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CONSERVATION EASEMENTS: A
Critical Commentary
THE PROPERTY RIGHTS FOUNDATION OF AMERICA,
INC.
P.O. Box 75, Stony Creek, New York 12878 - 518/696-5748
The right to own private
property is a fundamental American freedom that
guarantees personal liberty and promotes economic prosperity.
by Carol W. LaGrasse
President, Property Rights Foundation of America
from http://www.nmagriculture.org/Conservationeasmentsfrms.htm
March 14, 2000
Where used to acquire large tracts of rural land, conservation easements
are a wolf in sheep's clothing. Although environmental groups, government,
and even sectors of resource-based industry laud conservation easements as
a permanent means by which to maintain "working" forests,
ranches and farms while protecting the environment. In reality the
easements place the productive future of the land in grave doubt. At the
same time. The easements are eroding that bastion of the American
tradition of freedom, private property ownership.
The reasons cited to promote conservation easements are in error and
better means to preserve productive rural lands are available. It is
important to avert any major federal funding source (like CARA) for
conservation easements.
What are conservation easements? Under these transactions, the State or a
land trust acquires a (usually perpetual) deeded conservation easement
which prohibits all but strictly limited forestry, agricultural, and
possibly recreational uses of the property by the owner and gives the
grantee, and sometimes citizen activists, certain powers to enforce the
easement and manage the land. The forest, ranch, or farm "owner"
actually becomes a residual owner under the terms of the easement, with
his rights to use the land subsidiary to the rights conveyed, which can be
very broad.
Benefits attributed to conservation easements-Inaccurate, exaggerated, and
inequitable
The positive buzz about conservation easements and their one-sided
advocacy by groups which stand to advance their agendas and increase their
influence from implementing the easements have been obscuring rational
evaluation of the ascribed benefits and negative effects of these
transactions. The values attributed to conservation easements are
scrutinized briefly as follows:
1. The claim of
"private" conservation through conservation easements by land
trusts. It is untrue that conservation easements arranged by land
trusts constitute "private" conservation.
a. Land trusts as government agencies:
The claim that conservation easements through land trusts are
"private" conservation is false because the land trusts are not
private entities. Their funding and operations are so thoroughly woven
together in complex monopolistic, often secret relationships with
government that they are essentially government agencies, or, if not
government agencies in the formal legal sense, at least quasi-government
agencies. (1)
b. Land trusts as government land agents:
The land trusts are not mainly involved in private conservation. Instead,
the land trusts are largely acquiring land on a prearranged flip to
government.
c. Loss of equity and rights to use the land: After the land
trusts, often acting as intermediaries, split the title, the remainder
title owned by the farmer, rancher or forester ordinarily comprises only
about ten to fifty percent of the equity of the property, depending on the
practical feasibility of development of land in its unencumbered state and
the range of the rights acquired in the easement. The bundle of private
rights to the land has been so severely diminished that the farmer,
rancher or forester is essentially a tenant on his own land.
When the land is depleted, as it will often deliberately be by such owners
because they are unwilling to maintain their former stewardship; or when
financial crises or opportunities arise necessitating the use of land for
equity, where equity essentially no longer exists; or where times change
and uses prohibited by the easement are feasible while permitted uses are
undesired or uneconomical, the only buyer for the land may be government.
(2) Thus, the conservation easement is in essence a step along the way
from 100 percent private to 100 percent government ownership.
d. An alternative of genuine private
sector conservation through land agreements: The real estate division of
Sotheby's in New York has a program to preserve ranches in conjunction
with the Sand Creek Co. in Buffalo, Wyoming, by offering cooperative ranch
ownership to multiple wealthy buyers without the involvement of the
government or land trusts. This commercial undertaking sells "ranch-steads"
of 40 acre building lots for approximately $1 million each, along with
membership in a ranch preservation association limited to the ranch-stead
buyers. The ranch-steads are located to leave the large expanse of the
ranch intact. (3)
2. Use of voluntary
actions instead of government controls
The claim that conservation easements use voluntary actions instead of
government controls is extremely deceptive. Statements to the effect that
conservation easements, as private conservation efforts, display the
"moral and material superiority of a system based on private
voluntary actions over a system based on politics and government
controls" (4) are simply false.
a. Enforcement of more stringent
conditions: Although the government becomes an enforcement agency through
contract rather than through passage of regulation, the end result is the
same. In fact, in the case of forestry in the Northeast, the terms of
conservation easements enforce far more restrictions on the use of
resources than are politically feasible through legislation.
b. Pressure to sell: The claim fails to take
into account the enormous wealth and concentration of power of the land
trusts and the pressure of taxes and regulation that argue against a
voluntary nature to the landowner's selling conservation easements.
c. Overbidding the market: The claim
fails to take into account the fact that government and land trusts
commonly overbid private purchasers for the land; thus, although creating
a windfall at times for the landowner, the transaction undercuts the
operation of the truly voluntary free market.
