The Bacon loggers strike again

Cut timber. VTD file photo by Josh Larkin.

Cut timber. VTD file photo by Josh Larkin.

Ken Bacon of Barton and his son Ken Bacon Jr. have amassed a dreadful record of logging violations in the last decade, trashing sites so severely that the state three times has had to step in with violation notices, imposing large fines and penalties.

Repeated state enforcement actions, however — documented in public records for years — have so far failed to stop the environmental mayhem.

The Bacons’ most notorious renegade logging episode involved the clearcut of a forested slope adjacent to the state-protected Green River Reservoir in 2004. The pair was fined for the environmental damage to the reservoir but in the intervening years have not yet paid the penalty.

It appears the Bacons have started off the new decade the same way as the last: In January 2011, Environmental Court Judge Meredith Wright imposed a $15,300 penalty on the Bacon family enterprise for a case involving logging in the town of Barton near Baker Pond.

The judge agreed with the state’s environmental enforcement division that the Bacons damaged a local stream with their skidder, dumped logging slash and debris in the stream and caused sediment to flow into the wetland area of Baker’s Pond.

As a result of the latest violations, the Bacons owe nearly $37,000 in penalties for the damage they caused during logging in three separate cases in northern and central Vermont.

But don’t look for the state’s coffers to be reimbursed anytime soon for the environmental havoc the Bacons caused to state and private lands and streams, or for the time spent by state foresters and environmental officials investigating the cases.

To date, the Bacons not only continue to harvest timber — ignoring strict court-imposed limitations and requirements they notify the state of any future logging operations — but also have thumbed their noses at the court-imposed fines.

The case against the Bacons reveals limitations in the state’s authority to enforce environmental laws on renegade violators who consistently ignore the rules.

The Bacon violations are a source of considerable frustration, admits Gary Kessler, who heads the state’s environmental enforcement division at the Agency of Natural Resources and has served as an enforcement attorney for 14 years. The legal gears grind slowly, Kessler said, and the enforcement process is administrative, not criminal, which to a degree ties the state’s hands.

“We’re really struggling with how we can address this properly,” said Kessler, who like many in the agency, is scathing in his view of the Bacons’ operation and the damage they’ve done to the environment, not to mention the reputation of loggers in general — the vast majority of whom follow environmental guidelines, he said.

“I hate to even call them loggers,” Kessler said. “I call them people who cut down trees. They’re a very small minority.” Kessler said even when the state has to resort to formal violations, “most people settle their environmental violations with us.”

Kessler said the state is now digging deeper into its legal toolkit in the Bacon cases. The agency is exploring “tax offsets,” or ways to withhold money from the scofflaw loggers, as an alternative form of financial redress.

“We’ve communicated with them and told them were were going to do this,” he said.

The state also may explore liens on property or equipment and withhold permits for the Bacons’ future logging work. A contempt of court action is also a possibility, but the Bacons have already ignored court sanctions.

This is really theft by chainsaw and skidder. If this same guy broke the door down in your home and stole the jewelry and your cash, the police would be right on it.”
– Gary Kessler

“We have all these different mechanisms. We try to use them wisely to get the money that’s owed the state,” he said.

Attempts to reach the Bacons were unsuccessful.

Both father and son have also faced criminal charges — the latest a simple assault charge to which Ken Bacon Jr. pleaded guilty last fall. He received a six-to-nine month suspended sentence and was ordered to serve 30 days of home confinement, according to Orleans Criminal Court. He also has previous records of simple assault and disorderly conduct.

Ken Bacon Sr., 47, has been involved in two cases of domestic assault, the second of which occurred last year and involved aggravated domestic assault with injury, a felony, according to court records. ADD-IN The original felony charge was reduced to a misdemeanor in a plea bargain deal with prosecutors. Bacon was previously convicted of domestic assault in 2004, according to the court.

The most notorious of the logging incidents drawing state fines involved work that damaged state park property on the shoreline of the pristine Green River Reservoir in Hyde Park in 2006 and 2007. The Bacons were fined $11,751 in that case by Environmental Court Judge Thomas S. Durkin.

To boot, the landowner, Eli Hall, was required to pay for the remedial work to restore the logging site because the Bacons declined to do so.

In 2008, Judge Durkin fined the Bacons $9,712 in 2008 for inappropriate logging in Washington County.

