Tiffany encourages counties to challenge PRF easement

The funding may have been secured and the easement recorded, but U.S. Rep. Tom Tiffany still believes the massive Pelican River Forest easement can be legally challenged, and this week he encouraged the impacted counties to do so.

Oneida County chairman Scott Holewinski told The Times he was also personally for contesting the easement on the grounds that the U.S. Forest Service (USFS) did not satisfy its statutory obligation to coordinate with local governments, though he said he was not speaking for other county board members or other counties.

The state purchase of the conservation easement adds protection to 54,898 acres of the forest and brings the total to more than 67,000 acres that will be forever off limits to economic development, most of it in Oneida County.

The purchase originally consumed some 80 percent of the town of Monico, though the final deal carved out about 1,200 acres for economic development in the township.

Initially, an $11-million Forest Legacy Program (FLP) federal grant for the purchase required a $4 million match from the state, which the DNR intended to fund through the state’s Knowles-Nelson Stewardship Program. In April, though, led by state Sen. Mary Felzkowski (R-Tomahawk), the legislature’s Joint Finance Committee blocked the funding.

However, in his State of the State on January 24, Evers announced that he had secured other funding to complete the purchase of the easement — funding that does not require legislative approval — and expected the deal to be completed forthwith. The deal finalized this past week.

That might not be the end of the matter. In December, officials in the affected counties — Oneida, Forest, and Langlade — as well as in the towns of Sugar Camp and Monico, sent letters to the U.S. Forest Service demanding that the federal payout be halted until the federal government coordinated with impacted local governments over the parameters of the purchase, which they say is a statutory requirement. 

To say it another way, the local officials wanted a seat at the table to ensure that the conditions of the purchase and the purchase itself were compatible with local comprehensive land use plans.

On January 17, Robert Lueckel, a deputy regional forester for the USDA Forest Service, responded, notifying the local officials that its coordination efforts had been sufficient under federal law — despite no coordination with the counties or any towns — and that the impending deal would be closed by the end of January.

What’s more, the Forest Service not only told the counties it would not engage in any further coordination, it asserted that the agency was required to release the $11-million grant funding because Congress mandated that it do so under the Consolidated Appropriations Act of 2023.

This week, Holewinski remained adamant that the federal government did not meet its coordination obligations, and so did Tiffany (R-Wisconsin), and the congressman encouraged the affected local governments to challenge the easement.

“Simply waving away the coordination requirement for purchases like the Pelican project doesn’t absolve the USFS and the state of Wisconsin of their consultation and coordination responsibility,” Tiffany told The Times. “Oneida, Forest, and Langlade counties should pursue enforcement of the coordination requirement via appropriate federal law including the National Forest Management Act. Coordination is the mechanism to provide local communities as David a seat at the table with the federal and state Goliath.”

Under the National Forest Management Act (NFMA), the secretary of agriculture “shall develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System, coordinated with the land and resource management planning processes of State and local governments and other Federal agencies.”

What’s more, the Federal Land Policy and Management Act (FLPMA) specifies the basic criteria for coordination with local governments, mandating that federal agencies should keep local governments apprised of state, local and tribal land use plans and “coordinate the land use inventory, planning, and management activities of or for such lands with the land use planning and management programs of other federal departments and agencies and of the states and local governments within which the lands are located.”

The secretary is also required to “assure that consideration is given to those state, local, and tribal plans that are germane in the development of land use plans for public lands; assist in resolving, to the extent practical, inconsistencies between federal and non-federal government plans, and shall provide for meaningful public involvement of state and local government officials, both elected and appointed, in the development of land use programs, land use regulations, and land use decisions for public lands, including early public notice of proposed decisions which may have a significant impact on non-Federal lands.”

The U.S. Forest Service itself describes the Forest Legacy Program (FLP) as a land conservation program in which “state and federal agencies, local units of government, non-governmental organizations, and landowners work toward shared conservation objectives to preserve the public benefits of privately owned forest land.”

The Forest Legacy Program (FLP) was established in 1990 through an amendment to the Cooperative Forestry Assistance Act (CFAA) of 1978.

No communication

This week Holewinski said neither the federal nor state government made any attempt to communicate with Oneida County.

“Basically they didn’t do anything with us,” Holewinski said. “You go back to the record. We tried to be part of it, but the DNR ignored us.”

Holewinski also said the governor’s surprise announcement in his State of the State address was a move to close the deal before the counties could act.

“They pushed it ahead because we were getting too close,” he said. “I was hoping we could get a judge to stop it, but as soon as they found out we were pursuing this too much, they basically closed the deal.”

Not only was there no coordination, but just the opposite, Holewinski said.

“You couldn’t get any information about the application until after the deed was recorded,” he said. “Now you ask them, they send the information within an hour.”

Holewinski said he believes the coordination requirement needs to be pursued no matter that the deal is done.

“None of us could see anything until it was recorded,” he said. “They didn’t send out anything. They didn’t coordinate any of this with us, even with the changes on the phase two. … If there is a way, we should be proving what a crooked outfit the DNR is on this whole process.”

At one point, Holewinski said he was able to have productive discussions with then DNR secretary Adam Payne but then “all of a sudden he turns in a 10-day notice to quit.”

“If there’s a way we can, I’m all for going after them just to prove that they violated [the law] and didn’t coordinate,” he said.

In the December letters to the Forest Service, Holewinski and other officials pointed out that the CFAA also requires coordination.

“Considering that the federal CFAA requires FLP projects to be developed in cooperation with the state’s political subdivisions, such as a county, and that the projects are to be coordinated with local governments, it is unclear why neither your agency nor the WDNR attempted to work with the impacted counties to determine whether the Pelican River Forest Project was consistent with the authorized comprehensive plans,” the letters stated.

The letters also pointed out that local and county comprehensive land use plans are the only land use policies that ‘comprehensively’ incorporate all the planning requirements of local, state, and federal agencies, private land-use activities, and other functions such as infrastructure and utility requirements. 

“All these needs must be considered in a manner that protects the health, safety and welfare of the citizens, which is the purpose for the comprehensive plan,” the letters stated.

It is imperative that every land-use project that occurs in each county be carried out in coordination with the county’s comprehensive plan, the officials asserted. 

“However, neither your agency nor the WDNR has done so, which creates numerous conflicts with our policies,” they wrote. “No attempt has been made to fully inform the counties on how the project may impact future utility infrastructure, timber production, emergency management access, or any of the other critical issues the counties and municipalities must oversee.”

Additionally, the leaders wrote, the counties had not been provided with a copy of the DNR’s application, the proposed conservation easement, or the proposed long-range Forest Stewardship or Multiple Resources Management Plan prior to approval of the grant. All those steps, the letters stated, were required of the DNR to receive the grant and its failure to do so was just cause to rescind the federal grant.

As for the Forest Service’s declaration that it had no choice but to release the funds because Congress had directed it to do so in the omnibus Consolidated Appropriations Act of 2023, that law was drafted and voted on in December 2022, the last month Democrats retained control of the U.S. House of Representatives. 

Congress passed the measure, and President Biden signed it into law on December 29, 2022.

Despite enactment, coordination proponents say the language would not void the coordination requirement, but would simply require the agencies to comply with their statutory obligations to coordinate as a matter of fulfilling the congressional intent to distribute the funding.