Moosehead Lake conservation easement – who wins?

After years of negotiations, the Plum Creek timber company, The Nature Conservancy and the Forest Society of Maine announced the completion of a $30 million transaction that will create a 363,000 acre conservation easement aimed at protecting the area surrounding Moosehead Lake. The easement will allow continued logging operations and should provide a boon to the local tourism-based economy. The easement represents about 40% of Plum Creek’s holding in the area.

Moosehead Lake conservation easement and Plum Creek development

Concerns remain about the massive development project that Plum Creek won approval for several years ago after a lengthy regulatory process and court battle. That project rezoned nearly 17,000 acres for development including 821 residential units and two resorts with over 1200 rooms.

A local realtor points out that with land prices falling by up to 70% during the Great Recession development is likely years away as infrastructure costs cannot be recouped at current land value levels.

Among the benefits the Forest Society of Maine lists:

  • About 12% of the conserved lands will be managed as ecological reserves
  • The remainder (more than 365,000 acres) will be managed under third party-certification for a sustainable harvest of forest products to the benefit of the state and local economies
  • The newly conserved lands connect to already-conserved properties including 20 existing state parks, resulting in a network of conserved lands totaling nearly 2.25 million acres – three times the size of Rhode Island.

Moosehead Lake, Maine

This does appear on the surface at least to be a “win” for the public though one wonder whether Plum Creek would have been able to secure approvals for any development beyond that it had already obtained. I am curious why Plum Creek and the environmental groups did not negotiate the conservation easement concurrently with the development approval process. That would presumably have given the environmental groups more leverage in the negotiations. With the easement now in hand, will the Forest Society of Maine and The Nature Conservancy feel obligated to support Plum Creek’s future development efforts when the time comes for permitting specific projects?

Visible impacts

I should start out by saying that while I have never lived near an array of wind turbines, I find their slowly rotating blades to be almost mesmerizing and not a blot on the landscape. I will admit that most of my experience with them comes from cross-country drives and seeing them spread across grazing lands in the Great Plains and farm fields in the Midwest. I understand that many find these wind farms objectionable on various grounds including aesthetic ones.

The Maine Land Use Regulation Commission recently unanimously denied a development permit for First Wind’s Bowers Mountain project. The project would have consisted of 27 wind turbines with a maximum height of 428 feet. They would have been located i along the Penobscot-Washington County line in an area that includes nine lakes - Pleasant, Shaw, Duck, Junior, Scraggly, Keg, Bottle, Sysladobsis and Pug.

The decision hinged on the project’s visual impact and its potential impact on the hunting, fishing and guide business that comprises much of the local economy. The commission appeared to rely heavily on testimony of those who worked in the tourism industry and their beliefs that the presence of an array of wind turbines would drive visitors away from the rural, pristine area.

Stetson Mountain, Maine

Since First Wind has already stated that it plans to resubmit a scaled down version of the project, we have almost certainly not hear the last of this particular fight. While I understand the need to consider the visual impact of such projects, I can’t help but wonder if we put too much weight on the visual impacts of projects in our immediate vicinity and too little weight on invisible impacts (i.e., the release of pollutants into the air and water) that nonetheless have a profound impact on the environment and human health.

 

 

Regulatory takings – and givings

One of the favorite targets of those who are concerned with protecting private property rights is so-call regulatory takings. In Lucas v. South Carolina Costal Council, 505 U.S. 1003 (1992), the U.S. Supreme Court held that a land use regulation which eliminates all economically beneficial uses of a parcel constitutes a taking and just compensation must be paid to the landowner by the jurisdiction that enacted the regulation.

Lots that were the subject of the Lucas case

For property rights advocates the Court did not go far enough; so they have resorted to legislative efforts in numerous states. Some of the more noteworthy measures include those in Oregon, Florida, Arizona, and Texas have enacted measures either legislatively or by referendum that require compensation be paid when a regulation reduces the value of a parcel of property by a state amount (e.g., 25% diminution in Texas). There is a wealth of literature about the effectiveness of these measures, their impact on land use regulation and the lawsuits they have spawned.

Most recently this issues has been raised in Maine where the legislature is wrestling with a proposed regulatory takings bill that would required compensation when 50% or more of a parcel’s value is lost due to regulation.

Delving into all of that is not the purpose of this post. I simply want to ask if landowners should be compensated when a land use regulation diminishes the value of their property, should the state or local jurisdiction be compensated by landowners when they increase zoning densities or construct infrastructure at public cost that increases the value of a private party’s property?

The truth of the matter is that in its natural state the value of most land is attributable to one’s ability to raise crops, harvest timber, harness water power, and extract minerals. In order to make use of land for anything other than extremely low density residential development requires a combination of infrastructure that is usually publicly funded (e.g., roads, sewer, storm water, water, electricity, telecommunications, schools) and regulations that bestow the right to make use of this infrastructure for various land uses and at various densities. All of this focus on how land use regulation may reduce the value (though not render it without economic value) of individual parcels of land loses sight of the forest for the trees as it ignores the fact that much of the value that remains is in fact the result of public investment and public regulation.

Development and conservation easements

After a seven year struggle, the Supreme Judicial Court of Maine has paved the way for Plum Creek which calls itself the largest and most geographically diverse private landowner in the nation to proceed with a rezoning of 400,000 acres of Northern Forest land. Ultimately 16,000 of those acres will be developed for 975 residential lots and two large resorts.

A variety of environmental groups found themselves on both sides of this battle depending on whether or not they were purchasing conservation easements from Plum Creek. The Nature Conservancy and The Appalachian Mountain Club purchased conservation easements over 307,500 acres in order to complete a 2 million acre “preserved” corridor that is the size of Yellowstone National Park.

Despite this, other environmental groups including the National Resources Council of Maine, RESTORE: The North Woods, and the Forest Ecology Network waged a lengthy and costly campaign against the project.

One wonders if conservation easements have eroded the public’s right to strictly regulate development on wild lands. Is it realistic to think that Plum Creek or any other landowner would be able to develop large portions of this land? Could a similar outcome have been achieved with an exclusively regulatory approach? By being willing to pay private landowners to preserve their land, are environmental groups establishing an expectation that similarly situated landowners are entitled to be paid if the public wishes to limit or even prohibit development of wild lands?

Note: You can access a full copy of the Court’s opinion at Leagle.com.