were desirable. The
prescription provided that, taking the patches into account, the “overall stand residual basal area”
after treatment was to be 30–40.12 This low level of density reflects the goal of focusing on
establishing seedlings (and releasing young trees already growing) in order to create
regeneration, or a new stand, but with some established trees remaining in a distribution pattern
to provide seed and shade. When the goal is to create a new forest, the goal for basal area can be
in a range of 20–80, depending on conditions; the goal for this stand was 30–40.
Of the total 137 acres, 16 acres were cut without any claim of cutting contrary to the
prescription, 91 acres were determined by Mr. Langlais to be cut contrary, and the remaining 30
acres are uncut as a result of the shutdown of the project in February of 2010.
11
A two-stage shelterwood treatment occurs in two stages: a first cut leaves the largest trees that have good crowns
and stems and also leaves some mid-size trees to provide shade for the new growth; later, after there has been some
growth and crowding becomes an issue, more trees are cut to ensure open spaces for more new growth while still
retaining some shade. The second cut can be an overstory removal.
12 Residual basal area, or “RBA,” is basal area measured after cutting has occurred.
12
Mr. Langlais for the State and Robert Holleran for Plum Creek gave different opinions
about whether the cutting that occurred on stand #34 was contrary to the forest management
plan. Their determinations of residual basal area at the time of shutdown vary considerably.
Mr. Langlais determined that the RBA for the 91 acres at issue (not the whole stand of
137 acres) was 19.7, well below the 30–40 prescribed. He therefore determined that it reflected
a level of cutting heavier than and contrary to the forest management plan. His opinion is that it
was inappropriate to measure RBA across the stand as a whole because shelterwood treatment
calls for scattered distribution of trees with good crowns to provide sun and shade, and such
result is not accomplished if the density is too great in one large area in the stand and too small in
another. This is because where the density is too great, there will not be sufficient sun, and
where it is too light, there will be insufficient crown cover to provide shade and new seeds.
Therefore, he concluded that the goal of 30–40 RBA was to be achieved evenly throughout every
part of the stand. He acknowledges, however, that post-harvest RBA in patches of up to two
acres, which were allowed in the prescription, would be zero, but nonetheless determined that the
30–40 RBA should be achieved throughout the stand. His measurements and conclusions were
the basis for the Commissioner’s Decision.
His methodology for measuring RBA was to take measurements of trees at 36 points
within the 91 acres (an average of one point for every 2 ½ acres), count the trees within a
specified surrounding radius (which is standard in forestry practice), and from the inventory from
those samples extrapolate to an RBA measurement for the 91 acres using a software program.
He stated that there was a 2.63 standard error. He acknowledged that in counting and measuring
trees at the sample spots, he did not include certain trees and testified that in doing so he was
following the standards of the UVA manual.
Robert Holleran’s measurement was 28.5 RBA in the 91 acres at issue and 47.4 for the
stand as a whole, indicating compliance at the time of shutdown if RBA is measured across the
stand. He disagrees with Mr. Langlais’s conclusion about whether the cutting is in compliance
with the prescription goal. His opinion is that it is standard practice to measure RBA after a
harvest across the stand as a whole, and that there are no standards in the UVA manual or
professional literature that call for measurement only in a cut area. He stated, and illustrated
with photos, that the residual trees in the cut area are in good condition, have quality stems, and
have good size crowns which provide the desired level of shading and seed production and
distribution. Although he agrees that one cannot comply with an RBA goal by clear-cutting half
a stand and having double density on the other half, he noted that the prescription for stand #34
called for an irregular distribution of treatment, with various pockets, which was appropriate for
stand #34 because of the condition before harvest, which was non-uniform distribution of
damage and variation of conditions throughout the stand.
He acknowledges that it was appropriate to stop the cutting after the site visit and
measure and reevaluate whether the harvest would be able to be compliant with the plan. He
agrees that his RBA of 28.5 in the 91 acres at issue was below the prescription, and that if the
entire stand had been cut that much, it would have been out of compliance. His opinion is that
not every individual subarea within the stand needs to be 30–40 to be in compliance. Moreover,
he noted that the prescription was for an “irregular” shelterwood, meaning not uniform across the
stand, which he would expect because of the variability within the stand and the fact that ice
13
damage would justify cutting more heavily on the western side where the ice damage occurred,
which is where a significant portion of the alleged overcutting occurred.
Mr. Langlais testified that the term “irregular” referred to cuttings occurring at irregular
intervals over time rather than meaning non-uniform over the stand, but that does not appear to
be a reasonable interpretation in context, given that the prescription states that the shelterwood
would be “irregular in distribution” (emphasis added) and would target certain species (which
grow in variable patterns), and that patches of heavy cutting were specifically authorized based
on quality and stocking.
