27 May 2008 Landowners Beware – The Government’s Found a New Way to Control Your Land
Conservation Easements Not What They Used to Be, Says New Report
Under the guise of making more land accessible for the public’s use and providing tax relief for land-rich but cash-poor landowners, the government has found a convenient way to restrict the use of private land – often without the original landowner’s knowledge. Enter The Nature Conservancy and other large land trust conglomerates that approach farmers or large landowners with what seems like a “win-win” for all involved. In return for donating their land for conservation purposes, the landowners are provided with federal and state tax breaks and agree never to convert, develop or use the land for any purpose other than farming or ranching.
A total of 37 million acres of land throughout the United States are currently under the control of land trusts.
However, according to a new report by the National Center for Public Policy Research titled, “Conservation Easements: The Good, the Bad, and the Ugly,” all-too-often that acquired land, placed under “conservation easements,” goes from the land trust right into the governing hands of the largest landowner in the United States, the federal government. Dana Joel Gattuso, author of the report and senior fellow of the National Center, explains these “prearranged flips” provide a back door approach to acquiring land control that is good for the government and the original land trust, but bad for the unsuspecting landowner, who has been kept out of the loop.
How profitable is it for conglomerates like The Nature Conservancy to participate in flips? Gattuso cites their annual report, which states about a fifth of the land trust’s annual support and revenues come from the sales of easements to the government. “In one example, The Nature Conservancy bought an easement for $1.26 million, then directly sold it to the federal Bureau of Land Management for $1.4 million,” she says. The Nature Conservancy certainly isn’t alone, the Maine Coast Heritage Trust, one of that state’s largest land trusts, has sold more than 700 of its 850 easements to the state and federal government.
Besides being able to take control over more and more land, “Government agencies like the arrangements because they are able to restrict activity on private property absent public approval, unlike land purchases, zoning laws and other land conservation regulations, which can draw heated opposition – and great angst,” Gattuso says. According to a Department of Agriculture report on easements, “conservation easements provide opportunities for public agencies to influence resource use without incurring the political costs of regulation or the full financial costs of outright land acquisition.” It is troubling that “easements, absent reforms, could evolve into the prevailing method for government to shift lands unobtrusively from private to public control under a pretense of private stewardship,” she states.
This trend toward more government involvement in land trusts troubles Gattuso. While conservation easements “have become the rage in land conservation – rising in number from 740 in 1995 to 6,500 today – so has the role of government and government’s influence over land trusts.” Initially, the benefits of land trust involvement with easements created the possibility of an effective land stewardship program. “Yet land trusts, particularly the larger organizations, are changing their focus from independent and private approaches, to working in tandem with government agencies in an effort to assist government in controlling private lands,” she cautions.
Gattuso says the biggest reason landowners enter into a conservation agreement is to obtain relief from burdensome taxes – especially death taxes, which break up well-managed lands. Tax benefits are extended to everyone, from wealthy landowners who own hundreds of thousands of acres to struggling farmers who have inherited a hundred-acre farm. These easements, however, extend into perpetuity and can become a big concern when future generations inherit the affected land, the report says. Environmentalists presently view this as beneficial, but what is ecologically-beneficial one day, may not be the next. Legal and policy experts agree these binding agreements that extend into perpetuity “ultimately become antiquated and, therefore, useless or even harmful. The rule fails to recognize that conservation needs – as well as definitions of scenic, aesthetic and cultural – change over time, and that the easement may eventually lose any ecological benefit or even become a detriment. Modern views in ecology hold that the environment is in a constant change rather than in search of a stable end-state,” Gattuso reports.
Robert J. Smith, also a senior fellow with the National Center for Public Policy Research and a foremost authority on property rights, shares Gattuso’s concerns. “Short-term conservation easements were once considered a method to protect lands short of fee simple acquisition. But over time they have morphed into perpetual lock up of lands in a single use. This is not only disastrous from an environmental viewpoint, because nature is forever changing – but it is also the antithesis of a free market because they preclude all future choice,” he says.
Additional problems with tragic consequences arise when there are different interpretations of what a conservation easement allows. There is no shortage of landowners who offer their own disastrous story of their involvement with conservation easements. As an example, the Property Rights Foundation of America cites the case of a farmer who bought a 42-acre property in Chester County, Pennsylvania. Wanting to build a farmhouse to house three generations of his family, he didn’t expect to run into any problem with a conservation easement that had been placed on the land. The easement noted the land could be used only for farming or nature conservation, and for small buildings related to those uses. However, the French and Pickering Creeks Conservation Trust sued to stop the construction, claiming the farmhouse did not fall within the parameters of what was allowed to be built on the land. A judge with the Chester County Court of Common Pleas ruled in favor of the farmer and noted the construction of the farmhouse “does not offend the easement definition of a ‘small building’ incidental to farming use.” Construction on the farmhouse continued and so did the legal stranglehold the Trust held against the family. The Trust appealed the judge’s decision all the way to the Pennsylvania State Supreme Court. Ultimately, the tragedy of how these conservation easements can be misunderstood is evidenced by the bulldozing of the family’s farmhouse, which destroyed the dreams of three generations of family farmers and 15 years of savings.
The paper, “Conservation Easements: The Good, the Bad, and the Ugly,” by Dana Joel Gattuso is available online at http://www.nationalcenter.org/NPA569.html .
The National Center for Public Policy Research is a free-market communications and research foundation established in 1982 and located on Capitol Hill.