In this episode, we cover an article by Richard Barringer, Lee Schepps, Tomas Urquhart, and Martin Wilk titled “Maine’s Public Reserved Lands: A Tale of Loss and Recovery”. The authors tell us a story of Maine’s public reserved lots and its history to show how efforts to maintain these lots have preserved Maine’s natural heritage. This article was published in volume 29, number 2, of Maine Policy Review, a peer-reviewed academic journal published by the Margaret Chase...
In this episode, we cover an article by Richard Barringer, Lee Schepps, Tomas Urquhart, and Martin Wilk titled “Maine’s Public Reserved Lands: A Tale of Loss and Recovery”. The authors tell us a story of Maine’s public reserved lots and its history to show how efforts to maintain these lots have preserved Maine’s natural heritage. This article was published in volume 29, number 2, of Maine Policy Review, a peer-reviewed academic journal published by the Margaret Chase Smith Policy Center. For all citations for data provided in this episode, please refer to Barringer et al.’s article , which can be found here: https://digitalcommons.library.umaine.edu/cgi/viewcontent.cgi?article=1843&context=mpr
Transcript
[00:00:00] Eric Miller: To preserve the crown jewels of Maine's heritage, tune into today's episode to learn about Maine's consolidated public lots and how they can remain for public use and enjoyment as long as they are valued, accessed, and safeguarded from harm.
[00:00:22] This is the Maine Policy Matters Podcast from the Margaret Chase Smith Policy Center at the University of Maine. I'm Eric Miller, research associate at the Center.
[00:00:30] On each episode of Maine Policy Matters, we discuss public policy issues relevant to the state of Maine. Today we'll be covering an article by Richard Barringer, Lee Schepps, Tomas Urquhart, and Martin Wilk titled "Maine's Public Reserved Lands: A Tale of Loss and Recovery."
[00:00:47] Richard Barringer is author and editor of numerous books, reports and landmark Maine laws in the areas of land use and conservation education, the environment, energy, sustainable development, and tax policy. Lee Schepps represented the state of Maine in the public lots matter, both in the litigation and as the second director of the Bureau of Public Lands. Thomas Urquhart was formerly executive director of the Maine Audubon Society, where forest practices and the opportunities offered by Maine's North Woods were among his top priorities. Martin Wilk represented the state of Maine in the public lots litigation and in the settlement negotiations that followed the Maine Supreme Court's decision in the state's favor.
[00:01:31] The authors tell us a story of Maine's public reserved lots and its. History to show how efforts to maintain these lots has preserved Maine's natural heritage. This article was published in Volume 29, number 2 of Maine Policy Review, a peer-reviewed academic journal published by the Margaret Chase Smith Policy Center. For all citations for data provided in this episode, please refer to Barringer et al.'s article, which can be found in the episode description.
[00:01:58] In 1820, when Maine separated from Massachusetts, it acquired a public domain of 10 to 12 million acres, which was later reduced to 8 million acres. The Maine Constitution required the state to reserve four lots of 320 acres each in any newly organized township. Later, the formula was changed to a single, 1,000 acre lot in each new township for "public use." The legislature authorized the state land agent to sell the "right to cut and carry away the timber and grass" from the public lots in 1850. In 1874, the legislature tried to terminate the Office of Land Agent, but it did not have the power to do so, and the office was eventually abolished in the 1920s. Responsibility for the public lots passed to the Maine Forest Service in 1891. By the early 1970s, the Maine state government had undergone significant changes. In 1972, there were concerns about the state's stewardship of the public lots, and the Attorney General looked into the legal issues surrounding ownership and responsibility for them.
[00:03:08] Schepps researched the history of public land reservations, timber trespass, and forestry practices in Massachusetts and Maine. He found that professional forest management was not a concept in the early and mid-1800s, and that it only came into practice through early forestry pioneers such as Gifford Pinchot. Schepps also looked into the legal disputes involving the word "timber" and argued that if the original deeds only granted the right to cut and carry away the existing timber, the duration of that right could not expand its substance. Schepps submitted his report to the Attorney General, but it was not released to the public. However, due to the relentless reporting of Bob Cummings, the issue became highly publicized and politically charged in Maine.
