Northwoods Residents Say DNR Violated Logging Rules

By Henry Redman, The Wisconsin Examiner.

Sept. 7, 2021.

Last year, John Schwarzmann and Ardis Berghoff were hiking near Whitney Lake close to Berghoff’s home in the Northern Highland-American Legion (NHAL) State Forest in Vilas County when they noticed paint on a number of trees — a sign that the Wisconsin Department of Natural Resources (DNR) planned to auction off the trees for a timber harvest.

That April hike set off a year and a half long battle over those trees and others across the area and what Berghoff and Schwarzmann believe is a blatant violation of the rules that dictate how and where the DNR can log.

The fight pits Berghoff, Schwarzmann and others in the area against the DNR and its foresters, as well as an international forest management organization and its team of auditors.

It also shows where Democratic Gov. Tony Evers and his DNR Secretary Preston Cole’s stated aims to put climate change at the forefront of state conservation policies fall short and occasionally clash with the Republican-held Legislature’s long history of squeezing one of the state’s most defining features for economic gain.

Protecting The Northwoods

The NHAL covers 236,000 acres across Vilas, Oneida and Iron counties and is the home to the highest concentration of lakes in Wisconsin. Whitney Lake is a few miles from Boulder Junction, its waters are home to smallmouth bass, panfish and northern pike. Its shallow water makes it one of the few lakes in the area in which no wake is allowed. The wetlands and forests surrounding it are home to a number of rare plants and animals — a wolf pack has been seen nearby.

“I would say the lake is quite special,” says Schwarzmann, who retired in January after decades as the forest supervisor for the Board of Commissioners of Public Lands. “It’s quite undeveloped. It’s mostly state-owned shoreline. So it’s quite a unique lake, I think, for the area.”

On that hike around the lake after the snow melted in April, Schwarzmann and Berghoff noticed the marked trees and Schwarzmann got quiet. From his decades of experience with timber harvests and conservation in the Northwoods, he could see that the planned harvest was cutting far too many trees far too close to the shoreline.

The DNR maintains a field manual for loggers in the state, known as the “Best Management Practices (BMP) for Water Quality,” the manual outlines the best way for loggers to do their work while protecting habitats and shorelines. On privately owned land, the BMPs are mostly just recommendations, but on state-owned properties they’re mandatory.

“The Forestry BMPs for Water Quality Program is a non-regulatory program; however, the use of BMPs is mandatory in a number of situations,” the manual states. “On public lands, such as national forests, state forests, and county forests, following BMPs are a requirement of timber sales.”

When cutting near shorelines, the DNR must keep a certain amount of tree density within a 100-foot buffer — known as the riparian management zone (RMZ). The RMZ buffer doesn’t mean trees can’t be harvested close to the shoreline, just that most need to be left behind in order to protect against erosion and maintain habitat for the plants and animals that rely on it. There are also exemptions that call for more conservative or more intensive cutting within the RMZ, depending on the conditions and slope of the soil.

After they saw what they believed to be violations of the BMPs on Whitney Lake, Berghoff and Schwarzmann reached out to the DNR, looking for answers. After months of trying to go up the department’s bureaucratic ladder — including two letters to Secretary Cole — the pair took a different tack.

“For months after that, we tried working with the DNR,” Berghoff says. “[We] weren’t satisfied with what progress, if any, we were having with them.”

The Audit, The Investigation Of The Audit And The Audit Of The Investigation

So they turned to the DNR’s third-party auditor of state timber harvests — Scientific Certification Systems (SCS).

The SCS auditing is a crucial part of the DNR’s efforts to sustainably log the state’s forests. Without the go-ahead from the auditors, the DNR can’t get certification from the Forest Stewardship Council (FSC), an international non-profit that works with loggers, property owners and conservationists to determine whether or not timber was harvested responsibly.

In order to qualify for FSC certification, an important benchmark for drawing conservation-minded customers, the DNR must comply with its own best management practices.

Last September, an SCS auditor was conducting a standard review of all the state’s planned logging operations. The auditor, looking at dozens of state properties and constrained from normal operations because of the COVID-19 pandemic, dismissed Berghoff and Schwarzmann’s concerns.

