Repairing a Breach of Trust

The latest of Vermont's recurring battles over land use is raging in the wilds of the Northeast Kingdom. The issue is the use of a portion of the "Champion Lands" known as the West Mountain Wildlife Management Area.

In 1999 a group called the Conservation Fund, with help from the Freeman Foundation, the US Fish & Wildlife Service, the Vermont Land Trust and the State of Vermont, put together a complex deal to acquire 133,000 acres of Essex County forest lands. These lands had been worked as timberlands for many years by the Champion International Corporation and its predecessors. For generations the lands had been hunted, fished, camped and snowmobiled by the public.

The environmental groups and Governor Dean put enormous pressure on the 1999 legislature to appropriate $4.5 million to complete the $26.5 million deal immediately, lest it fall apart. Northeast Kingdom legislators, led by Sen. Vince Illuzzi (R-Essex-Orleans), rightly argued that if the legislature was to put $4.5 million in the Champion pot, there ought to be iron-clad guarantees protecting "traditional uses", including hunting, fishing, snowmobiling, camps and logging.

To allay their concerns, Gov. Dean wrote a detailed letter to the General Assembly. He stated that the taxpayers' $4.5 million would buy 22,000 acres for the state, plus easements controlling the uses of the 84,000 acres which were ultimately sold to a timber company. "These easements," he wrote, "are strong assurances that the land will continue to be open and to be used as it is today."

Illuzzi and others asked that the legislature have the opportunity to approve the easements, and that any citizen be allowed to bring legal action to enforce them if subsequent owners should attempt to restrict allowed traditional uses. This request was refused. The backers of the deal said there was not enough time to develop the easements, and that attorney general would be authorized to enforce the easements if necessary.

Despite this rebuff, Kingdom legislators went along with the deal on the strength of the Governor's letter. Language in the 1999 act required that the easements were to "permanently protect...the use of land for traditional and lawful recreational uses," including hunting and snowmobiling.

Last month the Agency of Natural Resources released its management plan, based on the easement it attached to the lands in 1999. ANR proposed to set aside 12,500 acres on West Mountain as a wilderness-type area. This was not enough to completely satisfy the enviro groups, but it was more than enough to set off alarms among sportsmen, snowmobilers, and Northeast Kingdom residents.

Former deputy secretary of state Paul Gillies issued a legal opinion to the Auditor's office concluding that an easement excepting the West Mountain acreage from the recreational use protections was contrary to the 1999 law. Gillies' memo produced a blizzard of counter opinions from ANR, the Vermont Land Trust, and The Nature Conservancy, which had become the easement holder for West Mountain. All sought to confound Gillies' plain reading of the act. In effect they converted "protection of traditional uses" into "protection from traditional uses."

Two years ago the sportsmen, snowmobilers, and Kingdom legislators agreed to the Champion lands appropriation without seeing the language of the easements and without a citizen access enforcement provision. They agreed - uncomfortably - to trust that the plain language of the act would preserve traditional recreational use of all the covered lands "as it is today".

Now they believe that their trust has been deceived. The environmental interests have unilaterally produced a new deal. It sets aside 12,500 acres for their preferred kind of forest, one unmolested by humans beyond an occasional walk-through.

The right remedy is resolution of the issue by the elected representatives of the people. The legislature should place restrictions on the ANR and Housing and Conservation Board's appropriations until the three co-holders of the easement agree to amend it to reflect a clear legislative consensus. That consensus might support the proposed West Mountain restrictions. The critics would probably accept that outcome, if it was produced by a process viewed as legitimate, straightforward, fair and open.

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November 2001