The Forest Compact: A Happy Day for Cynics
by Mitch Lansky
Part I - Similarities to the Forest Practices Act
One of the more depressing things I sometimes do is read documents I wrote years ago. What depresses me is that too often I sounded cynical, and too often I was right. And worse, too often the writing still applies to today. Pages 361 to 365 (which I wrote five or six years ago) of my book Beyond the Beauty Strip describes how the Forest Practices Act (FPA) of 1989 was created. The FPA was a collaborative effort, stemming from the Environmental/Industrial Forum initiated by Maine Audubon Society (MAS) in 1986. The Maine public was just becoming aware of the massive clearcutting and herbicide spraying programs of the time, and a number of towns had passed forest practices ordinances. The forest products industry feared that this trend would continue and that stricter state-wide regulations would be sure to follow.
My book describes the industry strategy of first trying to ward off regulations through denial, then, when it was clear that the public didn't believe industry's happy news, joining with MAS to help control the process. Once in control, industry representatives found numerous ways to weaken the final product. When the process was over, representatives of both the forest products industry and environmental groups congratulated themselves on finally "regulating" forest practices. The forestry Compact was created in a similar manner by some of the same groups using the same strategies.
De Nile is in Africa: In response to the referendum, forest industry groups, such as Citizens for a Healthy Forest and Economy (CHFE), declared that there is no problem in the woods. CHFE director, Bill Vail, declared in an editorial about the latest US Forest Service inventory of the Maine woods that, "no matter how you slice the figures, the conclusion is clear. Our forests are healthy and flourishing." In contrast, Vail claimed that the referendum is a drastic solution to a non-existent problem. If the referendum passes, Vail asserted, there will be mill shutdowns, job losses, and even destruction of wildlife.
If it ain't broke: In a recent video, Chuck Gadzik the director of the Bureau of Forestry, stated that the public "perceives that there is a problem, and that's a problem." Apparently, if the public perceives that there is a solution, that is a solution. Despite claims that there are no real problems in the industrial forest, and despite claims that the referendum is "overly complex" leading to a "bureaucratic nightmare," CHFE has embraced the "more moderate" Compact which offers 27 pages of apparently acceptably complex "solutions" to the non-problems.
Early polls showing strong public support of a clearcut ban convinced industry strategists to go into phase 2: control the process. Like the FPA, the Compact was created by a collaborative process between "reasonable" environmental groups (which have been reasonable enough to have timber-industry representatives on their boards of directors or trustees) and the forest industry. And like the FPA, the Compact promises great results. The FPA was advertised to promote a "healthy and sustainable forest." The Compact promises to promote "sustainable forest practices throughout the state."
Just right: When the FPA rules passed, a representative of the Maine Forest Service noted that forest landowners thought the rules were too strict and environmentalists felt they were too lax, "so we must have got them just right." Governor King has already observed that with Mary Adams (a property-rights advocate) against on one side and Jonathan Carter on the other, "we must have gotten it just right." I can imagine King Solomon using the same argument. If he had cut a disputed baby in two he could have claimed that he got it "just right" when both of the women claiming to be the baby's mother became hysterical. A compromise is not proven "good" simply because some people from opposing sides do not like it.
Model of what? In 1990, Roger Milliken, writing in Maine Audubon Society's journal Habitat, proclaimed that the FPA "provides a model of what can happen when we decide as a society to move beyond simplistic divisive rhetoric and address environmental questions as complex, interrelated issues driven by economic forces and social values." Similar claims are being made about the collaborative effort surrounding the Compact.
Ironically, at the time of the FPA, Milliken was on the board of directors of both the Natural Resources Council of Maine and the Maine Forest Products Council. During the Compact negotiations Milliken was no longer on the board of NRCM, but he was on the board of directors for The Nature Conservancy, another group engaged in the negotiations.
For all this lofty talk, less than five years after its implementation, there are few knowledgeable observers of Maine's forest who would defend the FPA as having achieved its goals. The fact that the same groups who framed the FPA have now "crafted" a new forestry bill is a tacit admission of past failure.
Compromising compromise: When Maine Audubon Society submitted the FPA after years of collaboration with forest industry representatives, forest industry lobbyists promptly submitted a competing bill that was uncompromisingly favorable to industry. The legislature combined the two competing bills to create a thoroughly compromised bill.
After the negotiations were completed for the Compact, the Natural Resources Council of Maine informed referendum supporters that they should now declare victory, because referendum pressure had allowed responsible groups to force significant improvements to forest policy. When referendum supporters and I were informed of these improvements, we were concerned about serious flaws and deficiencies and asked if it was too late to renegotiate on some points. No, we were informed, that was not possible because of the fragility of the agreement.
A short time after the Small Woodlands Owners of Maine (SWOAM) and the Sportsmen's Alliance of Maine (SAM) got involved in the negotiations, changes were made to further weaken the bill. Establishment environmental groups displayed a sensitivity to the concerns of industry and these other groups, but were incredibly insensitive to a group that had gotten 56,000 signatures to stop abusive forestry practices. And then the legislature got a hold of the Compact...
Strange bedfellows: Because there were competing bills for the FPA, the political alignments were not quite the same as they have been for the Compact, although the split between establishment environmental groups and environmental activists was the same. The public hearings on the Compact, however, displayed some of the most bizarre alliances in recent memory. On the one hand there was Brownie Carson of NRCM and Thomas Urquhart of Maine Audubon Society in fellowship with Doug Denico of South African Pulp and Paper (SAPPI) and Si Balch of Boise Cascade. On the other hand was Jonathan Carter of Ban Clearcutting on the same side of the aisle with Michael Coffman of MECRI (a property- rights group), and timber-liquidation contractors such as Trott, McPherson, and Haynes.
Justified: Just because there are similarities in the creation of the two bills, does not mean that there will be similarities in results. Here, therefore, is a section by section summary indicating why I feel my cynical attitude is justified:
Part II - Insignificant Changes
1. Something Fishy
There were six sections to the Compact when submitted, but seven when passed. Representative Paul Jacques (D-Waterville) moved the legislature to add a section calling for a study on the impacts of logging on cold-water fisheries with a stirring speech. "I remember the first brook trout I caught, where it was, and when." In contrast he couldn't remember his first date. "I don't remember who she was, where we went, or what we did." I wonder if Representative Jacques has considered dating a trout?
Studying a problem is hardly an alternative to actually implementing solutions. I can remember the legislature studying forestry issues a number of times (by setting up "balanced" committees with industry representation). I remember when it was, where it was, and what they promised. After the studies were completed, I can't remember the legislature actually solving any of the problems they identified. There is no when, where, or how. They didn't do it, and the forest is my witness.
2. Teach Your Children Well
The Maine Forest Service is directed to employ a natural resource educator to inform the public, including school children, about forestry issues. Further, there will be a "balanced" advisory committee, packed with timber industry representatives, to help figure out what the educator should be saying.
With such a committee, and with Department of Conservation commissioners coming directly out of the timber industry, do you think this educator will be telling little children about the deficiencies of industrial management? Do you think that large industrial clearcuts and heavy highgrading by timber contractors will be corrected by better "education"?
3. Damming Liquidators
The Compact members could not agree on what to do with cut-and-run speculators. They got hung up on definitions of the problem and discomfort over solutions. Instead of offering a provision to stop such practices, the Compact offers to study the issue next year. We might even get to vote on further restrictions if the study determines that the Compact doesn't fully address the problem.
The problem of liquidation cutting and forest conversion has already been "solved" numerous times in Maine. The Tree Growth Tax Law was supposed to stop such practices, but did not. LURC zoning was supposed to stop such practices, but did not. The Forest Practices Act was supposed to lead to a"healthy and sustainable
forest," but did not. The Northern Forest Lands Council had such practices as their primary focus. This was a multi-year, multi-million dollar effort. Somehow their attention strayed away from the most direct solutions (such as regulation, zoning, or tax penalties) because there was no "common ground." Instead they recommended current-use taxation, which we already have under Tree Growth. And now the Compact, having failed to resolve this issue, will have the experts study it again. Later.
