First: Before leaving office later this month, he will make a controversial decision regarding Plum Creek Timber Co.'s access rights across federal forest roads.
And second: That decision will wind up in court.
“We are now at a point where we know everything we are going to know,” he said Wednesday, “and it's time to make a decision.”
But the timing of that decision worries Deputy Missoula County Attorney James McCubbin, who has asked the Forest Service to provide reams of documentation prior to any decisions being made.
On Wednesday, McCubbin reported in an e-mail that the agency has said it needs five more months to produce the paperwork, “notwithstanding Mr. Rey's apparent intent to take action on this topic within the next few weeks.”
At issue are historic easements allowing the Forest Service and Plum Creek to share roads across their intermingled lands.
Until recently, those easements generally were viewed narrowly, for timber hauling only. But Plum Creek - and now Rey's office - contend the easements are broader, allowing for all sorts of access, including residential subdivision.
And that concerns McCubbin and others, who have watched Plum Creek's transition from logging company to real estate firm. If the new view of forest road easements is formalized, they worry it could pave the way for wholesale rural development - along with all the attendant costs, as taxpayers struggle to deliver urban infrastructure and firefighting to new “neighborwoods.”
When word of Rey's negotiations with Plum Creek leaked last spring, Missoula County and others sounded an alarm. Sen. Jon Tester, D-Mont., waded into the fray, and since then Rey has visited with Montana counties, delayed his decision, and answered questions put to him by the Government Accountability Office.
“We've done everything the senator has asked us to do,” Rey said. “We're at the end of the process.”
On Dec. 12, Rey sent a letter to Tester, acknowledging up front that “reasonable persons can disagree on the law and public policy.”
Still, he wrote, it's important to understand the implications of making - or not making - a decision regarding the scope of the road easements.
Rey and his legal team have concluded that Plum Creek enjoys full access, regardless of whether the negotiated easement amendment is signed. Abandon the deal, he wrote, and Plum Creek loses nothing.
But communities and taxpayers lose plenty, he said. They lose a negotiated assurance of safety standards on the roads, and they lose a promise of shared maintenance costs. They lose guaranteed Forest Service oversight of the roads, and a pledge of wildfire risk-reduction strategies in the new subdivisions.
“A resolution of this controversy may follow various scenarios,” Rey wrote, “but we believe the easement amendment we have negotiated with Plum Creek is the best solution for all concerned.”
McCubbin reads that last to mean Rey has pretty much made up his mind.
The letter, he said, “appears to indicate he (Rey) has made a final decision with respect to the proposed easement amendment deal with Plum Creek.”
McCubbin took particular note of Rey's final sentence, in which the undersecretary promises to schedule “briefings” with the senator, “to describe how we plan to succeed.”
There does not appear to be much room for further discussion, McCubbin said.
And that frustrates him, because he's still waiting for the Forest Service to produce all the documents he asked for some six months ago, through a Freedom of Information Act request. Throughout, McCubbin has said it's impossible to assess all possible implications of the deal unless the paperwork first is provided.
“He keeps asking for more information,” Rey responded, “whether it's relevant to the decision or not.”
Rey suspects Missoula County's request for documents is a tactic - “an attempt to run out the clock.”
Because if a decision is not made before the Bush administration - and along with it, Mark Rey - leaves office, then perhaps the amendment push will falter.
“They're hoping they'll get a different legal decision from a different administration,” Rey said, adding that “elections are meaningful in that way.”
McCubbin, however, insists “you cannot amend a document that you haven't identified and they still haven't identified the documents. We made our request six months ago and they've just now made what they themselves call a ‘cursory review of the documents?' This isn't Missoula County delaying anything.”
According to McCubbin, the Forest Service recently identified 176,000 documents that are “directly relevant” that have not yet been provided.
Rey said he remains committed to providing all relevant information needed to make an informed decision, which is not the same as providing “every last scrap of paper.”
Before a final decision can be announced, Rey said two more things must happen - Missoula County must get the last of the relevant paperwork, and Rey must meet, as promised, with Tester.
That meeting “hasn't been scheduled yet,” he said, “but it will be scheduled early in the new year.”
Assuming no surprises, and no new information, Rey intends to stick to his legal assessment of the issue and his understanding of the implications, which were spelled out in the Dec. 12 letter.
Others, he said, likely will continue to disagree, “but we're not going to resolve that. That will be resolved in a different venue. Probably, it will get to court in one form or another.”
If he moves ahead with the easement amendment, the county likely will sue, Rey said.
If he does not, then Plum Creek may sue.
And even if the company chooses not to push the issue, it likely would wind up in court one day regardless, Rey predicted, when Plum Creek inevitably tries to exercise its alleged access rights.
“Either way,” Rey said, “I suppose this is going to court.”
By which time he, for one, will have moved on.
Reporter Michael Jamison can be reached at 1-800-366-7186 or at mjamison@missoulian.com.
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Matthew Koehler wrote on Jan 2, 2009 10:07 AM:
" I will say it has been somewhat interesting to see Missoula County get a taste of how former timber industry lobbyist Mark Rey operates. Kudos to Deputy Missoula County Attorney James McCubbin!
Finally the Missoulian seems to understand Rey's M.O. as the coverage of Rey’s backdoor dealings with Plum Creek, as well as Rey’s refusal to provide public documents through FOIA, has been considerable.
Truth is, Rey has been engaged in these types of backdoor shenanigans during his entire tenure as the Bush Administration’s head of the Forest Service. See http://www.nativeforest.org/pdf/Death_by_a_Thousand_Cuts.pdf for just a taste of what the Bush/Rey Forest Service was up to earlier during Bush’s presidency and check this out for more info on Rey’s background: http://www.nativeforest.org/campaigns/public_lands/oef_5_30_02.htm .
Unfortunately the Missoulian either ignored these other efforts on Rey’s part or even went along and supported the Bush/Rey anti-environmental agenda. I mean, at this point in Bush’s presidency how many people think his environmental or public lands policies were solid? I believe this was a considerable failing of the Missoulian as they failed to keep their readership properly informed on important environmental and public lands issues and they all but ignored and marginalized people and organizations who were repeatedly trying to hold the Bush Administration accountable. "
Finally the Missoulian seems to understand Rey's M.O. as the coverage of Rey’s backdoor dealings with Plum Creek, as well as Rey’s refusal to provide public documents through FOIA, has been considerable.
Truth is, Rey has been engaged in these types of backdoor shenanigans during his entire tenure as the Bush Administration’s head of the Forest Service. See http://www.nativeforest.org/pdf/Death_by_a_Thousand_Cuts.pdf for just a taste of what the Bush/Rey Forest Service was up to earlier during Bush’s presidency and check this out for more info on Rey’s background: http://www.nativeforest.org/campaigns/public_lands/oef_5_30_02.htm .
Unfortunately the Missoulian either ignored these other efforts on Rey’s part or even went along and supported the Bush/Rey anti-environmental agenda. I mean, at this point in Bush’s presidency how many people think his environmental or public lands policies were solid? I believe this was a considerable failing of the Missoulian as they failed to keep their readership properly informed on important environmental and public lands issues and they all but ignored and marginalized people and organizations who were repeatedly trying to hold the Bush Administration accountable. "
g wrote on Jan 1, 2009 10:11 AM: