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Cease and desist order on my jobsite

Started by David-L, December 12, 2013, 06:29:19 AM

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David-L

Cease and Desist order on my job site.
Looking for some one to help me out that knows the Massachusetts Forestry laws pertaining to change of use and conversion cutting. I have a lease on a property for my cattle and it is and has been pasture land for well over 100 years, There is a section of mature white pine ( 3 acres ) that I want to harvest and bring it back to pasture. There is pasture on both sides of this pine area and in the past I have never had an issue on other cuts because of some of the exempt status for some agricultural activities. The land owners are on board with this cut and pasture work.
The problem is there is a Conservation Restriction on the parcel that is pasture held by a large organization in Mass and they are requiring a forest management plan and a cutting plan if I want to continue. this land has never been devoted to silvaculture but has been cattle pasture that is walled in and can be historically proven from the history books I have. There will be a determination of applicability by the local conservation commission which is in the works for a small wet weep that goes through the cut but again in my experience because of being agricultural there are some exemptions. I am at a loss , why would you need a forestry management plan for cattle pasture. I do believe in some areas for cattle to find shade in the summer just not this particular spot that I want to cut. They showed up yesterday ( this organization ) with the cease and desist order. In the reserved rights section of this CR, pasture maintenance is a reserved right of the landowners. Matter of fact I cut 50/M 10 years ago on the same property with no issues at all that was the same type of conversion to cattle pasture. need help in understanding what this organization is possibly trying to do by holding up the farmer who is just trying to create more pasture.

                                                                             Thanks David L
In two days from now, tomorrow will be yesterday.

LeeB

Does this order have any connection to any agency that has a say in the matter? I can present you with a C&D to stop posting on the forum. Wouldn't mean jack.
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David-L

This agency holds the CR and enforces the terms of the CR. In the written CR and recorded at the states registry of deeds the reserved right says pasture maintenance is allowed as well as cutting trees. This is not a commercial harvest but agricultural land improvement.
                                                                              David-l
In two days from now, tomorrow will be yesterday.

Ron Wenrich

I don't know how much I can help you out.  I once had to write a management plan on 20 acres of blowdown.  It was a salvage cut with absolutely no management, other than to allow it to revert back to woodland without any planting.  I asked who would review my management plan, and was told the city engineer.  I stopped by his office and asked his qualifications to review my plan.  He told me that any plan I wrote was going to be rubber stamped.  I only point this out because some hoops aren't really that big of deal.

I've never been too big of a proponent of conservation easements.  They look good on paper, but are too restrictive when conditions change.  Since pastureland has been exempted, is this piece of woodland covered in the CR?  Seems to me that they should be pretty specific about it.  If its not specific, then its a matter of whether its designated pastureland or woodland.  Is a woodlot anything over a certain size, for example?  Some of these enforcers get a little overzealous. 

You may have to get a management plan made for the conversion.  See if that appeases them or if they'll reject anything that involves conversion.  You might have to read up on the restrictions.
Never under estimate the power of stupid people in large groups.

SLawyer Dave

I posted on another thread how governmental entities, (and some quasi-governmental) at almost all levels, will try to enact and enforce their policies in any manner they see fit.  If you look at that C&D, it says if you violate it, then they will seek damages and a court order to stop you.  You have 4 basic options.  (1) try to negotiate with them to convince them it is outside the terms of the C/R, (as you have argued here).  (2) give them written notice of your objection and argument why their order is improper, and that you will proceed with cutting on a date certain, (at least 14 days or more), so they have an opportunity to go to court to try and stop you.  (3)  file your own court action seeking declaratory relief that you have a right to do the pasture maintenance and serve them.  (4) ignore the C/D and go forward.

While I know nothing about the specific laws in your jurisdiction, one of the concerns your post raises for me, is that you really are not talking about "pasture maintenance", (at least it wouldn't be in my neck of the woods).  Since it appears you are talking about cutting a 3 acre stand of 'mature' trees as you call them.  Based on that assertion, then that area has not been used for pasture for a very long time.  Perhaps there are pictures or other historical documentation you can show them that will support 'cutting back' the stand to a smaller area.  Again, if I were in your shoes, I would first see if there is any ability to negotiate with the person/agency issuing or in charge of the entity enforcing the C/R.

As such, you would be at least arguably significantly changing the type and nature of the existing use of the 'land' in question, (the 3 acres).  C/R's are also funny creatures.  While here in CA, there is a general forestry service exception so you don't need a "cutting plan" for areas of less then 5 acres, the terms of C/R's can certainly require such.  So again, I think it would be well worth your time and money to consult with a local attorney who is knowledgeable about these issues to advise you further.

beenthere

This CR smacks a little bit like the landowner may have been getting a tax break on the land, and putting (or allowing) it to be "managed" by another group to preserve it as pasture WITH trees led to the tax relief.
If that is the case, may be tough to get around and not worth trying. Also, the wet land you mention may be a good part of the problem.
Good luck with it, and Ron and Dave have good suggestions.
south central Wisconsin
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BradMarks

David-L: I am no expert and not weighing in on the validity of the C&D, but the nature of your problem.  Conservation Restrictions or Easements are normally enacted with an agreement, between landowner and organization.  This agreement almost always has considerations, and I mean financial - someone has accepted monetary reward for the CR.  Although you have a stake in the outcome, you are the lessee and the fight or battle is with the owner of the land and the "organization".   Has the land changed hands over the years with the CR in place?  Perhaps past cutting practice was overlooked and a new board of directors is not about to let it happen again?  Seems all you can do is abide unless the owner is willing to pursue your cause. Just my thoughts.

kderby

I would like to add an un-informed and outside angle to this....

The reason the site in question is a stand of pine trees is because it has low value as pasture.  Pine would indicate a dry/rock infested area of soil with poor forage production.  Investing time and energy to create open space/pasture would not gain you a lot of feed.  Thus a commercial thin (if there is value in the mature timber) would be an approach that might bring the conservation enforcers on to the same level.

Unfortunate that this became a headache.  The economics of grazing do not let you spend a lot of time or money before you are going backwards.  Don't spend a thousand dollars worth of effort to get a hundred dollars worth of hay. 

Finally, cow farmers are absolutely focused on livestock and do not care a lick about trees.  The conservation zealots are solely focused on the trees and do not care at all about the livestock.  Getting those minds to think alike and walk forward together requires some finesse.  is there a win-win angle to this?

Kderby

kderby

g_man

If the 3 acres of pine is a unique habitat type to the area you may have an uphill battle with the CR folks. On the other hand, if you can show them that it is not a "critical" habitat to the area and you are willing to make some trade offs you might have a chance. Just on principle they will not let you violate what they consider the terms of the CR agreement. You will have to give something.

bill m

David-L  You need to talk to a Massachusetts forester. PM me and I can give you the number of someone who could help.
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David-L


Thank You all for the well taken comments, they are all very valuable and good to hear. I am a voting member of our Conservation Commission in town and look at cutting plans and CR's as well as wetland issues all the time. I myself have a stewardship plan and a CR on my farm. This is why when I initially looked at this project I thought there would be no issues just a Determination of Applicability from the Con-Com in town for the Isolated Vegetated Wetland on the harvest site. The CR does include cutting trees and pasture work as a reserved right of the landowner, and I have read through it to many times and come up with the same scenario of cutting the pines should be allowable to do.. Yes this is a mature forest but is and has had cattle loafing through it for 100 years or more. It has never been managed for silvaculture purposes, just cattle pasture. It is fenced in and has stone walls to define the pasture area which is grassland on both sides and I want to connect the two. Mass forestry laws do allow change of use , improvement of agricultural land, etc with exemptions that only the farmer gets in this case.. There is a forester working on this matter as we speak and is one of our first licensed foresters in this state and is well versed.I am hoping for a good outcome with all parties being happy in the end, maybe a stretch there but I will be smiling no matter what and chalk it up to a learning experience for next time.
The one thing that gets me and it was mentioned in one of the replies is this CR document was recorded in 1975 when a way of thinking was much different than today , but yet they the CR enforcers are trying to apply today's rules or at least try, to a document that was written in a different time zone as far as I am concerned.The terminology then with the same wording, and same terminology today can be totally different depending who you come up against (interesting). The older CR's are very in the gray zone sometimes and I truly believe that a good lawyer or arbitrator could send this organization back to their desk where they are in familiar territory.
The feedback is good for me as there are things to pick up on in each reply.

