Small Woodland Owners Association of Maine. March 11-12, 2013 Wells Conference Center, University of Maine. Tom Doak, Executive Director (SWOAM)

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1 Small Woodland Owners Nercofe 2013 Association Workshop of Maine March 11-12, 2013 Wells Conference Center, University of Maine Tom Doak, Executive Director Small Woodland Owners Association of Maine (SWOAM)

2 SWOAM Established in (c)(3) non-profit Focus on information and education for small woodland owners (those who own a few acres to a few hundred acres) 500,000 acres 3.5 fulltime staff Work statewide 10 chapters Monthly 16 page newsletter Host more than 50 educational events each year Land Trust Program- more than 7300 acres Mission: To Promote Sound Forest Management and Strengthen Long-term Woodland Stewardship

3 Must be Working Lands Must be of Manageable Size Is it Worth Conserving? Conservation Easements SWOAM Standards Must have a Forest Management Plan that meets the Standards Outlined in the Easement, and Follow It Notification required prior to timber harvesting or other significant activities Monitored Annually

4 Conservation Easements SWOAM Standards Generally no development allowed, gravel/mining limited to onsite use, no guarantee of public access Endowment Always Required Amount of Endowment Required Depends Upon: Size of parcel Complexity of Easement $10,000+ expenses Endowment Funds: Dedicated Monitoring & Defense Accounts

5 Conservation Easements SWOAM Standards Conservation Easements Should be Treated as Liabilities not as Assets

6 Conservation Easements SWOAM Mistakes/Lessons Endowment Funds, Should Have Asked for More Baseline Documentation - Early Easements not Always the Best Standardization of Approach- Challenging When Relying Largely on Volunteers Customized Easements are Expensive

7 Conservation Easements How I Would Change the World (Regarding Easements)

8 Conservation Easements Sometimes the Best Answer is No Simplify Easements Focus on What is Really Important Make an Educated Guess About the Future Use of the Parcel, but Understand You Will Probably Be Wrong

9 Conservation Easements So, What is Important (and What is Not)?

10 Conservation Easements Important Keep the Parcel Intact, Avoid Division Prevent development Avoid major disturbances Pay only for what you want/need Public Access- But not currently valued properly Under appreciated and with aging population, the importance of access is changing

11 Age Structure of Small Woodland Owners in Maine Age USFS Acres (%) SWOAM <

12 Conservation Easements Not Important Complicated Forest Management Provisions Difficult to Enforce Open for Wide Interpretation Impediment to Willing Landowners May Discourage Forest Management/Habitat Manipulation Restriction Not Adequately Valued/Appreciated Laws and Regulations May be Sufficient

13 Conservation Easements In Closing Conservation Easements are a great tool We have made them too complicated Forest management over emphasized Value, to landowner and the public, of access is underappreciated We should say no more often Concern about long term viability of some land trusts and some easements

14 Small Woodland Owners Association of Maine

15 Conservation Easements SWOAM Standards HOw I WouHd Change the World

16 Maine 89.7% forested Myth: Large landowners own almost all the woodland in Maine Fact: Small non-industrial owners hold nearly 40% of the forestland in Maine

17 Maine Forestland Ownership 40% 35% % of Total Forestland 30% 25% 20% 15% 10% 5% 0% Other Public Large nonindustrial Investment Companies Forest Industry NIPF Type of Ownership Data source: Maine Forest Service

18 Maine Acreage Size Classes 70,000 62,900 60,000 Number of Owners 50,000 40,000 30,000 20,000 20,200 25,400 10, Family Forest Size Class (acres) Data Source: Birch 1994

19 Importance of Small Woodlands Owner Enjoyment Wildlife viewing or management Place of retreat/privacy Recreation Family legacy Nature protection Timber production (8th-10th in importance)

20 Why are Small Woodland Ownerships Important? If you hike, bike, fish, hunt, cross-country ski, snowshoe, or snowmobile chances are, particularly in southern Maine, you are doing it on land owned by small woodland owners.

21 Allowing public use is rarely, if ever, a benefit (value) to a private woodland landowner.

22 Economic Impact of Select Outdoor Recreational Activities Activity Economic Impact ($ million) Economic Impact from Private Lands ($ million)* Economic Benefit to Private Land Owners ($ million) State Parks ATV s Snowmobiles Hunting * Assumes 90% of the activity occurs on private land

23 Employment , ,100 Forest Industry Lumber production 300% increase since 1975 Paper production Near an all time high Wood supply Slightly below highs of 1980 s Stable Expected in increase over the next ten years

24 Wood Inventory In 1944 estimate: 165 million cords of wood in Maine forest In 2006 estimate: 278 million cords of wood in Maine forest

25 Economics & Politics 1. Ownership Pattern of Forestland 2. Public Land 3. Public Access to Private Land 4. River Drives 5. Clearcutting/Referendums/ Forest Practices Act