“This is a shoddy audit report,” Berghoff wrote in a detailed letter sent to DNR and the auditors after the report was released. “It does not take much to see how dismissive both organizations are of genuine, well-conceived concerns brought to their attention by the public. What this says is that neither the DNR nor the FSC (and its subcontractor, SCS) cares about the public or the lakes of Northern Wisconsin. We are astounded at how poorly you have treated Whitney Lake and us.”

But undeterred, Berghoff and Schwarzmann appealed the audit — sparking a second look at the planned harvest.

Through all of this, the pair figured that if rules were being violated on this one lake, they might have been violated on others. Setting off on a survey of lakes across the NHAL, Berghoff and Schwarzmann found “blatant” violations of the 100-foot buffer zone on nine of the 15 lakes they visited.

This time, the investigator agreed with them. Dismissing some of their more conspiratorial allegations, he found that their central complaint was correct — the DNR was planning to cut too many trees within the 100-foot buffer.

“The planned harvest appears to be in conflict with key provisions of the BMP Manual and the NHAL Master Plan,” the investigative report states, finding that the DNR had to adjust the planned timber sale to comply with the shoreline requirements.

This time, the DNR challenged the report.

In June, a third audit was done of the Whitney Lake harvest and the other sites that Berghoff and Schwarzmann had discovered. Siding with the DNR, the auditor cast doubt on the data collected and observed by Berghoff, Schwarzmann and the investigator. The final audit report also found that Berghoff and Schwarzmann’s interpretation of the BMPs was confused, saying the marks they saw at Whitney Lake were actually for the “equipment exclusion zone” that prevents loggers from bringing heavy equipment too close to the shoreline.

The equipment exclusion zone is not mentioned once in the DNR’s manual but DNR spokesperson Sarah Hoye says the red lines Berghoff and Schwarzmann saw denoted the EEZ, not the planned buffer zone.

The DNR paid SCS more than $28,000 for the annual certification audit and about $3,800 for the final audit.

The 'Smoking Gun'

During hours of interviews, both in person and over the phone, Berghoff and Schwarzmann insist that they’re not against logging and aren’t nitpicking — only calling attention to what they see as flagrant violations of the 100-foot buffer.

“These are objective, measurable violations,” Schwarzmann says. “We weren’t splitting hairs, we weren’t quibbling.”

Trekking through the forest to point out a number of the violations they’ve found from harvest over the past few years, Schwarzmann walks with the quickness and surefootedness that comes from decades in the woods. Berghoff, a freelance writer who has lived on Whitney Lake full time for the past four years, picks a handful of ripe wild blackberries from every bush she passes.

On Jute Lake, the pair show a harvest from a few years ago in which a very thin buffer is followed by hundreds of feet of intensive cutting.

“The shame of it is it’s happening on some of the nicer lakes up here,” Schwarzmann says.
A few miles away, on Upper Gresham Lake, they point out what they say is one of the most flagrant violations of the BMPs. Only a few trees are left standing — what’s known in logging jargon as a near-clear cut — in a large clearing about 40 feet from the shoreline.

“This is a smoking gun if there ever was one,” Schwarzmann says.

And on Trout Lake, they say the DNR seemed to have been violating multiple rules. There’s a skid trail for getting equipment in and out — which requires a 10-15 foot clear cut — within the buffer zone. Multiple mature oak stumps are left in the area, violating the DNR’s master plan for the forest which states long-lived trees should be left standing. While the 100-foot buffer hasn’t been honored, Berghoff says it’s made worse because of the terrain. The shoreline of Trout Lake is a long, steep slope so cutting intensively can be especially harmful and cause erosion.

“How can that be sustainable?” Schwarzmann asks, concerned about the long term effects on the forest and its lakes. “I don’t think they’ve begun to consider the impact of cutting near lakeshores on habitat and climate change.”

DNR spokesperson Hoye says the department stands by the report of the final audit, adding the special investigation was inaccurate and says it follows the BMPs. She adds that harvesting trees in and out of the 100-foot buffer can be beneficial to the climate.

