NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be
made before this opinion goes to press.


                                        2016 VT 103

                                        No. 2014-063

Plum Creek Maine Timberlands, LLC                           Supreme Court

                                                            On Appeal from
   v.                                                       Superior Court, Essex Unit,
                                                            Civil Division

Vermont Department of Forests, Parks and Recreation         December Term, 2014
and Vermont Department of Taxes


Mary Miles Teachout, J.

David L. Grayck of Cheney Saudek & Grayck P.C., Montpelier, for Plaintiff-Appellee.

William H. Sorrell, Attorney General, and Bridget C. Asay and Kyle H. Landis-Marinello,
 Assistant Attorneys General, Montpelier, for Defendant-Appellant.

Robert E. Woolmington of Witten, Woolmington, Campbell & Bernal, P.C., Manchester Center,
 for Amicus Curiae Vermont Land Trust, Inc.

C. Daniel Hershenson of Hershenson Carter Scott & McGee, P.C., Norwich, for Amici Curiae
 Vermont Forest Products Association and the Vermont Forestry Foundation.


PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


        ¶ 1.   REIBER, C.J. This appeal concerns a timber harvest by landowner Plum Creek

Maine Timberlands, LLC in forestland enrolled in the current-use, tax-incentive program. The

Vermont Department of Forests, Parks and Recreation (FPR) issued an adverse inspection report,

concluding that Plum Creek violated its forest-management plan and failed to comply with

minimum acceptable standards during the harvest. Consequently, the Department of Taxes

removed the land from the current-use program and levied a tax assessment. Following Plum

Creek’s appeal, the superior court reversed those administrative decisions. FPR now appeals,
arguing that the superior court failed to give appropriate deference to FPR’s determination of the

proper methodology for measuring compliance with the forest-management plan. We reverse

the court’s decision, and remand.

       ¶ 2.    The property in question consists of approximately 56,600 acres in northeastern

Vermont. Formerly part of the Champion International Corporation holdings, the land was sold

in 1998 to the Essex Timber Company. Essex Timber enrolled it in the Use Value Appraisal

(UVA), or current-use, program. This tax-incentive program was designed to “encourage and

assist the maintenance of Vermont’s productive agricultural and forestland” by taxing property

enrolled in the program at its “current use” value rather than its fair market value. 32 V.S.A.

§§ 3751, 3756(a). To be eligible for the program, forestland must be “under active long-term

forest management . . . in accordance with minimum acceptable standards for forest

management.” Id. § 3752(9)(A). “Minimum acceptable standards for forest management” are

defined as standards set by FPR. Id. § 3752(13). Eligibility also generally requires compliance

with “the regulations adopted by the [Current Use Advisory] Board.” Id. § 3755(a). The UVA

Program Manual adopted by the Board1 sets forth minimum standards for forest-management

plans, minimum standards for forest management and regeneration, standard forms for use by

landowners enrolled in the program, and appendices containing additional guidance for foresters

and landowners.

       ¶ 3.    To enroll in the UVA program, a landowner must file a “forest management plan”

and obtain the approval of FPR, which is tasked with periodically reviewing the plan and

inspecting each enrolled parcel.     Id. § 3755(c).   If upon inspection FPR “finds that the

management of the tract is contrary to the . . . forest management plan, or contrary to the


       1
          Comprised of the Commissioner of Taxes, the FPR Commissioner, the Director of the
Department of Taxes, Division of Property Valuation and Review (PVR), members of the private
agricultural and forestry sectors, and local government representatives, 32 V.S.A. § 3753(b), the
Board’s legislatively defined duties are to periodically review the criteria for enrollment in the
UVA program, recommend changes and improvements, and adopt rules to carry out its statutory
goals. Id. § 3754(a), (c).
                                                 2
minimum acceptable standards for . . . forest management,” it is required to file an “adverse

inspection report” with the landowner and the PVR Director. Id. When a report is filed, the

PVR Director, in turn, is required to “remove from use value appraisal an entire parcel of

managed forestland and notify the owner.” Id. § 3756(i). This appeal involves FPR’s issuance

of such an adverse-inspection report to Plum Creek.

                                            I. Facts

        ¶ 4.   Essex Timber prepared a forest-management plan, which FPR approved in 2007.

See 32 V.S.A. § 3755(b), (b)(1) (providing that “[m]anaged forestland” must be “subject to a

forest management plan” to be eligible for enrollment in UVA program). The following year,

Essex Timber sold its holdings to Plum Creek, which formally adopted the existing management

plan.

        ¶ 5.   Under a strategy developed by FPR to accommodate large landowners, Plum

Creek’s forest-management plan provided more conceptual, and less stand-specific, information

than is generally required by FPR for participation in the UVA program. When an actual timber

harvest is planned, however, the landowner must submit a “harvest prescription amendment” to

the management plan containing more detailed information, and obtain the approval of the

county forester for this amendment.

        ¶ 6.   In 2009, Plum Creek sought to harvest timber for six stands in its managed

forestland and worked with the county forester for Caledonia and Essex Counties to adopt a

prescription amendment to its management plan. The plan set both numerical and qualitative

goals for each stand to be harvested.      Those goals were memorialized in a prescription

amendment. For the three stands at issue in this appeal, the prescription provided the following.

Stand 34 was to receive a two-staged shelterwood2 and the target residual basal area (RBA)—the

amount of tree stock left after cutting—was set at 30-40 ft2. Stand 43 also was to receive a two-


        2
           A shelterwood cut reduces the basal area to create the particular microclimate
conditions necessary to regenerate certain species within the stand.
                                                 3
staged shelterwood cut and some overstory removal and the target RBA was 60 ft2. Stand 44

was to receive intermediate thinning with a target RBA of 60 ft2.

       ¶ 7.    In late January 2010, after cutting had begun, the county forester visited the site

with several other individuals including Plum Creek’s forester, an FPR forester, and a forester

from the Vermont Land Trust to review the harvest’s progress. The county forester expressed

concern about the level of cutting in Stand 34. Trees, which had been marked for retention, had

been cut, and this sight “raised alarm with everyone as it suggested excessive cutting in disregard

of the prescription.” Based on the observations of cutting, all, including Plum Creek’s forester,

were concerned about the level of cutting and whether the proper outcome could be met if

logging continued. The county forester also observed several violations of the Acceptable

Management Practices (AMPs), which are designed to protect water quality during logging

operations. The AMPs violations included the siting of equipment too close to water, improper

stream crossings, and mud and sediment where equipment had crossed a stream. In response,

Plum Creek’s forester went to the home of the contracted logger and stopped all cutting in Stand

34. Subsequently, Plum Creek worked to correct the AMPs violations by removing the crossings

and remediating the sites deemed to be contrary to the AMPs.

       ¶ 8.    In early February 2010, Plum Creek suspended the entire harvest pending further

investigation. Later that month, the county forester visited the site again with two other state

officials: FPR’s forester in charge of AMPs compliance and the Agency of Natural Resources

(ANR) officer for AMPs enforcement. In a letter to Plum Creek written shortly thereafter, the

FPR forester identified several additional AMPs violations involving erosion controls, logging

debris, stream crossings, seeding and mulching, and protective strips along streams. The letter

detailed the necessary remediation measures and closed with the observation that FPR’s

intentions were to ensure remediation in a timely manner and to educate Plum Creek’s logging

operators so that they could “implement proper practices in the future.”


                                                4
        ¶ 9.    In the course of additional site visits in March and April 2010, the county forester

measured the RBA in the harvested portions of the stands. The county forester issued an

adverse-inspection report identifying violations in Stands 34, 43, and 44 consisting of “cutting

contrary to the approved forest management plan,” as well as practices contrary to the AMPs.

His cut contrary finding was based on the following measurements.             The county forester

calculated that the RBA for 91 harvested acres of the 137 acres in Stand 34 as 19.7 ft2, well

below the prescription level of 30 to 40 ft2. He determined that the RBA for 40 harvested acres

in Stand 43 was 23.3 ft2, below the prescription target RBA of 60 ft2, and that the regeneration

goal was not met with only 15% of the plots stocked. In Stand 43, the county forester also found

that the harvest had failed to meet the prescription’s tree-regeneration goal, which called for a

“Two Staged Shelterwood . . . and Overstory Removal (OSR)” with the goal of “releas[ing]

quality growing stock and provid[ing] gaps to promote regeneration.” The county forester

determined that the RBA for the 8 harvested acres in Stand 44 (out of a total of 37) was 16.3 ft2,

again below the prescription’s target level of 60 ft2.

        ¶ 10.   Related to the AMPs violations, FPR’s forester for AMPs compliance sent a letter

to Plum Creek confirming that he had inspected the sites of the previously identified AMPs

violations and had “observed that all of the major remedial actions relating to the AMPs

violations have been accomplished” and that Plum Creek was now in compliance with the

AMPs.

        ¶ 11.   In May 2010, FPR informed Plum Creek that it had forwarded the county

forester’s report to PVR, see 3 V.S.A. § 2289(a), with the recommendation “that the property be

removed from UVA for harvesting contrary to the management plan.” In July 2010, PVR

notified Plum Creek that, based on the adverse-inspection report, its “entire parcel” had been

removed from the UVA program. Plum Creek appealed that decision to the PVR Director




                                                  5
pursuant to 32 V.S.A. § 3758(a),3 contesting removal of the entire 56,604-acre tract from the

program rather than the 470 acres that comprised the harvest area. Plum Creek also appealed the

adverse-inspection report to the Commissioner of FPR pursuant to 32 V.S.A. § 3758(d).

       ¶ 12.   The FPR Commissioner provided an informal hearing at which no evidence was

taken and of which there is no transcript or audio recording.4 Plum Creek provided “remarks” by

its lawyer and two employees and also sent a written argument. Apparently, the county forester

also was present, although it is not clear that he provided any information in the presence of the

Plum Creek representatives.

       ¶ 13.   The FPR Commissioner upheld the adverse-inspection report, concluding that the

cutting was contrary to the forest-management plan. The Commissioner examined the evidence

supplied by the county forester and concluded that both the evidence and the methodology were

sound. The Commissioner found that the data was collected appropriately and compliance was

measured according to the correct methodology. Plum Creek argued that there were no grounds

for the violation because harvesting was suspended before the entire stand was cut. Plum Creek

proffered that if cutting had continued, then the final RBA for the entire stand could have been in

compliance. In the alternative, Plum Creek asserted that if RBA was measured by averaging the

treated and untreated areas of the stands, it would meet the plan goals.

       ¶ 14.   The Commissioner rejected these arguments. The Commissioner explained that it

was not necessary to wait for the entire stand to be cut before bringing a violation and that if only

       3
          As the statute existed in 2010 when the appeal was taken, the aggrieved party appealed
from the PVR Director, who formally removed the property from the UVA program, to the same
Director. See 2007, No. 190 (Adj. Sess.), § 4. The statute now states that the appeal goes from
the PVR Director to the Commissioner of Taxes.
       4
           The statute provides no specificity on how the appeal is to be conducted. While the
Vermont Administrative Procedure Act (APA) specifies procedures for many types of
administrative proceedings, its regulation is generally applicable only to contested cases, see 3
V.S.A. §§ 809-813, which are defined as proceedings in which “legal rights, duties, or privileges
of a party are required by law to be determined by an agency after an opportunity for a hearing,”
id. § 801(a)(2). There is no requirement that the appeal to the Commissioner provided in
§ 3758(d) be determined after an opportunity for a hearing. Thus, the APA does not apply to the
appeal to the Commissioner, and this was an informal adjudication.
                                                6
a portion of the stand was cut, then compliance should be measured by focusing on the harvested

area. The Commissioner acknowledged that the stand is the typical unit for measuring RBA, but

explained that focusing on the cut area of the stand was in keeping with forestry practices. After

a portion of the stand was cut, this effectively created a new stand because the treated and

untreated portions had different distribution, composition, and structure, and therefore the

Commissioner concluded that it was appropriate to evaluate them separately. The Commissioner

clarified that compliance with the prescription amendment was assessed by looking at the

qualitative attributes of the parcel and not just by measuring stocking levels. Therefore, it would

make no sense to include the uncut portions of the stand in measuring compliance because the

goals of the prescription could not be met in the untreated portion of the stand. For example, in

Stand 34, a shelterwood cut was prescribed. This was obviously not achieved in the uncut area

where no harvesting occurred. Further, the Commissioner found that the goal was not achieved

in the cut area where the RBA of 19.7 was essentially a commercial clear cut.                  The

Commissioner rejected Plum Creek’s assertion that these two could be averaged to achieve a

numerical RBA that would be within the prescription goal. The Commissioner also upheld the

AMPs violations, noting that they were observed in the field by all parties.

       ¶ 15.   The FPR decision was reported to the Department of Taxes. In March 2011, the

PVR Director issued a decision on Plum Creek’s appeal, upholding the decision to remove Plum

Creek’s entire parcel of 56,604 acres from the UVA program, and levying an assessment of a

land-use change tax in the amount of $7,860.80.

       ¶ 16.   Pursuant to 32 V.S.A. § 3758(a) and (d), Plum Creek appealed both

administrative rulings to the superior court, which consolidated them for review.5 Following

pretrial briefing, the court held an evidentiary hearing over the course of several days in May and

June 2013.