The latest case, involving logging in the summer of 2010 and violations which resulted in the large $15,300 fine by Judge Wright, showed the same pattern as the previous cases: Foresters and investigators found widespread environmental damage to the property, which was logged without regard for accepted logging practices.

The state’s director of forests, Steve Sinclair, said egregious cases such as those involving the Bacons are unusual but damaging to the industry’s image and “very discouraging” for the landowners who trust the Bacons to log their land — and then get stuck with the cleanup bill.

“It is uncommon fortunately, but not uncommon enough,” Sinclair said.

According to Sinclair, there are roughly 700 loggers in Vermont, some of them who only work part-time.

“Of that, less than 1 percent you see problems with,” he said.

Both Sinclair and Kessler said they felt logging violations aren’t well understood as a law enforcement issue.

“This is really theft by chainsaw and skidder,” said Kessler. “If this same guy broke the door down in your home and stole the jewelry and your cash, the police would be right on it.”

Sinclair said if an aggrieved landowner brought a civil suit, that might set an important precedent against loggers like the Bacons. But that takes time and money most landowners don’t have, said Sinclair.

The vast majority of environmental enforcement issues are worked out without formal violation notices or court hearings, according to Kessler.

In 2010, the state filed five formal environmental notices of administrative violation, according to agency figures. It filed seven in 2009, 15 in 2008, and eight in 2007. The Bacons now have three, and they also were cited in 2001 for a similar violation entered in recent court records.

The framework the state uses to prosecute logging site violations is a set of “Accepted Management Practices” that must be followed based on rules enacted in the 1980s.

They are generally designed to protect water resources by preventing streams and wetlands from being fouled, damaged or silted up. The rules require culverts to be installed, water bars and stream crossings to be built, prohibit dumping timber and slash into waterways and set rules for log landing sites. (Other state statutes address “heavy cuts” of timber over 40 acres in size and the theft of timber from private property.)

The judge’s ruling in the court cases involving Green River Reservoir and the property in Washington were heard on Jan. 26, 2010, and revealed the Bacons’ willful disregard of state requests to improve their logging practices, remediate their logging sites and follow the accepted management practice guidelines.

“The judge ultimately granted everything the agency was looking for,” said John Zaikowski, the environmental attorney who tried the cases.

He said the Bacons showed up without a lawyer but essentially offered no defense and produced no witnesses. The court record showed that the Bacons ignored the accepted management practice guidelines because they could make more money that way.

Numerous egregious violations occurred at the Green River Reservoir logging site for more than a year, according to the court record. The Bacons cut an unauthorized skid trail across state property; ignored requests not to work during wet weather, gouging deep ruts at the logging site; crossed several streams without building any bridges, resulting in severe degradation; dumped slash into stream beds, creating silting; and ignored requests to install water bars and smooth out the trails.

The judge’s ruling also cited the fact that the Bacons blew off meetings with the state to address concerns at the site in 2007 and continued to inflict new damage.

“At one crossing location, respondents’ repeated crossing completely eliminated any discernible stream channel,” the judge found. “In addition, sediment from at least one crossing was observed to have moved downstream to another crossing. In total, Respondents made repeated crossings at six locations on the unnamed streams without any AMP structures in place.”

The Bacons dumped slash and debris into 1,000 feet of the stream bed.

The Bacons’ overt flouting of accepted logging practices was repeated at the other sites, according to rulings by both Durkin and Wright.

Sinclair said there are some steps forest landowners can take to make sure the loggers they hire are reputable and will follow environmental guidelines.

County foresters employed by the state keep a list of loggers who are authorized to work on state land and have agreed to follow the accepted management practice guidelines. Local consulting foresters also are a good source of information because they work with many loggers and can provide some guidance. The state doesn’t maintain any sort of “blackball list” of disreputable loggers, however, he said.

Sinclair said the state also has “sample contracts” available that provide a good guide on timber harvesting.

As for the Bacons, John Zaikowski, the attorney who prosecuted the two cases against them in court, said the enforcement arm of the Natural Resources Agency is doing what it can — but admits that still may not be enough. “It’s the proverbial blood from a stone issue,” he said.

CORRECTION: Ken Bacon’s original felony charge in 2010 for domestic assault with injury was reduced to a misdemeanor in a plea bargain deal with prosecutors.

Andrew Nemethy

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