“The forest management activities occurring on the NHAL State Forest are consistent with all department plans and guidance,” she says. “Harvesting timber (both within and outside of RMZs) is a management tool that allows managers to ensure forests are healthy, vibrant and diverse – all of which can mitigate concerns related to climate change.”

For its part, SCS says its multi-step auditing process is trustworthy and the DNR harvests are following the rules.

“Ultimately, with the benefit of a field review, it was confirmed that the proposed harvest was in conformance with the BMPs,” Brendan Grady, who runs the SCS forest certification program, says in a statement. “If a site were ‘clearly out of compliance,’ this fact would be confirmed by the iterative review process.”

FSC, which is relying on the auditors to ensure its system works, says the multi-step appeals process is there for a reason and there are often disagreements over what is happening on the ground.

“We’re very clear you have to follow the BMPs,” FSC spokesperson Brad Kahn says. “An auditor who is a professional forester went out and conducted the measurements and found the BMPs were being met. As far as FSC is concerned, that piece is being met. It doesn’t mean the stakeholder is going to like it but we have a system where that person can still put a dispute in and if they believe the auditor has made a mistake.”

“On some level we’re concerned but we operate across more than 500 million acres of forest — there are regularly differences of opinions on whether the standards are being met, it’s not always that somebody’s trying to get away with something,” he continues. “It’s frequently a misunderstanding over what’s happening on the ground. I would say we try to make sure that at the end of the day we take a look at these things and stand for the integrity of the system but that doesn’t mean everybody is always happy with the outcome. In this case the auditor has found the FSC requirements are being met, that’s not necessarily case closed, that’s where things stand right now. If the stakeholders believe there’s a violation happening, they should put a dispute into the system and it would probably be as much about the auditor as Wisconsin DNR because they’re saying the auditor made a mistake.”

'Aggressive And Un-Neighborly'

Forestry experts across Wisconsin say there can be some subjectivity over how the BMPs are applied among different foresters, but can’t explain why the DNR would want to be so aggressive so close to lakes. Even in a toss-up, they say, the department should err on the side of protecting the shoreline.

“You can have a quote unquote BMP violation accidentally, but to have nine of them, that seems to be more of a policy than an accident,” says Dan Pubanz, who has worked for decades as both a forester and harvest auditor in Wisconsin. “It seems like they’re talking about slopes along a lakeshore; you should be more conservative than the BMPs.”

Ron Eckstein, a volunteer with conservation organization Wisconsin Green Fire who works on forestry issues, says individual foresters interpreting the rules slightly differently might make different decisions and weigh protecting the shoreline less than the “silviculture” — the term for harvesting trees to promote new growth.

“You can have one forester looking, reading over the recommendations, saying this is what I’m going to do and I think I’m good, and a second forester looks at it differently,” Eckstein, a former wildlife biologist with DNR, says. “I know from my experience with foresters in general, whether it’s state, county or national forest, they are the experts and have lots of knowledge. The state gives them quite a bit of leeway in applying the silviculture and applying the BMPs. When they feel they can get closer or further in the interest of silviculture, some foresters will take that step.”

The Governor, The Legislature And The ‘Tiffany Quota’

While Berghoff and Schwarzmann have been in their fight over a few lakes in the NHAL, a broader war is being fought over state policy on public lands.

When Evers was elected in 2018 and Cole took over the DNR, they strained to turn around a department that was often hostile to environmental concerns under Republican Gov. Scott Walker — going as far as scrubbing mentions of climate change from its website.

“The DNR is entrusted to protect the people’s resources and as a result we need to recognize the factors that drive change and must plan accordingly,” Cole wrote in a memo sent to all DNR staff in 2019. “From shifting weather patterns, increases in average temperature, higher frequency and intensity of rainfall to heavier snowfalls, the impacts of climate change directly impact Wisconsin.”

But remaking a government department is easier said than done and progress is slow, Eckstein says.
“Just like trying to turn around the Queen Mary mid-ocean, it takes a while to get bureaucracy turned around,” he says. “I do believe that Gov. Evers and Preston Cole do want to do the right thing with climate and management of our forests. Quite frankly, much much better than the previous administration. We’re moving in the right direction.”