       5
          Because the Plum Creek tract lies in both Essex and Orleans counties, there were
actually four administrative rulings, two from each county. All of these rulings were
consolidated on appeal.
                                             7
       ¶ 17.   Plum Creek presented testimony from a forestry expert, Mr. Holleran, who

testified that the cutting was in compliance with the prescription amendment. Mr. Holleran is a

forester, who had assisted landowners in managing land that is in the UVA program, but who

had no prior involvement in the management of Plum Creek’s land and acknowledged at trial

that he had never prepared a forest-management plan for a large landowner similar to the type of

plan used by Plum Creek. Mr. Holleran presented evidence to advance the same argument Plum

Creek made before the Commissioner—that RBA targets were achieved if the RBA was

measured across both the treated and untreated portions of each stand. He testified that this was

the appropriate calculation because the stand was the accepted unit of measure for RBA

compliance. He submitted four written analyses of the harvest based upon several site visits in

the fall of 2011 and 2012, and also testified at length in support of his conclusion that the harvest

was in compliance with the amended management plan and forest-management standards.

       ¶ 18.   The county forester also testified and described his sampling method.              He

explained that the cut areas were not in compliance with the forest-management plan either

quantitatively—because the measurements of RBA were well below the targets set, or

qualitatively—because the observation of the regrowth and condition of the stand did not meet

the expectations in the prescription.

       ¶ 19.   The court issued a written decision in January 2014. As to the compliance with

the forest-management plan, the trial court framed the issue as an evidentiary question. The

court explained that measuring RBA was not within the exclusive expertise of FPR because it is

something that foresters do all the time; therefore, the court determined it was free to decide the

relative credibility of each expert’s method for how to measure RBA when only part of the stand

had been harvested. The court stated that the county forester’s methodology “was not incorrect”

and was consistent with “manual standards.” Nonetheless, the court found that Plum Creek’s

expert provided superior evidence, which was more credible than the state forester’s. The court

thus adopted Plum Creek’s expert’s view that RBA should be measured across the entire stand
                                             8
and found, based on that the expert’s calculations of RBA in those areas, that the harvest was in

compliance with the forest-management plan.          Consequently, the court concluded that the

adverse-inspection report was not justified on this basis.

       ¶ 20.   The court further found that, although several AMPs violations were identified

immediately after the harvest, they were promptly remediated to the satisfaction of the FPR

forester responsible for AMPs compliance, and that there was no evidence of any residual

harmful effect on water quality. The court noted, “There is no evidence that there was anything

more than a few temporary violations of the sort not uncommon in logging operations.” The

court concluded that the adverse-inspection report was not warranted based on these AMPs

violations.

       ¶ 21.   Because the decision by PVR to remove the tract from the UVA program was

predicated on the adverse-inspection report, the court concluded that the Tax Department’s

ruling must be reversed as well. This appeal by the State followed.

                                      II. Standard of Review

       ¶ 22.   The State first contends the superior court erred by failing to accord sufficient

deference to the methodology adopted by FPR to determine compliance with the forest-

management plan. As a threshold matter, therefore, we consider whether the court applied the

correct standard of review. The question of the appropriate standard of review is a legal one that

we consider de novo. In re Soon Kwon, 2011 VT 26, ¶ 5, 189 Vt. 598, 19 A.3d 139 (mem.).

       ¶ 23.   The UVA statute provides that an appeal from FPR’s decision to the superior

court is to be in “the same manner and under the same procedures” as a property tax appeal. 32

V.S.A. § 3758(d). Those appeals are filed pursuant to Rule of Civil Procedure 74, 6 and are de

novo. 32 V.S.A. §§ 4461(a), 4467.7



       6
          Rule 74 also specifically provides that the rules of civil procedure “shall govern
proceedings” in the superior court. V.R.C.P. 74(g). In a departure from Rule 74(e), however,
which authorizes trial by jury on “[a]ny question as to which there is a right to trial by jury,” the
                                                9
       ¶ 24.   This Court established the proper standard of review for appeals to the superior

court from an FPR current-use decision in Jones v. Department of Forest, Parks & Recreation,

2004 VT 49, 177 Vt. 81, 857 A.2d 271. In that case, we explained that factual findings are

reviewed for “clear error,” but “substantial deference” is given to FPR’s determinations within

its “area of expertise.” Id. ¶ 7. Thus, FPR’s decision as to a violation should be upheld unless

“the Department’s finding of a violation . . . was standardless, unsupported by the evidence, or

contrary to law.” Id. ¶ 14.

       ¶ 25.   The basic framework for the standard of review is not altered simply because in

this case there was a de novo evidentiary hearing in the superior court. Because the superior

court has conducted a de novo hearing, as factfinder, the court’s factual findings are reviewed for

clear error. As to questions of policy, however, agency determinations regarding the proper

interpretation of policy or methodology within the agency’s expertise are entitled to deference,

even where there is a de novo hearing in the superior court. ANR Permits, 2014 VT 50, ¶ 15-16.

“[D]ecisions made within the expertise of such agencies are presumed correct, valid and

reasonable.” Id. ¶ 15 (quotation omitted).

statute provides that tax appeals to the superior court “shall be heard without a jury.” 32 V.S.A.
§ 4461(a).
       7
          The dissent claims that the standard of review is misidentified, but the dissent largely
agrees with the standard articulated here. Review is de novo in the trial court. We emphasize, as
we have done in the past in the context of property tax appeals, that although the appeal is de
novo this does not mean that the trial court “ultimately owes no deference to the decision of the
administrative agency.” Mollica v. Div. of Prop. Valuation & Review, 2008 VT 60, ¶ 8, 184 Vt.
83, 955 A.2d 1171; see In re ANR Permits in Lowell Mountain Wind Project, 2014 VT 50, ¶¶ 9-
17, 196 Vt. 467, 98 A.3d 16 (explaining that even though review was de novo to public service
board, board was still required to defer to agency’s interpretation of matters within its area of
expertise). Even in the context of de novo review, a court must still defer to an administrative
agency’s interpretation of a matter within its “legislatively delegated expertise.” Mollica, 2008
VT 60, ¶ 9.

        The true point of divergence between this decision and the dissent is whether the critical
question on appeal is an area within the agency’s expertise to which the trial court must defer or
a factual determination for the trial court to decide. Because the key inquiry depends on the
“proper methodology for implementing a statute” within the purview of FPR, the agency’s
interpretation is accorded deference. See Town of Killington, 2003 VT 88, ¶ 5, 176 Vt. 70, 838
A.2d 91.
                                                10
       ¶ 26.      The critical inquiry is in determining whether an issue involves a question of fact,

subject to the superior court’s discretion as factfinder, or whether it is a matter of policy or

methodology within the agency’s area of expertise. Four major issues with respect to timber

harvesting were contested before the superior court: (1) whether compliance should be measured

across the stand as a whole or over only the cut-specific areas; (2) the numerical RBA

measurements in the sub-stand areas; (3) whether tree-regeneration measurements should be

taken three years after the harvest or immediately after the harvest; and (4) whether a box on a

map of Stand 43, labeled “OSR” for overstory removal, meant that OSR could occur only in the

box area.

       ¶ 27.      We need not go beyond the first issue to resolve this appeal because although the

experts’ calculations of RBA in the harvested portions of the stands differed, both measured the

RBA in those areas below the target levels.             The measurements of the two experts are

summarized in the following chart:

Stand  Area           Area Cut Basal    Target          State Forester   Plum          Plum Creek
Number of             Contrary Area     RBA             Calculation of   Creek         Calculation
       Stand          (acres)  Prior to (ft2)           RBA in Cut       Calculation   of       RBA
       (acres)                 Logging                  Area             of RBA in     across entire
                               (ft2)                    (ft2)            Cut Area      stand
                                                                         (ft2)         (ft2)
34          137       90.91        82         30-40     19.7             28.5          47.4
43          115       40.15        88         60        23.3             53.1          73.5
44          37        8.47         97         60        16.3             36            107

Thus, the main difference in their opinions of whether a violation occurred was the proper

methodology for calculating RBA. Plum Creek’s expert testified that the stand was the unit of

measurement and therefore RBA should be measured across the entire stand, regardless of

whether the entire stand had been harvested. In keeping with the methodology adopted by the

FPR Commissioner, the county forester measured RBA by looking solely at the harvested area of

each stand.




                                                   11
        ¶ 28.   The superior court viewed the question of how RBA should be measured for

purposes of determining compliance with the forest-management plan as a question of fact, not

an area of agency expertise entitled to deference, and compared the relative credibility of the

experts to determine how to measure compliance. As explained more fully below, this was error.

FPR’s decision on the methodology for determining compliance was entitled to deference, and

Plum Creek had the burden to show it was “ ‘wholly irrational and unreasonable in relation to its

intended purpose.’ ” ANR Permits, 2014 VT 50, ¶ 17 (quoting Town of Killington, 2003 VT 88,

¶ 6).

        ¶ 29.   Like other cases where this Court has applied a deferential standard of review to

an agency decision, in this case, deference is due because the methodology for determining

compliance is an area over which FPR has broad statutory authority and the relevant expertise.

See id. ¶ 16 (explaining that agency is entitled to deference where decision is within agency’s

area of expertise and within statutory authorization); In re Williston Inn Grp., 2008 VT 47, ¶ 13,

183 Vt. 621, 949 A.2d 1073 (mem.) (explaining that where Legislature entrusts implementation

of statute to agency, this Court gives deference to agency’s interpretation of those laws). The

statutory scheme underpinning the current-use program contains the standards to be applied to all

UVA-enrolled land and highlights the importance of oversight by FPR. FPR is entrusted with

the authority both to set standards for acceptable forest management and to enforce compliance

with those standards.     See 32 V.S.A. § 3752(9)(B)(iii) (defining “managed forestland” as

property that is managed in accordance with standards established by FPR); id. § 3755(c)

(entrusting FPR with power to determine if “management of the tract is contrary to the

conservation or forest management plan” and to issue inspection report if it so finds).

Consequently, FPR is entitled to deference in determining how to measure compliance. This is

exactly what this Court recognized in Jones, 2004 VT 49, ¶ 14 (giving deference to FPR on

decision regarding violation of forest-management plan).


                                               12
       ¶ 30.   The superior court in essence determined that Plum Creek’s methodology was

better than FPR’s. This is not the role of the court. “We have cautioned that courts are not ‘a

higher environmental agency entrusted with the power to make environmental law and policy,’

but rather exercise a ‘narrow role in ensuring that the decisions of ANR are made in accordance

with law.’ ” Id. ¶ 14. Where there are questions about “complicated methodologies within an

agency’s expertise” a reviewing court, even in the context of a de novo hearing, must give

deference to the agency’s decision. ANR Permits, 2014 VT 50, ¶ 16.

       ¶ 31.   In assessing the validity of FPR’s violation, the trial court and this Court on

appeal must give deference to FPR’s methodology. This does not mean that FPR’s decisions

will be rubber-stamped, but deference is accorded. “Absent a clear and convincing showing to

the contrary, decisions made within the expertise of such agencies are presumed correct, valid

and reasonable.” In re Johnston, 145 Vt. 318, 322, 488 A.2d 750, 752 (1985). Review is limited

to whether there was a “reasonable basis” for the agency action. Id.; see In re DeCato Bros.,

Inc., 149 Vt. 493, 496, 546 A.2d 1354, 1356 (1988) (explaining that agency decision must meet

minimum standard of reasonableness).

                                III. Measurement of Compliance

       ¶ 32.   In light of this standard of review, we turn to the question of whether the

Commissioner’s decision on methodology had a reasonable basis sufficient to satisfy review.

       ¶ 33.   The Commissioner provided the following reasons for adopting a policy of

determining compliance by limiting the calculation of RBA to the area that had been harvested.8


       8
           The dissent repeatedly comes back to the fact that cutting was halted partway through
and laments that there would be no conflict about how to measure RBA “if the timber harvesting
was completed in the three stands.” Post, ¶ 125. Obviously, if cutting had been completed, then
the issue of whether to measure RBA in the entire stand or just in the cut portion would not exist.
The fact is that cutting did cease. The dissent sees this as an injustice to Plum Creek, and places
blame on the State for declaring a violation before the harvest was completed. The dissent
accuses the majority of appellate factfinding on the issue. There is no need to engage in
appellate factfinding. To the extent that it is relevant, the court made sufficient findings on the
issue. The trial court found, based on the evidence presented, that it was Plum Creek’s forester
that initially told the logger to cease cutting based on the forester’s own concern about the level
                                                  13
The Commissioner acknowledged that the typical unit for forest management is the stand, but

concluded that where areas of the stand receive different treatment a new stand may be created.

The Commissioner explained:

               Although the unit of measure for forest management purposes and
               UVA is the “stand,” management can alter the unit enough to
               create different stands. As a “stand” is a contiguous group of trees
               sufficiently uniform in age-class distribution, composition and
               structure, and growing on a site of sufficiently uniform quality, to
               be a distinguishable unit, the harvesting in stand 34 has created two
               separate stands as that area harvested has a very different age-class
               distribution, composition and structure now compared to that area
               left untreated. They are no longer the same stand; therefore, they
               should be sampled and evaluated separately.

