Conservation Easements: Too Much of A Good Thing?

Conservation Easement

Land, 2011

 

As the Mayflower’s hull scraped the rocky shores of Massachusetts and came to a stop in 1620, the land the puritan settlers first set foot upon was full of possibility, full of promise, and for the fleeing puritans, full of hope. From the beginning, the undeveloped and largely unutilized land the puritans first settled and formed their colonies upon represented both the freedom they sought as well as hope; hope for eventual expansion and growth of their newly founded colony. What if the land that the Puritan settlers had set foot upon on that November day in 1620 was not able to be settled? Speculations abound. Or more feasibly, what if the colonists had drafted and implemented legal documents that preserved, in perpetuity, the vast majority of land surrounding their newly founded colony? What if the land that modern day Marshfield, Duxbury, and Kingston are situated on was protected, in perpetuity, from a legal document implemented during a time that houses were built with thatched roofs and Kings still ruled all of Europe?  Would a legal policy this antiquated still be valid?

Most would agree that it is reasonable that policies and laws implemented centuries ago that prove to be ineffective and problematic could be altered or amended to suit the needs of a rapidly changing and evolving society and world. However, this is not always the case. In current day society the implementation of a land conservation easement, or restriction, is legally binding in perpetuity and cannot be altered or amended, ever. Ok, so what’s the big deal? The land we needed to create an industrialized and technologically advanced has already been developed, and the infrastructure is already set in place. Does it matter if we preserve, in perpetuity, some undeveloped rural areas? And the short answer is, yes, it does. Had the Puritans had the same mindset in preserving land, in perpetuity, that they deemed unimportant because Plymouth Colony was already established, would Boston be where it is today? Would modern day Cape Cod contain more than intermittent stands of scrub pine and white sand beaches? If the Puritans had implemented the fundamental equivalent to a modern day conservation easement on many of these areas, the answer is, in short, no. The modern day perpetual aspects of implemented conservation easements are unyielding to any and all future amendments to accommodate future economic expansions and the changing environmental needs of a world amidst great environmental change. Who is to say that 350 years from now, we will not be seen in a similar light as our Puritan forefathers, however we will leave behind, through implemented conservation easements, a legal policy allowing no room for future amendments that completely eliminates the future potential uses of any and all lands that are preserved.  It is clear that the perpetual nature of conservation easements must be amended to address the potential negative environmental and economic impacts associated with the current structure of conservation easements.

So what are conservation easements, and what is the significance of their perpetual clauses? In essence, a conservation easement preserves a piece of land in its existing state and removes any and all developmental rights or changes in how the land  can be utilized, in perpetuity. Conservation easements are often created through transactions with either private land trusts or the state, allowing for the acquisition of a perpetually deeded conservation easement. Ideally, the main goal of this is to curtail development on a permanent basis, and to protect public benefits of these lands (often including open space, historic preservation, wildlife habitat etc.) while they are in their natural state (Echeverria, 2005).    The perpetual clauses in these agreements are currently formatted to allow for no amendment or restructuring of the agreed upon terms, by anyone, ever. Once a conservation easement is implemented legally, the conditions of its enactment and what is allowable and not allowable, within the parameters of the land can never be changed.

Land use priorities and utilization purposes, however, are not static. According to J.D. Echeverria, a leading environmental law and policy expert and keystone member of the Virginia Land Rights Coalition, “Social, economic, and even ecological conditions and priorities will change over time, meaning that some of today’s conservation decisions will appear misguided in the future” (Echeverria, 2005, para. 10). The essential problematic issues that lie within the clause of permanence are, by in large, that it is impossible to effectively plan and take into account future unknown variables; we as humans cannot accurately predict future economic conditions, much less applicable environmental conditions. Echeverria (2005) continues to argue that applying a more adaptive approach to conservation, instead of a policy based on permanence, may very well be better suited to effectively conserve and manage land in an ever changing global world. This adaptive approach to easement implementation would undoubtedly provide the flexibility to better manage land, and in turn the varying natural resources contained within its boundaries, in a manner that is much more reflective of both the environmental and economic needs of the area/region it is situated within.

