County’s FOIA Request Yields Easement Documents

By Beacon Staff

HELENA – Missoula County has obtained some documents related to private negotiations that occurred between the U.S. Forest Service and Plum Creek Timber Co., which holds easements for use of Forest Service roads.

“There’s definitely more (information) here than we’ve had before,” Missoula County Deputy Attorney D. James McCubbin said Monday after federal officials provided documents the county sought under the Freedom of Information Act. The county has posted the documents on its Web site.

The first batch was received late last week, and federal officials have indicated the entire request could yield thousands of pages, said McCubbin, who filed the request on June 25.

Plum Creek CEO Rick Holley told The Associated Press in July that over a span of about 18 months, representatives of the Seattle-based company and the U.S. Department of Agriculture privately negotiated changes to an agreement on company use of Forest Service roads.

Agriculture Undersecretary Mark Rey, who oversees the Forest Service, has said the amendments likely would be formalized this summer, but he was not specific about the timing.

Some county commissioners in Montana, particularly those in Missoula, have said the amendments will ease the way for Plum Creek to sell timberland for residential development, possibly leaving counties with the high cost of providing public services in remote places. For years, the easements have allowed company use of Forest Service roads only for management of Plum Creek forests, according to the commissioners.

In addition, sportsmen have expressed concern that Plum Creek lands where they are now welcome to hunt will become off limits.

The documents Missoula County received include a 2006 memorandum from a law firm to Plum Creek. The memo, stamped “confidential,” addresses the company’s position that Forest Service road easements obtained by Plum Creek years earlier did not limit use of those roads only to management of corporate timberlands.

“No doubt logging vehicles were anticipated to be the primary vehicle type that would be used initially on the cost-share roads,” says the memo from the law firm Crowell & Moring, whose three U.S. offices include one in Washington, D.C. “But that is only because the best economical use of the private property at the time was timber harvesting. How Plum Creek or any other landowner chooses to use its land over time is generally not the Forest Service’s concern, at least where the use is reasonable and does not interfere with any retained federal interest.”

If Plum Creek believes its property is best used as a company retreat or as a residential subdivision, using a federal road for access would be “perfectly consistent” with the easement, the memo says.

The documents also include a 2006 letter, which Missoula County officials already possessed, from Forest Service Ranger Timothy Love of Seeley Lake. In the letter, Love said some people had interpreted easement language to mean roads could be used for any lawful purpose.

“However, it is our position that such is not the case,” Love wrote. The easements were authorized specifically for timber management and logging, he said.

Missoula County officials have used that letter to support their position that road use is restricted.

In the FOIA request, attorney McCubbin requested all records, in any format, “generated, received or exchanged” by the Forest Service with regard to Plum Creek road easements.

Material the county wants and still does not have includes the actual easement agreements between the Forest Service and Plum Creek for a variety of roads, he said.