The evidence shows that the level of cutting that had occurred in the 91 acre portion of
stand #34 at the time of shutdown was heavy enough to raise legitimate concerns, and the
evidence shows that within the 91 acres, the RBA was between 19 and 28.5, which is below the
standard of 30–40. For Mr. Langlais, that was conclusive that stand #34 was “cut contrary” to
the forest management plan. For Mr. Holleran, that was not the proper application of the
prescription standard.
An important difference between the two foresters is whether RBA after harvest is to be
measured within a subarea of a stand, or across the stand as a whole. As noted, Mr. Langlais’s
opinion was that the stocking goal of 30–40 should be achieved evenly throughout the stand,
whereas Mr. Holleran’s opinion is that RBA is to be measured across the stand as a whole, and
not within specific subareas. His testimony that “stand” is the unit used by foresters, and that
RBA is determined stand by stand by foresters, was unrefuted by Mr. Langlais. There is no
evidence that either the UVA manual or any other professional forestry resource of the type
consulted and referenced by both foresters supports the proposition that RBA is to be measured
within a unit smaller than the stand for which a prescription is written, at least where there is no
stand-specific specification for such a result.
Without any rule in the UVA manual or specification in the prescription, an owner would
not be on notice that RBA would be measured other than by the stand as a whole, particularly
where the particular prescription calls for a result of 30–40 “overall stand residual basal area.”
The evidence is that foresters generally measure RBA across the stand as a whole for purposes of
determining compliance with a forest management plan, and that is particularly appropriate for
stand #34 for which the specific prescription stated an outcome of 30–40 “overall stand” RBA.
Apart from whether RBA is measured across a stand as a whole, the Court finds that Mr.
Holleran’s methodology for measuring RBA produced a more reliable result, as it was based on
measurements taken from a significantly greater number of sample plots. His additional
explanation of the difference between his figures and Mr. Langlais’s is credible: that it was
likely attributable in part to Mr. Langlais not counting all the trees in the sample plots, thereby
producing a lower RBA measurement. While Mr. Langlais testified generally that his
measurements were taken in a manner consistent with the UVA manual, the Court finds the
quality and reliability of Mr. Holleran’s measurements to be superior.
The evidence shows that there can be quite a variation in RBA measurement results
obtained by different foresters, even when they are using the same methodology. Variables
include the number of inventory points taken (e.g., points per acre), where they are located
14
(across the stand or within a subarea), the location of the points (including or excluding locations
along stand boundaries), selection of the size of trees counted within each inventory point, type
of GPS device used, possibly the content of any software program used to process the data, and
probably other factors. Differences on each of these variables are bound to produce different
results. In addition, it is clear that all measurements in evidence were based on samples that
were then used to extrapolate to an overall measurement, rather than being precisely accurate
about what is on the ground in the forest.
The evidence is that measuring RBA is something that all foresters do on a regular basis
all the time. It is a standard practice among foresters for describing the quantity of growing
stock on forestland, and is used for a variety of purposes, private as well as public. Thus, it is not
a calculation that is within the expertise of foresters who work for FPR as opposed to other
foresters. While county foresters would normally be expected to have expertise in the area,
determination of RBA is not exclusive to them, but is done regularly by other expert foresters for
the same and similar purposes.
Moreover, the RBA measurement only indicates a numerical estimate of stocking level
after cutting. It does not provide information about whether a treatment applied during a harvest
has met the goal of the treatment, which in this case was regeneration of desirable species
through providing seeds and shade from mature trees appropriately spaced across the stand and
light and space for regenerative growth.
Mr. Langlais determined that the goal was not met because in his opinion the distance
between the crowns of the uncut trees was greater than standards he used from published forestry
guides. Moreover, he measured the level of regeneration immediately after the harvest and
concluded that there was regeneration in only 15 percent of the plots examined. This was
consistent with his view that cutting was too heavy.
Mr. Holleran’s opinion is that the stem and crown quality of the seed trees that remained
within the cut area is excellent, that the species are desirable (primarily yellow birch and maple
which are desirable and little beech, which is undesirable), and that the distribution of the trees is
appropriate and sufficient to provide spacing for shade and seed distribution. His opinion is that
if the cutting continued, the overall result across the stand would comply with the prescription.
Overall, the Court finds Mr. Holleran’s expert conclusions and opinions as a forester with
respect to compliance on stand #34 to be more credible and reliable than those of Mr. Langlais.