4. Maybe Just a Little Ecological Reserve?
The Compact originally suggested setting up a system of ecological reserves of 12-15,000 acres on public lands. The legislature was aghast that 7/100 of 1% of the State of Maine might have trees that would, as former legislator and now LURC commissioner Malachi Anderson put it, "grow old and die and then fall over and rot unused." So the reserve size was cut back to 8-10,000 acres, 5/100 of 1% of the state.
The Compact stipulates that the state can add no more acres to a reserve system until 1998. And further, to placate SAM, traditional recreation, including hunting, fishing, and trapping, will be allowed on the "reserves." Any life forms but trees are game.
Why environmental groups would have to negotiate with industry to recommend that a minuscule proportion of our public lands can be used as we see fit is beyond me. Why sportsmen cannot live with the possibility of restrictions of their activities on a tiny fragment of Maine is also beyond me. Although such practices may be appropriate in some ecological reserves, they might not be in others. This bill, therefore, sets a bad precedent. The Maine Forest Biodiversity Project has been preparing to recommend a system of reserves anyway. As a member of that Project (just barely hanging on), I can tell you that I was not consulted on this trivialization of conservation biology. The public has not been well informed of the purposes and justifications for reserves, which explains why the legislature so easily cut the reserve system down to size.
Compact supporters have used ecological reserves as a political football, violating the years of consensus building and negotiations. The token reserves were put in to sweeten a sour deal. Those who see a need for larger reserves view the Compact as a serious insult. The public may be lulled to think these token reserves are sufficient to protect biodiversity, stalling more serious efforts.
Ironically, Compact supporters are trying to create reserves through regulation. Almost all Biodiversity Project members (with a couple of dissenting votes, mine being one) opposed using regulations to create reserves. Is this what is called "situation ethics?"
5. Timber Harvest Rules
The compact tinkers with the same clearcut variables that made up the core of the FPA -- the definition and maximum size of clearcuts, and the configuration of separation zones around the clearcuts. This is one of the few sections of the Compact that impacts cutting (rather than just studies the problem). Current restrictions under the FPA create hurdles that are subterranean. The Compact raises some of these standards to be deep enough below the surface of the earth so that almost all landowners (except those severely dragging their feet) can clear them with no effort.
The Compact would allow clearcutting only by permit, but there are numerous exemptions (for salvage, for example) and a variance to boot. Although the standards sound restrictive, just how restrictive they might be is up to forester interpretation and forester integrity. In this regard, based on years of observance, I have concluded that industrial foresters have more cellulose, than moral, fiber.
Gone with the wind: For example, clearcuts would be allowed in stands where partial cuts would lead to a high risk of windthrow. To Forester Gordon Mott, who engaged in some of the negotiations for NRCM, this is not an open invitation to clearcut spruce-dominated softwood stands. Such stands can be windfirm if cutting is light and restricted mostly to suppressed trees. This is confirmed in accepted silvicultural literature. But Si Balch, forester for Boise Cascade (or is it Mead?) and president of the Maine chapter of the Society of American Foresters, has told public gatherings that his company tried partial cutting in spruce-fir stands, but the trees blew over. So now they just use even-age management. Whose concept do you think would prevail?
Clearcut cut-off: The cut-off point for a "clearcut" changes from 30 square feet of basal area of trees 6 inches in diameter to 45 square feet of basal area of trees 4 and 1/2 inches in diameter. In some circumstances, a clearcut under the FPA definition would not be a clearcut under the Compact definition if there is an abundance of small-diameter trees. This is the only stocking standard limit to cutting on hardwoods, mixedwoods and softwoods (i.e., it is one size fits all). This is a political definition, not a scientific one. Landowners who do not want to clearcut by permit can cut down to this limit, regardless of forest type. Leaving 45 square feet of basal area per acre on vast areas of softwoods is hardly "sustainable" forestry. One can end up with an understocked stand of poor quality trees that are not windfirm.