In New York's Adirondacks, because well heeled land trusts, forest
investment groups tied to the land trusts, and government overbid locally
based industry, they are thereby gradually superseding the productive
local forest industry as purchaser of large tracts of forest land.
d. Litigation: The claim fails to recognize
the use of litigation by land trusts to obstruct the use of land they wish
to acquire for government preserves. In addition, conservation easements
may stipulate that citizens can later sue to enforce the agreement against
the will of the residual property owner and even the government.
3. Preserving the
land in perpetuity for productive use
The claim that modern conservation easements can be relied on to preserve
the productive use of land in perpetuity is false.
a. Agricultural and ranch land:
Productive use of land for agriculture requires that the land ownership be
maintained for equity in order to obtain financing for yearly planting,
major equipment purchases, and for capital improvements to remain
competitive and maintain functioning facilities. Terms of agricultural
conservation easements have evolved over the past thirty years toward
tighter restrictions of the original owner and a balance of power weighted
to the easement buyer. Conservation easements can reduce the equity to a
level that mortgages, and seasonal and long-term loans are not always
possible.
Bart Dye, a farmer in Shoals, Indiana, attempting to buy back his 150-year
old family farm from the USDA Farm Services Agency, found that
government's nebulous conservation easements leave the power of decision
making with the government to such an extent that the land is of such
questionable value for farming that he cannot secure a mortgage. (5)
Owners of ranch land in the West have had difficult problems with
conservation easements, such as being blocked from construction of
services across easement land. The experience with perpetual easements
bankrolled by Ducks Unlimited and managed by the USFWS was discussed by
Dennis Miller, the president of the Landowners Association of North
Dakota, in March 2000. "We have dealt with perpetual USFWS easements
since the early 60's, I cannot see why anyone in their right mind would
consider, for any amount of compensation, signing over the sovereignty of
their property to the Federal government...Perpetual easements have been
perpetual headaches for most private landowners involved." (6)
b. Forestland: Conservation easements on
forestland are becoming extremely restrictive. Terms of such easements
used in the Northeast are extremely lengthy and complex, while at the same
time being written so that natural resource protection is most broadly
construed and can override forestry considerations. William Sayre of
Associated Industries of Vermont found that, in the case of new
conservation easements in Vermont, the continued practice of forestry
depends entirely on the good faith understanding of the parties, placing
the future practice of forestry on
private land in the same precarious position as the current situation of
forestry practice in National Forests.(7)
4. Preventing
subdivision and development.
The claim that conservation easements are needed to prevent subdivision is
untrue for forestland and greatly oversimplified and only partly true for
agricultural land.
a. Forestland acreage: Because
agricultural land is growing up as forest, the nation is gaining
forestland at such a rate that forest acreage exceeds that of the
mid-century and dwarfs that of the turn of the century in states like New
York. According to a joint study by the Empire State Forest Products
Association and State University of New York College of Environmental
Science and Forestry, 62 percent of the land area of the state is
currently forested, whereas at the turn of the century less than 20
percent was forested. (8)
b. "Threats" of development to
forestland: The vast acreages of forestland being acquired by conservation
easements and fee simple purchase are not threatened by development. A
prime example was the 1999 New York State purchase of 110,000 acres of
conservation easements and 29,000 acres of fee simple of the Champion
International land in a backwater area of the state characterized by
population decline and economic depression. The State and
environmentalists pronounced that this land was "saved" from
development.
A major federally funded study of land conversion of northeastern forests
concluded in 1993 that the only significant transfers of large parcels of
land out of the forest industry was the transfer of 6 percent of the total
acreage of the tracts (as either easements or fee simple) under study to
government for conservation purposes during the eleven years under
consideration. (9)
c. Agricultural land: Most of loss of
agricultural land in the United States has been in unused land overgrown
by forests. This is still happening. In areas of urban expansion where
loss of prime farmland is occurring, farmers should determine the policies
which protect their interests, on a voluntary basis, carefully weighing
their options.
d. Real estate taxes: Some of the pressure
to sell forestland and agricultural land for development is caused by real
estate taxes based on the development value and cost of government
services which are not proportionally used by farms and forest tracts.