He has much more extensive experience as a forester in the field working over many years with
parcels subject to forest management plans under the UVA. His measurement methods used
more data, making his results more solidly grounded in facts, and he gave cogent explanations
for how and why his results and opinions more accurately reflected conditions in the forest than
those of Mr. Langlais. His opinions about the extent of regeneration that is present throughout
the cut portion of the stand appeared to be well supported by his analysis and explanation of the
photographic evidence taken during the site visit and his observations of what exists on the
ground in the forest. The Court finds that both the quantity of data used by Mr. Holleran and the
quality of his analysis make his conclusions more accurate and reliable. While Mr. Langlais’s
methodology was not incorrect, it appeared to consist of application of manual standards and
15
reliance on statistical measures without the depth of analysis and understanding demonstrated by
Mr. Holleran.
It should be noted that Mr. Holleran’s work had not been done at the time of the Decision
of the Commissioner of FPR, and thus her Decision was made without that information.
AMP violations on #34:
In the Adverse Inspection Report, Mr. Langlais listed six instances of “AMP violations-
discharge resulting” on stand #34. They include a landing located within 50’ of a streamside
protection zone, unnecessary crossings across a brook, lack of maintenance of a protective strip,
skid trails within 25’ of a streamside protection buffer, stream channel “excavated/altered” to
allow for the movement of water, and equipment in headwater stream and/or wetland causing
rutting. All of these conditions were discovered at the site visit on January 26, 2010, and
examined on February 9, 2010 by State Forester Jeff Briggs and Reginald Smith, ANR
Environmental Enforcement Officer. In his follow-up letter, Mr. Briggs identified five ways in
which there were AMP violations on the total project, all related to sediment or slash in brooks,
but it is not clear which stand(s) were affected.
Plum Creek acted promptly to correct the AMP violations in the Clough Brook North unit
and other areas. It instituted practices such as reviewing the AMP Rules with its logging
contractors and holding “mud breakfasts” with the loggers for logger training, and hiring its own
forester for planning and layout of harvests rather than relying on contractors.
Mr. Langlais expressed concern based on what he saw at the site visit about mud entering
water and the possibility that a rut that was seen might create a new water channel. After the site
visit, all evaluations of AMP violations were handled by Mr. Briggs and Mr. Smith. While it is
likely that at some point on or before January 26, 2010 there was some level of slash or sediment
in the water as a result of the AMPs not having been strictly observed, there is no specific
evidence of how extensive any discharge of sediment or slash into the water was, nor is there any
evidence of impact on water quality or environmental degradation.
Mr. Briggs wrote to Plum Creek on February 18, 2010 describing the specifics of what
had been identified as violations, what remedial work had already been done, what further work
needed to be done for closeout, and a plan to meet in the spring before the major runoff to
determine what further work would be necessary. He noted that Reginald Smith was the person
who would determine whether to pursue enforcement action.
Mr. Briggs wrote again on April 27, 2010 expressing satisfaction with what Plum Creek
had done. Specifically, he wrote in bolded letters, “This letter is to inform you that on April
19, 2010, I observed that all of the major remedial actions relating to the AMP violations
have been accomplished and that you are now in compliance with the AMP’s.” He
expressed confidence that the remaining work would be accomplished due to the good work
being done by the contractor hired by Plum Creek. No enforcement actions were ever
commenced against Plum Creek, and there is no evidence of any other violations discovered
other than those seen on January 26, 2010.
16
It is true that there was a failure to meet all AMP standards on stand #34 as of January 26,
2010. There is no evidence that they had any identified harmful effect; rather, the evidence is
that they were quickly remedied. It is noteworthy that there is no evidence from persons such as
Mr. Smith or Mr. Kilborn, who may be knowledgeable about the effect of certain types of
violations on water quality. At the site visit and in testimony, there was disagreement between
the State and Plum Creek about where some of them had actually occurred and what had
occurred, and there was no physical evidence to resolve such disputes (at other locations the
effect of remedial seeding and mulching was visible). The evidence was that it is not uncommon
for minor AMP violations to occur during logging operations, and the letters from FPR
acknowledge that what it was seeking was education and compliance. There is no evidence of
any impact on water quality following the remedial work, which was done promptly.
Stand #43 (Wiggly “H”)
This stand consists of 115 acres in an “H” shape that intertwines with the wings of the
butterfly on stand #34. Prior to cutting, it had mixed wood types with a total basal area of 88 and
acceptable growing stock of 35. The mean diameter of trees across the stand was 8.2 inches. It
was weighted toward medium-size saw timber. It had high damage, with white birch being in
severe decline due to disease. The majority of the fir was mature, and the majority of the stand
was well stocked, with red spruce seedlings and saplings in the understory.