[00:03:58] In 1973, Jon Lund became attorney general of Maine and released the Schepps report, which argued that the right to cut timber on public reserve lands only applied to the standing timber at the time of sale, not subsequent growth. The report also stated that the state had legal rights of use and access to public lots that had not been located on the ground. The legislature created a joint select committee to investigate the matter and pass legislation to terminate timber rights on public lots, leading to a lawsuit by paper companies and landowner seeking adjudication of their rights. They argued that the state's persistent and long-standing course of conduct barred from asserting rights it may have once have had. The state counter-claimed, stating that the timber cutting rights had expired because the timber in existence at the time of the conveyance had long since been cut. The lawsuit was then used politically to delay consideration of the grand plantation legislation that would terminate cutting rights.
[00:04:59] Then the Maine legislature created a Bureau of Public Lands, to manage the state's interests in public lands. However, the agency had no staff or direction, and its mission was unclear. In 1974, the Maine Forest Service Director assigned a desk, a vehicle, a forester, and a forest ranger to the Bureau of Public Lands.
[00:05:19] The Bureau of Public Lands led by Richard Barringer, surveyed public lands and proposed a grand plantation, but public sentiment was lukewarm. However, in June of that year, the president of the Great Northern Paper Company, Robert Hellendale, approached Governor Curtis to suggest a negotiated settlement to the disputed public lots. Over the summer and fall, Barringer and Helendale negotiated an agreement to consolidate the 60,000 scattered public lots into a small number of high value places that Great Northern Paper Company owned outright. In December, 1974, governor Curtis and Helendale signed the agreement which violated a long established behavioral norm among paper companies and large private landowners. However, Helen's action broke the political log jam, and over the next five years, all but one of the paper companies engaged in similar exchanges with the Bureau of Public Lands.
[00:06:14] In November, 1974, Attorney General Erwin ran unsuccessfully as the Republican candidate for Governor against Democrat George Mitchell and independent James Longley in the wake of the Watergate scandal and President Nixon's resignation in August, 1974, Longley won a surprising victory among Maine voters.
[00:06:33] In 1975, shortly after the Great Northern Paper Company trade was consummated, Barringer was nominated by Governor Longley to become commissioner of the Maine Department of Conservation. Schepps subsequently became director of the Bureau of Public Lands; John Walker, director of the Maine Forest Service; and Herb Hartman, director of the Bureau of Parks and Recreation. Together, the four agreed on a strategy for dealing with the claims of the remaining paper companies and private landowners.
[00:07:03] Using the same value-for-value approach and selection criteria as used with the Great Northern Paper Company, Schepps and his staff evaluated and proposed lands for consolidation, negotiated trade deals with paper companies, and sought approval from the legislature to add another dozen consolidated parcels to the Bureau of Public Lands land-holdings. In each exchange, landowners claimed to be donating the timber rights on the public lots and took tax deductions. Subject to the outcome of the Cushing v. Lund litigation. The Bureau of Public Lands grew as forest operations and other management activities expanded to hundreds of thousands of acres of newly consolidated units.
[00:07:43] Schepps shared information about lands he believed might best be acquired with Barringer, Walker and Hartman for their consideration and approval. Schepps then negotiated a trade based on tax-value for tax-value, without separate appraisals. The state accepted no discount to the value of its own lands because they were scattered, largely inaccessible, and in many cases small minority interests not located on the ground. The private landowners in each case received a release of any liability for timber trespass. In the past, if the state were to prevail in the litigation and claim tax deductions for the assessed value of their timber rights, if the state were to lose the litigation. Each of the trades thus negotiated were consummated after the proposed contract was approved by resolve of the legislature.
[00:08:34] Meanwhile, back in the courts, the lawsuit which spanned 125 years and involved voluminous documentary evidence, was assigned to a retired Supreme Court Justice Donald Webber, who considered two main concerns. One, whether the cutting rights related only to timber in existence at the time they were conveyed, and two, whether the cutting rights were limited to certain sizes and species of trees considered timber at the time. The two issues were presented to Justice Webber based on a Stipulated Record of over 1,000 pages and more than 250 exhibits. Two days after evidentiary hearings were held during which the state presented as its lead witness, University of Maine, Professor David C. Smith, on the contemporaneous meaning of the term timber in the timber and grass deeds.
[00:09:22] After evidentiary healing hearings and presentation of expert testimony, the referee ruled in favor of the private landowners stating that the cutting rights included all standing timber in existence at the time they were sold, as well as timber growing on the land thereafter. The state appealed the judgment. The court ultimately ruled in favor of the state, stating that the cutting rights related only to the timber in existence at the time the rights were conveyed and that these rights had been exhausted.