The detailed rigidity, legally speaking, of the perpetual nature of implemented conservation easements is largely viewed by many private landowners who choose to put a conservation easement on their property as a beneficial aspect or selling point of a conservation easement. Ultimately landowners want to know, without any lingering doubt, that the land they are preserving will remain untouched and unchanged in perpetuity. But in a natural world driven by change and succession, a legally implemented perpetual status quo may prove to be largely unpractical. In a peer-reviewed journal, Environmental Management, Rissman et al. (2013) argue that the perpetual of implemented conservation easements are considered impractical, especially in the face of dramatic climate and environmental changes occurring globally. The most dramatic aspects of these changes (effects of global warming etc.) have yet to even make their greatest projected impact.

The natural world changes, often cyclically, and the ability of human society to effectively adapt to these changes, often within our environment (i.e. the land we live on and around) is a crucial societal contingency that can be severely compromised through the privately implemented legal clauses of conservation easements. Rissman et al. (2013) continue to argue that adaptive and ever-changing management practices, for both wildlife and fisheries, are required to effectively manage and preserve species populations, and the strict perpetual language of conservation easements do not allow for this. As Rissman et al (2013) points out in this, because of the rigid and perpetual structure of conservation easements, often times requisite wildlife management practices, especially amongst a global climate shift, are not allowable based on the legal structure of the implemented conservation easement. What this essentially means is that wildlife management practices may not be allowable on land with conservation easements because the procedures that wildlife management entail are not allowable under the language of the legally implemented conservation easement. This scenario brings up a very real paradox, in that land may be put into a conservation easement in attempts to preserve or protect wildlife populations, but the legal structure and perpetual nature of the conservation easement would not allow the implementation of any adaptive wildlife management practices, thusly having the potential to have a negative net impact, ecologically speaking, rather than the intended positive impacts.

Perpetual conservation easements create complex, potentially negative economic circumstances. The way that they are created, essentially through transactions with either private land trusts or the state, presents it’s own set of potential problems.  In these transactions the land trust, or state, almost always acquire a perpetually deeded conservation easement that prohibits all but strictly limited forestry, agricultural, and some recreational uses of the property by the owner and gives the grantee certain powers to enforce the easement and manage the land (LaGrasse, 2000).  It is also important to know that the word “private” in private land trusts should be used loosely.  It is difficult to consider land trusts as private entities because often their funding and operations are entwined sometimes secretly with the government in a complex and controlling manner creating at the very least quasi-government agencies (LaGrasse, 2000).

So why do landowners seek out perpetual conservation easements? In short, primarily for (relatively) short-term economic benefit and land and resource preservation.  Unfortunately, landowners are often losing their equity and rights to their own land in the long run. Once the land trusts split the title, only about 10-15% of the equity of the property is left to the farmer, rancher, or forester depending on the practical feasibility of development of the land in its unencumbered state, as well as the rights acquired in the easement.  This in essence makes the landowners tenants on their own property because their rights become significantly diminished.

Landowners also use conservation easements as a way to preserve the productive use of their land in perpetuity.  Productive use of agricultural and ranch land requires that the landownership be maintained for the equity, often allowing farmers to obtain financing for yearly planting, major equipment purchases, and for capital improvements to remain competitive and maintain functioning facilities (LaGrasse, 2000). This causes a reduction in equity to such a low level that mortgages and other loans are not always possible.  LaGrasse (2000) gives the example of Bart Dye, who is a farmer in Shoals, Indiana and was attempting to buy back his 150-year old family farm from the USDA Farm Services Agency.  He found that government’s vague conservation easements left the power of decision making with the government to such an extent that the land is of such questionable value for farming and he couldn’t secure a mortgage ( LaGrasse, 2000). In this scenario, the implemented land conservation easement created much more financial hardship than it prevented.

