What once appeared to be an easy legislative path allowing the Plum Creek company to keep its property tax break on thousands of Northeast Kingdom acres has hit rougher terrain. Instead of an open trail, the amendment keeping Plum Creek’s land in the Current Use program now must trek through some rough undergrowth, with perhaps only a forbidding thicket at the other end.
The amendment that would meddle with both a lawsuit and an administrative enforcement process remains part of the Senate “jobs bill” (H. 287, officially, “An Act Relating to Job Creation and Economic Development,” to which it may even be germane, having been inserted by the Committee on Economic Development, Housing, and General Affairs.
But now it faces the possibly less friendly scrutiny of the Senate Finance Committee. If that committee keeps the amendment in the bill, the full Senate may not. If it clears both those hurdles, the amended bill would still have to go back to the House of Representatives for its concurrence.
Perhaps an unlikely prospect.
“It will not survive in the House,” said Speaker Shap Smith.
The amendment has already been lost and rescued once. Originally attached to the “must-pass” Budget bill by the Senate Agriculture Committee, it was stripped from that legislation last week after strong objections by the Division of Forestry and its parent Agency of Natural Resources.
But then it reappeared in the equally “must-pass” jobs bill. Though no individual senator’s name is attached to the amendment, it may be no accident that Sen. Bobby Starr, the North Troy Democrat, is on the Agriculture Committee, and Sen. Vince Illuzzi, the Derby Republican, chairs Government Operations. Both are from the Northeast Kingdom and often attend to the interests of its powerful constituents.
None would be more powerful than Plum Creek, the largest landowner in the United States — its website reports it owns 6,771,000 acres in 20 states — and in the Kingdom, if not Vermont. Plum Creek owns 86,000 acres in Vermont, 56,604 in Essex County.
That land is the privately owned portion — protected by an easement — of the former Champion lands. Both the state and federal government also own some of the land once held by the (now-defunct) Champion International Paper Company.
Plum Creek’s troubles began last year when the company cut some 140 of the 9,907 acres it owns in Lemington “contrary to its forest plan,” in the words of Michael Snyder, Commissioner of the Forestry Division of the Department of Forests, Parks and Recreation.
After looking into the violation, the division ruled that Plum Creek’s Essex County holdings would be removed from the Current Use program, under which the land is assessed for its value as farm or forest, not on what it would be worth if it were developed. In Plum Creek’s case, not being able to keep that 56,000 acres in the Current Use program will cost about $167,000 a year. Under the law, the company may not apply to get the land put back into the Current Use program for five years, meaning the company’s total penalty for its violation would amount to about $835,000.
Snyder said Plum Creek did not deny that it had violated its plan, and the company’s Maine-based Community Affairs Manager, Mark Doty, effectively acknowledged that by saying (in an email) that “if the cut contrary determination is upheld, we will accept full responsibility for the approximately 139 acres involved.”
What the company objects to, Doty said, is that “the state’s determination removes 56,604 acres of our land from (current use) because of this contrary cut.”
Doty said Plum Creek urged lawmakers “to look at the intent of the Legislature” in establishing the Current Use program, and said to “consider how adverse consequences of such a large land removal…would greatly reduce the value of timberland and harm the viability of Vermont’s forest products industry.”
The amendment that resulted from the company’s complaint would reduce the amount of land taken out of Current Use to any company’s “contiguous” holdings within one town. Plum Creek owns 9,907 acres in Lemington, Doty said.
“I would feel really uncomfortable passing a law that would interfere with that (judicial) process. I don’t think bringing the Plum Creek issue to the Legislature to solve is the right thing to do.”
Sen. Virginia Lyons
Many lawmakers agree that future penalties for these forestry violations should be limited. What some of them — and forestry officials — object to is the provision in the amendment that the Current Use penalties “shall apply retroactively to December 1, 2007.”
Snyder said he “vigorously opposed” the amendment, arguing that it would damage the Current Use program.
“We have 2.48 million acres enrolled (in the program),” he said. “This would not be fair to other landowners. There was the potential risk of alienating 15,000-to-16,000 other landowners.”
Unlike huge corporations — Plum Creek’s annual profits are in the hundreds of millions of dollars — these smaller landowners don’t have the clout even to consider asking for special treatment from the Legislature.
Snyder said he “could live with” a change in future penalties, even though he was not convinced one was needed. Making the change retroactive, he said, was “not the way to do it.”
Snyder was reluctant to discuss details of Plum Creek’s violation because the company has appealed the department’s ruling in both the Essex and Orleans County Superior Courts. But from what he and other foresters have said about the violation indicates that they believe it was inexcusable and possibly willful.
The forester who found the violation, Matt Langlais, the county forester for Essex and Caledonia Counties, was quoted earlier in the Barton Chronicle as describing the violation as “strike three…where the line was drawn.” Snyder said Langlais had been working with the Plum Creek foresters for months urging them to stay within their forest plan. The foresters found it hard to believe that Plum Creek, which has forestry operations all over the country, did not know that it might be violating its plan.
It also may be significant that when Plum Creek first appealed the division’s ruling, the appeal was denied by Sarah Clark, the acting commissioner in the last weeks of the administration of Gov. Jim Douglas, whose appointees were not known for being excessively tough on natural resource producers.
One reason some legislators are reluctant to make a new penalty schedule retroactive is that it would interfere with a current court case. Sen. Virginia Lyons, the Williston Democrat who chairs the Natural Resources Committee, said that’s why she would oppose the amendment on the Senate floor.
“I would feel really uncomfortable passing a law that would interfere with that (judicial) process,” she said. “I don’t think bringing the Plum Creek issue to the Legislature to solve is the right thing to do.”
In general, legislatures are reluctant to intrude midway into judicial or administrative process, not because lawmakers have any qualms about expanding their own powers, but because such intrusions are often unpopular. Last year, for instance, the Legislature stifled an enforcement action by the Department of Fish & Wildlife in the matter of the celebrated “Pete the Moose.” This year, somewhat humiliated, lawmakers are on the verge of reversing last year’s action.
Plum Creek might also be penalized by the Vermont Land Trust, which holds the easement on the property. Elise Annes, the land trust’s spokesperson, said the trust had asked the company “to conduct a resource inventory,” after which the trust might require “mitigation,” — such as leaving more land uncut — “to keep them in line with the requirements of the easement.”
Sen. Ann Cummings, chair of the Finance Committee, said she did not think her committee could get to the Jobs Bill changes until the end of this week. Snyder said he is ready to repeat his strong objections to altering the Plum Creek penalty.