[00:09:51] The court did not address the party's subsequent conduct or the effect it may have under various legal doctrines. The private landowners had continued to harvest timber on the public lots until the present, which the state claimed were unauthorized and entitled to it to damages for the value of all such timber. The court left it to the state to determine how to proceed with a final settlement given the potential damages were substantial. The court also recognized the special status of the state as a trustee of the public lots stating that it held title to them in its sovereign capacity.
[00:10:26] In the 1980s, there was a legal battle in Maine between the state government and private landowners over the control of millions of acres of forest land. The state believed that these private landowners had harvested timber from state-owned land without authorization, resulting in significant economic losses to the state. The landowners resisted the state's proposals for land exchanges and were initially united in their opposition.
[00:10:50] The state government, however, came up with a comprehensive proposal to resolve the issue which it presented to the private landowners at a meeting called by Governor Joseph Brennan. The proposal involved consolidating public lots to compensate for the timber value lost over the past six decades of company harvesting. The landowners were shocked and angry and left the meeting without reaching an agreement.
[00:11:13] For the next three years, the state government negotiated with the private landowners to settle all outstanding issues. Initially, little progress was made as both sides refused to budge from their positions. Then, in a surprise move, Seven Islands Land company on behalf of the heirs of David Pingree, broke from the other private landowners and entered an into negotiations directly with the state. The Pingree settlement became the standard for all future settlements, and the other private land owners began to rethink their opposition to the state's proposals.
[00:11:44] The state government focused its efforts on landowners who were most amenable to settlement and deferred discussion with those who were most reluctant. The one at a time negotiating strategy proved effective, and all of the remaining landowners eventually came to the table and entered into mutually agreeable land exchanges. The state government claimed damages of approximately $50 million for unauthorized cutting since the 1920s, which accrued added value to the state, in addition to the value of the extraordinary lands acquired. During the eight years of litigation before the Maine Supreme Judicial Court rendered its historic decision in favor of the state, the land holdings in Bureau of Public Lands unchallenged jurisdiction increased from 50,000 to 600,000 acres. Meanwhile, the state government drafted two far-reaching Maine laws to improve the management of public lots according to the principles of multi-use, and to create the nonlapsing revenue account for their improvement in public access and use. These laws have stood the test of time and have been used as models by other states in their management of large blocks of multi-use land.
[00:12:51] In 1972, there was this dispute between the Baxter State Park Authority and the Great Northern Paper Company, over the latter's rights to residual cutting in one of the two scientific management townships located in the north end of the park, which had been acquired by Governor Baxter in 1962. The controversy was based on the application of the multiple use concept and law that guided the management of federal lands by the US Forest Service, particularly the provisions of the Multiple Use Sustained Yield Act of June 1960.
[00:13:26] The multiple-use concept in law prescribed that public lands should be managed in a way that ensures their sustained use for various purposes, such as recreation grazing, timber harvesting, wildlife habitat, and water conservation. This approach aims to balance the needs of different user groups and ensure that the resources are not overexploited or degraded.
[00:13:50] Schepps, who was the assistant attorney general at the time, was familiar with the federal multiple-use mandate and used it as a framework to build a case against Great Northern Paper Company's harvesting techniques in the township. The case aimed to limit the Great Northern Paper Company's cutting rights in line with the principles of scientific forest management, which entails managing the forest for long-term productivity, ecological health, and multiple benefits.
[00:14:16] In Maine, the multiple-use mandate for managing public reserve lands is based on the Federal Multiple Use Sustained Yield Act of June 1960. This law requires that all renewable resources on federal land, such as timber, water range, and recreation, be managed in a way that ensures their sustained yield or maximum use without degrading the environment.
[00:14:36] Overall, Schepps used the federal multiple-use concept and law as a precedent to establish the principles of scientific forest management and the sustainable use of natural resources in the Baxter State Park controversy. This approach helped resolve the dispute between the state and the Great Northern Paper Company and laid the groundwork for future management of public lands in Maine and elsewhere.
[00:14:59] In 1974, Schepps wrote, "Maine's Public Lots: The Emergence of a Public Trust." In it, he stated that no precise legal definition of what constitutes a public trust and different examples can exist along a spectrum At one extreme, large public domains inherited by states such as Maine can be considered assets of the state similar to surplus land or the balance in a state's bank account, the state acts as proprietor and has full power over their disposition and use. At the other end of the spectrum, there are public trusts such as Baxter State Park in Maine, where the state is just the nominal owner for the benefit of the general public and the judicial branch of the government has large powers with respect to the use and disposition of such public trust assets.