26 Economics & Politics 6. Tax Policy 7. Deeryard & and other special habitat zoning 8. Exporting Woods- Especially to Canada 9. Landowner Liability: Environmental and Public Use 10. Plum Creek

27 Common Law Abandonment Focuses on public non-use, rather than nonmaintenance (statutory abandonment) No set time period September 3 time period and reversion to abutting owners applies

28 So what are the problems? Conflict between statutes, discontinuance vs. abandonment Confusing language- the exception Who is responsible for damage or environmental violations- for use of the public easement What responsibilities should municipalities have What rights does the landowner have

29 Small Woodland Owners Association of Maine

30 General Liability Title 14: COURT PROCEDURE -- CIVIL Part 1: GENERAL PROVISIONS Chapter 7: DEFENSES GENERALLY 159-A. Limited liability for recreational or harvesting activities 1. Definitions. As used in this section, unless the context indicates otherwise, the following terms have the following meanings. A. "Premises" means improved and unimproved lands, private ways, roads, any buildings or structures on those lands and waters standing on, flowing through or adjacent to those lands. "Premises" includes railroad property, railroad rights-of-way and utility corridors to which public access is permitted. [2005, c. 375, 1 (AMD).] B. "Recreational or harvesting activities" means recreational activities conducted out-of-doors, including, but not limited to, hunting, fishing, trapping, camping, environmental education and research, hiking, recreational caving, sight-seeing, operating snow-traveling and all-terrain vehicles, skiing, hanggliding, dog sledding, equine activities, boating, sailing, canoeing, rafting, biking, picnicking, swimming or activities involving the harvesting or gathering of forest, field or marine products. It includes entry of, volunteer maintenance and improvement of, use of and passage over premises in order to pursue these activities. "Recreational or harvesting activities" does not include commercial agricultural or timber harvesting. [2001, c. 113, 2 (AMD).] C. "Occupant" includes, but is not limited to, an individual, corporation, partnership, association or other legal entity that constructs or maintains trails or other improvements for public recreational use. [2003, c. 509, 1 (NEW).] [ 2005, c. 375, 1 (AMD).]

31 2. Limited duty. An owner, lessee, manager, holder of an easement or occupant of premises does not have a duty of care to keep the premises safe for entry or use by others for recreational or harvesting activities or to give warning of any hazardous condition, use, structure or activity on these premises to persons entering for those purposes. This subsection applies regardless of whether the owner, lessee, manager, holder of an easement or occupant has given permission to another to pursue recreational or harvesting activities on the premises. [ 1995, c. 566, 1 (AMD).] 3. Permissive use. An owner, lessee, manager, holder of an easement or occupant who gives permission to another to pursue recreational or harvesting activities on the premises does not thereby: A. Extend any assurance that the premises are safe for those purposes; [1979, c. 253, 2 (NEW).] B. Make the person to whom permission is granted an invitee or licensee to whom a duty of care is owed; or [1979, c. 253, 2 (NEW).] C. Assume responsibility or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted even if that injury occurs on property of another person. [2007, c. 260, 1 (AMD).] [ 2007, c. 260, 1 (AMD).]

32 4. Limitations on section. This section does not limit the liability that would otherwise exist: A. For a willful or malicious failure to guard or to warn against a dangerous condition, use, structure or activity; [1979, c. 253, 2 (NEW).] B. For an injury suffered in any case where permission to pursue any recreational or harvesting activities was granted for a consideration other than the consideration, if any, paid to the following: (1) The landowner or the landowner's agent by the State; or (2) The landowner or the landowner's agent for use of the premises on which the injury was suffered, as long as the premises are not used primarily for commercial recreational purposes and as long as the user has not been granted the exclusive right to make use of the premises for recreational activities; or [1995, c. 566, 1 (AMD).] C. For an injury caused, by acts of persons to whom permission to pursue any recreational or harvesting activities was granted, to other persons to whom the person granting permission, or the owner, lessee, manager, holder of an easement or occupant of the premises, owed a duty to keep the premises safe or to warn of danger. [1995, c. 566, 1 (AMD).] [ 1995, c. 566, 1 (AMD).] 5. No duty created. Nothing in this section creates a duty of care or ground of liability for injury to a person or property. [ 1993, c. 622, 1 (AMD).] 6. Costs and fees. The court shall award any direct legal costs, including reasonable attorneys' fees, to an owner, lessee, manager, holder of an easement or occupant who is found not to be liable for injury to a person or property pursuant to this section.

