Quo Warranto

Quo Warranto (By What Authority?)
For DEM-BOF Policies and Practices (Draft)

Quo warranto is an ancient legal doctrine by which citizens can challenge actions of government agencies and corporations when they exceed their legally granted authority.  This list of questions was drafted by several nefr-list subscribers in October 1999 as a first step in exploring the possibility of using quo warranto to challenge policies and practices of the DEM-BOF.

High-Grading and Other Abuses

1) State "service" foresters in the Department of Environmental Management Bureau of Forestry (DEM-BOF) have estimated that roughly 80-90% of the cutting plans submitted to them come from loggers.  That would leave only 10-20% from foresters.  Nearly all logging operations without forester involvement are high-grading operations.  Therefore the 80-90% of cutting plans being filed by loggers roughly indicates the percentage of high-grading in the state.  The area involved is approximately 20,000 acres per year.  BY WHAT AUTHORITY does the DEM-BOF allow this destructive practice to occur?

2) In addition to routinely approving of high-grading operations, "service" foresters routinely sign off on grossly underestimated volumes and values in the inventory (products to be harvested) and appraisal (value) sections of Forest Cutting Plans, thereby giving fraudulent estimates their seal of approval.  They occasionally sign off on plans with boundaries incorrectly located; this results in timber trespass and costly litigation for the landowners adversely affected.  BY WHAT AUTHORITY do "service" foresters approve of these fraudulent practices?  

Low Forest Productivity on Private Lands

1) One result of decades of high-grading is the loss of forest biodiversity and genetic quality.  These losses pose a serious risk to forest health over time.  As biodiversity and genetic quality decline, forests are less resistant to pests and diseases.  They are also more subject to damage from storms, drought and thaw-freeze events.  BY WHAT AUTHORITY does the DEM-BOF allow this decline to occur?

2) Another result of decades of high-grading in Massachusetts is much lower timber productivity than would be possible with reasonable management.  Annual value production is estimated at one-third to one-half of the potential production, and this does not include the multiplier effect created as gains in productivity spread throughout the economy.  Annual losses to landowners are estimated in the range of $60 million to $80 million without considering the multiplier effect.  BY WHAT AUTHORITY does the DEM-BOF allow these losses to occur? 

3) Decades of misinformation from "service" foresters about tree value growth rates have ingrained the erroneous notion of low rates in the minds of landowners and the general public.  The notion of low tree value growth rates has been the keystone of the rationale for the need for "service" foresters.  This misinformation is a direct cause of the amount of high-grading and the lack of good management because landowners figure that if their trees are only growing at 3-5%, why not cut them and put the money in the stock market?  BY WHAT AUTHORITY does the DEM-BOF continue this fraudulent practice of misinforming private landowners about tree value growth rates?

Forester Licensing

1) Professional licensing and registration are under the jurisdiction of the Division of Registration in the Massachusetts Department of Consumer Affairs and Business Regulation.  However, licensing of practicing foresters is under the Department of Environmental Management Bureau of Forestry (DEM-BOF).  BY WHAT AUTHORITY has the DEM-BOF usurped the role of the Division of Registration with regards to the licensing of practicing foresters?

2) Before implementing forester licensing, the DEM-BOF already had responsibility for licensing timber harvesters, and had effectively given them the franchise to practice forestry by allowing and encouraging them to prepare Chapter 132 Forest Cutting Plans.  Professional ethics would require that the DEM-BOF turn over the licensing of practicing foresters to the Division of Registration in order to avoid any appearance of conflict of interest.  BY WHAT AUTHORITY did the DEM-BOF ignore professional ethics in this regard?

3) In light of the fact that the DEM-BOF service foresters were already in unfair competition with consulting foresters by providing free forestry services to private landowners and loggers, and by controlling the administration of Chapter 132 Forest Cutting Plans, professional ethics would require that the DEM-BOF turn over the licensing of practicing foresters to the Division of Registration in order to avoid any appearance of conflict of interest.  BY WHAT AUTHORITY did the DEM-BOF ignore professional ethics in this regard?

Forest Cutting Plans

1) Chapter 132 Section 47 defines "use and protection of forested areas" as part of the practice of forestry.  Yet the DEM-BOF forester licensing committee has determined that the description of best management practices on page 1 of the Forest Cutting Plan is not considered the practice of forestry and therefore that anyone can prepare a Forest Cutting Plan.  BY WHAT AUTHORITY has this committee made this determination? 

2)  Chapter 132 Section 47 defines the "responsibility for the direction and supervision of silvicultural activities" as part of the practice of forestry.  Yet the DEM-BOF forester licensing committee has determined that the description of silviculture on page 2 of the Forest Cutting Plan is not considered the practice of forestry and therefore that anyone can prepare a Forest Cutting Plan.  BY WHAT AUTHORITY has this committee made this determination?

