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Vermont Supreme Court Emphasizes Deference to Agency Expertise in Timber Harvesting Case

In Plum Creek Maine Timberlands, LLC v. Vermont Department of Forests, Parks and Recreation and Vermont Department of Taxes, the Supreme Court reversed the superior court’s finding that a timber company had not violated its forest management plan, finding that the superior court failed to give proper deference to the agency’s expertise.

Issue: Plum Creek was harvesting timber on forest land that was enrolled in a tax incentive program that required it to follow a forest management plan, which contained specific requirements for how much timber was to be cut in each specified area (or “stand”). Prior to the end of the timber harvest, an inspector from the VT Department of Forests, Parks, and Recreation (FPR) did an inspection and was concerned that Plum Creek had “cut contrary” to the management plan, and had violated some water quality rules. Plum Creek stopped the harvest, and remediated the water quality issues. FPR subsequently issued an adverse-inspection report, which led the Department of Taxes to remove the entire tract of land from the tax incentive program. Plum Creek appealed in the superior court, which heard evidence from experts on both sides: Plum Creek said that the proper way to measure the cutting was by looking at the entire stand, while the FPR said that the cut area formed its own stand and could be measured on its own, without looking at the rest of the area that had not been harvested. The court found that Plum Creek was not in violation of its forest management plan. FPR appealed.

Holding: The Court found that – though the superior court was entitled to do a de novo review, and its factual findings were subject to clear error review – the methodology for determining whether or not Plum Creek had violated the forest management plan was a policy matter within the FPR’s expertise, and the agency was thus entitled to deference on that front. The Court found that policy considerations, logic, and, the need for agency oversight, and the need for consistency all supported its finding that the FPR’s policy was not “wholly irrational and unreasonable,” and that the superior court improperly failed to give the requisite deference to the policy. As such, the Court reversed, finding that the adverse inspection report should be upheld, and remanded only for a consideration of Plum Creek’s removal from the tax incentive program, and the levying of a tax assessment on Plum Creek.

Dissent, Dooley, J. (joined by Skoglund, J.): Justice Dooley authored an extensive and impassioned dissent, finding fault with nearly every portion of the majority’s opinion. He first found that the majority had gone beyond the narrow question presented – namely, did Plum Creek violate the terms of its forest management plan? – by considering FPR standards regarding cut contrary that were never in the plan itself, and that it “largely ignored the glaring holes in the [FPR’s] decision because of its holding that deference controls everything.” He also found that the majority used the wrong standard of review, and that the superior court was entitled to de novo review (which would itself be reviewed under a clear error standard) because there were no factual findings other than those taken before the court. Finally, he found that the facts supported Plum Creek’s position, because had it been permitted to complete the harvesting, this controversy would never have come about. He ended by saying that the Court’s opinion had “emasculated judicial review,” and he was thus obliged to dissent.

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