October 9, 2012

Jack W. Howard, Manager

State and Local Assistance Programs
National Park Service
U.S. Customs House
200 Chestnut St., 3rd Floor
Philadelphia, PA 19106

Re: Notice of Ongoing Unauthorized Conversion in Violation of Land and Water

Conservation Fund at Pisgah State Park in New Hampshire

Dear Jack,

I write on behalf of our clients, Friends of Pisgah, Inc. and others. We are concerned that New
Hampshire is not complying with its obligations under the Land and Water Conservation Fund Act (Land
Act), which requires the state to safeguard for public recreation state parks and forests purchased
through the Land and Water Conservation Fund (Fund). Pisgah State Park, located in southwest New
Hampshire, was acquired with substantial federal assistance through the Fund. As the largest property
in the New Hampshire State Park system, it is a critically important asset for public recreation, the
purpose for which the Fund provided money. Currently, commercial timber harvesting and associated
activities are occurring – with plans for continued commercial timber harvesting activities – in violation
of the law and the core purpose of Fund: public recreation. NPS must act to safeguard Pisgah
immediately.

Introduction and Summary of the Issue

As explained in more detail in subsequent paragraphs, New Hampshire’s Department of Resources and
Economic Development (DRED) recently wrote a management plan for Pisgah and approved it in June,
2011 (“Plan”) that opens 8,638 acres of the park to commercial logging. 1 This accounts for nearly two
thirds of the park. The implementation of the Plan constitutes a “conversion” under the Land Act both
because the logging is a not a public outdoor recreation use of the park and because property interests
in the timber are conveyed for private use.

The Law

The Land Act was enacted to preserve the “quality and quantity of outdoor recreation resources” that
are necessary for the health of our country’s citizens. 2 The Land Act accomplishes this by providing
federal funds to the states for the acquisition and development of recreational lands. 3 Property acquired
or developed with Land Act funds cannot, “without the approval of the Secretary, be converted to other
than public outdoor recreation uses.” 4

1
NH DEP’T OF RES. AND ECON. DEV., MANAGEMENT PLAN FOR PISGAH STATE PARK (2011) [hereinafter PLAN].
2
16 U.S.C. § 460l–4 (2012).
3
Id. at § 460l–8.
4
Id. at § 460l–8(f)(3).

1
For all land purchased through the Fund, the purpose of the land must be for public outdoor recreation.
Other competing resource activities, such as timber management, may only be carried out on the land if
“clearly described in the project proposal, compatible with and secondary to the proposed outdoor
recreational uses, and approved by the NPS.” 5 If these prerequisites are not met, the competing
resource activity is a “conversion” and requires prior NPS approval. 6

All lands purchased from the Fund are protected in perpetuity. 7 Federal regulations mandate that
funded properties are “continually maintained [for] public recreation use.” 8 The Act provides that these
lands may be “converted” to other than public outdoor recreational uses only if: (1) the conversion is
consistent with the state’s outdoor recreation plan; (2) the state provides alternate land of equivalent
use and value; and (3) the National Park Service (NPS) approves. 9 The prerequisites for authorized
conversions demonstrate that no matter what the change, the core policy of the Land Act—public
outdoor recreation—must be preserved.

The commercial timber harvesting described in the Plan constitutes a conversion, and because it is
already occurring, it is an unauthorized conversion.

The project proposal for the acquisition of Pisgah State Park does not list commercial timber harvesting
as an acceptable land use practice and does not “clearly describe” any commercial timber harvesting
activities that would occur at Pisgah State Park. The proposal states that Pisgah will be a “multi use
state park,” but lists the multiple uses as “swimming, boating, picnicking, camping, and nature study.”
Borrowing from the court’s ejusdem generis principle of statutory construction, “where general words
follow an enumeration of … things, by words of a particular and specific meaning, such general words
are not to be construed in their widest extent, but are to be held as applying only to … things of the
same kind or class as those specifically mentioned.” 10 Accordingly, “multi use” must be read narrowly as
contemplating solely multiple types of recreation, such as boating, camping, and the like. This
interpretation accords with the purpose of the Land Act: public outdoor recreation.