[00:15:48] Under US law, courts enforce and protect the beneficiaries of trust. For example, the US Supreme Court has held that submerged lands in Lake Michigan are not merely public domain, but constitute a public trust. Maine's public reserve lands, which are explicitly required to be reserved by the Maine Constitution, appear to enjoy special and restricted status and their use and protection for the people of Maine ultimately and properly reside with the judicial branch of the state government. Schepps brought attention to the fact that if the legislative or executive branch of Maine state government decides to use the public reserve lands for a purpose that strays from the existing authorized use, the judicial branch may be willing to assert its traditional power with respect to public trusts.
[00:16:34] Maine's success in implementing environmental protection policies in the face of strong opposition from the state's powerful lumber and power interests, interests that had outsized influence over economic affairs relative to most every other state was due to a rare alignment of factors, including a free press, sustained leadership, support from the legislature and judiciary, talented staff, strong analysis, good teamwork, skillful negotiation, calculated risk taking, devotion to the task, good timing, good luck, and personal courage. The issue was made public by persistent private citizens and intrepid reporters, and the presidents of two private companies broke the tradition to support the effort.
[00:17:16] Environmental consciousness was growing in Maine and the nation, and the right people came together to meet the challenge with an abiding belief in the public interest, government as an instrument of the public good and unceasing teamwork as the vehicle of high accomplishment. The passage concludes with quotes from retired landowners who now accept and feel satisfied with the policy changes.
[00:17:38] And what of the landowners today, some 40 years later? In the afterward of his forthcoming book, Thomas Urquhart writes, "With the passage of time, much of the bitterness around the struggle has termed to acceptance, even a feeling of satisfaction." Urquhart quotes Brad Wellman, retired president of Pingree Associates: "Take away all of the resentment and whatnot, I think the result has been good for both the landowners and the State." And Roger Milliken, president of Baskahegan Company, stated that "the dominant-use policy [was] farsighted, an example of Maine leading, and ecological reserves never would've happened otherwise."
[00:18:24] Timber harvesting-related controversy began once again in 2011 when Doug Denico, a corporate forest manager, appointed by Governor Paul LePage, proposed a more intensive commercial approach to timber management in the public lots. Denico ordered a 61% increase in harvesting without consultation with the bureau or public comment. This led to a years-long encounter between the Maine Forest Service and the Bureau of Public Lands, as well as between the executive and legislative branches of Maine government over management of the public lots and access to the public reserved lands trust fund for non-trust purposes.
[00:19:01] The governor's office proposed using the trust fund to pay for a cash rebate from the state to replace old, inefficient home-heating furnaces with energy efficient wood pellet boilers. The trust fund had pre been previously used for an unrelated purpose in 1992, but authorizing legislation from the government for the MPFA proposal, LD 1468 was voted down by the legislature.
[00:19:28] Governor LePage won a second term in 2014 and proposed cutting more timber on the public reserved lands to prepare for potentially devastating spruce budworm outbreak in the Maine woods. However, Robert Seymour, a longstanding member of the Bureau of Public Lands Silvicultural Advisory Committee, called the governor's rationale an unnecessary scare tactic to secure more revenue from the public lots, for a favored public response. In response, LePage proposed splitting the Bureau of Parks and Lands between a new Bureau of Conservation, and the Maine Forest Service.
[00:20:04] In 2015, the state of Maine considered changes to its management of public reserve lands, which are protected by a constitutionally mandated trust. Governor Paul LePage proposed increasing the annual timber harvest from 141,500 cords to 180,000 cords to generate additional revenue for the state, but opponents argued that this would threaten the long-term sustainability of the forests and violate the terms of the trust. A special commission was established to study the issue and ultimately recommended maintaining the existing allowable cut, conducting regular forest inventories, and providing oversight by the legislature.
[00:20:45] The historic importance of this commission's deliberations was underscored in a letter dated September 23rd, 2015, signed by five former conservation commissioners- Richard Barringer, Richard Anderson, Ronald Lovaglio, Edward Meadows, and Patrick McGowan. On October 26th, 2015, then-Attorney General Janet Mills sent a written opinion regarding the legal risks of rating a constitutionally protected trust fund. A definitive answer would have to come from the Maine Supreme Judicial Court she argued, but based on the 1992 case, the governor's proposal "would likely meet great skepticism." Further, public reserved land dollars spent on state parks would replace general fund monies effectively making trust money interchangeable with general fund revenue, which is not permitted."