The objective was to promote regeneration for a forest with even-age management. The
prescription called for two types of treatment. In 30–40% of the stand, there would be overstory
removal (OSR) where the overstory was in severe decline and the understory was well stocked
with seedling and sapling sized red spruce. The remainder would receive two-stage shelterwood
treatment. The harvest would target the at-risk and mature stems. The harvest was to release
quality growing stock and provide gaps to promote regeneration. OSR, shelterwood, and gap
treatments all have as their objective creating new growth for a new generation of trees. The
target residual basal area was 60.
It is common that where prescriptions call for two or more types of treatment within a
stand, the locations of the different treatments may be generally indicated without being
precisely specified. Examples are the prescriptions for Plum Creek harvests in Ferdinand,
Maidstone, Averill, and Lewis. Sometimes a specific treatment type is prescribed for a very
specific location. In this case, the “OSR box” was indicated on the map but without a specific
GPS location. As previously noted, it came about as a result of discussions that resulted in the
amendment to the type of treatment needed on parts of stand #43, which was variable, with
pockets of differing types of trees scattered throughout the stand. Within what was shown on the
prescription map as the “OSR box,” actual cutting included a mix of OSR, shelterwood, and gap
treatments. In addition, there were some riparian areas within the box and the AMPs preclude
cutting in riparian buffers.
Nearly all of #43 had been harvested when work on the unit stopped. Of the total of 115
acres, 75 acres were cut satisfactorily to FPR, and 40 acres were determined by Mr. Langlais to
be cut contrary; he measured RBA at 23.3 within that area. He did not find the “OSR box” to be
cut contrary, but his opinion was that OSR treatment was limited by the prescription to the OSR
box, and that outside the box, which he believed to be specifically located as shown on the map,
17
the treatment should have been shelterwood only with no OSR. This is not clearly stated in the
prescription, however.
Mr. Holleran points out that if the 27 acres of the OSR box had been completely cut,
which it was not and could not have been due to riparian restrictions, the prescription would have
allowed an additional 19 acres of OSR outside the box (40% times 115 acres = 46 acres minus 27
acres in OSR box = 19). Only 8 other acres received OSR treatment. In his view, because of the
diversity of types of trees throughout the stand and in the OSR box, it was not realistic for the
OSR box to have complete OSR treatment. Rather, it made more sense to apply the three types
of treatments (OSR, shelterwood, and gaps) across the stand because of the diversity and
distribution of the trees, in order to replace the existing forest with a new forest. In his opinion,
the work that was done was in compliance with the prescription, and observation and the results
of his regeneration study show successful regeneration.
Mr. Holleran’s measurement for the stand as a whole was 73.5, and his measurement for
the 40 acre alleged cut contrary portion was 53.1. Again, his opinion is that RBA should be
measured across the stand as a whole, and not within a subarea within a stand.
Both foresters addressed whether, despite their differing RBA measurements, the goal of
regeneration was met by the cutting that occurred. Mr. Langlais concluded that there was
regeneration at only 15% of his 39 inventory points (measurement occurred at one point per
acre), with 4.18 standard error. In the Adverse Inspection Report, he wrote, “Neither
regeneration plots nor residual stand basal area describes successful implementation of
prescribed silviculture.” Exhibit 32. Mr. Langlais’ opinion was that to show regeneration, there
should be 350 stems per acre immediately after harvest.
Mr. Holleran cites the 2006 version of the UVA Manual, Exhibit 22a at 29,, which was
applicable to the cutting at issue and provides: “For newly-regenerated stands, the successful
establishment of acceptable species must be not less than 350 stems per acre well distributed
throughout the stand three years after the regeneration cut is made.” Mr. Holleran did a
regeneration study in October of 2012, three growing seasons after cutting on stand #43. Mr.
Langlais accompanied Mr. Holleran on the regeneration cruise. Based on counting on 41 plots
on the 40 acres at issue, Mr. Holleran determined an average of 12 seedlings per plot which
extrapolates to 12,000 seedlings per acre. Mr. Langlais’s criticisms of Mr. Holleran’s technique
were that Mr. Holleran used a recreational version of a GPS device, selected his inventory points
with bias, counted seedlings not present immediately after the harvest, and counted sprouts as
stems. The location of Mr. Holleran’s plots are depicted on a map included in his report of his
study, which is thorough. The Court finds that the regeneration results of Mr. Holleran are more
reliable and show that the goal of regeneration was met according to the standards in the
applicable UVA Manual.