The Land Act Grants in Aid Manual (“the Manual”) states that a conversion occurs if, for instance,
“property interests are conveyed for private use” or “[n]on-outdoor recreation uses … are made of the
project area.” 11

Courts have dealt with “conversions” under the Land Act on many occasions. The Eighth Circuit was
asked to determine whether resource extraction – a diamond mine – on Funded land constituted a

5
NAT’L PARK SERV., U.S. DEP’T OF THE INTERIOR, LAND AND WATER CONSERVATION FUND STATE ASSISTANCE PROGRAM: FEDERAL
th
FINANCIAL ASSISTANCE MANUAL 3–4 (69 ed. 2008) [hereinafter MANUAL].
6
16 U.S.C. § 460l–8 (2012).
7
MANUAL, supra note 5, at 1–1.
8
36 C.F.R. § 59.3(a) (2012).
9
16 U.S.C. § 460l–8(f)(3) (2012).
10
See e.g., In re Preston, 147 N.H. 48 (2001) (citing State v. Beckert, 144 N.H. 315, 318 (1999); Black's Law
Dictionary 517 (6th ed. 1990)).
11
MANUAL, supra note 5, at 8–4.

2
conversion. 12 The court found that test drilling in the park did not constitute a conversion, but if the
state decided to proceed with commercial mining, that would constitute a conversion. 13 In making this
distinction, the court stated that the test drilling “[did] not limit public use of the park … [; n]o
permanent damage [would] come to the land[;] and the available supply of minerals available to public
visitors [would] not be depleted.” 14 The rationale accords with the core purpose of the Land Act: public
outdoor recreation. In contrast, commercial timber harvesting in Pisgah would cause large swaths of the
forest to be placed off limits for public recreation, and the supply of trees available for public recreation
would be depleted.

The state has the primary responsibility to comply with the requirements of the Land Act. 15 DRED is the
state agency charged with ensuring compliance with the Land Act. 16 The state is responsible for ensuring
that these requirements are met and must consult with their NPS-Fund manager “as early as possible” in
the conversion process. 17 Because implementing the Plan constitutes a conversion, the state must
obtain approval from NPS before implementing the Plan. 18 So far as we have been able to determine,
New Hampshire did not consult with NPS: to determine its Fund obligations before approving the Plan;
before contracting to sell timber to commercial foresters; or before commercial timber harvesting
began, and therefore the ongoing conversion is unauthorized.

NPS has an affirmative duty, if alerted to an ongoing unauthorized conversion activity, to ensure that the
state complies with the requirements of the Land Act. 19 The Manual states:

If the NPS is alerted or otherwise becomes aware of an ongoing conversion activity that
has not been approved, NPS shall request the State Liaison Officer (SLO) to advise the
project sponsor of the necessary prerequisites for approval of a conversion and to
discontinue the unauthorized conversion activities. If the conversion activity continues,
NPS shall formally notify the State it must take appropriate action to preclude the
project sponsor from proceeding further with the conversion . . . pending NPS
independent review and decision of a formal conversion proposal. 20

If an unauthorized conversion is discovered, “NPS shall notify the State it is in violation of the grant
contract, program regulations, and the law, and an immediate resolution of the unapproved conversion
must be expedited.” 21 Pursuant to this duty, NPS must request that DRED discontinue the unauthorized
conversion activities and advise the state to follow the Land Act’s requirements.

12 th
Sierra Club v. Davies, 955 F.2d 1188 (8 Cir. 1992).
13
Id. at 1195.
14
Id. at 1193.
15
36 C.F.R. 59.1 (2012).
16
NATIONAL PARK SERVICE LAND & WATER CONSERVATION FUND STATE CONTACT LIST, http://www.nps.gov/ncrc/programs/
lwcf/contact_list.html (last visited Aug. 6, 2012).
17
36 CFR § 59.1 (2012); MANUAL, supra note 5, at 8–4.
18
See U.S.C. § 460l–8(f)(3) (2012).
19
MANUAL, supra note 3, at 8–4.
20
Id. (emphasis added).
21
Id. at 8–11 (emphasis added).