In other words, because part of the stand had been cut while the remaining acres were left

untouched after cutting was halted, the Commissioner determined that the cut areas should no

longer be considered part of the existing larger stand and should be evaluated separately from the

uncut areas.

       ¶ 34.   Moreover, the Commissioner explained that averaging the basal area of the

logged and unlogged portions did not portray an accurate picture of whether the goals and

objectives of the prescription were met. This assessment is well illustrated by Stand 34, for

which the prescription called for a shelterwood cut to target sugar maple and yellow birch with

large crowns for retention, and set a target RBA of thirty to forty. The Commissioner explained

that the purpose of the cut was to create the correct light levels and soil moisture on the ground

to promote seed germination and seedling establishment. The Commissioner explained just

looking at an average of the stocking level across the untreated and treated portions of the stand

produced an inaccurate picture of whether this goal was met. As the Commissioner stated, “The

notion that the goals and objectives of the shelterwood treatment were met by considering shade


of cutting he observed during the site visit in late January. Whether Plum Creek then continued
to suspend cutting voluntarily or felt compelled by concerns expressed by ANR and FPR is not
relevant. Plum Creek did not claim compliance based on future cutting; rather, it based
compliance with the prescription on the fact that the RBA, if averaged between the cut and uncut
portions of the stand, was within the goals set.
                                                 14
from trees over a kilometer away (in the uncut portion of the stand) as providing the necessary

microenvironmental condition is a misapplication and a complete misunderstanding of the

principle of the silvicultural practice.”9

        ¶ 35.   We conclude that the Commissioner’s decision to determine violations by

measuring compliance, both quantitatively and qualitatively, solely in the cut area of the stand

was reasonable, and not “standardless, unsupported by the evidence, or contrary to law.” Jones,

2004 VT 49, ¶ 14.

        ¶ 36.   First, it is a method that promotes the overall policy of the UVA program, which

is to maintain productive forestland and to prevent accelerated use. 32 V.S.A. § 3751. If RBA

for purposes of compliance could be measured by averaging harvested and unharvested portions

of a stand, then cutting, which offends the protection and proper use purposes, could not be

prevented because it could still technically comply with numerical prescribed RBA targets. For

example, if a prescription provides for a shelterwood cut and sets a moderate RBA target, then

the target RBA could be met by clear cutting half of the stand and leaving the other half fully

forested and untreated. While numerically this would meet the prescribed RBA under Plum

Creek’s methodology, it certainly would not protect forestland or prevent accelerated use. Id. It

also would not achieve the qualitative goals of the shelterwood prescription necessary for the

desired tree growth.




        9
           The dissent dismisses this concern and asserts that Plum Creek never intended to
harvest only part of the stand and its position “has always been that the harvest could not be
judged in midstream and should have continued to its end.” Post, ¶ 126. It has not “always”
been Plum Creek’s position that the harvest should continue; Plum Creek voluntarily chose to
stop the harvest based on an assessment by its own forester that the logger was not following its
directions. Further, Plum Creek did not base its alleged compliance with the prescription goals
on a continued cutting plan but alleged it complied with the prescription goals if the RBA was
calculated by averaging the cut and uncut portions of the stand. Plum Creek’s own expert in the
superior court testified that if the entire stand had been cut in the same manner as the already
harvested portion, it would have been out of compliance.
                                                  15
       ¶ 37.   Second, restricting measurement to areas already harvested is logical. RBA is a

measure of the residual basal area in a stand, which by definition refers to the basal area left after

harvest. It is simply not logical to purport to measure RBA in an untreated, unharvested area.

       ¶ 38.   Third, measuring compliance in the cut areas allows for more effective oversight

by FPR. If a violation cannot be based solely on observations and measurements taken in the

portion of the stand already harvested, then FPR will have to wait for an entire stand to be cut

contrary before bringing a violation. For large stands, this could have drastic consequences.

Plum Creek’s expert recognized in this case that if the harvest in Stand 34 had continued in the

rest of the stand in the same manner, the entire stand would have been out of compliance.

Surely, FPR was not required to wait for those additional forty acres to be clear cut before

bringing a violation.10

       ¶ 39.   Fourth, it is a method consistently used. As the Commissioner noted, this is how

other violations have been calculated. Indeed, it is wholly in keeping with our decision in Jones,

in which this Court determined that FPR acted within its discretion in limiting its analysis of

whether a violation occurred to the portion of the stand that was cut. 2004 VT 49, ¶ 13.

       ¶ 40.   There is no merit to the trial court’s concern that because basal area is generally

measured across a stand, a landowner would not be on notice that a violation could be brought

for overcutting in one area of the stand. The landowner is on notice that the harvest prescription

must be met—both qualitatively and quantitatively—across the entire stand.               Further, as

demonstrated by Jones and the record in this case, FPR has previously determined compliance by

measuring RBA solely in cut portions of the stand.

       ¶ 41.   Plum Creek failed to demonstrate that the Commissioner’s methodology was

“wholly irrational and unreasonable in relation to [the UVA statute’s] intended purpose.” ANR

Permits, 2014 VT 50, ¶ 17 (quotation omitted). Plum Creek’s expert’s explanation for why he

       10
           Especially in a situation like this where Plum Creek voluntarily ceased cutting, FPR
should not have to wait indefinitely to see if and when the landowner will continue cutting before
bringing a violation.
                                                 16
took the measurement across the entire stand was simply that “the stand is the unit of measure

for forest management.” He did not provide an explanation of why this was appropriate for a

stand that had been only partially treated. He did not provide a clear answer as to whether a

landowner could be in compliance with a forest-management plan by clearcutting half of a stand

and leaving half of the stand untouched to reach a particular numerical RBA average. In fact, he

failed to explain how he could be assured that once cutting was resumed in the areas not yet cut

that the stand would still be in compliance with the prescription.

       ¶ 42.   For example, he testified that if the remaining uncut portion of Stand 34 was

harvested to a density of 60, then even taking the county forester’s measurement of 19.7 for the

cut portion, the entire stand would still be within the prescription of 30 to 40 RBA. There was

no assurance, however, that such density would be achieved in the remaining portion and there

was no evidence that cutting the remaining portion of Stand 34 to a density of 60 would achieve

the goals of the prescription by creating the necessary microclimate conditions on the ground. In

response to the question of whether two stands had been created by the cutting, Plum Creek’s

expert answered “that’s a complicated question.” He acknowledged that that could happen, but

felt that for evaluating the prescription, the measurement should be made for the entire stand.

While this may be true if the entire stand had received the same treatment, FPR provided

reasonable and logical reasons why RBA should be calculated based solely on the part of the

stand that had already been cut.

       ¶ 43.   Further, that FPR’s methodology in limiting its assessment to the cut area was a

logical and reasonable measurement of whether the prescription plan had been followed was

acknowledged by Plum Creek’s expert to some degree. In response to the question of whether

the goal of treatment for Stand 44 was met qualitatively, he answered that the prescription was

met only in the harvested area. This is logical because obviously the conditions in the uncut

areas were unchanged and therefore could not have met the goals of the cut. It also creates,

however, an inconsistency in the evaluation method used by Plum Creek’s expert.            If the
                                           17
qualitative assessment of whether the forest-management plan was met must be limited to the

area cut, then how can the quantitative assessment include the entire stand? FPR’s decision to

limit both its qualitative and quantitative assessments to the cut areas was both consistent and

reasonable.

        ¶ 44.   Given that both experts calculated the RBA in the cut areas of Stands 34, 43, and

44 below the targets set in the forest-management plan, we conclude that this failure to meet the

targets was an adequate basis for issuing the adverse-inspection report, and therefore that the trial

court erred in reversing it.

                                           IV. AMPs Violations

        ¶ 45.   In addition to a finding that the stands were cut contrary to the forest-management

plan, the adverse-inspection report was also based on findings that Plum Creek failed to

implement AMPs. The Commissioner upheld the adverse-inspection report in both respects.

The trial court concluded that there was no violation of the forest-management plan and that the

AMPs violations were insufficient on their own to justify an adverse-inspection report. The

court found that—although “there were [AMPs] violations”—there was “no evidence that [they

were] anything more than a few temporary violations of the sort not uncommon in logging

operations”; that there was “no evidence” of any residual “detrimental impact on water quality of

the type the AMPs are designed to prevent, despite the violations”; and that there was also no

evidence of residual “harm to . . . wildlife or soil erosion.” The court noted, in this regard, that

the FPR forester overseeing AMPs compliance determined that Plum Creek had remediated the

violations within a few months of their discovery, and that the ANR official in charge of AMPs

enforcement undertook no enforcement action.

        ¶ 46.   On appeal, the State argues that the superior court’s finding that Plum Creek

violated several of the AMPs protecting water quality compelled affirmance of the

Commissioner’s decision upholding the adverse-inspection report. Having concluded that the

adverse-inspection report was warranted based on Plum Creek’s violations of the forest-
                                           18
management plan, we need not and do not reach the question of whether the AMPs violations

would have provided a sufficient independent basis to issue an adverse-inspection report.

                                             V. Conclusion

       ¶ 47.   In sum, we reverse the superior court and reinstate the adverse-inspection report

as upheld by the FPR Commissioner. We remand to the superior court to consider the questions

raised in Plum Creek’s appeal of the PVR Director’s decision removing land from the UVA

program and leveling a tax assessment against Plum Creek.

       Reversed and remanded.



                                               Chief Justice


       ¶ 48.   DOOLEY, J., dissenting.       On January 15, 2010, the Vermont Department of

Forest, Parks and Recreation (FPR) approved logging on land owned by Plum Creek pursuant to

a plan drafted and submitted by Plum Creek. Logging apparently proceeded quickly because on

January 26, 2010, the staff forester of Plum Creek, the FPR county forester, along with others,

visited a harvest of trees on part of Plum Creek’s forestland. The date of the visit was apparently

arranged so that all could attend and the logging would be in progress; there was no significance

to how much of the harvest had been completed, how much was left to complete or where in the

forest the contract loggers were working. The site visit was to three “stands,” defined and

mapped out areas of the forest. A majority of the harvest had already occurred on two stands,

while only 20% of the area in the third stand had been logged, although this stand was much

smaller than the other two. During the site visit the FPR county forester indicated that he

believed that the areas he saw were being “cut contrary,” that is, contrary to the plan Plum Creek

submitted and FPR approved.

       ¶ 49.   At that point, all logging work stopped. The forestland in the three stands became

the equivalent of a “crime scene.”       Over time, the county forester went back and took

                                                19
measurements of what had been cut in relation to the specifications in the plan. On April 26, he

issued an adverse-inspection report recommending that Plum Creek be terminated from the

current-use program.      The FPR Commissioner accepted the recommendation, and this

controversy unfolded. Plum Creek hired a professional forester to independently evaluate the

state of the forest and the allegations of the county forester. Part of the evaluation was to

measure regeneration three years after the harvest was terminated. The case proceeded to trial in

the superior court, and the court took a view of the stands in the condition they were when

logging stopped. Plum Creek took many pictures of the forest at that time, many of which were

introduced into evidence. As far as the record before us discloses, the land and forest in

controversy is in exactly the same state today as when the site visit occurred over six years ago.

       ¶ 50.   I start with this short story to make three points to which I will return. First, the

amount of the land that had been logged has no significance, other than that it was frozen at the

time of the site visit. The timeline shows, however, that the entire harvest would have been over

in a matter of days if it had been allowed to run its course. Second, no one has claimed that

Plum Creek did anything illegal, whoever one might believe in this controversy, so my

comparison to a “crime scene” is a purely hypothetical one.11 The sole issue is whether Plum

Creek complied with its plan and whether, as a result, it can receive the substantial monetary

benefit of the enrollment of 56,604 acres of forestland in the current-use program.12 Third, Plum

Creek’s decision to stop the harvest was required by the county forester’s declaration that Plum

       11
           The State alleged that Plum Creek had violated the Acceptable Management Practices
(AMPs) for Maintaining Water Quality on Logging Jobs by a number of actions. The alleged
violations were corrected shortly after they were identified. The AMPs violations were one of
the grounds for the termination of Plum Creek from the current-use program and could have
been grounds for the State to seek civil penalties in an enforcement action. It did not do so and,
in fact, certified that Plum Creek was in compliance with the AMPs. Neither the majority nor
this dissent has considered the AMPs compliance issue, except as stated in infra, ¶¶ 126-132, to
explain why Plum Creek was prevented by FPR from finishing the harvest.
       12
           Although the alleged improper conduct affected only a few hundred acres of land, all
contiguous land owned by Plum Creek was removed from the current-use program. Although
the exact financial impact of the decision is not of record, it is alleged to be well in excess of one
million dollars.
                                                 20
Creek had violated its plan and the AMPs requirements, the prospect of civil penalties and

criminal liability for violating the AMPs requirements, the prospect that all its land would be

removed from the current-use program, and most important a subsequent specific direction of

FPR. The majority disagrees with this point, as shown by its three footnotes on the issue—ante,

nn. 10, 11 and 12—and is acknowledging through these footnotes that the point is central to its

rationale. Accordingly, I have added a separate section at the end of the dissent summarizing the

facts that show why the majority’s conclusion is wrong. See infra, ¶¶ 128-134. If Plum Creek

had completed the harvest it would have had no evidence of the state of the harvest at the time of

the forester’s declaration, evidence that became critical in the defense of this case.13

       ¶ 51.   My disagreements with the majority are deep and extensive and take many pages

to fully explain. There are, however, three other points to which I will return on numerous

occasions, and I summarize them here as a road map through this dissent. First, by statute, the

standard for judicial review in this case is de novo, a standard that by definition provides the

broadest and most extensive judicial review of administrative action. While the majority has

paid lip service to that standard, it has actually employed the narrowest and most agency-

deferential standard of review possible, turning the statutory standard into its opposite. If the

standard of review were applied the way it is written, the superior court decision would be

affirmed. In In re Town of Sherburne, we recognized in regard to the standard for review of

administrative action that courts have a tendency to recite “a batch of verbiage and then pay[] no

attention to what it has said in determining what to do.” 154 Vt. 596, 607, 581 A.2d 274, 280



       13
           The majority finds significant that Plum Creek “voluntarily ceased cutting” when
concerns were raised. Ante, ¶ 38 n.10. I find significant that the county forester never stated that
Plum Creek should complete its harvest and the forester would judge compliance based on the
completed harvest. Also important is that FPR withdrew its approval for the harvest and only
accepted that Plum Creek had resolved the AMPs issues after the termination decision was made.
Despite Plum Creek’s immediate letter indicating how it would proceed forward in compliance
with the plan and to resolve the AMPs issues, the forester went forward with the termination
action in this case and never answered the letter. If there was an attempt to settle this
controversy, the evidence lies in the administrative record that was never disclosed.
                                                 21
(1990) (quoting 5 K. Davis, Administrative Law Treatise § 29:27, at 456-57 (2d. ed. 1984)).

