The plan approval that Plum Creek received was only a rezoning approval. Prior to any actual development, the company will have to obtain various types of development permits. As of early 2014, Plum Creek has not submitted any applications for any of the development activities. If and when this happens, NRCM will be tracking and taking actions as necessary to protect the region. As a result of the work of NRCM and other opponents to Plum Creek’s plan, the final plan approved by the Land Use Regulation Commission removed development from many of the most remote sites proposed for development by Plum Creek and required significantly more conservation measures in mitigation of the proposed development.
Since 2012, the major conservation measures required by the plan have been put into place:
- 29,500 acres have been transferred to the Appalachian Mountain Club for permanent protection
- 363,000 acres are now protected from future development through a conservation easement held by the Forest Society of Maine and by the State
- A trail easement allowing the establishment of 121 acres of hiking trails in the Moosehead region and a $1 million fund for construction and management of those trails has been donated to the State.
The Law Court heard oral arguments on Plum Creek and the State’s appeal on January 10, 2012 at the Courthouse in Portland.
Plum Creek, the State, the Forest Society of Maine and The Nature Conservancy appealed the Superior Court’s decision in favor of NRCM and others to Maine’s Supreme Court (called “the Law Court”). Briefs were filed by all parties during the summer and fall of 2011.
On Thursday, April 7, 2011, Justice Thomas Humphrey agreed with NRCM and rejected LURC’s approval of Plum Creek’s permit to build three resorts including 2,000 resort units and vacation homes in the Moosehead Lake region. This decision sends the issue back to LURC to do it right. You can read the full Court decision, news stories, and a statement from NRCM Executive Director Lisa Pohlmann here.
Oral arguments in our appeal of LURC’s decision were heard in court on Thursday, February 24, 2011. Read a blog post from Cathy Johnson, NRCM’s North Woods Project Director and Senior Staff Attorney about the day’s proceedings.
To learn more about our work to protect the Moosehead Lake region,please click here.
It has been over a year since the Land Use Regulation Commission (LURC) approved Seattle-based Plum Creek’s zoning proposal for over 2,000 house lots, including three resorts, in the Moosehead Lake region. Although the company has yet to apply to LURC for specific building permits, as required before construction can begin, Plum Creek has nonetheless taken plenty of other actions this year, and most were not good.
Shortly after LURC approved Plum Creek’s proposal, NRCM and two other intervenors appealed LURC’s decision to the Maine Superior Court. In our appeal, we argued that LURC improperly failed to deny Plum Creek’s application following the close of the public hearing. At that time, LURC found that Plum Creek’s proposal failed to meet the requirements of the law. However, instead of denying the application as it should have, LURC created a brand new process wherein it asked its own staff and consultants to rewrite Plum Creek’s plan for them so that it would meet the requirements of the law. We believe this is illegal and sets a terrible precedent.
Shortly after we filed our Motion to Appeal, the Moosehead Messenger revealed that Plum Creek had paid for the lawyers and some of the witnesses of the many parties who intervened in the application proceeding in support of Plum Creek’s proposal. At the same time that these intervening parties were claiming to be independent parties, their bills were being paid by Plum Creek.
NRCM filed a request to include this new information in the record of the court proceeding. When the Judge held the hearing on this request, he gazed around the courtroom and noted that there was one lawyer each there for NRCM and the other two opposing intervenors. He also noted that, in addition to the lawyer for the State of Maine, there were eight or more lawyers representing Plum Creek and other so-called independent parties supporting Plum Creek. (He wondered, out loud, if he should care who was paying for all those lawyers.)
Next, we filed our formal briefs setting forth our arguments about why LURC’s decision was unlawful. Our brief, prepared by Russell Pierce, pro bono, from the firm of Norman, Hansen, and DeTroy, was filed in July. Read the full brief here
The State, representing LURC, filed its brief a month later. We read the State’s brief in near disbelief. The State is challenging our right to appeal, ignoring the fact that NRCM had participated in every step of the Plum Creek proceeding since late 2004. Despite that, plus the fact that LURC itself had determined that NRCM had a legitimate interest (“standing”) in this proceeding, the State argued that NRCM had no standing to challenge the decision through an appeal. We have now filed a very strong rebuttal of the State’s argument based on 30 years of settled law in Maine and nationally.