[00:21:36] The special commission released its unanimous report with recommendations in December, 2015. Mindful of the attorney general's warning, it did not include money for Efficiency Maine among its recommendations. The Bureau of Public Lands should maintain a cash operating account of $2.5 million a year against unexpected costs; a forest inventory should be undertaken the next year and every five years thereafter, and Bureau of Public Lands Foresters should make decisions on harvest levels, subject to ACF Committee oversight by the legislature.
[00:22:09] Governor LePage attacked the commission and its report as well as the bill that would implement its findings. The legislature passed LD 1629, however, and the governor promptly vetoed it. The legislature's vote to override his veto fell nine votes short. In 2016, Senator Saviello again presented a bill to implement the committee's recommendations, which passed, and again, the governor vetoed it. The Environmental Priorities Coalition, a partnership of 34 Environmental Conservation and public health groups, took up the battle this time and the legislature succeeded in overriding the Governor's veto.
[00:22:46] These possibilities would have to wait, however, upon a new gubernatorial administration. In January 2019, Democrat Janet Mills succeeded Paul LePage to become Maine's first female governor. Amanda Beal, the new ACF Commissioner, previously led the Maine Farmland Trust's efforts to revitalize Maine's rural landscape. Andy Cutko, the new Bureau of Public Lands director, is an ecologist who has worked for the Maine Natural Areas Program and the Nature Conservancy. He comes to his position with a depth of knowledge about the public reserve lands, and well equipped to manage these natural treasures as they were intended for the people of Maine and our visitors, for their many and diverse values.
[00:23:29] Bill Patterson, the new deputy director of the Bureau of Public Lands, when the original article was published in Maine Policy Review, believes that an important challenge facing the agency is to increase public awareness and appreciation of these lands, "where they are, how and for what purpose they're managed, and what is their potential to serve Maine people and are growing numbers of visitors." To this end, he'll seek to improve the management capacity and tools available to his staff to identify for improvement particular sites with high demand and large need, and invest in their future by leveraging the new federal America's great outdoors monies for strategic investments.
[00:24:10] Forty years of experience teaches that the public reserve lands are at once a high-value and highly vulnerable asset- vulnerable to periodic raids on the trust fund, to meet emergency political needs, and to takeover by private commercial interests. If it is to succeed in this new opportunity, the Bureau of Public Lands must take the offensive and build a comprehensive strategy to broaden public knowledge of the public reserved lands and their many values to improve public access to them and to the facilities they offer, and realize their potential to help strengthen Maine's rural economy.
[00:24:46] This strategy will be best created in collaboration with other state and federal agencies and private organizations that leverage Maine's exceptional outdoor recreation assets to increase economic opportunity and revitalize remote rural communities. Most of all, if there great potential is to be realized, the Bureau of Public Lands must take care to build abiding support for the public reserve lands among the citizens of Maine, just as Governor Baxter did for his own renowned state park.
[00:25:14] These lands must become part of all that Maine people know, understand, enjoy, take pride in and love. They will endure and become all they might be, only as part of Maine people's hearts, minds imaginations, and ongoing conversations.
[00:25:29] Finally, then one may ask, what is the overriding lesson in all of this for all of us? It is to heed the words often attributed to Thomas Jefferson, "Eternal vigilance is the price of Liberty, then, now, and always.".
[00:25:47] What you just heard was Richard Barringer, Lee Schepps's, Tomas Urquhart's and Mark Wilk's perspectives on Maine's Public reserved lands. Maine Policy Review is a peer reviewed academic journal published by the Margaret Chase Smith Policy Center.
[00:26:01] The editorial team for Maine Policy Review is made up of Joyce Rumery, Linda Silka and Barbara Harrity. Jonathan Rubin directs the Policy Center. A thank you to Jayson Heim and Kathryn Swacha, script writers for the Maine Policy Matters podcast. And to Daniel Soucier, our production consultant.
[00:26:16] In two weeks, we will be hearing from me the host Eric Miller, Marci Sorg, and Priyanka Sarker on "Drug Related Morbidity and Mortality in Maine".
[00:26:26] We'd like to thank you for listening to Maine Policy Matters from the Margaret Chase Smith Policy Center at the University of Maine. You can find us online by searching Maine Policy Matters on your web browser. If you enjoyed this episode, please follow us on your preferred social media platform and stay updated on new episode releases.
[00:26:41] I am Eric Miller. Thanks for listening and please join us next time on Maine Policy Matters.