This is exactly what the majority has done here.

       ¶ 52.   Second, the majority has reversed the decision of trial court, without a remand,

holding that as a matter of law the agency must prevail. At best, this would be an unusual and

exceptional action, particularly after four days of trial and extensive evidence and findings of

fact, none of which are found to be erroneous. If the trial court employed the wrong standard of

review, the remedy is to remand the matter to the trial court to apply the right standard in light of

the evidence and findings of fact. After reading the majority opinion, it is difficult to see what

the purpose of the trial was or whether Plum Creek’s extensive evidence could even be

considered. Indeed, it is hard to understand the purpose of judicial review at all.

       ¶ 53.   Third, the sole question on which this case turns is whether Plum Creek violated a

timber-harvesting plan that it drafted and the agency approved. I have attached the plan to this

dissent. The superior court found that Plum Creek did not violate the plan. The State claims it

did but does not identify the language in the plan it says was violated. The majority adopts the

theory of the State because the State’s interpretation of the plan is entitled to deference, again

with no specific identification of the requirement in the plan that was violated. The result is that

the State is entitled to create plan requirements as it goes along, with no advance notice to a

landowner and no inclusion of the requirement in the plan document.

       ¶ 54.   Having identified these recurring points, I agree with the majority that proper

identification of the standard of review that governs the superior court’s review of the decision of

FPR to terminate Plum Creek from the current-use program is important, and much of this

dissent is about the proper standard of review.

       ¶ 55.   For an instant in its opinion, the majority acknowledges that the Legislature has

established the standard of review of the administrative decision for this case as de novo. The

leading treatise on administrative law states the “meaning of the de novo standard” as follows:


                                                  22
                This standard tells a court to affirm the agency only if it agrees
               with the administrative conclusion either as to the entire
               administrative decision or some part of it. If the court does not
               agree, the court is instructed to substitute its own judgment.
C. Koch & R. Murphy, Administrative Law and Practice § 9.22[1] (3d ed. 2016).

       ¶ 56.   This is exactly the meaning of de novo review that our decisions reflect. For

example, in Town of Victory v. State, we rejected the application of de novo review in the

absence of a legislative direction to use it because “[d]e novo review, whereby the superior court

would simply substitute its judgment for that of the director, necessarily usurps power delegated

to the executive branch; therefore that standard is inappropriate unless the statute expressly so

provides.” 2004 VT 110, ¶ 16, 177 Vt. 383, 865 A.2d 373 (emphasis added). As I discuss

below, de novo review here means that judicial review is not based on the agency record; indeed,

it could not be here because there is virtually no record. I recognize that we have adopted a

presumption against de novo review when the review statute does not provide for it. Where, as

here, the Legislature expressly provides for it, we must follow the legislative direction.

       ¶ 57.   Instead of implementing this standard of review, the majority has adopted its own

standard, unsupported by the governing statute, which is exactly the standard of review that we

would adopt if de novo review was not commanded by the Legislature. Indeed, it is exactly the

opposite standard of review, as narrow and limited as exists anywhere in our law. In doing so, it

has emasculated judicial review, overturning a trial decision based on four days of trial without

deciding that any of the findings of fact of the trial court are erroneous and without a remand for

factfinding under what it views is the correct standard of review.

       ¶ 58.   This is a case where under neutral standards, de novo review would be

appropriate even if the Legislature was silent on the nature of review. There is no factual

development in the administrative agency: Plum Creek was not entitled to an evidentiary hearing

before the FPR Commissioner; the Commissioner did not offer an evidentiary hearing; and, most

importantly, this is not a decision where agency expertise is central. The administrative record is

                                                 23
virtually nonexistent, consisting of the county forester’s violation determination, the

Commissioner’s decision, and Plum Creek’s filings in opposition to the termination decision.

This is a pure adjudicatory case with little or no policy issues. The fundamental issue in this case

is what the plan drafted by Plum Creek means—the agency was not interpreting and applying a

statute, regulation, or even a policy. Plum Creek is essentially charged with breaching its permit

application; in comparable situations, the agency does not get particular deference in that

decision.

       ¶ 59.   The majority has adopted a standard of extreme deference that makes the

administrative decision controlling with no meaningful opportunity to contest it. Even if such

deference were ever appropriate where the Legislature adopts de novo review, it is totally

inappropriate in the case before us. As the trial court concluded, this level of deference allows

the agency to create new rules as it goes along where the rules should be set in the controlling

documents.

       ¶ 60.   Finally, it is clear from the way that the majority has written its decision that it

believes that the only right answer to the circumstances before the court is that provided by the

State and that Plum Creek is relying on a technicality to avoid its just consequences. In fact, the

evidence before the trial court showed many possible rationales, not built on technicalities, on

which to resolve the conflict, and Plum Creek’s explanation for what it did, as accepted by the

trial court, was reasonable. The short answer to the majority’s factual assertions is that the case

was tried by a very experienced trial judge who made detailed and thorough findings of fact and

conclusions based on them, which should be respected rather than rejected out of hand. I will

address each of these points below.

                   I. This Was a Pure Adjudicatory Proceeding Based on Whether or Not
                  Plum Creek Complied with Requirements Contained in Two Documents,
                            and the Evidence and Findings Show It Did Comply

       ¶ 61.   To be eligible for the current-use or Use Value Appraisal (UVA) program,

forestland must be “under active long-term forest management . . . in accordance with minimum
                                              24
acceptable standards for forest management.” 32 V.S.A. § 3752(9)(A). “Minimum acceptable

standards for forest management” are defined, in turn, as “refer[ring] to certain standards

established by the Commissioner of Forest, Parks and Recreation.” Id. § 3752(13). Eligibility

also generally requires compliance with “the regulations adopted by the [Current Use Advisory]

Board.” Id. § 3755(a); see id. § 3953 (establishing Current Use Advisory Board). Comprised of

the Commissioner of Taxes, the FPR Commissioner, the Director of the Division of Property

Valuations and Review (PVR), members of the private agricultural and forestry sectors, and

local government representatives, id. § 3753(b), the Board has several legislatively defined

duties: to periodically review the criteria for enrollment in the UVA program, recommend

changes and improvements, and adopt rules to carry out its statutory goals. Id. § 3754(a), (c).

The UVA Program Manual adopted by the Board sets forth minimum standards for forest-

management plans, minimum standards for forest management and regeneration, standard forms

for use by landowners enrolled in the program, and appendices containing additional guidance

for foresters and landowners.

       ¶ 62.   If any of the above statutes, rules, or policies were involved in this case, the FPR

Commissioner would be entitled to substantial deference in interpreting them, a point discussed

below. The Commissioner did not conclude, however, that Plum Creek violated any of those

statutes, rules, or policies. Instead, the FPR Commissioner concluded that Plum Creek violated a

timber-harvesting plan that Plum Creek itself drafted. No policy is involved in determining

whether the plan was violated. I would accept that a decision to reject a plan would involve

policy, and that decision would be based on agency expertise. But once the plan is accepted, the

only relevant determination is whether the plan was violated.

       ¶ 63.   Forestland is eligible for the UVA program if the landowner prepares and submits

a ten-year forest-management plan and it is approved by FPR. Id. § 3755(b)(1)(C). In this case,

Plum Creek had such a plan prepared by the company that owned the land before Plum Creek.

The plan specified that when Plum Creek was to engage in timber harvesting, it was required by
                                             25
the plan to seek and have approved a plan amendment for each “stand” in which the harvesting

would occur. These amendments are known as prescriptions, and Plum Creek prepared one and

had it approved for each of the three stands involved in this case. The prescriptions are prepared

on forms supplied by FPR and are very short documents. I have attached the relevant content of

these documents to this dissent in an appendix; the content takes up less than two pages. Thus,

the decision to remove the land had to be based on a conclusion that Plum Creek’s timber

harvesting violated either the ten-year management plan or the relevant prescription; in this case

it was based entirely on the prescriptions. These documents were drafted by the landowner, not

the agency. See Vt. Dep’t of Forests, Parks and Recreation, Use Value of Forestland in Vermont

at 2 (Feb. 1, 2006) (“County foresters who are employed by the State do not write use value

plans.    Their role is to advise landowners and consulting foresters, review and approve

management plans . . . and to conduct on-site monitoring.”). They are essentially applications

for a permit, and the controlling question is whether Plum Creek did what it said it would do in

its application.

         ¶ 64.     To a great degree the dispute has centered on cutting in Stand 34 and a rationale

that pervades the decisions with respect to each of the stands—that the extent of cutting had to be

even across the stand so the remaining forest after cutting would be the same throughout the

stand. The Commissioner’s decision focused on this stand and this rationale, and the majority

decision has almost exclusively focused on it. The trial court found that the residual basal area

(RBA) in the cut portion of Stand 34 was 28.5, only a small amount below the lower

specification in the minimum prescription RBA of 30 to 40, and that the RBA for the whole

stand was 47.4.14 In his two-page adverse-inspection report, the county forester included three

short sentences describing the violation in Stand 34:

                    Stand has been cut contrary to prescribed silvaculture. Stand
                   inventoried on 2/10/2010 and 2/12/2010. Residual basal area

         14
           Basal Area (BA) “is a measure of forest density based on the square footage of trees
per acre.” Jones, 2004 VT 49, ¶ 10.
                                               26
               across 90.91 acres of the stand reduced to 19.7 square feet (36
               inventory points with 2.63 standard error).

       ¶ 65.   The Commissioner gave three reasons why Plum Creek had violated its Forest

Management Plan for this stand:

               [1] There was no indication that the cutting plan would have been
               modified had the sale reached completion. In fact, Plum Creek’s
               forester stated that the logger was not following their directions.
               The determination of “cut contrary” was based upon those acres
               cut to date, similar to any other violation that the state has pursued
               in the past.

               [2] Although the unit of measure for forest management purposes
               and UVA is the “stand,” management can alter the unit enough to
               create different stands. As a “stand” is a contiguous group of trees
               sufficiently uniform in age-class distribution, composition and
               structure, and growing on a site of sufficiently uniform quality, to
               be a distinguishable unit, the harvesting in stand 34 has created two
               separate stands as that area harvested has a very different age-class
               distribution, composition and structure now compared to that area
               left untreated. They are no longer the same stand; therefore, they
               should be sampled and evaluated separately.

                ....

               [3] The basis for the shelterwood method as a method of
               regeneration is that it creates a moderated microenvironment that
               promotes seed germination and seeding establishment as it elevates
               light levels near the ground and reduces the withdrawal of soil
               moisture. To create this microenvironment, the application of the
               method involves leaving a residual overstory of large crowned,
               seed bearing trees that are uniformly distributed over the area of
               the new stand. The notion that the goals and objectives of the
               shelterwood treatment were met by considering shade from trees
               over a kilometer away (in the uncut portion of the stand) as
               providing the necessary microenvironmental condition is a
               misapplication and a complete misunderstanding of the principle of
               the silviculture practice. The residual basal area of 19.7 square feet
               is considered a commercial clear cut. Additionally, the residual
               trees comprising this basal area are at best intermediate stems in
               the 10 to 12 inch diameter class that lack the crown size necessary
               to provide the shading conditions even if the desired residual basal
               area target was met. Plum Creek’s prescription should not be
               narrowly interpreted to just stocking levels. Recommendations
               were presented relating to what would be removed (at-risk mature
               stems) and what would remain (sugar maples and yellow birch
               with large crowns, quality growing stock).


                                                27
(Emphasis added.) Except for the one reference to the plan in the third reason, the decision

makes no reference to the content of Plum Creek’s plan. Thus, to determine whether Plum Creek

violated the plan, the superior court and this Court have to independently examine the plan

language in comparison to the rationale.

        ¶ 66.   The Plum Creek plan is contained in the appendix to this opinion. The plan says

Stand 34 has 137 acres. There is no mention in the plan of an even distribution of trees. Indeed,

it says “[t]he understory varies greatly in stocking of acceptable regeneration.” It says that “the

majority of the overstory is unacceptable growing stock.” It says “the shelterwood will be

irregular in distribution.”

        ¶ 67.   The first and second grounds for the decision to terminate Plum Creek from the

current-use program are inconsistent and unsupported by any record evidence that the

Commissioner had even at the time of rendering the decision. 15 Under any standard of review,

termination based on these rationales could not be sustained.

        ¶ 68.   The first rationale states that “[t]here was no indication that the cutting plan

would have been modified had the sale reached completion.” In fact, the Plum Creek manager

responsible for the tract sent a letter to the FPR county forester explaining that the timber

harvesting contractor had violated Plum Creek’s instruction in a number of respects and

outlining how the harvesting would be done in the rest of the stand to stay within the prescription

overall. The letter was admitted into evidence as exhibit 27. It is uncontroverted and directly

contradicts the Commissioner’s assertions.

        ¶ 69.   Even if the contrary evidence did not exist, it is important to state that there is

nothing in Plum Creek’s plan to suggest that the RBA measurement was to be made in the part of

the stand that happened to have been “treated” when the county forester appeared for an

observation visit. Thus, there was no obligation for Plum Creek staff to give an “indication” they

        15
           As I discuss infra ¶¶ 91-93, we have no way of knowing what information the
Commissioner actually had because there is no record of the inputs to the Commissioner’s
decision except for the county forester’s determination.
                                                28
would proceed differently in the remainder of the harvest as long as they met the RBA

requirement at the end. Finally, it was irrelevant how FPR had pursued alleged violations in the

past. If it wanted the timber harvesting to meet the minimum RBA requirements at all times

during the harvest, it should have directed Plum Creek to put that standard in the plan.

       ¶ 70.   The second rationale is even weaker. It is based on the premise that Plum Creek–

“management” in the Commissioner’s phrasing—had no intention of finishing its harvesting in

the stand and was comparing the situation in the treated area with the situation in the untreated

area. Thus, both the State and the majority have emphasized the Commissioner’s language that

Plum Creek asserted that “the goals and objectives of the shelterwood treatment were met by

considering shade from trees over a kilometer away (in the uncut portion of the stand).” The

statement is entirely disingenuous because the evidence was undisputed that Plum Creek

intended that there would be no untreated area and there would be harvesting in all parts of the

stand. Plum Creek never argued that a shade tree one kilometer away would make up for the

lack of a shade tree in another area. The reality is that there never would be a comparison

between treated and untreated parts of the stand if the State had not declared a violation before

the harvest was completed and prevented harvesting in the remainder of the stands.

       ¶ 71.   Although this rationale is poorly stated in the Commissioner’s decision, it is

argued by the State and accepted by the majority as a statement that the cutting that occurred on

Stand 34 went beyond a RBA of 30 ft2 and, therefore, could be grounds for termination of Plum

Creek from the current-use program. The State’s position is that whenever in the course of a

timber harvesting FPR staff measure the RBA of the area in which harvesting has occurred the

RBA cannot go below the minimum specified in the plan. Stated differently, the State’s position

is that all cutting must be even across the stand with no part more cut than another. FPR points

to no language in the Plum Creek plan that actually states this requirement, and there is no such

language. To the extent that the plan addresses the issue, it is directly contrary to the State’s

position. The plan says: “The shelterwood will be irregular in distribution.” Uneven distribution
                                              29
of shade trees was part of the plan and could be accomplished only by uneven cutting. There is

no support for the State’s position that uneven cutting within a stand violates Plum Creek’s plan.

       ¶ 72.   It is no answer to the absence of the requirement in the plan that FPR is simply

enforcing its consistent policy. Whatever may have been FPR’s policy, we are necessarily

dealing here with legal requirements. FPR’s policy is not stated in the plan or in legally adopted

regulations. The most important function of judicial review is to prevent an agency from acting

outside the legal system in which it operates.

       ¶ 73.   The trial court concluded that this is exactly what occurred here. It found: “In this

case, the State’s evidence showed that it had relied heavily on RBA measurements . . . taken

from plots in just a portion of each stand and rejected RBA evidence pertaining to the stands as a

whole. In doing so, it imposed a standard that is not in the UVA manual, is not a norm in

forestry practice, and was not included in the prescription.” It added “Without any rule in the

UVA manual or specification in the prescription, an owner would not be on notice that RBA

would be measured other than by the stand as a whole, particularly where the particular

prescription calls for a result of 30-40 ‘overall stand residual basal area.’ ”

       ¶ 74.   The majority has added a new and different rationale for the Commissioner’s

decision—that Plum Creek is responsible for the measurement of only part of the stand, and must

accept it, because it suspended the harvest and never restarted it. This rationale is not in the

Commissioner’s decision or in the superior court decision. It is legally and factually erroneous.

       ¶ 75.   It is factually erroneous because Plum Creek could not proceed due to the fact that

FPR withdrew approval of the harvest based on the April 26 adverse-inspection report of the

county forester. In the period between the end of January, when the inspection occurred that led

to the termination, and the date of the adverse-inspection report, Plum Creek could not proceed

because it faced civil penalties and possible criminal liability as a result of the AMPs compliance

issues until it resolved those issues to the satisfaction of FPR and ANR. These facts are set out

in detail in ¶¶ 128-134 of this dissent.
                                                  30
       ¶ 76.   It is legally erroneous because nothing in the plan or the statute or regulations

require that a harvest proceed continuously without interruption. Not even FPR has argued that

there is such a requirement.        The majority’s position that Plum Creek violated such a

requirement, and thus brought on RBA measurements of only part of the stand, has no support in

the law.

       ¶ 77.   Unlike the first two rationales, the third rationale purports to address language in

the plan. It says “Plum Creek’s prescription should not be narrowly interpreted to just stocking

levels.” In fact, there are no stocking levels in the plan so the Commissioner’s statement is

curious at best. Nor does the plan state that the RBA minimum must be met by trees that are

greater than 12 inches in diameter. Again, if FPR wants such a requirement it must insist that

Plum Creek put it in the plan. Like the first rationale of the Commissioner, this rationale was not

testified to by the county forester who testified for FPR in the trial.

       ¶ 78.   The most important point about the Commissioner’s rationale is that it is based on

the Commissioner’s determination that the RBA in the cut area of the stand was 19.7 ft2. In fact,

as the superior court found, the RBA was 28.5 ft2, a finding of fact that even the majority

accepts, as I discuss later in this dissent. The actual RBA is 50% above the RBA adopted by the

Commissioner and close to the minimum RBA for the stand as a whole. It is impossible to know

what the Commissioner would have decided if she had to apply the right RBA in rendering her

decision and could not rely on a conclusion that Plum Creek had actually performed a

commercial clear cut.

       ¶ 79.   The majority has largely ignored the glaring holes in the Commissioner’s decision

because of its holding that deference controls everything.                Thus, for the majority, the

Commissioner’s decision is right because it is not “standardless, unsupported by the evidence, or

contrary to law,” the standard of review it finds applicable. Ante, ¶ 35. I will address later my

differences on standard of review, but the point here is different—that deference has no

application where the only question is whether Plum Creek complied with its plan and the
                                            31
Commissioner has made fundamental errors in her analysis. While the majority addresses a part

of the Commissioner’s decision, it never explains how Plum Creek violated any provision of its

plan. The majority decision relies on the Commissioner’s decision because it “promotes the

overall policy of the UVA program,” “is logical,” “allows for more effective oversight by FPR,”

and “it is a method consistently used.” Ante, ¶¶ 36-39. As the above discussion states, I

disagree with many of these reasons, but that is entirely beside the point. Nowhere does the

majority say that the forester’s opinion is required by the plan, the central question that was

before the superior court and before us. All of the majority’s points are reasons why FPR might

have acted to insert the forester’s opinion into the plan that Plum Creek submitted, but they are

irrelevant to this case because FPR accepted the plan without this language, and the superior

court found that the opinion was not contained in or supported by the plan. That is all that

should count in this decision.

       ¶ 80.   The majority’s decision in this case is entirely different from that in Jones, 2004

VT 49, ¶ 10, the decision on which the majority most relies. In Jones, this Court quotes exactly

the plan provisions it found were violated and why there was a violation. There were two such

provisions. One provided that there would be “selection cuts approximately 40 feet in diameter.”

Id. ¶ 5.   The evidence showed “a series of clear cuts in Stand 3 well in excess of the

‘approximately 40 feet in diameter’ prescribed in the plan. Evidence of the extensive cuts—

ranging in size from one to two acres—was uncontroverted.” Id. ¶ 8. The second part of the

plan that was violated allowed “ ‘limited single tree and group selection cuts’ of overstocked

areas of hardwoods.” Id. ¶ 10. The evidence showed that the cutting in a part of the stand that

the landowner identified was “overstocked” and went well beyond the limited single-tree and

group-selection cuts specified in the plan. Id. ¶ 14. The difference between the analysis in Jones

and the analysis here is glaring.

       ¶ 81.   There are three other points about Jones that are important for comparison in this

case. First, Jones involved a completed harvest that the forester inspected during a regular five-
                                              32
year inspection. Id. ¶ 5. It did not involve the interruption of a partially completed harvest with

comparisons between harvested and unharvested areas. Second, to the extent that the forester

acted based on part of a stand, it was because the prescription authorized cutting only in

“overstocked areas” and the landowner had designated the 15.8-acre area involved as

overstocked. Id. ¶ 13. There is no such designation in this case. The latter point is important

because the majority asserts that Plum Creek should have known after Jones that its compliance

could be judged based on cutting in only part of a stand. Even assuming that Jones gave a

different landowner of different land with a different plan proper notice of an unwritten FPR

policy, Plum Creek would learn from Jones only that if the landowner specifically designated a

part of a stand for a specific different treatment, and violated the requirements of the designation,

it could be terminated from the current-use program. The third point is that the trial court was

reversed in Jones because its findings and conclusions were “clearly erroneous.” Id. ¶ 7. The

majority found no findings or conclusions clearly erroneous in this case.

       ¶ 82.    Finally, it is important to reemphasize that the failure to find an inconsistency

with the plan is not fixed by the choice of standard of review.16 Under any standard of review,



       16
            I do not think the standard of review is determinative here for the reason stated in the
text. If it were relevant, I would apply the standard of review for determinations of whether a
permittee has complied with conditions of a permit. In Agency of Natural Resources v. Weston,
we held:

                In construing permit conditions, we rely upon normal rules of
               statutory construction. Our principal concern is to implement the
               intent of the draftpersons. Ordinarily, we do so by accepting the
               plain meaning of the words because we presume that they express
               the underlying intent. We also keep in mind, however, that
               because land-use regulations are in derogation of property rights,
               any uncertainty in their meaning must be decided in favor of the
               property owner. We must be particularly careful that the conduct
               complained of falls within the clear prohibition of a permit
               condition before requiring the landowner to pay a large monetary
               penalty. Finally, we must accord deference to the environmental
               court’s construction of a permit condition, particularly when the
               court’s expertise will assure consistent interpretations of the law.

                                                 33
the superior court found that FPR’s decision is based on a requirement that is not in the Plum

Creek plan, and the majority has not, and cannot, respond to this conclusion that is determinative

of the proper outcome of this case.

                                II. Standard of Review is De Novo

       ¶ 83.   Having covered the first reason why the majority decision is wrong, I turn to the

second—that the majority has used a standard of review inconsistent with the governing statute.

       ¶ 84.   I started this dissent with the meaning of de novo review. While the majority

admits that de novo review applies, it is helpful to explain why de novo review is the governing

standard. The short answer is because that is what the governing statute says: “An appeal of this

decision of the Commissioner may be taken to the Superior Court in the same manner and under

the same procedures as an appeal from a decision of a Board of Civil Authority as set forth in

chapter 131, subchapter 2 of this title.” 32 V.S.A. § 3758(d). The cross-reference is to the

subchapter on property tax valuation appeals to the superior court or to the PVR Director. We

explained the effect of this cross-reference in Mollica v. Division of Property Valuation &

Review, 2008 VT 60, 184 Vt. 83, 955 A.2d 1171, in the context of an appeal from PVR.

Although Mollica was controlled by § 3758(a), rather than § 3758(d), the language governing the

appeal was identical in those subsections.17 Thus, we recognize Mollica as a binding precedent

of the interpretation of both subsections. As Mollica holds, the effect of the cross-reference is

2003 VT 58, ¶ 16, 175 Vt. 573, 830 A.2d 92 (mem.) (quotations omitted); accord In re Barry,
2011 VT 7, ¶ 19, 189 Vt. 183, 16 A.3d 613. The lessons of these cases are that permit conditions
are construed under normal rules of statutory construction and are construed to implement the
intent of the draftsperson, who in this case was Plum Creek. The deference we give is to the trial
court, not the administrative agency. Finally, a prohibition must be clear if, as is the case here, it
will be the grounds for a large monetary penalty.
       17
            Mollica was decided under 32 V.S.A. § 3758(a) because it involved an appeal from
the PVR Director, not an appeal from the FPR Commissioner. At the time of the decision, the
judicial review statute for such an appeal was identical to § 3758(d), the statute involved here. In
2013, § 3758(a) was amended to delete the cross-reference to the procedure in Chapter 131,
Subchapter 2 of Title 32 and substitute “from there to Superior Court in the county in which the
property is located.” 2013, No. 73, § 13. Section 3758(d) was not similarly amended. Because
the amendment in § 3758(a) came after Mollica was decided, that decision is still controlling
precedent on the meaning of § 3758(d).
                                                 34
that appeals to superior court from a decision of the FPR Commissioner is de novo. Mollica,

2008 VT 60, ¶ 8; see 32 V.S.A. § 4467 (stating that superior court on appeal “shall proceed de

novo and determine the correct valuation of the property as promptly as possible”).

       ¶ 85.   I recognize that it is possible that review can be de novo and on the record

generated in the administrative agency at the same time. The appeal process under 32 V.S.A.

§ 4467 is not on-the-record review. As explained in Shaffer v. Town of Waitsfield, 2008 VT 44,

183 Vt. 428, 956 A.2d 520:

               The proceeding before the appraiser was a de novo hearing,
               32 V.S.A. § 4467, which we have consistently held requires the
               appraiser to try the dispute anew, as though it had never been heard
               before. This means that the Town was not limited to proffering—
               and the appraiser was not limited to considering—only such
               evidence as was presented below, and that the appeal presented
               taxpayers with the risk of increase as well as the chance of
               decrease.

Id. ¶ 10 (quotation omitted).

       ¶ 86.   Mollica recognized this. 2008 VT 60, ¶ 8. The trial court here proceeded exactly

as specified in Shaffer. Although the majority has reversed the court, there is no suggestion that

it proceeded improperly.

       ¶ 87.   Property valuation appeals regularly become battles of expert witnesses, with the

municipality’s expert witness having no special status greater than the expert witness supplied by

the taxpayer, and the court or hearing officer ultimately resolving the matter. A good example of

the process is contained in our recent decision on property valuation, Vermont Transco LLC v.

Town of Vernon, which involved a utility transmission property valued by the Town at $92

million. 2014 VT 93A, 197 Vt. 585, 109 A.3d 423. The decision turned on whether the Town

used the proper methodology for valuing this unique property. The evidence came largely from

two expert witnesses who presented different valuation methodologies.

       ¶ 88.   I believe we should apply de novo review in this case even if the Legislature had

not directed it. Although we have applied a strong presumption against the availability of de

                                               35
novo review of the decision of an administrative agency, we have generally relied on the analysis

of the federal courts under the Federal Administrative Procedures Act (APA). See State Dep’t of

Taxes v. Tri-State Laundries, 138 Vt. 292, 293, 415 A.2d 216, 218 (1980). The Federal APA

provides a number of options from which reviewing courts choose the proper standard of review

of administrative action. 5 U.S.C. § 706(2). Among the grounds for reversal is that the

administrative decision is “unwarranted by the facts to the extent that the facts are subject to trial

de novo by the reviewing court.” Id. § 706(2)(F).

       ¶ 89.   De novo review under 5 U.S.C. § 706(2)(F) plays a very limited role in judicial

review of administrative proceedings. In Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402, 415 (1971), abrogated by Califano v. Sanders, 430 U.S. 99 (1977), the U.S. Supreme Court

ruled that § 706(2)(F) is applicable in only two instances, one of which would govern this case:

“Such de novo review is authorized when the action is adjudicatory in nature and the agency

factfinding procedures are inadequate.” Id. This case is an adjudicatory proceeding specifically

authorized by statute. The agency “factfinding procedures” are inadequate; in fact, they are

nonexistent. If § 706(2)(F) were applicable here, it would require de novo review.

       ¶ 90.   My conclusion that the factfinding procedures are inadequate requires

explanation. The vast majority of administrative decisions are reviewable within the agency

under the extensive procedures contained in the Vermont Administrative Procedure Act

(Vermont APA), 3 V.S.A. § 800 et seq. For proceedings subject to it, the Vermont APA requires

a hearing at which a party can present evidence, id. § 809(c), and cross-examine witnesses,

§ 810(3), and on which the decisionmaker renders findings of fact based on the evidence, id.

§ 812(a). These requirements, however, are applicable only in a “contested case,” defined as a

proceeding “in which the legal rights, duties, or privileges of a party are required by law to be

determined by an agency after an opportunity for hearing.” Id. § 801(2); see also id. §§ 809(a),

810, 812(a).


                                                 36
       ¶ 91.   The administrative review statute applicable in this case provides that an “owner

who is aggrieved by . . . the filing of an adverse inspection report . . . may appeal to the

Commissioner” within sixty days of the filing of the report. 32 V.S.A. § 3758(d). There is no

requirement of a hearing before the Commissioner. Although there was a face-to-face meeting

between the Commissioner and representatives of Plum Creek, no evidence was taken, and there

is no transcript of what transpired.     There are no findings of fact.       The decision of the

Commissioner is apparently based primarily on the decision of the FPR county forester, even

though there is no indication the forester was present at the meeting. The record as transmitted

by the Commissioner to the superior court pursuant to Vermont Rule of Civil Procedure 74

consists of the decision, the letters and documents filed by Plum Creek, and the written decision

of the county forester.

       ¶ 92.   The point is that there are no factfinding procedures applicable in this case. The

majority states that:

               The Commissioner examined the evidence supplied by the county
               forester and concluded that both the evidence and the methodology
               were sound. The Commissioner found that the data was collected
               appropriately and compliance was measured according to the
               correct methodology.

Ante, ¶ 13. While it would have improved the Commissioner’s decision if she had done and said

what the majority attributes to her, her decision does not contain what the majority claims. The

Commissioner’s decision does say, “The violation is clear and undisputed by information

provided by Plum Creek.” Even the short description of the process before the Commissioner

included in the majority decision shows the latter part of this statement is erroneous.

       ¶ 93.   There is an obvious reason why the majority’s statement is unsupported by the

record—there is almost no record. As I described above, the record consists of the violation

decision of the county forester, the filings of Plum Creek, and the decision of the Commissioner.

The Commissioner’s decision contains findings and conclusions that are not in the forester’s

letter or the filings of Plum Creek. The record does not include any information on which the
                                              37
forester relied, any information on the action of middle-management of FPR between the forester

and the Commissioner,18 or the source of many findings and conclusions of the Commissioner.

The situation here is essentially identical to that in Conservation Law Foundation v. Burke, 162

Vt. 115, 645 A.2d 495 (1993):

                In order for judicial review to proceed on the record, it is critical
               that the court have before it the full agency record that was before
               the Secretary at the time he made his decision. . . . Thus, if the
               agency decisionmaker’s decision is based on the work and
               recommendations of subordinates, the record should include all
               documents considered by the agency employees whose input
               reached the decisionmaker.

Id. at 127, 645 A.2d at 502 (quotations omitted).

       ¶ 94.   Burke was not a de novo review proceeding. Id. at 126, 645 A.2d at 502. The

record in that case was as incomplete as that in this case. We held in that case that the superior

court must remand the case to the agency to obtain a proper record before proceeding. Id. 127-

28, 645 A.2d at 503.       Here, the inadequacy of the supplied record supports the de novo

evidentiary hearing held by the trial court to establish a record.

       ¶ 95.   I recognize that Burke held that de novo review was not available even in a case

where there is no administrative factfinding and no record on which effective judicial review

could have gone forward. As in Burke, the reviewing court in this case could have required the

production of a complete record of the administrative action, the proper remedy if de novo

review were not statutorily required.      In my view, the difference lies in the nature of the

administrative decision. In Burke, the decision involved the evaluation of the public health and

safety effects of emission of toxic substances from a solid waste incinerator as part of a complex

regulatory process.    In that circumstance, agency expertise was critical and the need for

       18
            The county forester’s adverse-inspection report was sent to the Chief of Forest
Management, and thereafter to Plum Creek. By letter of May 20, 2010, the Director of Forests
of FPR notified Plum Creek that the investigation was complete and “was forwarded to the
Waterbury Office for review” and sent to PVR, “recommending that the property be removed
from UVA for harvesting contrary to the management plan.” Even this letter was not part of the
record. The record did not include any information about the review in the Waterbury Office or
any other action between the county forester’s report and the Commissioner’s decision.
                                                38
deference to the agency decision was high. This case, by comparison, essentially comes down to

counting trees where agency expertise is relatively unimportant. I will explain the need for

expertise in this case below. I emphasize that the above discussion is about how judicial review

should have proceeded had there been no legislative requirement of judicial review. In this case,

the Legislature has required de novo review, and we are required to follow that direction.

       ¶ 96.   Finally, on this point, it is important to recognize that the Commissioner could

have chosen to hold an evidentiary hearing but did not. An evidentiary hearing would have

prevented, at least in part, the difference between the information on which the Commissioner

rendered her decision and the testimony and evidence on which the superior court rendered its

decision. In fact, under the non-process employed, there were no self-imposed restrictions on

how the Commissioner chose to find the relevant facts, and her decisionmaking process is

opaque apart from her reliance on the FPR forester.

                      III. The Majority’s Standard of Review is Wrong and
                           Inconsistent with the Legislature’s Direction

       ¶ 97.   In Town of Victory v. State, 2004 VT 110, ¶¶ 14-24, we were required to

determine the standard of judicial review of a decision of a state agency in valuing state-owned

real property in a town under the state PILOT (payment in lieu of taxes) program. Unlike in this

case, the Legislature had provided the right of appeal of a PILOT determination but did not

specify the standard of review. We posited three possible choices: de novo review; review under

chapter 131 of subchapter 2 of title 32, specifically 32 V.S.A. § 4467; or traditional deferential

on-the-record judicial review. We essentially found that choices one and two were the same,

using the analysis discussed above. Id. ¶¶ 14-21. We defined the third possibility as follows:

“The third possibility is that the Legislature intended the superior court to treat § 3708 appeals

just as it treats appeals from other administrative actions—that is, it should review the record and

overturn the agency's determination only if it finds it arbitrary and capricious.” Id. ¶ 22. In the

absence of a legislative directive to the contrary, we chose the third possibility.

                                                 39
       ¶ 98.    Although there are slight differences in the language, the majority has chosen the

third possibility in this case. The decisions which it states have the proper standard of review, In

re Johnson, 145 Vt. 318, 488 A.2d 750 (1985), and In re DeCato Bros., Inc., 149 Vt. 493, 546

A.2d 1354 (1988), are unremarkable examples of “arbitrary and capricious” review based on the

administrative record, exactly the standard of review we would have chosen under Town of

Victory in the absence of legislative direction to the contrary. In each of these cases there was an

evidentiary hearing at the administrative level and findings of fact and conclusions of law. In

Johnston, the appeal came directly to the Supreme Court so there could be no independent fact-

finding. In DeCato, the judicial appeal went first to the superior court but again it was on the

administrative record and the evidence in the administrative hearing. Thus, judicial review in

each case proceeded under the Vermont APA, and the standard of review was that routinely

applied in APA review.

       ¶ 99.   The problem with deriving the standard of review from these cases is obvious. In

this case, the Legislature has specified a standard of review, and it is not the third possibility

specified in Town of Victory, highly deferential on-the-record review. Instead, it is a form of de

novo review used in property tax appeals. The majority has turned the statutory standard of

review into its polar opposite. How it has done so is a fascinating process that reminds me of the

child’s game of broken telephone where “a child whispers a phrase into the ear of a second child,

who whispers it into the ear of a third child, and so on. Distortions accumulate, and when the

last child announces the phrase, it is comically different from the original.” S. Pinker, Words

and Rules: The Ingredients of Language 47 (1999).

       ¶ 100. The starting point in the majority analysis is two sentences from Jones, 2004 VT

49. Jones was a case similar to this one, but the statutory standard of review statute is not

reflected anywhere in the decision; apparently neither party recognized its substance and

application. The two sentences are: “We discern no basis to conclude that the Department’s

finding of a violation in this case was standardless, unsupported by the evidence, or contrary to
                                                40
law. Accordingly, we conclude that the court’s findings were clearly erroneous and must be

reversed.” Id. ¶ 14. The majority finds the first sentence to contain the applicable standard of

review.

          ¶ 101. Even if we assume that the Court was aware of the statutory standard of review, I

would not find that the language in Jones on which the majority relies was intended as a

statement of the standard of review for that and following cases. The first sentence is not

followed by a citation to any authority, and the words do not appear in any earlier case, or in any

statute, as a standard of review. Certainly, if we were announcing some wholly new standard of

review for current-use decisions by FPR, we would explain why we were doing that and how we

had the power to do so. In fact, the words have never been cited since as a standard of review,

and the development of the correct standard of review occurs in Mollica, a later decision, without

relying upon the Jones language. Moreover, as the second sentence explains, the actual standard

of review that decides the Jones case is different—that findings of fact cannot stand if so lacking

in support in the evidence that they are clearly erroneous—is familiar and totally consistent with

de novo review.

          ¶ 102. Even if we intended some new and different standard of review, the majority has

turned it into something more than it says. It does not say the agency will prevail if its decision

is based on a standard, is consistent with the evidence, and is consistent with law. At best, it says

instead that the agency decision will prevail if those things are true and the decision against it is

based on a clearly erroneous finding of fact. This is a very important point because in this case,

unlike Jones, the majority finds no instance where the trial court made a clearly erroneous

finding of fact.

          ¶ 103. I would distinguish the Jones language based on the discussion in the two

paragraphs above, but I believe that the likely explanation for its presence in the opinion is that

the Court, including I, was unaware of the statutory standard of review. The Jones language is

fundamentally at odds with de novo review as required by the statute because under de novo
                                           41
review the court is expected to substitute its judgment for that of the agency when it thinks the

agency is wrong.      The language has no place in a decision made under a de novo standard of

review. If the majority believes it does, it should explain how.

       ¶ 104. The next step in the majority’s analysis is to rely on In re ANR Permits in Lowell

Mountain Wind Project, 2014 VT 50, ¶¶ 15-16, 196 Vt. 467, 98 A.3d 16, for the proposition that

“decisions made within the expertise of such agencies are presumed correct, valid and

reasonable.”      As the majority states, ANR Permits is a de novo review case, but the quote is

taken out of context and, as a result, the meaning is changed. The relevant paragraph of ANR

Permits states:

                    In commencing our own review, we must first determine the
                  standard of review that applies in appeals from the PSB sitting in
                  its appellate capacity. As all parties noted, we generally give
                  substantial deference to an agency’s interpretation of its own
                  regulations—in this case, ANR’s interpretation of the VSMM.
                  Absent a clear and convincing showing to the contrary, decisions
                  made within the expertise of such agencies are presumed correct,
                  valid and reasonable. Interpretation of the VSMM is squarely
                  within ANR’s expertise as its authoring agency. This deferential
                  standard remains on appeal, even after the PSB holds a de novo
                  hearing on the matter.

Id. ¶ 15 (footnote omitted) (quotation omitted).

       ¶ 105. The paragraph is solely about the deference accorded an agency in interpreting its

own regulations, deference that is entirely consistent with de novo review. See Letourneau v.

A.N. Deringer/Wausau Ins. Co., 2008 VT 106, ¶ 8, 184 Vt. 422, 966 A.2d 133. Thus, it was

appropriate to cite and rely upon Johnston, which is not a de novo review case. To show the

limit of the deference ruling, the Court added: “In keeping with the statutory standard of review,

[the PSB] gave no deference to ANR’s permit decision.” ANR Permits, 2014 VT 50, ¶ 11.

Thus, the decision does not give general deference to the factfinding, methodology, or

conclusions of an agency, the deference involved in this case. This case does not involve the

interpretation of regulations by the agency that adopted them.


                                                   42
       ¶ 106. The majority cites another part of the ANR Permits decision that it finds supports

its deferential standard of review.    The decision in that case involved the validity of the

stormwater discharge permit for a mountain top wind electric generation project. The agency

allowed the project to employ an alternative stormwater treatment practice that opponents argued

was not authorized by governing regulations. As noted above, the decision turned entirely on

whether the design was consistent with the regulations as interpreted by ANR and the Public

Service Board (PSB). In reaching our decision that ANR and the PSB properly interpreted the

regulations we noted that the Legislature explicitly gave statutory discretion to ANR in

determining whether to issue a stormwater discharge permit and that the PSB had to respect that

discretion even within the context of de novo review. Id. ¶ 16.

       ¶ 107. The ANR Permits analysis cannot change the standard of review in this case. In

the context of renewable energy projects, a large number of types of ANR permits are reviewable

de novo by the PSB under 10 V.S.A. § 8506. Some of these give specific discretion to ANR in

deciding whether to issue a permit; others do not. See 10 V.S.A. § 8503(a). Despite the

presence of de novo review, the PSB is required to apply the “substantive standards” applicable

to ANR, including any discretion ANR has in determining whether to issue a permit.              Id.

§ 8506(d); ANR Permits, 2014 VT 50, ¶ 16. This is the context of ANR Permits.

       ¶ 108. Here the standard of review is imposed by statute, 32 V.S.A. § 3758(d), for only

two administrative actions by FPR: filing an adverse-inspection report that results in termination

from the current-use program or refusal to approve a forest-management plan.            Under the

majority’s standard-of-review theory, because either of these actions lie in the discretion of FPR,

the statutory standard of review is cancelled and replaced by deferential review. To state the

theory is to expose how illogical it is. ANR Permits does not create a way for a court to refuse to




                                                43
apply the standard of review specified by the Legislature.19 FPR is entitled to no deference

under ANR Permits.

          ¶ 109. Finally, the majority pivots to a case involving an APA contested case appeal,

after an agency hearing, where the standard of review is explicitly deferential and not de novo, In

re Williston Inn Grp., 2008 VT 47, ¶ 13, 183 Vt. 621, 949 A.2d 1073 (mem.), demonstrating it

has reached the point where there is no difference between a de novo standard and a deferential,

on-the-record standard.

          ¶ 110. The ultimate test of the holding on standard of review has to be whether we have

complied with the governing judicial review statute. Whatever the logical twists and turns in

analyzing the standard of review, and even if each step of the way appears to be consistent with

and controlled by precedent, the result must be consistent with the statute. In the terms of

“broken telephone,” the result of the majority’s analysis is “comically different” from the

statutory standard. The majority has turned the statutory standard of review into its polar

opposite and found against Plum Creek as a matter of law on the polar opposite standard of

review.

                             IV. The Decision Does Not Involve Policy

          ¶ 111. The majority decision states and reiterates the need to protect and rely on agency

expertise in numerous places in support of its deferential standard of review. In citing and

discussing ANR Permits, it describes the agency decisions here as “complicated methodologies

within an agency’s expertise.” Ante, ¶ 30, citing ANR Permits, 2014 VT 50, ¶ 16. There are

three issues on which methodology was disputed: (1) whether even cutting was required so that

the area cut never fell below the minimum; (2) the actual RBA in the cut area; and (3) when tree




          19
            Even if there might be a case for discretion with respect to plan approval, there is none
for filing an adverse-inspection report. FPR is required to file an adverse-inspection report if it
“finds that the management of the tract is contrary to the . . . forest management plan.” 32
V.S.A. § 3755(c).
                                                  44
regeneration measurements should be taken to determine whether the goals of the harvest were

achieved.

         ¶ 112. Whether even cutting was a proper requirement was the subject of expert dispute,

and under the statutory standard of review, the superior court could substitute its judgment for

that of the Commissioner as I explain above. The superior court believed the expert witness for

Plum Creek and not the FPR expert witness, the county forester, and should be affirmed on that

basis.

         ¶ 113. My main view on even cutting, however, is different. If even cutting was a plan

requirement, it had to be explicitly stated in the plan. The wording of the plan is actually

contrary to a requirement of even cutting—it indicates that the shelterwood is irregularly

distributed and the “overall stand” RBA must be 30 to 40 ft2.              FPR’s expertise may be

appropriate to determine whether even cutting should be required, but if it decides even cutting is

required it must put it in the plan or a separate regulation. In this case, it did not, and Plum

Creek cannot be terminated based on the nonexistent requirement.

         ¶ 114. The second point of dispute is actually relied upon in the Commissioner’s

decision. The decision states that the RBA for the cut area in Stand 34 was 19.7 ft2, just above

60% of the required minimum RBA. The superior court found the RBA of the cut area was

actually 28.5 ft2, only 5% below the required minimum RBA. Again, the superior court’s

conclusion was based on the testimony of Plum Creek’s expert witness who testified that he

measured more trees than the county forester so that the extent he had to extrapolate to reach the

estimated RBA was less. The court found:

                  Apart from whether RBA is measured across a stand as a whole,
                the Court finds that Mr. Holleran’s methodology for measuring
                RBA produced a more reliable result, as it was based on
                measurements taken from a significantly greater number of sample
                plots. His additional explanation of the difference between his
                figures and Mr. Langlais’s is credible: that it was likely attributable
                in part to Mr. Langlais not counting all the trees in the sample
                plots, thereby producing a lower RBA measurement. While Mr.
                Langlais testified generally that his measurements were taken in a
                                                  45
               manner consistent with the UVA manual, the Court finds the
               quality and reliability of Mr. Holleran’s measurements to be
               superior.

The majority states that the trial court could make this factual determination, apparently because,

despite the disagreement with the county forester’s methodology, and the Commissioner’s

finding based on that methodology, the disagreement is over the relatively simple matter of

counting trees. Ante, ¶ 23 n.7.

       ¶ 115. The majority answers, however, that the RBA calculation difference is irrelevant

because it came out under a 30 ft2 RBA, no matter how slightly. Even under the majority’s

rationale I find that explanation insufficient. The Commissioner’s decision relied upon the fact

that the RBA was 19.7 ft2, which would indicate there had been a commercial clear cut. In fact,

the RBA was very close to the minimum. The Commissioner was concerned about whether a

part of the stand would have “a very different age-class distribution, composition and structure”

from the rest of the stand. In fact, if the harvest were completed within the RBA minimum, as

intended, it is not clear there would be a “very different” remaining growth anywhere in the

stand. The problem, of course, is that the FPR policy that it is implementing is written down

nowhere so it is impossible to know what it actually is, a large deficiency when FPR claims it

can come in at any time during the harvest of an irregular shelterwood to measure compliance.

At a minimum, the Commissioner should be required to explain why an RBA of 28.5 ft2 is

inadequate in these circumstances.

       ¶ 116. The third issue in dispute was joined particularly with respect to Stand 43, a

different stand from that considered by the majority, but I will consider it here because it is

mentioned in the Commissioner’s decision with respect to Stand 34. As I excerpted above, the

Commissioner’s decision states: “the residual trees comprising this basal area are at best

intermediate stems in the 10 to 12 inch diameter class that lack the crown size necessary to

provide the shading conditions even if the desired residual basal area target was met. Plum

Creek’s prescription should not be narrowly interpreted to just stocking levels.” Putting aside
                                             46
whether a landowner can be terminated from the UVA program based on noncompliance with a

“broad” interpretation of the plan based a plan requirement that is not actually in it, the facts as

found by the superior court are contrary to the Commissioner’s apparent conclusion.

       ¶ 117. The county forester criticized the harvest because it did not produce the promised

regeneration of new trees—he found “there was regeneration in only 15% of the plots

examined.” This opinion was based on a standard of regeneration of 350 stems per acre

immediately after the harvest. Plum Creek’s expert witness, by comparison, did a regeneration

study three growing seasons after the harvest, also against a standard of 350 stems per acre. He

found a regeneration rate of 12,000 seedlings per acre, far exceeding the minimum requirement.

The superior court accepted the conclusion of Plum Creek’s expert witness because the UVA

manual standard is measured three years after the regeneration harvest and the witness’s

measurements were more reliable.

       ¶ 118. Although the majority has not responded to the superior court’s analysis and

conclusion, it essentially involved the same level of competency as the counting of trees to

measure the RBA. It was also the counting of trees, in this case small ones, to measure

regeneration. The main difference between the superior court’s conclusion and that of the

Commissioner involved when the measurements were taken; the superior court’s measurement

time was in compliance with the governing UVA manual; the Commissioner’s conclusion was

not.

       ¶ 119. Again, the superior court conclusion does not involve policy for the same reason

that the resolution of the RBA issue does not involve policy. While it does not address a

requirement that is stated in the plan, the conclusion of the superior court is nevertheless

important for an understanding of the Commissioner’s decision. Reduced to its main point, the

decision here is about regeneration of a healthy and productive forest. The Commissioner

concluded that the cutting level was too great to allow regeneration. Plum Creek proved that


                                                47
regeneration, orders of magnitude above what was required, were occurring and thus the harvest

cutting rate was a success. The superior court agreed with Plum Creek.

       ¶ 120. Because of the regeneration result, this dispute is largely about a technicality.

That is my last point in the following section.

                           V. The Facts Support Plum Creek’s Position

       ¶ 121. There are some important facts not contained in the majority’s recitation that bear

on whether Plum Creek’s position was reasonable and the trial court acted within its discretion in

accepting it. One group is laid out in the opening two paragraphs of this dissent, and I will return

to these facts below. Another group relates to the present condition of the forest over which this

controversy arises and the goals of the logging activities that FPR approved.

       ¶ 122. The overall forest in this case was in poor condition to support commercial

forestry. The prescription for each of the stands in controversy states that the stand “has high

residual stand damage” and the beech trees are diseased.         See Appendix.      The trial court

described the situation and the goals of the timber harvest as follows:

               [T]he general goals were to cut in a manner to change a poor
               quality old forest into a new forest through the creation of new
               growth. This would be accomplished by harvesting damaged trees
               and large trees that would inhibit the growth of desirable young
               trees, promoting the growth of desirable young trees, retaining
               trees that could provide seeds and shade for new growth in a
               desirable growth pattern, establishing even age management on the
               stands with both existing young trees and new growth, and
               optimizing conditions for growth for the future.

If this had been a forest in which 100% of the trees were valuable and desirable for sale and the

goal was to maximize return on these trees, the requirement that logging occur evenly over a

stand would be reasonable and understandable such that excessive harvesting in one part of the

stand would be a clear indication that excessive harvesting overall was intended.