3
Once the state seeks NPS approval as required, NPS can approve of the conversion only after properly
processing the requested approval and only if NPS finds that the activities are not a conversion, or that
the criteria to authorize a conversion have been met. This approval process is rigorous and requires
many reviews. 22 Before the conversion is approved, NPS must comply with the requirements of the
National Environmental Policy Act (NEPA). 23 “All … conversions require an [environmental assessment]
except for ‘small conversions’” of less than five acres, which qualify as categorical exclusions. 24 Following
an environmental assessment, the remainder of applicable NEPA requirements must also be satisfied.

Background and History of Pisgah State Park

In the mid-1960s it was determined that southwestern New Hampshire needed more properties suited
for outdoor recreation.25 In 1967, with financial help from the Fund, New Hampshire commissioned a
“Feasibility Study” to determine whether approximately what is now Pisgah State Park was a viable site
for a new state park. 26 The study “indicate[d] strongly the feasibility of establishing a significant multi-
use state park in that section of southwestern New Hampshire.” 27

On February 9, 1968, the State of New Hampshire submitted a project proposal to the Bureau of
Outdoor Recreation for the acquisition of approximately 13,000 acres of land for the purpose of
establishing Pisgah State Park and the Bureau accepted the proposal. 28 The federal government
contributed approximately $916,625 of funds for the new park. 29 The proposal made no reference to
timber harvesting in the new park. 30 The proposal stated that the new park would be a “multi use state
park,” and lists examples of the multiple uses as “swimming, boating, picnicking, camping, and nature
study.” 31 These are exactly the types of uses that implement public outdoor recreation, the core
purpose of the Land Act. The Statement of Environmental Intrusions, attached to the project proposal,
includes the only reference to forestry in all of the application, stating that “[f]orestry improvement
work will be done in those areas that were heavily logged in earlier days.” 32 “Improvement work” does
not include the commercial timber harvesting contemplated by the Plan because of the Plan makes
primary purpose of Pisgah commercial timber harvesting—not public outdoor recreation as it has been
and must be.

22
See 36 C.F.R. § 59.3(b).
23
See id. at §59.3(b)(7); see also MANUAL, supra note 5, at 4–1 to 4–9.
24
MANUAL, supra note 5, at 4–6, 8–10.
25
See STATE OF NH, LAND, WATER, RECREATION: THE NH OUTDOOR RECREATION PLAN 32–33 (1966) (attached).
26
PER NYLEN/LANDSCAPE ARCHITECT, A FEASIBILITY REPORT 28 (1967) [hereinafter FEASIBILITY REPORT] (attached).
27
Id.
28
U.S. DEP’T OF THE INTERIOR, BUREAU OF OUTDOOR RECREATION, PROJECT PROPOSAL – ACQUISITION, Feb. 9, 1968 [hereinafter
APPLICATION] (attached); U.S. DEP’T OF THE INTERIOR, BUREAU OF OUTDOOR RECREATION, LAND AND WATER CONSERVATION FUND
PROJECT AGREEMENT, Mar 5, 1968 (attached).
29
U.S. DEP’T OF THE INTERIOR, BUREAU OF OUTDOOR RECREATION, AMENDMENT TO PROJECT AGREEMENT, June 28, 1973
(attached).
30
APPLICATION, supra note 28.
31
Id.
32
Id.

4
Other documents in Pisgah’s early history mention forestry sparingly. Because these documents are not
part of the application, they bear little on the current issue. Further, none of them contemplates
commercial forestry for economic gain. The Feasibility Study states several times that the park will be a
“multi-use state park” or “multi-use recreation area.” 33 The Study states that a limited section of the
park, “Site E,” would undergo “selective and heavy thinning, and complete cutting of block portions of
the forest.” 34 This forest management, though, was to be undertaken only to “induce a wider variety of
wildlife to inhabit the site.” 35 In a letter from the DRED Commissioner asking the governor for approval
of the proposed park, the DRED Commissioner stated that DRED “will be enabled to improve the forest
stand and wildlife aspects of this park.” 36 Finally, the minutes from a meeting with the governor and his
council state that they discussed “the proposed multiple purpose State Park in Pisgah Wilderness
Area.” 37