Another key economic factor that make conservation easements an appealing option are the potential tax breaks.  Undoubtedly there is a major real estate tax burden associated with owning large parcels of land.  Many landowners look for the tax advantages of conservation easements to help soften the economic blow of their yearly taxes.  Depending on the circumstance, these tax advantages include income tax deductions and credits, estate tax reductions and exclusions, as well as state and property tax incentives.  These initial tax burdens often force the hand of the landowner into transferring a portion of the land title to the government or a land trust in order to reduce the real estate taxes that the property owner must pay.  Government and interest groups unfortunately, artificially put these tax advantages together.  An amendment to these tax policies would allow for these property owners to maintain their land and its use as well as distribute the tax burden.  An example of a possible amendment would be to eliminate certain taxes on the land that doesn’t require any relevant government services.  This could be partially done by completely eliminating school taxes on unimproved forest land and land used only for agricultural production (LaGrasse, 2000).  By amending these tax laws, it would allow for some land owners to not have their hand forced into signing over their land rights; allowing them to maintain their property.  This is important because of the overall economic impact that is produced by the government owning much of the land.  A slide in government land ownership will ultimately establish an extremely negative tax base pattern for the local municipalities.  This is largely due in part to the government owning the land; thusly the land is removed from the tax rolls.  These property taxes are often arranged with the federal government, however, maintaining appropriate payment levels as time lapses is what becomes the problem; our problem.

Conservation Easements are undoubtedly a necessary tool to preserve land and wildlife.  However, the current perpetual nature of these easements is unrealistic and can become detrimental to the protected land. Amendments within the current perpetual structure of these easements allows for more intertemporal flexibility, while still accomplishing the originally intended preservation goals. A potential solution to this issue is to include a clause within the agreement that allows the conservation easement to be amended or changed under certain circumstances. More specifically, if it is deemed that a private conservation easement is the cause of developmental or planning issues, on a governmental level, it can be amended after subsequent approval by those involved. In principle, this idea already exists through the legal policy of eminent domain. In addition, a new clause could include the right to reevaluate the current state of the easement, and the land that it encompasses, on an agreed upon time frame (i.e. every 20, 50, 100 years). Before a conservation easement is legally implemented, the owner of the land would have the ability to include this clause at his or her discretion, taking into account the wishes of their family, or whom they will leave their land to upon their death. This will allow for flexibility in land use planning by towns and cities, as well as allow the owner(s) to truly do what is in the best interest of both the land and the town/city it is situated in.

We live in a world that is constantly changing.  When problems arise they are initially met with friction, but generally speaking common sense and doing what is right eventually prevails.  The current state of conservation easement structure and implementation effectively handcuffs all future generations from making their own decisions on how to best manage the land in accordance to their needs. It is in general agreement, at least within the scientific community, that climate change and global warming will present environmental challenges never before seen by humanity. To make the management of existing land more difficult through perpetual easements, especially within a future that will require a higher degree of adaptive land use planning than any generation before it, is not only counterproductive but can be considered a future liability. It is clear, from both an environmental and economic standpoint, that the current legal structure of conservation easements needs to be changed, and soon. The first Puritan settlers did not enact policies that restricted the use of their lands for generations to come, and it is not our place to implement policies that impede on the future generations ability to make their own decisions in what is truly the best use of land.

Works Cited

 

Echeverria, J. D. (2005). Skeptics Perspective on Voluntary Conservation Easements. The Virginia Land Rights Coalition. Retrieved February 24, 2014, from http://www.vlrc.org/articles/176.html

 

LaGrasse, C.W. (2000). Conservation Easements: A Critical Commentary. The Property Rights Foundation of America.  Retrieved March 20, 2014, from http://www.nmagriculture.org/Conservationeasmentsfrms.htm

 

Rissman, A., Bihari, M., Hamilton, C., Locke, C., Lowenstein, D., Motew, M., Smail, R. (2013). Land management restrictions and other options for change in perpetual conservation easements. Environmental Management, 52(1), 277-288 doi :10.1007/s00267-013-0091-z

 

 

Evan

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