                                                 Thank You  David L
In two days from now, tomorrow will be yesterday.

David-L

Yes I forgot to add that the  landowners are the ones who asked me initially to cut the pines out and increase the volume of feed available. So the landowner is 100% behind it but is feeling a little intimidated by this group and there site visit which I was asked to hold off on being present for good reasons.

                                                   David l
In two days from now, tomorrow will be yesterday.

David-L

SLawyer Dave, If I owned the property in ?, I would have them served and let them explain this to the honorable da man!!!, and in the meantime keep harvesting. Thanks for your input.

                                       David l
In two days from now, tomorrow will be yesterday.

Lnewman

When you keep electing progressives who dont believe in property rights you tend to run into this kind of problem.
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timberlinetree

It's Massachusetts way to much goverment! I understand the need to protect a neighbor down stream as an example(don't want to muddy up his fresh water) but  3 acres of trees in pasture? Wal mart paves that in a week! I'm into conservation but when they won't let a farmer do what he wants with his own land, I wouldn't call that being a free country :-\
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WDH

When you sell the development rights to a Conservation organization or Environmental Group, they usually pay the landowner.  The landowner forfeits those rights when he is paid, and a restriction is put on the Property Deed.  You cannot have your cake and eat it, too. 
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timberlinetree

Oh thanks. I have a vague understanding of developing rights and am in favor of them as well. Cutting down trees in a pasture doesn't seem to be the same as putting in a Wal mart or a housing development. Those things change the land forever. Trees do grow back. Unfortunately all these laws/rules make big business for the court systems and the ones who profit the most are the lawmakers themselves. Lawsuits make a lot of money for some people. I am not meaning to offend anyone here - just my 2 cents! Actually my 1 cent... I'm a little low on dough  :o
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RynSmith

Quote from: David-L on December 12, 2013, 07:29:09 PM
Isolated Vegetated Wetland on the harvest site.

I would think that this is that actual issue within the bounds of the easement?  And the trees are a buffer?   ???

And what about kderby's point about why it is in pines in the first place - poor pasture - have you talked with the landowner about that possibility?

David-L

Well, good comments. I myself have two CR's on my farm and have a section in the CR that is the reserved rights which is a very important section to the landowner. This gives me the right to do allowable practices within the CR, and this is decided before this document is recorded and is pretty much in stone for the life of the property. ( in perpetuity ). Even if the land changes ownership multiple times. The CR with this property in concern has a reserved rights section and pasture maintenance and the removal of trees for agricultural improvement is a component in this CR stated clearly in the reserved rights section.
  The organization who enforces the CR has the landowners now creating a stewardship plan and in the original CR document it is not stated that more paperwork is required for reserved right work to be performed. This Stewardship plan will hinder these poor landowners even more in the future IMO.
  I truly believe that counsel could have cleared this matter up quite quickly in a court of law but not being the owner and just the lessee I have only so much input.
And yes, it has been said in this post multiple times, if you plan on protecting your land through a CR or some other form of easement think ahead a least 100 yrs and have a good lawyer on board who is familiar with this work. Thanks for all your inputs.

                                                             David l
In two days from now, tomorrow will be yesterday.

Holmes

   Civil actions do not go quickly through the Ma. court of law. It took 6 years my my civil action to get to a judge.  Criminal actions are required to attempt a quick resolve.
Think like a farmer.

David-L

Got an E-mail from the owners of the property saying that papers will be signed by the end of this week and the job is ready to be started when I want. the local con-com and the old wise forester seem to have set the job description with a stewardship plan as the right thing to due according to the CR and the organization that had issues has backed down abit. Good news for me. When I have or see copys of the paperwork I start in again.

                                                             David l
In two days from now, tomorrow will be yesterday.

Holmes

 Who is that old wise forester? I am curious
Think like a farmer.

David-L

Holmes,  that would be a man by the name of Rex Baker. One of the nicest gentlemen i have ever met.

                                                           David l
In two days from now, tomorrow will be yesterday.

Holmes

Think like a farmer.

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