More excuses: The Compact allows landowners to clearcut to remove "poor-quality, intolerant, understocked, short lived or mature overstories where the retention of the residual overstory trees is not justified..." Since there are no restrictions for creating such stands (by cutting down to 45 square feet of basal area), landowners need never run out of qualifying stands to flatten.
Diversity of clearcut configurations: The Compact changes the maximum size of clearcuts from 250 acres to 75 acres. This sounds significant, but it isn't. Over 90% of all recent clearcuts have been under 75 acres. Those who want to clearcut large areas have discovered that it is easier to do so with clusters of 35 acre clearcuts, due to minimal sizes and restrictions for separation zones for clearcuts of this size (or smaller).
The Compact addresses this "loophole" by requiring that all separation zones (except on parcels smaller than 100 acres) be at least equal to the size of the clearcuts. On the ground, this would make little difference to smaller clearcuts, and would actually require smaller separation zones for clearcuts over 35 acres. (See illustrations on page 15.) The FPA now requires separation zones 1.5 times the size of clearcuts larger than 35 acres.
Incredibly, Maine Audubon's Rob Bryan argues that the Compact would increase the diversity of sizes of clearcuts and that this is good for biodiversity. Even though he cites bird researcher John Hagan in this regard, Hagan has written that the Compact's separation zone requirements could lead to increased forest fragmentation. [See story "Hagan Bird Research Results Distorted by Industry."]
Upper limits: A Maine Forest Service survey of forest practices 1991-1993 found that 91% of all clearcuts in the state were on industrial and large non-industrial lands. Statewide, 0.37% of the forest was being clearcut per year on average. The Compact would restrict large landowners from clearcutting more than 0.25% of their land per year. With plantations and thinnings, however, landowners could increase clearcutting to 1% of their landownership per year. This latter figure is just about what the most aggressive clearcutters are doing now -- and they are the ones who do the most planting and thinning.
Landowners with less than 100,000 acres can clearcut up to 10% of their land (or 100 acres, whichever is greater) in one year. However, no more than 10% of their land (or 100 acres) can be in a clearcut condition at one time on a rolling basis. According to the Compact, a clearcut is no longer a clearcut when adequate regeneration of any commercial species is more than 5 feet high. Poplar sprouts can grow 5 feet high in one or two seasons.
Overstory story: If a landowner removes all the merchantable timber from a stand but there are enough saplings (of any species) more than 5 feet high, this is not a clearcut; it is an "overstory removal." There are no restrictions to overstory removals. There are also no immediate restrictions (there might be later under the audit program for the biggest landowners) for doing heavy cuts that encourage advanced regeneration. Those landowners who want to liquidate mature timber can thus create ample opportunities despite the clearcut limitation.
6. Voluntary Audit Program
The 15 largest forest landowners agreed to abide by Compact restrictions and audit programs voluntarily regardless of whether the Compact is approved by the public. Therefore, it doesn't matter that much if the Compact passes or not. Since the provisions are voluntary, there is nothing to stop these companies from doing the Compact's concept of "sustainable management" right now. In fact, all of the paper companies who are signatories to the Sustainable Forestry Initiative of the American Forest and Paper Association would insist that they already are doing "sustainable management."
The timber industry is enamored of "voluntary" regulations. Just recently the timber industry convinced the Land Use Regulation Commission that zoning to restrict development in more remote regions should be voluntary. As Doug Rooks, editor of the Maine Times so eloquently responded, "LURC, and Gov. Angus King, through his selection of new board members, don't seem to understand that the paper industry could already do what it wanted to if LURC didn't exist."
The Compact would set up a "balanced" (with landowner representatives) audit committee to set benchmarks for "third party" auditors to follow. The committee would make decisions through "unanimous consensus." This means that any member has veto power over any recommendation.