3)  Chapter 132 Section 47 defines "forest inventory and forest management planning" as part of the practice of forestry.  Yet the DEM-BOF forester licensing committee has determined that the description of products to be harvested (inventory and planning) on page 2 of the Forest Cutting Plan is not considered the practice of forestry and therefore that anyone can prepare a Forest Cutting Plan.  BY WHAT AUTHORITY has this committee made this determination?

4) Chapter 132 Section 47 defines "timber appraisal" as part of the practice of forestry.  Yet the DEM-BOF forester licensing committee has determined that the appraisal of value in the case of Chapter 61 lands on page 1 of the Forest Cutting Plan is not considered the practice of forestry and therefore that anyone can prepare a Forest Cutting Plan.  BY WHAT AUTHORITY has this committee made this determination?

5)  Chapter 132 Section 50 states that "the forester licensing committee shall recommend qualifications and procedures for the licensing of foresters and shall assist the director in the preparation of rules and regulations for such licensing."  This committee has no authority to redefine what constitutes the practice of forestry.  Doing so is clearly ultra vires.  BY WHAT AUTHORITY has this committee redefined what constitutes the practice of forestry?

Licensing of "Service" and "Management" Foresters

1) While most, if not all, of the DEM-BOF "service" foresters have the academic credentials to be licensed as foresters, none have the necessary forestry work experience required by CMR 10.04 (2) (a) and (b): "three years of forestry work experience of a character that prepared the applicant to practice forestry competently."  Most have several years of experience in bureaucratic procedures, and some may have a few months experience in the actual practice of forestry, but none have three years of experience in the actual practice of forestry.  BY WHAT AUTHORITY does the forester licensing committee give these people licenses to practice forestry when they are not qualified to do so?

2) While most, if not all, of the DEM-BOF "management" foresters have the academic credentials to be licensed as foresters, and most, if not all, have some limited experience in timber marking and sales administration, none have experience in forest inventory and appraisal--two crucial aspects of the practice of forestry as defined by MGL Chapter 132 Section 47.  BY WHAT AUTHORITY does the forester licensing committee give these people licenses to practice forestry when they are not qualified to do so?

Illegal Activities by "Service" Foresters

1)  MGL Chapter 132 Section 6 states that "service" foresters may demonstrate silvicultural practices to landowners "at a fee not to exceed the actual cost of the service."  Yet they charge nothing for the services they provide to landowners and to loggers.  This is clearly ultra vires.  BY WHAT AUTHORITY do "service" foresters not charge landowners and loggers for the services they provide?

2)  "Service" foresters mark and tally timber and wood/pulp; they assist in the marketing of timber and wood/pulp; they perform forest inventories and appraisals; they write forest management plans; they prepare Chapter 132 Forest Cutting Plans; they locate boundaries. The performance of these services is not "demonstrating silvicultural practices." This is clearly ultra vires.  BY WHAT AUTHORITY do they perform these practices?

Absence of Timber Sales and Management Plans on State Forests

1) MGL Chapter 132 Section 33 requires that the state forests be managed "to produce timber and to protect the water supply of the commonwealth." Estimated annual value production on all the state forest lands is approximately $20,000,000 per year.  Yet only approximately 1% of that value production is being harvested annually. BY WHAT AUTHORITY is the DEM-BOF not managing our state's forests for timber production? 

2) The latest information from the National Association of State Foresters for the year 1996 indicates that the DEM-BOF "management" foresters sold $300,000 worth of timber and other services at a cost of $600,000 in that year; therefore costs were 200% of returns that year.  Other data from the same source for the year 1993 indicate the DEM-BOF sold $332,000 worth of timber and other services at a cost of $500,000 in that year; therefore costs were 150% of returns that year.  Consulting foresters and other private foresters routinely sell timber for 15-25% of the returns from sales--roughly one tenth the cost of the state "management" foresters. BY WHAT AUTHORITY does the DEM-BOF incur such excessively high costs for such a low level of management?

3) There are no forest inventory data for the state forests other than those from the CFI plots of which there are only 1,300 for 290,000 acres.  These CFI data can hardly be considered adequate for management by any standard.  There are no forest management plans for any of the state forests.  BY WHAT AUTHORITY does the DEM-BOF fail to follow the most basic and essential practices of forest management?  

Structures for Permanent Stream Crossings

1) Permanent bridges and culverts are necessary for the ongoing management of many forest properties, yet they are not permitted under the current Forest Cutting Practices regulations.  In the fall of 1995, practicing foresters who attended the statewide meetings on the new Chapter 132 Forest Cutting Practices regulations and forms were left with a very clear understanding that procedures for permitting permanent stream crossings would soon be in place.  It's now four years since those meetings, and we still do not have procedures from DEM-BOF for permitting permanent stream crossings.  BY WHAT AUTHORITY has the DEM-BOF failed to produce those procedures?

2) The best management practices manual indicates specifications for bridges and culverts to be used in temporary stream crossings, but no specifications for bridges and culverts to be used in permanent stream crossings.  BY WHAT AUTHORITY does this manual fail to include specifications for permanent stream crossings?