Whatever plans Evers and Cole might have for protecting Wisconsin’s environment and climate, they’re running against Republican policies that were in place long before the 2018 election and a Republican majority in the Legislature that won’t even allow Evers’ nominee to head the Natural Resources Board — the body that guides DNR policy — to take office.

In 2015, as the Legislature was crafting the state budget, in a meeting of the Joint Committee on Finance, then-state Sen. Tom Tiffany inserted an amendment that drastically changed how the NHAL and other state forests are managed.

In a party-line vote in the middle of the night, without a public hearing, the Tiffany amendment increased the amount of state forest that was eligible to be harvested from 66% to 75%. Experts say this drastically changed the DNR’s forestry mandate and many of the feared scenarios expressed at the time have come to pass.

“Remnants of virgin, old-growth forests won’t be touched,” The Milwaukee Journal-Sentinel paraphrased Carmen Hardin, bureau director of forest management for the DNR, as saying in November 2016. “No state natural areas will be logged. Cutting will still follow accepted forest management practices. A third-party certification program is in place to audit harvests.”

But five years later, Berghoff and Schwarzmann are fighting over the DNR’s interpretation of forest management practices and the third-party certification program. Across the state, conservationists and foresters see this as the moment the DNR got more aggressive.

“To me, that’s the story,” says Matt Dallman, director of Northern Wisconsin conservation for The Nature Conservancy. “We have the state and the employees that are mandated by legislation to get a cut out. Back in ‘15 and ‘16 when it was put into place, increasing our forests to 75% production changed the way they look at old growth reserves and how we manage our lakeshores along wild lakes and where can we get the timber to meet our requirements. That has changed the way the state has focused. There’s no doubt about it. That bill and that law has changed where the focus is to get timber out of the lands.”

Even if Cole and Evers wanted to take the department in a new direction, the 2015 Tiffany amendment — which Hoye says isn’t a quota — and the current Legislature are likely to slap them back.

“There is pressure by the Legislature on DNR, on behalf of the forest products industry, to cut,” Eckstein says. “Our organizations are all in favor of the forest products industry. We think Wisconsin needs a diverse forest products industry to manage our forests. We need sawmills for timber, pulp mills, that’s all fine. We can supply timber and still maintain wildlife habitat. In recent years, add on to that, the climate. We can manage our forests to sequester carbon.”

“There really is not much DNR or even the governor can do,” he continues. “The Legislature just has control of this thing. The Division of Forestry can’t go in some direction really rapidly because the Legislature would pass some law, just like Tiffany did, to rein them in. They’re in this dance. It’s always complex and we’ll see. Right now the governor wants us to move forward with climate and the Legislature wants to move forward with economics.”

Wisconsin Green Fire, the organization Eckstein works with, has begun to get the wheels turning on a reassessment of the state’s policies for logging near shorelines, but it’s a slow process. In the meantime, he doesn’t see why the DNR couldn’t move its lines back on lakes in the NHAL while still harvesting enough timber — adding it certainly would have saved a lot of time and energy.

“Why don’t you add their concerns, just move it back, make them happy, life would be good,” he says. “If the state had done that right away, it’d all be over with and Ardis and John wouldn’t have gone and looked at other lakes. Now we’re looking at changing statewide policy. It went up and up and up. At the first meeting the state said, ‘No we’re right, we’re not going to change.’”

Others see significant problems with the DNR’s logging practices and want a more thorough review of the sites that have already been harvested.

“With questions about their stewardship adequacy and climate change impacts, DNR Logging needs an independent audit,” Andy Olsen, a senior policy analyst in the Wisconsin division of the Environmental Law and Policy Center, says.

But even though the fight has moved the gears toward changing state policies, it’s too late on many of the affected lakes. Berghoff is concerned the DNR will return to these spots over the years to come — continuing to harvest aggressively because of the Tiffany amendment.

And as summer turns to fall in the Northwoods, Berghoff spends her days listening to the sounds of logging on Whitney Lake.

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