For the same reasons described with respect to stand #34, this Court finds that Mr.
Holleran’s measurement of RBA on the stand is more reliable, and his opinions, based on both
RBA measurement and extent of regeneration on the ground, are more solidly grounded in
observation, analysis, and experienced application of forestry practice standards.
18
AMP violations on stand #43:
In the Adverse Inspection Report, Mr. Langlais listed five AMP violations, specifically
that a protective strip was not maintained, skid trails and machinery were within 25 feet of the
streamside protection buffer, equipment was in headwater/stream causing 1–2 foot rutting,
equipment crossed brooks without crossing structures in place, and two unnecessary stream
crossings. These violations were addressed by Mr. Briggs and Mr. Smith together with the
violations on #34. They were closed out by prompt action by Plum Creek, and there were no
enforcement actions pursued against Plum Creek. There is no evidence that the effects were
anything other than short term, and they were promptly remedied.
Stand #44 (Chunk)
This stand consists of 37 acres in a fat, rectangular, chunky shape. Prior to cutting, it had
a total basal area of 97 and acceptable growing stock of 42, which was higher than #34 and #43
but still low. The mean diameter of trees across the stand was 7.6 inches. It was weighted
toward small-size saw timber. It had a fair amount of acceptable stock for small saw timber. It
had high stand damage, with many of the medium and large saw timber stems in decline, and
beech bark disease.
The objective was to improve the growth of the good trees on the stand for a forest with
even-age management. The prescription is actually different in the two places in the
Amendment where the prescription is defined: it calls for shelterwood treatment in one location
(Form 2, page 1), and in another it calls for intermediate thinning (Form 2, page 2), targeting the
at-risk and mature stems, to release the trees in the small saw timber size class for growth, as
well as open up gaps for regeneration. While this inconsistency appears to be an error, both
treatments are oriented toward regeneration. The target RBA was 60, reflecting the retention of
small trees for growth.
Of the total of 37 acres, only 8 acres had been cut when the work stopped, and all 8 acres
were determined to be cut contrary. Mr. Langlais measured RBA within the 8 acres at 16.3,
based on 8 inventory points (one per acre) with 4.60 standard error. Mr. Holleran measured
RBA at 36 spots in the 8 acres. Mr. Holleran’s projection was that if the remainder of the stand
were cut, the RBA would be 60.5. Because of the greater number of measurement points used
by Mr. Holleran, the Court finds that Mr. Holleran’s RBA measurement is more reliable.
Mr. Langlais testified that the amount of regeneration evident directly after the cut was
too low for the prescription. Mr. Holleran measured regeneration in August of 2012, after three
growing seasons, and found 15,000 commercial stems per acre. His opinion was that the
prescription was for some thinning and some regeneration, and that this is what occurred on the 8
acres, and that if the harvest were finished on the stand, the whole stand would be compliant and
that regeneration is being successfully achieved as called for by the prescription.
For the same reasons described with respect to stands #34 and #43, this Court finds that
Mr. Holleran’s measurement of RBA on the stand is more reliable, and his opinions, based on
both RBA measurement and extent of regeneration on the ground, are more solidly grounded in
observation, analysis, and experienced application of forestry practice standards.
19
AMP violations on stand #44:
There were no AMP violations cited on #44.
RBA measurements for all three stands
Mr. Holleran, after hearing Mr. Langlais’s testimony at the hearing, did some additional
calculations regarding RBA measurements. For each stand he took Mr. Langlais’s RBA figures
for the land area in which Mr. Langlais’s inventory points were located (only the alleged cut-
contrary area) and added to those data from his own inventory points for the remaining land area
in each stand (areas that he measured and Mr. Langlais did not). His results are shown on
Exhibit 102 and show that even using Mr. Langlais’s RBA measurements to the extent he made
them, if RBA is measured across the whole stand, the results are:
Stand #34 38.3 (prescription was 30–40)
Stand #43 60.6 (prescription was 60)
Stand #44 106.2 (prescription was 60)
These figures provide further support for his opinion that if the harvest had been allowed to
continue, each stand retains the potential to be in compliance with the forest management plan,
and the Court finds this evidence persuasive.
Conclusions of Law
As noted at the beginning, a Department’s determination based on its expertise will not
be overturned unless it is “standardless, unsupported by the evidence, or contrary to law.” Jones
v. Dep’t of Forests, Parks and Recreation, 2004 VT 49, ¶ 14, 177 Vt. 81.
