July 22, 2018
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Reason, science and the law: Where LePage’s public forest plans fall short

Jerry Monkman | Ecophotography
Jerry Monkman | Ecophotography
A canoeist enjoys paddling on Seboeis Lake, which is part of the Seboeis Public Reserved Lands Unit managed by the Maine Bureau of Parks and Lands, under the Maine Department of Conservation.
By The BDN Editorial Board

Gov. Paul LePage says he’s giving up on the Legislature, but there’s no indication he’s backing down from his effort to cut more wood from the state’s public lands and set aside the revenue so rural, low-income households can afford to upgrade to lower cost heating systems. LePage says he won’t release $6.5 million in voter-approved conservation bonds until the Legislature carries out his wishes.

The proposal has numerous problems, which only start with the lack of a transparent, science-based case for increasing the amount of wood cut from 400,000 acres of public reserved lands.

One of the most worrisome parts is that the initiative taps a specific source of revenue with a dedicated purpose in state law — paying for the management of 600,000 acres of public lands — and uses it for something unrelated.

Since LePage has lost interest in working with the Legislature, the Legislature should return the favor. Lawmakers should continue to stand firm against his proposal to divert public lands funds; require that any increased timber cut be based on a transparent, scientific rationale; and marginalize LePage on the question of voter-approved bonds by reauthorizing the $6.5 million in almost expired bonds for the five years allowed by the Maine Constitution.

230-year history

Maine’s public reserved lands have their roots in the days before Maine became a state. In 1786, Massachusetts, which then included Maine, started to reserve 1,280 acres of land in each township as “public lots” set aside for public uses — schools and local government.

In 1824, Maine — after its split from Massachusetts — established the parcels as public trusts, governed by boards of trustees in each township and reinforced the requirement that the land be set aside for public uses. In 1831, with the Massachusetts legislature’s permission — Maine couldn’t make major public land changes under the terms of its split from Massachusetts — Maine allowed funds from the sale of the lands to flow to public schools and required the state’s “Land Agent” to preserve them “from pillage and trespass.”

With time, Maine’s Legislature consolidated funds from the more than 400 public lots across the state covering about 400,000 acres into one state-level account, with the money still preserved for public, township-related uses.

In 1973, the Legislature authorized the state’s Bureau of Parks and Lands to consolidate the public lots by trading them in exchange for larger, contiguous land holdings. It required that the land be set aside and managed for multiple public uses: wildlife habitat, outdoor recreation and timber harvesting. That’s also the year the Legislature used the public lots account to establish the Public Reserved Lands Management Fund — largely as it exists today — and designated it for management of Maine’s public reserved lands.

Reserved land, reserved funds

LePage’s timber harvesting and revenue diversion proposal, then, runs against the nearly 230-history of Maine’s public lands — and the requirements established for them and their related funds in that time.

— By introducing a new purpose for the Public Reserved Lands Management Fund, it sets up another competing interest for a traditionally limited pool of money that, by law and historical precedent, must be used for the public’s benefit. There’s a backlog of capital improvements that should be made on Maine’s public lands in order to improve their recreation value. The Bureau of Parks and Lands’ current director, meanwhile, has said the lands need better logging roads. The fund must also pay for normal operations, such as foresters’ salaries. And LePage’s energy director has said the administration hopes to dedicate $3.5 million from the fund to heating initiatives.

— With the pressure to produce enough revenue for competing purposes, there would inevitably be pressure to emphasize cutting trees when the legal mandate for Maine’s public lands is to serve recreation and preservation purposes, too.

— And the proposal might not pass legal muster. In 1973, Maine’s Supreme Judicial Court had to sign off on the public lands overhaul to ensure the changes proposed didn’t violate the original terms of Maine’s separation from Massachusetts and the duties associated with holding the public lands as a strictly governed public trust. The court approved because setting aside revenue derived from public lands for their management was consistent with the longstanding requirement that the lands “be held and preserved for an aggregate of public uses.”

— But that “aggregate of public uses” only extends so far. In 1992, lawmakers attempted to fill a budget gap by claiming 0.9 percent of funds from all dedicated state government accounts. An attorney general’s office opinion determined the Legislature couldn’t skim funds from the Public Reserved Lands Management Fund. “[T]he across-the-board transfer from all accounts to the General Fund … was designed for purposes of closing a projected shortfall in the General Fund,” wrote then-Deputy Attorney General Jeff Pidot. “It was not intended to be an exercise by the Legislature of the trust responsibilities over the public reserved lands.”

LePage’s attempt to skim money from the public lands fund when his administration says the account is flush would have to pass the same judicial standard, “a high and demanding standard of reasonableness,” as Pidot wrote in 1992. We have our doubts that it would — further reason why this is the wrong policy for Maine’s public lands.

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