Borough wins decision in logging contract dispute

PALMER — A Superior Court judge has ruled the Mat-Su Borough was within its rights when it terminated a logging permit it issued to a Big Lake man.

The decision, penned by Judge Eric Smith, ran to 56 pages and was filed Feb. 25.

Borough Manager John Duffy said that when he heard of Smith’s decision, “I felt wonderful, very pleased.”

Charles Nash was the winner of a 1998 bid for a timber sale near Trapper Creek. In 2002, his contract was terminated because he hadn’t harvested trees from the requisite number of acres of the sale. In 2003, Nash sued the Borough, alleging the Borough had agreed not to hold him to requirements that he log 1,000 acres per year provided he upgraded Oilwell Road, the primary access route to the sale.

Nash alleged in the suit that he plowed $1 million dollars into turning the road from little more than a muddy four-wheeler trail into a year-round access for his loggers and local residents. When the road was done, he was shut out and deprived of timber profits.

He alleged in his lawsuit the Borough had a vendetta against him and canceled his contract because staff was anti-development and because he wouldn’t ship logs through Port MacKenzie. That vendetta manifested itself through a road closure and the Borough’s refusal to let him log in the summer of 2002, he claimed.

Smith discussed and dismissed each of these allegations. He said the agreement Nash reached with the Borough to upgrade the road in no way affected the timber sale. His brief quotes testimony from Ron Swanson, then the Borough’s community development director.

“It was two separate documents,” Swanson is reported as saying. “In fact, I thought it somewhat surprising that Mr. Nash or somebody didn’t come in and try to pull the two together or tie it into the timber contract.”

The Borough also had not required Nash do any work on the road, Smith says in his brief.

“Mr. Nash was not required to upgrade the road — he chose to do so because it made the most sense for him with respect to harvesting the timber,” Smith wrote.

As to Borough staff harboring a vendetta, “The record certainly indicates that some Borough staff decided that it would be a good idea to come up with violations so as to pressure Mr. Nash to use the port,” Smith says. “But the Borough manager firmly quashed those efforts, … and the violations which the Borough used to terminate the contract were both real and not contested factually by Mr. Nash.”

The logging stoppage in 2002 was Nash’s fault, Smith argued. “He was told that he could log in the summer of 2002 if he filed a plan of operations complying with the contract, but he did not do so.”

The plan Nash submitted did not comply with the Borough’s requirements, Smith wrote. Smith also dealt with Nash’s failure to remove downed logs from the area. Nash, for his part, argued the Borough closed the road and therefore he couldn’t haul them out.

“The record supports the finding of the Borough … that Mr. Nash had an ample opportunity to remove the logs over a substantial period of time,” both before and after the road was closed, Smith argued.

Duffy, in an interview, said that some of those logs — a number Smith pegged at the time of the contract’s termination at 1,500 — are still out there.

He said the Borough is considering hiring a contractor to remove the downed trees. First, the Borough has to determine, “Is there anyone interested in taking that, or have they been spoiled so much that they’re worthless?” Duffy said.

The Borough also plans to sell the logging rights for the land to someone else. Again, the Borough will first have to gauge interest in the timber.

“Let’s see if we have some interested folks out there,” Duffy said.

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.