In the Commissioner’s Decision dated November 30, 2010, the Commissioner wrote that
after considering Plum Creek’s presentation, she determined that “Plum Creek did not provide
adequate qualitative information or any quantitative data that would render the adverse
inspection report erroneous in any way. . . . This violation is clear and undisputed by
information provided by Plum Creek.” Exhibit A, page 6. Specifically, the Commissioner
determined that:
• AMP violations had been observed and 14 had been reported;
• on stand #44, the RBA in the 8.47 acres determined to be cut contrary was 16.3 when it
should have been 60;
• the cutting map for stand #43 was for two separate treatments (OSR and shelterwood)
whereas the post-cutting stand is “very homogenous” and under the prescribed stocking
goals, and the result of the harvest was under the prescribed 60 RBA for the shelterwood
treatment, missed the goal of releasing well-stocked seedling/sapling red spruce through
an overstory removal, and only 15% of plots were stocked with regeneration;
• there is no indication that the cutting plan would have been modified “had the sale
reached completion;” and
20
• on stand #34, the cutting that was done created two separate stands; the goals were not
met; heavy cutting in one area and less in another is a misapplication and
misunderstanding of silvicultural practice; RBA of 19.7 is equivalent to a commercial
clear cut; and the trees left lacked the crown size necessary to provide shading conditions
even if the RBA target was met.
In sum, the Commissioner upheld the facts as determined by County Forester Mark Langlais in
the Adverse Inspection Report on all issues.13
In the hearing held before this Court, at the close of Plum Creek’s evidence and again at
the close of all evidence, the State moved for judgment as a matter of law. The Court deferred
ruling. The Commissioner’s Decision is entitled to a presumption of validity, but if the owner
presents evidence to the contrary that is sufficient to overcome the presumption, the presumption
dissolves and it becomes the role of the Court to determine the issue on a de novo basis.
32 V.S.A. § 3758; Id. § 4467; Kruse v. Town of Westford, 145 Vt. 368, 371–72 (1985) (citations
omitted). In that event, the appellant, Plum Creek, has the burden of persuasion on all contested
issues. Kruse, 145 Vt. at 372–73 (citations omitted).
In this case, Plum Creek presented the evidence of expert forester Robert Holleran that
the RBA measurements across the stand showed compliance, that measurement of RBA across
the stand is the appropriate way of measuring compliance with a forest management plan, and
that on each of the stands the harvest would be in compliance if allowed to continue to
completion. Plum Creek also introduced evidence that although there were AMP violations, they
were temporary and remedied promptly and not severe enough to warrant enforcement action,
and that Plum Creek was found in compliance at the first site visit following the discovery of the
violations. The Court concludes that Plum Creek presented sufficient evidence to overcome the
presumption. Therefore, the State’s motions for judgment as a matter of law are denied.
The analysis proceeds with consideration of whether the State’s evidence adequately
supports the Department’s determination and shows application of proper standards, or whether
Plum Creek’s evidence outweighs the State’s evidence.
Cut-contrary determinations on stands #34, #43, and #44
As the findings show, the Court finds more credible the evidence presented by Plum
Creek that it is proper forestry practice to measure RBA across the stand unless specified
otherwise as long as prescription goals are met, that the RBA measurements taken across the
stands show compliance, and that prescription goals can be achieved if cutting were to continue
across the three stands. The Court has found Mr. Holleran’s expert opinions to be the most
credible and reliable with respect to both the standards to be applied and the overall
determination of whether the cutting done is compliant with the prescriptions. Pion v. Bean,
2003 VT 79, ¶ 17, 176 Vt. 1 (citations omitted) (concluding that trial court “acted within its wide
discretion” in rejecting one party’s expert in favor of the opposing party’s expert).
13
In the Decision, the Commissioner addressed three or four other points that are not germane to these appeals.
21
With respect to the application of standards, the State applied one standard that was
without sufficient foundation (measuring RBA in only a portion of the stand) and applied another
standard that was incorrect (measuring regeneration immediately after harvest rather than three
years later). The first was critical to its cut-contrary determination. Mr. Langlais relied heavily
at the time of the adverse inspection report and throughout the process on his measurements of
RBA that were taken in only a portion of each stand—portions that he had already concluded by
observation to be cut contrary. The evidence showed that there is nothing in the UVA Manual or
professional resources relied on by foresters to justify measurement of RBA in that manner when
determining compliance with a prescription target. No other forester testified in support of that
standard.
Mr. Holleran, a highly experienced forester, testified that measurement across the stand
as a whole is the norm. In this case, the prescription for stand #34 explicitly provided for a goal
of 30–40 “overall stand residual basal area.” While the prescriptions for #43 and #44 did not
contain the same language, neither did they include any terms that would have established a
requirement that the goal was to be met in each and every subarea of the stand, particularly
where the stands were variable to begin with and called for mixed treatments throughout the
stand.
