Beverly Grout suspects a neighbor may have told the loggers that she and her husband Fred would be in the market to sell some timber.
She said the loggers, Ken Bacon Jr. and Ken Bacon Sr., knocked on the door of their home on a hill overlooking Barre back in June. Within days, the Grouts signed a contract.
“We didn’t realize who they were,” she said.
Left with 20 acres of damaged forestland and a blocked stream in Barre Town the Grouts wish they had known more about the Bacons’ track record.
The father and son logging team have a long legal history with Vermont environmental and criminal courts. Both men are under order to notify the state of when and where they’ll be cutting, but officials were not informed they were working at the Grout property.
“Unfortunately, they didn’t clean up thoroughly when they left,” Barrett said. Now two stream crossings are blocked, landings and fields that weren’t properly seeded are muddy, and knee-high ruts from machinery further contribute to soil erosion.
Attempts to reach the Bacons were not successful. A woman who declined to give her name, but identified herself as their secretary, said in a phone interview Thursday night that the father-son team from Barton are loggers who want to do the best timber management possible.
After asking the Bacons to leave several times, the Grouts say, they finally called the police in late August to force them off the property.
The Grouts say the Bacons harvested timber they weren’t supposed to, didn’t pay for all the loads they took and improperly dammed a stream with skidder bridges, which they subsequently left in place. The Grouts are left to clean up the mess or pay someone to do it — prospects they hardly can afford.
The Bacons’ secretary says the Grouts had initiated the relationship — not the other way around — but never informed the Bacons that the land was in Current Use. She says the men did nothing that wasn’t agreed to, paid the Grouts for every load, can’t be blamed for not completing a job they were kicked off, and are preparing to sue the Grouts for breach of contract for not being allowed to finish.
The Department of Environmental Conservation has launched an investigation.
It isn’t the first time the Bacons’ logging practices have led to a state probe, and it illustrates the complexity of Vermont’s current forest management strategies: Demand for improved regulation of foresters and loggers is gaining new traction, but the reach of environmental enforcement is limited.
“There seems to be a small cadre of loggers that regularly have violations of one sort or another,” said Gary Kessler, director of DEC’s Compliance & Enforcement Division. “But I don’t know anyone as prolific as the Bacons.”
Despite repeated fines, sanctions and bad press, the Bacons have continued to find work. Their secretary says that’s because they are good at what they do. Kessler attributes it to want of a plaintiff and absence of regulatory teeth.
“People have said they’re afraid, they’ve been threatened, so they just don’t want to come forward,” Kessler said. Plus, litigation is expensive and not likely worth any compensation that could be recovered from lawsuits over contract disputes or even criminal theft. And the state can help with investigations, but has “a limited set of tools,” Kessler said.
Multiple alternative measures short of jail have been considered, Kessler said. “We just can’t do it on our own. We’d have to have some law passed that would require it. But that hasn’t happened yet.”
It may soon.
Department of Forests, Parks & Recreation Commissioner Mike Snyder says he’s working on legislation to change timber trespassing laws, to give landowners more recourse against loggers in situations similar to that of the Grouts.
Snyder remains opposed to regulating loggers, he says. But a growing chorus is starting to convince the commissioner that forestry licensing and a new approach to loggers may improve the long-term health of Vermont’s woods.
Forestry is a licensed or certified profession in several neighboring states, including New Hampshire, Maine, New York and Massachusetts. Conversation about officially professionalizing Vermont foresters has cropped up before.
“But it does strike me that it’s re-emerged with more force and enthusiasm than ever before,” Snyder said.
Rep. Alison Clarkson, D-Woodstock, is one of the voices who’s got his ear. She’s not involved with the dispute between the Grouts and the Bacons, but she’s deeply involved in Current Use and chaired a legislative task force on the topic in 2007. Clarkson is drafting a bill for the 2014 legislative session that would require licensing of foresters.
There currently is no recourse against a forester who may draw up a questionable forest management plan. Kessler can’t think of a single case of prosecution against a forester. Generally speaking, a “forester” plans which timber to cut and a “logger” does the cutting. “We’d go to the logger,” he said, because the foresters “didn’t do the work.”
Loggers also are unregulated in Vermont, although they can be subject to environmental laws. Snyder and Kessler say a limited number of logging violations are referred to enforcement each year.
Clarkson says she would consider adding a new regulatory layer for loggers, but she’s not sure that’s the right direction.
“Most loggers are really good,” Clarkson said.
Kessler wonders how much legislative or regulatory structure should be created to solve isolated, if persistent, problems.
“Do we create all kinds of new laws to deal with one bad actor?” he asked. The Bacons, after all, so far have evaded state sanctions.
And even if foresters or loggers were required to be licensed, certified or registered in the state, nothing guarantees that landowners would know or have time to care. Case in point: The Grouts didn’t ask around about the Bacons before inviting them onto their property with chainsaws and skidders.