Currently, we expect the judge to schedule an oral argument on our appeal in the next couple of months, and make a decision some time this winter. If we are not successful at the Superior Court level, we will consider appealing to the Maine Supreme Court (the Law Court.)
Over in Vermont, Plum Creek overcut on 129 acres of land subject to Vermont’s current use tax program. Similar to Maine’s Tree Growth Tax Program, this program lowers a landowner’s taxes in return for a promise to manage the forest sustainably. As a result, in July, Plum Creek’s 56,000 acres were expelled from Vermont’s program. That land is also subject to a conservation easement, and it appears that the cutting violations also violated the easement.As the legal case continued to move forward, Plum Creek’s cutting was hardly sitting still. And, not surprisingly based on the company’s track record, in May, the Maine Forest Service determined that Plum Creek had been cutting illegally on Prong Pond Mountain, on the east side of Moosehead Lake. The company was fined $38,675 in violation of Maine’s Forest Practices Act. This is the third fine Plum Creek has received for violations of Maine’s Forest Practices Act.
Back in Maine, Plum Creek announced its intention to cut an area within the conservation easement land on the west side of Moosehead Lake. This land had been identified in 2001 as a potentially important natural area. Only quick action by the staff at Maine’s Natural Areas Program ensured that the area was visited and determined to be appropriate for cutting.
From there it was revealed that 17 other sites had previously been identified as potentially significant natural areas. In keeping with its record of careless disregard for Maine’s forests, Plum Creek had never bothered to include them on its maps and inventory of biologically important areas in the conservation easement lands. Therefore all of these lands were on the chopping block without further biological evaluation. After a public review and tough questioning by LURC Commissioners of Plum Creek and the Forest Society of Maine, the group charged with monitoring the easement, these areas are now included in the inventory.
Unfortunately, Plum Creek was not done ignoring important natural areas. In August, the Forest Society of Maine announced that Plum Creek had cut in an officially recognized natural area designed to protect lesser wintergreen (Pyrola minor), a rare plant found in Maine in just seven towns in only four counties. In November, the Forest Society of Maine formally found the cutting to be a violation of the Moosehead conservation easement. The Forest Society of Maine is currently “formulat[ing] recommendations with respect to appropriate remedies in response to this violation.”
As if all of that weren’t enough, Plum Creek attempted to get LURC to water down the requirement that it monitor for the federally protected Canada lynx before beginning development. LURC believes, and NRCM agrees, that we need a better understanding of where lynx are currently located, so that an accurate assessment of development impacts on the species can be made later.
In a stunning display of arrogance in the absence of any data whatsoever, Plum Creek asserted that there were no lynx in the area along the Lily Bay Road south of the proposed resort. Plum Creek requested that LURC lift the requirement for monitoring here. Fortunately, LURC denied Plum Creek’s request, saying that if there were no sign of lynx after Plum Creek has actually monitored for several years, they would be willing to reconsider the issue.
All was not bad news, however. Immediately after receiving its permit from LURC (and as required by the permit), Plum Creek sold almost 30,000 acres in the Roach Pond area east of Moosehead Lake to the Appalachian Mountain Club. While NRCM strongly disagreed that Plum Creek should be able to use the sale of that land to convince LURC to give them their huge development permit for Moosehead Lake, we strongly support the conservation of this land and are very pleased that this land is now permanently protected for backcountry recreation and sustainable timber management.
Plum Creek also sold 15,000 acres of land near Jackman, called Number 5 Bog, into conservation. This area has been of interest to conservationists, including NRCM, for years, and its permanent protection is a positive step for Maine’s North Woods.
What happens next in the Moosehead Lake region remains to be seen. During the public hearings in December of 2007, Plum Creek’s experts described the potential buyers of their 2000 house and resort lots as those who might have four or five homes. Given the crash of the housing market, volatile energy prices, and the recession since then, it remains extremely questionable whether or not there is a market for the type and amount of high-end housing Plum Creek was proposing. In the face of these uncertainties, NRCM will continue to work to protect the natural character of the Moosehead Lake region and to support sustainable, appropriately located and sized development in the Greenville area.