Mr. Langlais’s logic is correct when he argues that if a prescription is for 50 RBA
distributed across the stand, an owner cannot satisfy that prescription by clear-cutting half of a
stand and leaving the other half at 100 RBA; under those circumstances, the goal of the
prescription could not possibly be met. That does not mean, however, that it is justifiable to
determine noncompliance based only on measuring a subarea in a stand where there is no RBA
specified for that subarea. The low measurement in a subarea may raise serious concerns, as it
did in this case, but such a measurement calls not for automatic disqualification from the UVA,
but for further investigation and analysis to determine whether the prescribed treatments are
being applied properly, whether the goals of the prescribed treatment are being met in the stand,
and whether the targets for that stand will be able to be met.
In this case, the State’s evidence showed that it relied heavily on RBA measurements (its
own and Landvest’s) taken from plots in just a portion of each stand and rejected RBA evidence
pertaining to the stands as a whole. In doing so, it imposed a standard that is not in the UVA
Manual, is not a norm in forestry practice, and was not included in the prescription. The State is
not entitled to deference with respect to the imposition of such a standard, as methodology for
measuring RBA for purposes of compliance with UVA plans is not unique to state foresters but
is a function carried out by private consulting foresters on a routine and periodic basis on all of
the 14,000 forestry parcels enrolled in the UVA throughout the State.
The proper standard was not whether the RBA target was met in each and every subpart
of a stand, but whether the prescribed treatment was being carried out and would result in the
outcome prescribed for that stand. Mr. Langlais did also consider these perspectives, even
though he relied heavily on the partial stand RBA measurements. His opinion is that there was
too much distance between crowns of remaining trees according to written guidelines in forestry
resource materials. Mr. Holleran’s opinion is that the quality of the stems and crowns and their
distribution was appropriate for the prescription and the goal.
22
With respect to each of the stands, regeneration of a new forest was the goal. In
evaluating whether that goal was being achieved, the State measured regeneration and found it
deficient, but in doing so, it did not use the standard for regeneration established in the 2006
UVA Manual that is applicable to the project. The Adverse Inspection Report was based on
evaluation immediately after the harvest. The Manual specifies that regeneration is measured
three years after harvest and calls for 350 seedlings per acre. The State offered no evidence of
regeneration at any time except immediately after the harvest. Mr. Holleran’s evidence showed
that the applicable standard for regeneration was easily met when the applicable standard was
applied.
Not only were inappropriate standards applied, but the Court has found that the evidence
of Mr. Holleran is both qualitatively and quantitatively superior to the evidence relied on by the
State and thus renders the cut-contrary conclusion in the Adverse Inspection Report not
supported by the evidence. Mr. Holleran’s measurements and opinions are of the type that
foresters who work with forestry parcels subject to forest management plans under the UVA
routinely make, and are not uniquely within the expertise of a forester who works for the State of
Vermont. His methods and analysis were based on much more data and a greater degree of
knowledge, experience, and practical application of analytic methods and recognized and defined
standards.
These conclusions, that the State applied inappropriate standards and that the State’s cut-
contrary determination is not supported by the evidence, do not run afoul of the Vermont
Supreme Court’s admonition in Jones that it is not the role of the trial courts to make
environmental law or policy. This situation is akin to cases involving valuation of property for
property tax purposes: while listers and appraisers who work on behalf of governmental entities
make determinations of highest and best use and the fair market value of property, private
appraisers also do so. The expertise of appraisers is not exclusive to persons who work for the
government, and the same applies with respect to the expertise of foresters in determining
compliance with forest management plans. Title 32, section 4467 and related case law make
clear that while it is the appellant’s burden to overcome the presumption of validity, and even
when the presumption is overcome the burden of persuasion lies with the appellant, the State is
no longer entitled to deference on issues requiring factfinding once the presumption is overcome
and the factfinder is evaluating the weight of evidence of different expert witnesses.
The methodologies used by Mr. Langlais were not irresponsible. However, when the
consequences of an adverse inspection are of the magnitude involved in this case—removal of
over 56,000 acres from the UVA for five years based on a highly disputed situation involving a
small portion of that land—then the evidence of noncompliance should be solid and based on
proper standards. This was not a situation of flagrant clear-cutting contrary to a plan calling for
growth of standing trees. It is a dispute over how to measure the density and distribution of trees
that were undeniably left to grow, and whether the characteristics and distribution pattern of
those uncut trees serve the goal of the prescribed treatment, which was to promote a healthy new
forest for the future. The State’s conclusions were based on methodologies that might be
sufficient for initial evaluation, but are not as thorough as they should be where the consequences
are so severe.