Inextricably linked to the investigation of what transpired in Barre, and the related contract dispute, is the centerpiece among Vermont’s conservation policies: Current Use. Also known as Use Value Appraisal, the program lowers property tax appraisals for farm and forest land that’s actively used as “working landscape.”
Beverly Grout says their 40 acres, where her husband grew up, has been in Current Use for about 30 years. It’s technically not enrolled at the moment, Washington County Forester Russ Barrett said, because their 10-year forest management plan expired in the spring. They have until the end of the year to update it, but that will no longer be a simple task.
Contrary to the recommended practice of consulting with a private or county forester before commencing a timber harvest, the Grouts did not bring in a forester until the Bacons were a few weeks into their contract. In August, Barrett informed the Grouts that if the Bacons kept cutting, the Grouts would risk losing eligibility for the state’s Current Use program for a number of years, and possibly face a fine.
Current Use requires that forestland, in particular, be managed according to the state’s Accepted Management Practices (AMP) for maintaining water quality. Some cutting on the Grouts’ property had breached those standards, Barrett said, “but probably not too much.”
The case was referred to Kessler’s office due to the AMP violations and because county foresters have been instructed to refer all issues involving the Bacons to enforcement, Barrett said. State Lands Forester Brad Greenough, based in Barre, said he’s not allowed to comment on specifics because it’s an active investigation. But when a case goes to enforcement, it’s not just the loggers who are implicated.
“The landowner is ultimately responsible for … violations on their land,” Greenough said.
“My son’s kicking himself in the butt for not getting on the Internet to research them,” Beverly Grout said.
Research could have involved a call to the county forester to inquire about the Bacons’ reputation, or an Internet search — which may have turned up previous reporting by VTDigger that details the Bacons’ lengthy record of environmental and criminal charges.
Beverly Grout says they normally would have been more diligent, but the family was under intense financial pressure.
Without a car for nearly a year, the Grouts have a hard time getting down their hill into Barre for errands. Fred Grout has suffered three strokes and “doesn’t get around as good as he used to,” his wife said. The house is falling down around them.
The forest around the house had seemed like a resource they could tap. If they stood on opposite sides of a mature pine in the woods across the street and reached for each other, they couldn’t even touch hands, Fred Grout says. Dozens of specimens like that towered over the property. The Grouts figured they could sell the timber for enough money to buy a car, pay some bills, catch up.
Current Use is meant to make that possible.
“A working forest is the best way to keep forest as forest,” Snyder said. He believes that if the land’s ecology cannot also be economically valuable, landowners will succumb to intense development pressure, and Vermont’s forestland will dwindle.
Regulation pros and cons
More than 1.7 million acres of forestland alone were enrolled in Current Use at the close of 2012. Representing upwards of 17,000 parcels, about 3,000 more landowners are involved now than were in 2005.
To help the state manage this growth in the program, proposed changes are being debated in the Legislature. A special Senate committee held a series of public hearings on Current Use in the fall. Among a thicket of other topics discussed, several commenters at the Barton hearing called for licensing or registration of foresters and loggers.
Nicholas Ecker-Racz, of Glover, makes his living as a forester and a logger. He was the first to raise the regulation issue at Barton.
“The Current Use program has been touted to be this wonderful way of bringing forestland under professional forest management, of maintaining rural character, yada yada yada,” Ecker-Racz said later in an interview. “And it is all that, but you can’t just create this wonderful program and not have a legal infrastructure to protect the people who own the land and the professional people who are practicing.”
That sentiment is echoed by Clarkson, who’s drafting the forestry licensing legislation: “If it’s going to be treasured, it needs to be well managed,” she said.
Current Use requires that each forested parcel’s management plan be updated every 10 years. The state employs one forester for each county to review and approve those plans — sometimes hundreds in a year. According to Snyder, they legitimately can span a range of length and complexity from a “coffee table book” to three pages submitted by “landowners who are just barely holding on and (whose) purpose is to keep their tax break.”
Likewise, Snyder says, levels of knowledge and competence vary greatly among the private consulting foresters who write the plans. Snyder used to work as a county forester before trading in his “wool and Carhartts for a jacket and tie,” as he describes his professional evolution.
“(County foresters) spend way too much time going back to the forester and saying, ‘This doesn’t meet the requirements,'” he said.
Ecker-Racz blames that on a lack of licensing.
In his testimony to the Senate committee, Ecker-Racz said, “The presumption of this whole program is that all foresters are equal. And if a man calls himself a forester … that he’s competent.” Ecker-Racz went on to compare his six years of formal forestry education to a couple courses he’s heard another forester cite as sufficient training for writing Current Use plans. “I think that’s a real problem,” he said.
He also pointed to conflicts of interest in some cases where the forester, whose role in Current Use is to work as an agent of the landowner, also works for the logging mill that ultimately will purchase the timber or pulp harvested from a property. “And trust me,” Ecker-Racz told the committee, “they will give you a different slant on the plan.”
