Friday, June 1, 2012

Conservation Easements: Practical Compromise

What do you do when you want to protect a piece of land from development, over-grazing, monoculture farming, or other ecologically devastating activities? If you own the land, keeping it a piece of pristine wilderness might seem fairly simple: don't build on it, run too many cows, or grow GMO corn. The problem is, people don't live forever, and you don't want whoever takes control of the land down the line to let it become a parking lot. How, then, do you ensure your wishes aren't ignored by your ungrateful heirs?
Duck's Unlimited uses conservation easements specifically for the benefit of waterfowl. 
You use a conservation easement. The idea of a conservation easement is very simple: a landowner agrees to sell or donate certain rights associated with their property in order to preserve the land. Easements can take many forms, depending on the land in question and who the donating party is. Some easements prevent subdividing or developing, others protect water rights, and still others specify the number of cattle or other livestock that can be run on the property. 

No matter what the restrictions are, the easement is binding to anyone who owns the land in the future, and the private organization or public agency that buys or receives the donated rights agrees to enforce the landowner's wishes. Many landowners choose easements over outright donating the land because they still want to live on the land, and they'd like to allow their heirs to do the same. The public or private group (often a land trust) that buys or receives the rights stated in the easement are thereafter charged with ensuring that the terms are being met. Many states offer tax incentives for easements, and some land trusts help property owners manage their land beyond simply enforcing the easement. 
It is common to encourage ranchers to run bison instead of cattle on easement properties in the west, since they are a native species and much hardier than cattle.  

Though land easements have been in widespread use since 1976 when the Tax Reform Act granted conservation easements a federal income tax deduction, only recently has there been any kind of appreciable growth in the number of easements in the United States. In fact, the number of acres has skyrocketed from 500,000 acres in the 1990s to the 30 million acres listed in 2011. Many easements are focused on protecting certain endangered species. 

Currently, only 2% of the private land in the U.S. is under easement.Over a thousand land trusts in the United States use conservation easements, the most prominent being the Nature Conservancy. One of the largest and more well-known easement properties under the protection of the Nature Conservancy is the Flying-D Ranch in Montana, owned by Ted Turner. It remains a working ranch, relying on bison and hunting for income. Water on the property is carefully managed to encourage large populations of cutthroat trout. Some of the bison meat from the ranch goes into the "Ted's Montana Grill" restaurant chain. 
Beautiful shot of the Flying D Ranch, Montana.
The Spanish mountains and the Flying-D Ranch.

The Nature Conservancy protects properties in all fifty states using conservation easements, and a few properties in other countries are making use of the easement system, though this is limited by local laws. Nearly 50% of the Conservancy's investments go into conservation easements. Duck's Unlimited is another major figure in conservation easements. Their target is mainly to protect the ecosystems that waterfowl depend on. There are many other land trusts with similarly focused goals, such as the Colorado Cattlemen's Agricultural Land Trust, Oregon Farmer's Land Trust, and the Conservation Land Trust (which focuses on South American properties and  is making limited use of easements where possible). The Mountain West region has seen the biggest explosion of easements, followed closely by forested areas in the Northeast. The American South has a proportionally smaller number of easements than the rest of the country, and many campaigns are in place to encourage more conservation in this region. 

Why are conservation easements important to maintaining biodiversity? They provide land owners with a way to protect their land without selling it outright. Responsible farming and ranching can coexist with healthy ecosystems with plenty of biodiversity. Perhaps these arrangements are not as ideal as keeping the area pristine, but they are also much more feasible than trying to buy up all the land currently using easements. Advocates for easements say that they fill the regulatory hole left by the various government organizations tasked with preserving wilderness. 

There are, of course, concerns in regards to easements. Many land trusts enforce the terms of easements without any assistance in actively managing the property. Some easements contain provisions requiring the land trusts to evaluate the property over some interval to assess the number of a particular species, or the number of cattle a rancher can run that year, but most lack this kind of oversight.

Owley's article Conservation Easements at the Climate Change Crossroads explains how some landowners might be put in a bad situation because of climate change and restrictive conservation easements. For example, if a submerged piece of land, drys out and the easement only prohibited building wharves, the land may no longer be protected. Alternatively, some easements protect only a very specific endangered species on a property. If that species becomes extinct in the region, the easement is no longer valid. The problem, according to the article, is that many easements do not cover enough circumstances to remain valid if climate change should alter a particular region. 

The solution, according to Owley, is for most easements to be more broadly worded, to contain provisions for amendments, and to have exact wording regarding termination, release, and climate change. Land trusts should be required in the wording of the easements to assist in evaluating the properties and ensuring that the "spirit" of the easement are being met. 

As the amount of private land in the US grows, easements are one tool that can be used to protect lands from development and overuse. They are an imperfect tool, and their relatively new status means that a lot of legal wrangling will be necessary before they become a fool-proof tool of conservation. That being said, for property owners who wish to retain their land and protect it at the same time, easements remain the best option. 



OWLEY, J. (2011). CONSERVATION EASEMENTS AT THE CLIMATE CHANGE CROSSROADS. Law & Contemporary Problems, 74(4), 199-228.


YONAVJAK, L. and GARTNER, T. (2011). GAINING GROUND: INCREASING CONSERVATION EASEMENTS IN THE U.S. SOUTH. WRI Issue Brief, Southern Forests for the Future Incentives Series, 7. 


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