23
Consideration of all the evidence, which is now much more fully developed than it was at
the time of the original Adverse Inspection Report and at the time of the Commissioner’s
Decision, shows that the harvest at the time of shutdown was not out of compliance with the
forest management plan, and the outcome goals and standards of the harvest can be achieved if it
is continued to completion. The standards applied in the Adverse Inspection Report and used by
the Commissioner were either not applicable or not correct, and consideration of all the evidence
admitted in this de novo hearing does not support the Commissioner’s Decision. The evidence of
compliance presented by Plum Creek is more credible and reliable than the evidence of
noncompliance presented by the State.
AMP violations
This leaves the question of whether the AMP violations on their own support a finding of
failure to comply with the forest management plan. It is undisputed that on January 26, 2010,
there were violations of the AMPs that were observed by Mr. Langlais and others, and that some
were also observed on February 9th at the site visit convened for the purpose of examining them.
While the evidence shows that there were violations, and that Mr. Langlais had concerns
about the possible effect of discharge of mud into the water and the creation of a new channel as
a result of a rut, the violations were evaluated by the FPR Forester who overseas AMP issues and
the chief person in charge of AMP enforcement on behalf of the Agency of Natural Resources.
FPR was satisfied with the prompt and responsible attention given by Plum Creek to remediating
the violations, and found Plum Creek in compliance with AMPs at the first opportunity that the
issue was reviewed. ANR never pursued enforcement action. There is no evidence that there
was anything more than a few temporary violations of the sort not uncommon in logging
operations. While Plum Creek is responsible for the actions of its contract logger, there is no
evidence of willful disregard for the AMPs, nor is there any evidence of residual effect on water
quality resulting from the violations. The evidence shows that a new logging contractor needed
education, which he and all other loggers on Plum Creek sites promptly received.
It was reasonable for the State to be concerned about whether Plum Creek, who was a
new landowner in the State embarking on extensive logging projects on thousands of acres in the
Northeast Kingdom, would be sufficiently mindful of the obligation to maintain water quality in
Vermont through compliance with the AMPs, and understandable that the State would seek to
hold Plum Creek accountable for compliance from early on in its work. However, the UVA
Manual recognizes by its terms that in the context of logging, AMP enforcement is meant to be
realistic. What is required is maximum practicable compliance in furtherance of the goal of
maintaining water quality.
The question is whether the level of AMP violations in this case, standing alone without
any cut-contrary determination, is sufficient to support a finding of noncompliance with the
approved plan, resulting in the removal of 56,604 acres from the UVA. The Court concludes
they are not. There is simply no evidence that there was any detrimental impact on water quality
of the type the AMPs are designed to prevent, despite the violations. In applying rules, an
administrative agency is expected to act with fairness and proportion. Here, although there was a
failure to observe some AMPs on a temporary basis, there is no evidence of harm to water
quality or wildlife or soil erosion. The level of violations here simply do not support the severe
24
consequences of removal of over 56,000 acres from a program in which participation ensures the
public of forest management of a type that State policy seeks to promote.
Summary
For the foregoing reasons, the Court concludes that the appellant overcame the
presumption of validity of the FPR Commissioner’s Decision by the introduction of credible
evidence of compliance with the approved forest management plan on the three pertinent stands
of the Clough Brook North harvest unit; that the findings of fact derived from the credible
evidence presented at the hearing show that the Department applied incorrect standards and the
credible facts do not support a determination that Plum Creek failed to comply with the forest
management plan on stands #34, #43, and #44 of the Clough Brook North unit; and that the
credible, persuasive evidence shows that appellant was in compliance with the plan at the time
appellant stopped work in February of 2010 and that the harvest can be completed in compliance
with the approved prescriptions for those stands. The Court also concludes that the AMP
violations were not sufficient to support a determination of noncompliance with the management
plan or removal of appellant’s lands from the UVA program.
Because the Decision of the Director of the Division of Property Valuation and Review
was made in reliance on the FPR Commissioner’s Decision of noncompliance, and that
determination is now reversed, the Decision of the PVR Director must also be reversed. Thus,
all four administrative Decisions on appeal in this case are reversed.
Dated this ___ day of January, 2014.
_____________________
Hon. Mary Miles Teachout
Superior Court Judge
_____________________
Hon. Calvin Colby (as to facts)
Assistant Judge
_____________________
Hon. John Noble (as to facts)
Assistant Judge
25