       ¶ 123. The situation in this case was very different. Thus, the prescription for Stand 34,

the stand in which this conflict primarily developed, stated: “The shelterwood will be irregular


                                                  48
in distribution and will target Sugar Maple and Yellow Birch with large crowns to provide shade

and seed distribution.” It added, “the portions of the stand will also receive 1-2 acre patches

where quality and stocking are not sufficient for shelterwood.” See Appendix. Given the

“irregular distribution” of logging activity, the presence of an arbitrary area in the stand with a

lower RBA than contemplated overall was entirely expectable. Put another way, even cutting

was highly unlikely because the tress that needed to be cut were not evenly distributed over the

stand. The cutting could not occur pursuant to some artificial standard of equal harvesting per

acre.

        ¶ 124. Finally, it is important to understand that the measure of success for Plum Creek

was whether regeneration occurred as a result of the harvesting, the exact goal that the

Commissioner stated she was enforcing. The evaluation of the partial harvest three years later

shows that it was an overwhelming success—the regeneration levels are orders of magnitude in

excess of what was required. Thus, Plum Creek is being heavily penalized for a success.

        ¶ 125. This, and the facts in the opening paragraphs, brings me to the heart of my

disagreement with the majority’s characterization of the facts and Plum Creek’s perspective on

the facts. This conflict would likely never have arisen in the courts if the timber harvesting was

completed in the three stands, and that completion was only days away when the site visit

occurred. Plum Creek never intended to harvest only part of the stand and certainly not only the

part of the stand that had been logged to that point. The fact that only part of the stands were

harvested, and harvest measurements are available only on a part of the stands, was a direct

result of the FPR forester’s conclusion based on the site visit that the stands were being “cut

contrary.” While there is no indication that the FPR forester could or did order the logging

stopped, Plum Creek was put in a position of stopping logging operations to protect itself from a

FPR decision to terminate it from the UVA program.20


        20
          Its decision was also based in part on the AMPs violations, and Plum Creek’s decision
not to move forward until these were corrected. They were, however, corrected.
                                                49
       ¶ 126. The majority has fixed on its view that it makes no sense to average between the

logged area of a stand and the unlogged area, relying particularly on the Commissioner’s

statement that considering a tree a kilometer away in the uncut portion to determine compliance

for a tree in the cut portion was a “misapplication and a complete misunderstanding of the

principal of the silviculture practice.” Everyone agrees with the Commissioner’s statement,

including Plum Creek’s expert, but it does not answer the basic problem with the State’s

position. Plum Creek never intended to harvest only part of a stand and did not claim so here.

This is an example of attributing a position to a party to tear it down—a strawman position. The

Plum Creek position has always been that the harvest could not be judged in midstream and

should have continued to its end, and then it could be judged on whether it violated the plan.

The cause of this controversy is the stopping of the timber harvest days away from its completion

and the required determination of whether the plan was violated by a timber harvest that was

never completed. Plum Creek’s expert testified that Plum Creek could complete the harvest fully

compliant with the provisions of the plans, particularly the minimum basal area requirements and

the use of appropriate treatments in each part of the stands. He noted particularly about Stand 34

that the area that had been logged had been extensively damaged by the 1998 ice storm.

       ¶ 127. By footnotes 8, 9 and 10 the majority has added to its position that it was fair to

consider only part of the stands by stating that if Plum Creek intended that the RBA be judged on

the stands as a whole, it should not have shut down the harvest at the time of the initial

inspection on January 26, 2010 and should have completed it at some time thereafter. The

majority asserts that stopping the harvesting was wholly a decision of Plum Creek and not a

decision of FPR. Even the limited facts in the record show that this position is wrong.

       ¶ 128. There were two adverse consequences of the January 26, 2010 site visit during the

harvesting. First, as discussed above, the FPR county forester decided that Plum Creek had “cut

contrary” to its plan. Second, the county forester decided that Plum Creek had violated the

AMPs in a number of respects. Later that day, the Plum Creek forester sent the FPR county
                                           50
forester an email expressing an intent to comply with program requirements and thanking the

forester for cooperation in meeting those standards. The next day, the Plum Creek forester sent

the county forester a formal letter describing the situation observed on January 26 and specifying

steps Plum Creek would take in the future to comply with the requirements that bound it. It

specifically described the steps it would take to correct the AMPs violations alleged by the

forester and prevent AMPs violations in the future.

       ¶ 129. It is important to understand that the consequences for an AMPs violation and a

violation of the harvest plan are different.     Both can result in termination from the UVA

program, but AMPs violations that result in unpermitted discharges of waste into the waters of

the state in violation of 10 V.S.A. § 1263(a) can result in civil penalties up to $10,000 per day for

each day of violation. See 10 V.S.A. § 1274(a)(6). Such a discharge is also a crime that can

result in imprisonment for up to six months. Id. § 1275(a). The FPR county forester found that

the AMPs violations were “discharge resulting” such that the civil penalties and possible

criminal liability were applicable. When charged with an AMPs violation, Plum Creek was

forced to suspend the harvest in order to correct any AMPs violations.

       ¶ 130. The county forester never responded to the communications from the Plum Creek

Forester, but another site visit on AMPs compliance was planned with ANR staff responsible for

AMPs enforcement. That occurred on February 9 but did not resolve the issues because snow

had fallen on the site making it impossible to observe the alleged violations. In a February 18

letter, FPR outlined the steps needed for Plum Creek to come into compliance with the AMPs.

Plum Creek hired a contractor to do the remedial work, and the ANR and FPR staff revisited the

site on April 19, 2010. On April 27, FPR sent a letter to Plum Creek saying that Plum Creek was

now in compliance with the AMPs. Plum Creek could not have moved forward with the harvest

until all the AMPs issues were corrected; that is, when it received the April 27 letter.

       ¶ 131. Meanwhile the parties had a meeting with respect to compliance with the plan on

February 18. The Plum Creek representatives hoped to learn at that meeting that there would be
                                            51
no further actions that would prevent it from moving forward with the harvest. Instead, they

learned that the county forester was working on an adverse-inspection report which would lead

to termination of Plum Creek from the current-use program. During March and April, the county

forester continued to take measurements at the stands to complete the adverse-inspection report.

       ¶ 132. The adverse-inspection report was issued on April 26, 2010, a day before the

AMPs compliance letter that would allow Plum Creek to move forward. If there was any

question about the continuation of the harvest after the adverse-inspection report, on May 20,

2010, the Director of Forests for FPR sent a letter to Plum Creek saying that a draft of the

adverse-inspection report was being reviewed in the “Waterbury office” and had been sent to the

Tax Department recommending that all Plum Creek property be removed from the UVA

program.   The letter stated, “Until all actions related to the potential UVA violation are

completed, FPR will not be in a position to approve any new activities in the area referred to as

Clough Brook North.” This was a statement that no further harvesting in the relevant area would

be allowed pending resolution of this case. Plum Creek interpreted it as such an order and did no

further harvesting in the stands involved. That order has been in effect since May 20 and up to

today. It was in effect in November 30, 2010 when the Commissioner claimed in her letter that

Plum Creek was using the unharvested part of the stands to claim compliance, the rationale

endorsed by the majority.

       ¶ 133. The majority states that this dissent wanted FPR “to wait indefinitely to see if and

when the landowner will continue cutting before bringing a violation.” Ante, ¶ 38 n.10. That is

a mischaracterization of the facts and Plum Creek’s position, as well as that of this dissent. The

FPR county forester began work on the adverse-inspection report immediately after the January

26 inspection.   Plum Creek never could move forward after the January 26 inspection to

complete the harvest either because of the AMPs issues or because of the adverse-inspection




                                               52
report and subsequent order denying approval for any further harvest activities. It is FPR, and

not Plum Creek, that stopped harvesting activities to this day.21

        ¶ 134. In summary, the facts—if we decide it on the facts—support Plum Creek’s

position, not that of FPR. In the end, however, facts are for the trial court and not this Court, and

the trial court considered every one of the factual assertions of the majority and either rejected

them or concluded that they did not support the Commissioner’s decision. We should affirm the

trial court’s decision.

                                            VI. Conclusion

        ¶ 135. In conclusion, I believe that this decision is wrong on multiple levels. It is wrong

in determining whether FPR or Plum Creek should prevail, and is wrong in ruling as a matter of

law. The superior court correctly ruled that Plum Creek never violated its plan, the standard for

determining whether it should be terminated from the UVA program, and should be affirmed on

that basis. It is wrong by adopting a standard of judicial review that turns a governing statute

into its exact opposite. It is wrong in rewarding an administrative process that is opaque and

does not contain the minimum standards of fairness. Finally, it is wrong in misusing extreme

deference to emasculate judicial review. The majority’s holding on standard of review has

emasculated judicial review in this case.

        ¶ 136. I dissent. I am authorized to state that Justice Skoglund joins this dissent.

      ¶ 137.


                                                 Associate Justice




        21
            The back and forth on this issue is a clear example why appellate factfinding is
improper. There has never been factfinding on the question of whether Plum Creek could have
completed the harvest because it was never an issue in the trial court or raised by the parties on
appeal. For the reasons stated in the text, I believe that the majority’s characterization of the
record on this point is clearly wrong. The alternative, if there is one, is to remand to the trial
court to determine the facts.
                                               53
                                      Appendix to Dissent

                         Relevant Content of Plum Creek Prescriptions

    Stand #               LM-03-34                    LM-03-43                    LM-03-44
     Acres                  137                         115                         37
 Total basal                 82                          88                         97
area (ft2/acre)
 Acceptable                   35                          38                           42
growing stock
  basal area
   (ft2/acre)
Management             Shelterwood cut                Shelterwood cut       Intermediate thinning
   activities                                    Overstory removal cut
Forest health            The stand has high         The stand has high          The stand has high
  conditions         residual stand damage.      residual stand damage.     residual stand damage.
                        Beech bark Nectria          Beech bark Nectria         Beech bark Nectria
                              complex.                    complex.                    complex.
Description of    Stand 34 is a well stocked         Stand 43 is a well         Stand 44 is a well
    stand          Northern hardwood type           stocked Hardwood             stocked Northern
 conditions        with a total basal area of dominated mixed wood           hardwood type with a
                      82 ft2, of that 35 ft2 is   type with a total basal    basal area of 97 ft2, of
                  acceptable growing stock. area of 88 ft2, of that 38      that 42 ft2 is acceptable
                    The stand is dominated            ft2 is acceptable        growing stock. The
                   by Sugar maple, Yellow           growing stock. The       stand is dominated by
                  birch, Beech, Balsam fir,       stand is dominated by      Sugar maple, Yellow
                     Red Spruce. The mean         Yellow birch, Balsam       birch, Beech, Balsam
                       stand diameter is 8.4       fir, White birch, Red       fir, Red spruce. The
                        inches. The stand is    spruce, Red maple. The      mean stand diameter is
                      weighted towards the       mean stand diameter is     7.6 inches. The stand is
                   medium saw timber size 8.2 inches. The stand is           weighted towards the
                    class. The current stand      weighted towards the       small saw timber size
                         has a high level of    medium saw timber size       class. The stand has a
                     residual stand damage       class. The White birch            fair amount of
                       and a fair amount of     in the stand is in severe    acceptable stocking in
                       crown die-back. The      decline and the majority      the small saw timber
                   understory varies greatly of Balsam fir is mature.                size class.
                   in stocking of acceptable        The majority of the
                   regeneration, with small stand has good stocking
                    pockets of Sugar maple      in Red spruce seedlings
                  seedling and saplings in a        and saplings in the
                  patchy distribution about              understory.
                             the stand.
 Management          Stand 34 will receive a     Stand 43 will receive a     Stand 44 will receive
practices to be   Two Staged Shelterwood                Two Staged              an Intermediate
accomplished          (2SS) (even age UVA           Shelterwood (2SS)       Thinning (ITH) (even
during next 10      code 3). The stand lacks (even age UVA code 3)          age UVA code 2). The
  year plan        an acceptable amount of and Overstory Removal             stand is well stocked
                       regeneration and the      (OSR) (even age UVA        with small saw timber,
                   majority of the overstory code 4). 30-40% of the          however many of the

                                                54
 is unacceptable growing         stand will receive an    medium and large saw
    stock. A low density          Overstory Removal         timber stems are in
     shelterwood with a        where the overstory is      decline. The thinning
residual basal area of 30-       in severe decline and     will target the at-risk
 40 ft2 will be utilized to     the understory is well     and mature stems and
        discourage the          stocked with seedling     leave a target residual
establishment of beech in       and sapling sized Red       basal area of 60 ft2.
     the understory. The       Spruce. The remaining        This will release the
     shelterwood will be      portion of the stand will    small saw timber size
  irregular in distribution    receive a Shelterwood.     class and open up gaps
    and will target Sugar      The harvest will target        for regeneration.
 maple and Yellow birch         the at-risk and mature
    with large crowns to            stems. The target
  provide shade and seed      residual basal area is 60
distribution. The portions        ft2. The harvest will
    of the stand will also    release quality growing
 receive 1-2 acre patches      stock and provide gaps
      where quality and                 to promote
stocking are not sufficient            regeneration.
  for a Shelterwood. The
patches will not affect the
   overall stand residual
  basal area of 30-40 ft2.




                              55