The State of New Hampshire accepted funding from the federal government for four more projects in
Pisgah State Park. In 1978, the federal government contributed over $43,000 from the Fund for an
engineering survey and to design a park roadway system. 38 In 1983, the federal government contributed
$160,000 from the Fund for a park expansion project. 39 In 1986, the federal government contributed
another $100,000 from the Fund to renovate a dam in the park. 40 Finally, in 1988, the federal
government contributed $28,000 from the Fund for a further expansion of the park. 41 Overall from 1968
to present, the state of New Hampshire has accepted over $1.1 million from the Fund to acquire,
expand, and improve Pisgah State Park.

The State complied with the conversion requirements of the Land Act on at least two prior occasions. In
1989–1990, the state consulted with NPS to “convert” a .2 acre parcel of Pisgah State Park for use as a
municipal sewage system pumping station. 42 Again in 2003–2004, the state consulted with NPS and
requested that the agency approve the placement of a barn at Pisgah to be used as a visitor center. 43

33
See FEASIBILITY REPORT, supra note 26, at unnumbered page, 11, 28.
34
Id. at 17.
35
Id.
36
Letter from R. J. Crowley, Jr., Dep’t of Res. and Econ. Dev., to John W. King, Governor, State of NH (Feb. 6, 1968)
(attached)
37
STATE OF NH GOVERNOR AND EXECUTIVE COUNCIL, MINUTES, May 14, 1968 (attached).
38
U.S. DEP’T OF THE INTERIOR, BUREAU OF OUTDOOR RECREATION, LAND AND WATER CONSERVATION FUND PROJECT AGREEMENT,
NOV. 11, 1974 (attached); U.S. DEP’T OF THE INTERIOR, BUREAU OF OUTDOOR RECREATION, AMENDMENT TO PROJECT AGREEMENT,
Apr. 21, 1978 (attached).
39
U.S. DEP’T OF THE INTERIOR, BUREAU OF OUTDOOR RECREATION, LAND AND WATER CONSERVATION FUND PROJECT AGREEMENT,
Dec. 9, 1976 (attached); U.S. DEP’T OF THE INTERIOR, BUREAU OF OUTDOOR RECREATION, AMENDMENT TO PROJECT AGREEMENT,
May 24, 1983 (attached).
40
U.S. DEP’T OF THE INTERIOR, BUREAU OF OUTDOOR RECREATION, LAND AND WATER CONSERVATION FUND PROJECT AGREEMENT,
Feb. 26, 1986 (attached).
41
U.S. DEP’T OF THE INTERIOR, BUREAU OF OUTDOOR RECREATION, LAND AND WATER CONSERVATION FUND PROJECT AGREEMENT,
Nov. 18, 1988 (attached).
42
Letter from George C. Jones, Comm’, NH Dep’t of Res. and Econ. Dev., to James W. Coleman, Jr., Nat’l Park Serv.
(Feb. 8, 1989) (attached).
43
Letter from Roy D. Cortez, Nat’l Park Serv., to Ben Haubrich, NH Dep’t of Res. and Econ. Dev. (Apr. 19, 2004)
(attached).

5
Current Management Plan for Pisgah State Park

DRED approved the current Plan for Pisgah State Park on June 16, 2011. 44 The Plan opens up 8,638 acres
of Pisgah’s 13,361 acres to commercial harvesting over several years. This represents 64% of the park. 45
Nearly 5,000 acres are open for clear cutting or similar “even-aged” techniques. The other 3,500 acres
are open for intermediate types of commercial timber management.

In the Plan, DRED breaks the park down into three different management areas, or criteria: 46

• Criteria 1 lands account for 4,723 acres, approximately 1/3 of the land area of the park. 47
Criteria 1 will be subject to little or no timber management practices. 48 This is the only criterion
that specifically mentions recreation. 49

• Criteria 2 lands account for 3,677 acres. 50 This area serves as a transition from the relatively
untouched Criteria 1 lands to the heavily logged Criteria 3 lands. 51 Criteria 2 will be managed
using “uneven-aged management” strategies, including single tree selection and group
selection. 52 An average of 32 acres per year is expected to be harvested from Criteria 2 lands.
This criterion makes no specific mention of recreation.

