Rey’s legal justification for not complying with these laws is that the Forest Service, in coming to terms with Plum Creek, is not really doing anything. Thus, the elaborate legal the document addressing Plum Creek’s access rights merely “clarifies,” and does not “change,” the terms of long-standing easements defining the respective rights and obligations of Plum Creek and the Forest Service with respect to federal roads in remote forest locations. The trouble with this characterization is that the clarified (new) language clearly gives Plum Creek the right to use federal roads as de facto year-round driveways for high-end residential subdivisions in remote forested areas with severe wildfire risks. Traditionally, Plum Creek has used these taxpayer-subsidized roads to facilitate the logging of its vast timber properties and for no other purpose. Its new business plan, however, is to shift from timber production to residential development by selling off chunks of its vast nation-wide holdings, which include some 1.3 million acres in Montana alone. This plan has been somewhat thwarted by concerns raised by property purchasers and their brokers about how “good” the existing legal right of access is for many remote properties. Many federal roads are not plowed in the winter, which is a source of inconvenience for residential owners (though an ecological benefit to nearby wildlife). These federal roads will now have to be plowed to allow wealthy new second-homeowners access to their new trophy properties.

The potential environmental effects of these proposed easement “clarifications” can hardly be overstated. These new easement document will facilitate the subdivision and fragmentation of millions of acres of forested lands across the Northwest, including areas occupied by endangered and threatened species such as lynx and grizzly bears, as well as areas identified as actual or potential critical habitat for such species. Currently, Plum Creek is asking for enhanced residential access throughout an area within a larger area known as the Northern Continental Divide Ecoregion, which is possibly the largest block of contiguous public land and wilderness in the continental United States. This Ecoregion supports a rich biodiversity of both plants and animals, including endangered and threatened species. These “clarifications” will facilitate sprawling real estate development and subdivisions across this Ecoregion that cannot be checked by local land use regulators.

The inability for local governments in Montana to check this sprawl reflects the fact that Plum Creek and other large landowners and special interests in Montana have persuaded the pliable Montana Legislature to give them a veto power over local zoning decisions (see Mont. Code Anno., § 76-2-01(5)), notwithstanding a state constitutional mandate requiring the Legislature to “provide for the administration and enforcement” of the duty of the state and each person in Montana to “maintain and improve a clean and healthful environment in Montana for present and future generations” (Mont. Const., Art. IX § 1). This state legal scheme, of which the Forest Service must take note in considering the foreseeable effects of its own actions, essentially gives Plum Creek, and not the local governments, effective control over county zoning. In other words, if the Forest Service does not function as something of a “regulator” through its compliance with various federal environmental laws, no meaningful environmental review or protection will occur. The Forest Service, then, is the public’s only potentially effective check against Plum Creek’s unbridled self-interest.