The logging mill’s interests may be rooted more in short-term profit than long-term woodlot considerations such as genetic stock, species variety and suitability for soil conditions, Ecker-Racz said in a later interview. He noted that loggers, too, may “cut a little harder” if their primary obligation is to a mill rather than a landowner philosophically committed to forestry.
Partly for increased consistency and accountability, therefore, but also for the sake of the county foresters like Barrett, Ecker-Racz and others are making a case for regulation. The call to license foresters, rather than loggers, is particularly ripe for policymakers.
Snyder says that with so many parcels now enrolled in Current Use — and inconsistency among the private foresters who manage them — county foresters can’t dig themselves out of paperwork long enough to conduct the woodlot inspections they should, let alone develop training for professionals and outreach for landowners.
Barrett had walked the Grout property before he got their call about the Bacons. “But not for maybe 10 years or so,” he said. “At that point it wasn’t cut. It was pretty well intact.”
“They can’t keep up,” Snyder said about county foresters in an interview.
Regulation vs. education
State officials don’t agree about whether regulation is the answer.
Snyder said there are two ways for the state to work with foresters and loggers: regulation, or support and training. Snyder is keen on freeing up foresters’ time for citizen education, as more landowners from out-of-state enroll in Current Use. Some longtime Vermonters need help, too.
The woods are an important resource for the Grouts, for example. They find solace in the privacy afforded by the trees. With their son Luke, they’ve cut ATV trails for him and his friends to ride. They harvest hardwood to heat their home, and they rely on the Current Use appraisal to keep their property taxes down.
But it’s clear from the situation with the Bacons that they have had difficulty managing their property under the program. Additionally, an old junkyard in the woods has caused murmurs of concern now that the town and state are investigating.
The commissioner carefully avoids committing his support to more regulation. “I am leaning towards being convinced this could be helpful — helping people understand what foresters are or are not,” he said. But he’s “open to being persuaded” in the other direction.
“A few bad apples can spoil the bushel,” Snyder said. Despite his conviction that the vast majority of Vermont’s foresters and loggers are talented professionals, he conceded that there are “some real bad actors.”
Snyder says new rules and a licensure board would have to be established. What about grandfathering people who currently practice as foresters, he wonders. What about penalties? What about enforcement?
Other considerations are competitive: If any profession is licensed, points out Sen. Mark MacDonald, D-Orange, the licensed professionals can charge more for their services. MacDonald owns land in Current Use that he hopes to pass down to his children, and he sits on the special committee that’s studying proposed reforms to the program. MacDonald didn’t express an opinion for or against regulating foresters or loggers, but he suggested that a desire to keep the cost of services down may be a reason both professions have remained unregulated in Vermont to date.
Barrett, who also steered clear of opining on the merits of a new regulatory structure, says he finds a general reluctance in state government to license any profession “unless you can really show harm being done.”
If the lawmakers were to choose to regulate either, the structure could have three levels — licensing being the highest bar, certification entailing a less rigorous standard, and registration as the lowest barrier to entry. Any violation of Accepted Management Practices could result in suspension or revocation of said license, certification or registration — in addition to the penalties already in place.
Proponents of increased regulation suggest that licensed professionals would be more inclined to work within the bounds of state law and Accepted Management Practices for fear of a revoked or suspended license.
Support and training, on the other hand, would look more like a carrot than a stick. Snyder particularly favors this approach for loggers, who he says already face enormous pressure from workers’ compensation insurance rates and the high cost of fuel.
Loggers also face an image problem.
“Whereas we tend to really love farmers, not so much loggers,” Snyder said. He thinks a false perception that it’s bad to cut down any tree is shifting, and responsible woodlot management is key to changing that paradigm.
“It’s tempting to say, ‘Let’s regulate them,'” Snyder said. The state wants loggers to work at a high level of professionalism, he said, but he doesn’t think regulation is the way to get there.
Snyder cites a Master Logger program in Maine, along the lines of a Master Gardener model, as worthy of emulation. Vermont has taken some steps in that direction, with the development of a program called LEAP, short for Logger Education to Advance Professionalism.
“A logger shows up at the door, and if we educate the public, the good guys have a leg up on the bad guys,” Snyder says.
In either case, more public awareness would be necessary to educate the landowners who ultimately seek forestry and logging services. Of Vermont’s 4.5 million acres of land, 75 percent is forested, Snyder says, and of that forest, 85 percent is owned by private individuals, rather than commercial entities. Vermont’s forests are owned by 88,000 private landholders.
Kessler, from DEC’s Compliance & Enforcement, points out the challenge posed by that composition of ownership.
“It’s hard for us to educate every single person who has 10 acres,” he said.
And certificates of training carry no assurance that proper protocols will be followed when foresters pull out their clipboards or loggers pull into the woods.
Beverly Grout doubts licensing or other regulations would make a difference. “A lot of people have the attitude, ‘We’re gonna do what we wanna do and if you don’t like it, tough,'” she said. Licensed professions or not, she’s now well attuned to the adage “Buyer, beware.”
Editor’s note: This story was updated at 6 a.m. and 10:14 a.m. Oct. 21.