• Criteria 3 lands account for 4,961 acres and will be managed according to “even aged
management” strategies. 53 The forests may be harvested in phases, but “it is the final harvest
that defines the practice” of even aged management. The final harvest will result in clear cuts,
“deferment cuts,” or stand-wide overstory removal. 54 This will result in openings from five to
thirty acres in size. 55 An average of 63 acres per year is expected to be harvested from Criteria 3
lands. This criterion also makes no specific mention of recreation.

In the Plan, forestry has taken priority over the outdoor recreational purposes for which the park was
formed, violating the letter of the Land Act and its core purpose of public outdoor recreation. For
example, the Plan explains that the state may “[m]anage recreational use in a manner that does not
unreasonably adversely impact the use of the property for production of forest products.” 56 Further, the

44
PLAN, supra note 1.
45
Id. at 109–26.
46
Id.
47
Id.
48
Id.
49
Id. at 110 (“[T]his area will provide a recreational opportunity for Park visitors …”).
50
Id. at 113.
51
Id.
52
Id. at 114.
53
Id. at 119.
54
Id. at 121.
55
Id.
56
Id. at 132.

6
Plan also says that the state may limit public use in the interest of complying with the [timber]
management goals for the park. 57

Commercial timber harvesting pursuant to the Plan began at Pisgah on July 24, 2012. 58

Financial Motives, Not “Habitat Improvement,” are Behind the Current Management Plan

DRED’s internal records indicate that the primary purpose of the commercial timber harvesting is
economic gain to help resolve DRED’s budget problems. Agency officials were concerned that Pisgah
was “on the receiving end [of DRED’s funds] and has not contributed financially to stewardship/
management costs.” 59 Officials then met to discuss changing jurisdiction of Pisgah from the Division of
Parks and Recreation to the Division of Forests and Lands, 60 thereby changing Pisgah’s classification
from “recreation land” to “forestry land.” 61 This change was considered not for the purpose of
improving wildlife habitat but to “resolve operational issues,” allowing DRED to “re-exert[] its authority
to manage the property effectively and efficiently.” 62

The Division of Parks and Recreation is, in fact, hurting financially. Transferring jurisdiction of Pisgah to
the Division of Forests and Lands would help alleviate the financial burden on the agency. The park
system is designed to be self-funded. The Division of Parks and Recreation relies solely on annual profits
from park and ski operations to support the entire division. 63 “No other State Park System in the United
States attempts to fund operations only through revenue.” 64

The self-funding model is not working. Since 1991, when the state adopted the self-funding model, to
2011, the Division of Parks and Recreation has operated at a loss of over $9.5 million over the entire
period. 65 Nearly $8 million of that loss occurred in the last ten years. 66 Pisgah State Park contributes to

57
Id.
58
Email from Kenneth Desmarais, NH Div. Forests and Lands, to Amy Manzelli, Esq., Baldwin & Callen, PLLC (Aug.
13, 2012) (attached).
59
Email from Johanna Lyons, NH Div. of Parks and Recreation, to Michael Housman, NH Div. of Parks and
Recreation, et. al. (Feb. 4, 2009) (attached).
60
Email from Ted Austin, NH Div. of Parks and Recreation, to Johanna Lyons, NH Div. of Parks and Recreation, et.
al. (Jan. 12, 2010) (attached).
61
DIVISION OF FORESTS AND LANDS: LAND MANAGEMENT, http://www.nhdfl.org/land-management/ (last visited Aug. 6,
2012).
62
Meeting request from Michael Houseman, NH Div. of Parks and Recreation, to Gail Woleck, NH Division of Parks
and Recreation, et. al. (Jan 19, 2010) (attached).
63
NH DIVISION OF PARKS AND RECREATION, TEN YEAR STRATEGIC DEVELOPMENT AND CAPITAL IMPROVEMENT PLAN 11 (2010).
64
Id.
65
See NH DEP’T OF PARKS AND RECREATION, COMPARATIVE STATEMENT OF INCOME AND EXPENSES, FISCAL YEARS 1991-2011
(attached); NH DEP’T OF PARKS AND RECREATION, FISCAL YEAR 2010 ANNUAL REPORT (Jan. 11, 2010) (attached); NH DEP’T OF
PARKS AND RECREATION, FISCAL YEAR 2010 ANNUAL REPORT, available at: http://www.nhstate
parks.org/uploads/pdf/ParksAnnualReport_FY09-10_web.pdf (last visited September 27, 2012).
66
Id.