Sustaining what we don't want: The compact has a weak spot for plantations, and pesticides -- aspects of forestry that the public does not like. The audit committee must set benchmarks that "ensure the appropriate establishment and distribution of plantations," and that "assure the prudent use of forest insecticides and herbicides..." items that come right out of industry's Sustainable Forestry Initiative. There is talk of "integrated pest management." Fifteen years ago, the state and industry got away with spraying millions of acres of forest with chemical insecticides for spruce budworms and called that "integrated pest management."
Knotty issues: The audit board will have to tackle three items that stumped the Council on Sustainable Forest Management -- sustained yield, silvicultural guidelines, and landscape goals. Once again, if the audit board members had integrity, it is possible that the result of such benchmarks could be a true improvement in forest policy in the state. But note my previous comment on cellulose.
Unlike the Council, the audit board will give industry members veto power to prevent unwanted results. The Compact advises that the benchmarks be "practical, yet sufficiently flexible to encourage participation in the program by landowners representing a range of ownership sizes..." Since the program is voluntary, the question is how low must they go to get everyone to participate?
Goodies: There are rewards for those on the audit program (which for the first five years will be mostly the big landowners). For one, there will be "regulatory flexibility." All the timber harvest rules could be waived. For two, there may be "marketing opportunities." The landowners might be able to claim that they are certified "sustainable" and thus get more money or sell to more exclusive markets. And finally, there is the promise of some kind of tax benefits (yet to be spelled out).
7. Ordinance Hurdles
In case there are towns that feel that they need more protection than what the Compact promises, there is still the option of passing local ordinances. The Compact, which sets low hurdles for forest practices, sets higher hurdles for those who would restrict forest practices. The Compact does not prevent local ordinances, it just makes passing them much harder.
It ensures active involvement of all landowners who individually must be notified of any hearing. If a landowner feels he was materially harmed by lack of knowledge of an ordinance or amendment he can
challenge the ordinance in court. Towns must use state definitions, even if they do not like these definitions. They must revise their ordinances to fit the language of the Compact. Town officials must also listen while Department of Conservation representatives lecture them or deluge them with "any reports, articles, treatises or similar materials published by acknowledged experts in the field of sound forestry or silvicultural management... that might apply to the proposed ordinance..." I wonder if the DOC officials will recommend that town officials read Beyond the Beauty Strip?
The major purpose of the Compact is not to make all forestry in the state "sustainable." It is to stop the referendum. There are aspects of the Compact that have the potential to improve forestry incrementally, but these aspects depend on the integrity of industrial foresters.
We are left to vote on a series of unknowns. We do not know who will be on the audit board. We don't know who will be the resource educator and what that person's agenda will be. We don't know much about the forest liquidation "study" or what form any subsequent legislation will take. We are told to have faith in people who were wrong about the FPA and who, during the debate over the referendum, have consistently misled the public.
If the Compact passes, the legislature will not be interested in any new forestry legislation for at least 5 years when the Compact comes up for review. Until then, we will be told to "give it time to work," just as we were admonished over the last five years with the FPA. With the FPA, clearcutting did decline, in spite of, not because of, the regulations. And the average size of clearcuts declined as well. Of course FPA supporters took full credit for these trends. But they ignored the fact that most of the "partial" cuts failed to leave behind well-stocked stands with good quality and low stand damage. And they ignored the fact that some landowners are combining the "small" clearcuts into big clearcut clusters. It took a major effort to turn public opinion around. Investment in the Compact is an investment in time.
I've got good reason to be cynical. If the biggest clearcutters in the state, such as the South African corporation SAPPI are enthusiastic supporters of the Compact, one can bet that it will not lead to significant change. In other words, if SAPPI is happy [with the Compact], it's crappy.
Mitch Lansky is author of Beyond the Beauty Strip: Saving What's Left of Our Forests (Tilbury House). This article originally appeared in the Northern Forest Forum in Autumn of 1996.