33 Roads Title 23: HIGHWAYS Part 3: LOCAL HIGHWAY LAW Chapter 304: ACQUISITION OF PROPERTY FOR HIGHWAY PURPOSES Discontinuance of town ways 1. General procedures. A municipality may terminate in whole or in part any interests held by it for highway purposes. A municipality may discontinue a town way or public easement after the municipal officers have given best practicable notice to all abutting property owners and the municipal planning board or office and have filed an order of discontinuance with the municipal clerk that specifies the location of the way, the names of abutting property owners and the amount of damages, if any, determined by the municipal officers to be paid to each abutter. Upon approval of the discontinuance order by the legislative body, and unless otherwise stated in the order, a public easement shall, in the case of town ways, be retained and all remaining interests of the municipality shall pass to the abutting property owners to the center of the way. For purposes of this section, the words "public easement" shall include, without limitation, an easement for public utility facilities necessary to provide service.

34 Title 23: HIGHWAYS Part 3: LOCAL HIGHWAY LAW Chapter 304: ACQUISITION OF PROPERTY FOR HIGHWAY PURPOSES Abandonment of public ways 1. Presumption of abandonment. It is prima facie evidence that a town or county way not kept passable for the use of motor vehicles at the expense of the municipality or county for a period of 30 or more consecutive years has been discontinued by abandonment. A presumption of abandonment may be rebutted by evidence that manifests a clear intent by the municipality or county and the public to consider or use the way as if it were a public way. A proceeding to discontinue a town or county way may not prevent or estop a municipality from asserting a presumption of abandonment. A municipality or its officials are not liable for nonperformance of a legal duty with respect to such ways if there has been a good faith reliance on a presumption of abandonment. Any person affected by a presumption of abandonment, including the State or a municipality, may seek declaratory relief to finally resolve the status of such ways. A way that has been abandoned under this section is relegated to the same status as it would have had after a discontinuance pursuant to section 3026, except that this status is at all times subject to an affirmative vote of the legislative body of the municipality within which the way lies making that way an easement for recreational use. A presumption of abandonment is not rebutted by evidence that shows isolated acts of maintenance, unless other evidence exists that shows a clear intent by the municipality or county to consider or use the way as if it were a public way. [ 1991, c. 195, (NEW).] 2. Status of town way or public easement. The determination of the municipal officers regarding the status of a town way or public easement is binding on all persons until a final determination of that status has been made by a court, unless otherwise ordered by a court during the pendency of litigation to determine the status. [ 1991, c. 195, (NEW).] 3. Removal of obstructions. If the municipal officers have determined under subsection 2 that the way is a town way or public easement and a court has not ordered otherwise, the municipality or an abutter on the way, acting with the written permission of the municipal officers, may remove any gates, bars or other obstructions in the way.

35 Title 23: HIGHWAYS Part 3: LOCAL HIGHWAY LAW Chapter 304: ACQUISITION OF PROPERTY FOR HIGHWAY PURPOSES Definitions 2. Public easement. "Public easement" means an easement held by a municipality for purposes of public access to land or water not otherwise connected to a public way, and includes all rights enjoyed by the public with respect to private ways created by statute prior to the effective date of this Act. Private ways created pursuant to sections 3001 and 3004 prior to the effective date of this Act are public easements. [ 1975, c. 711, 8 (NEW).] Title 23: HIGHWAYS Part 3: LOCAL HIGHWAY LAW Chapter 304: ACQUISITION OF PROPERTY FOR HIGHWAY PURPOSES Damages; appeal Damages shall be determined using the methods in sections 154 through 154E, as far as practicable, except that references to the "commission" or the "board" shall mean the "municipal officers" and references to the "state" shall mean the "municipality." [1977, c. 479, 5 (AMD).] Any person aggrieved by the determination of the damages awarded to owners of property or interests therein under this chapter may, within 60 days after the day of taking, appeal to the Superior Court in the county where the property lies. The court shall determine damages by a verdict of its jury or, if all parties agree, by the court without a jury or by a referee or referees and shall render judgment for just compensation, with interest where such is due, and for costs in favor of the party entitled thereto. [1975, c. 711, 8 (NEW).] Any person aggrieved by the action or nonaction of municipal officers or the municipal legislative body in proceedings under this chapter, other than a determination of damages, may appeal to the Superior Court in the county where the property lies, pursuant to Rule 80B of the Rules of Civil Procedure. [1975, c. 711, 8 (NEW).]

36 Legal Issues of Concern to Woodland Owners Taxes Liability Environmental General Roads

37 Key Issues for Small Woodland Owners Enjoyment of their land Misuse of their land by the public Access to information Fair, understandable science based regulations Appreciation for the public benefits they provide Current Use Taxation Tree Growth Open Space Farm Land

38 Liability Environmental Of the landowners own making Caused by someone else General Landowner liability law (Title 14, Section 159-A)

39 Statutory Abandonment Not maintained for 30 years Rebuttable presumption Initial finding by municipal officers, finalized by the court After Abandonment same status as discontinuance (September 1965) except that this status is at all times subject to an affirmative vote of the legislative body of the municipality within which the way lies making that way an easement for recreational use Lamb v. Town of New Sharon no compensation to landowner