7
this economic loss. Since 1991, Pisgah State Park incurred a loss of over $1.6 million. 67 This accounts for
roughly 17% of the economic loss of the entire state park system.

In DRED’s communications with the public, the agency stated that the primary purpose of the planned
timber harvests is to improve forest health and enhance wildlife habitat. In DRED’s earlier
communications with concerned citizens, for instance, DRED officials stated that “harvesting is a means
for assuring the health of the forests and the habitat it provides for indigenous species, both flora and
fauna.” 68

Financial concerns are causing New Hampshire to fail its obligations at Pisgah pursuant to the Land Act.
Financial necessity, though superficially compelling, has never been sufficient of itself to permit New
Hampshire to abrogate its contractual obligations. 69

The Way Forward

As you know, I have already communicated these concerns to you less formally starting in December of
2011.70 We are certain that you will want to swiftly remedy the situation so that the Land Act is being
complied with. Accordingly, we request that you take the following actions:

1) Order DRED to immediately cease all timber harvests at Pisgah State Park.

2) Before timber harvesting may resume, if it ever does, New Hampshire must seek NPS approval
to implement the Plan.

3) NPS must consider New Hampshire’s request in accordance with applicable laws, including
NEPA. If NPS determines that implementation of the Plan constitutes a conversion,
implementation of the Plan may resume only after satisfying the prerequisites for authorized
conversions.

Because commercial timber harvesting is currently underway at Pisgah State Park, time is of the
essence. I request a response to this letter within thirty (30) days of the date of this letter. Barring a
satisfactory and timely response, we may be forced to file suit in federal court against the NPS and DRED
pursuant to at least the Administrative Procedure Act asserting violations of at least NEPA and the Land
Act.

67
Id.
68
Letter from Gail Woleck, NH Div. of Parks and Recreation, to Thomas Sintros (Nov. 20, 2007) (attached); Press
Release, NH Div. of Forests and Lands, Pisgah State Park Timber Sale to Begin (Dec. 7, 2007) (attached); Letter from
Anthony I. Blenkinsop, State of New Hampshire, to Amy Manzelli, Esq., Baldwin & Callen, PLLC (Jan. 12, 2012)
(attached).
69
See Tuttle v. N.H. Med. Malpractice Joint Underwriting Assoc., 159 N.H. 627, 654 (2010).
70
Email from Amy Manzelli, Esq., Baldwin & Callen, PLLC, to Jack Howard, Nat’l Park Serv. (Dec. 8, 2011) (attached).

8
The core purpose the Fund assisted in the formation of Pisgah is public outdoor recreation. The bottom
line is that commercial timber harvesting is not allowed at Pisgah State Park and must be remedied
immediately.
Sincerely,

Amy Manzelli, Esq.

cc: Clients

George Bald, Commissioner

N.H. Dept. of Resources & Economic Development
172 Pembroke Road
P.O. Box 1856
Concord, NH 03302-1856

Brad Simpkins, Director

N.H. Division of Forests & Lands
PO Box 1856
Concord, New Hampshire 03302-1856

Philip A. Bryce, Director

N.H. Division of Parks & Recreation
172 Pembroke Road
P.O. Box 1856
Concord, NH 03302-1856

Anthony I. Blenkinsop, Senior Assistant Attorney General

N.H. Department of Justice
33 Capitol Street
Concord, NH 03301