Changing all real estate taxes to pure current use taxation would be very
beneficial to alleviate much "development" pressure. Yet, many
anti-"sprawl " environmentalists aggressively advocate precisely
the opposite, the Henry George "rental" system of taxation to
eliminate low-value uses of land, which would make it impossible to retain
agricultural and forest land near urban areas. (Real estate taxes are
discussed in more detail in Section 9 below.)
5.
Over-exploitation of the land
The claim that conservation easements are needed to insure the
sustainability of the land resources for forestry, farming and ranching is
false.
a. The claim that easements will
eradicate "unsustainable" forestry and other uses: In the
Northeast, the attacks on the degree of sustainability of industrial
forest practices refer to antiquated silvicultural practices. Sometimes
emotionalistic attacks on cutting any trees, even in forests which are
undergoing a third harvest, are translated to campaigns to acquire land,
which are then translated to acquiring conservation easements within a
confused debate about the issues.
Farming, likewise, has advanced to conservation practices making the
agricultural use of the land sustainable indefinitely. Ranch land in the
West, likewise, not only is sustainable for ranching, but supports a
wealth and variety of wildlife and game.
b. Government acquisition encourages poor
stewardship: With New York State government as the next purchaser, rural
private property owners during the past 30 years have commonly liquidated
their timber resources prior to selling. It is questionable whether some
lands with conservation easements retain profitable harvests.
The purchase of large timberland tracts by investment groups as fee simple
or as residual land subject to conservation easements appears to indicate
a lack of long-term commitment to the land, which may have been so
stripped that a wait of 50 to 70 years (touted as being environmentally
motivated) is essential in order to have a merchantable harvest. What
investment company will hold on to inactive land this long? The land must
be destined for 100 percent government ownership.
By contrast, the sellers would have had to continue managing their land
for sustainable timber harvest up to the time of sale if the buyers were
from the timber industry.
c. Government's lack of stewardship of
resources: After the government owns the forest, current federal and state
government policies encourage wildfire. In New York in 1995, Governor
George Pataki reversed his position under pressure from environmentalists
to forego salvage logging after a blowdown which severely damaged or
leveled about 400,000 acres of State-owned land, in spite of the computer
analysis commissioned by the state stating that the fire hazard conditions
caused by the fuel buildup were such that normal weather and commonplace
conditions could produce a fire of the worst severity possible. (10) The
federal government's policies in the West leading to a wildfire which
severely burned Yellowstone National Park are documented in Alston Chase's
Playing God in Yellowstone. (11) Federal pretense to "protect"
trees and species in the name of the environment is resulting in increased
occurrences of disastrous wildfires causing destruction of forests, loss
of wildlife and, most outrageous, deaths of firefighters.
6. Preserving
rural communities
The claim that conservation easements are necessary and will be effective
to preserve resource-based rural communities is built on deception. The
degree to which this false claim succeeds will be another factor in the
further decline of rural communities and the deliberate depopulation of
vast areas of rural America coveted by environmentalists.
a. Encouraging non-sustainable
harvesting: Both conservation easements and fee simple acquisition
encourage non-sustainable harvesting, and therefore undercut the resource
base on which the rural economy is sustained.
b. Fire hazard: By encouraging poor
management of the land, government acquisition of conservation easements
increases the potential for wild fires, which are a threat to local
communities.
c. Elevating non-forestry values: By
imposing management conditions that supersede forestry with wildlife
management, scenic considerations, and recreation, conservation easements
will reduce the rural timber-based economy to one dependant upon the whims
of the environmental community.
d. Raising the cost of housing: By
withdrawing land from the housing market, the remaining land becomes more
expensive for building lots, a critical factor for rural communities,
where cash is relatively limited.
e. Reducing long-term commitment to
the land: By transferring equity in the land to the easement holder, the
easement may discourage the landowner's long-term commitment to the land;
the likelihood that the title to the land ultimately transfers 100 percent
to government and that the land is retired from production is great.
f. Economic impact on the local
economy as a result of unpredicted results of conservation easements:
Since conservation easements may very well result in the end of the use of
forest land for production, the impact on the local economy in isolated
rural communities dependant on forest production will be great. The
conservation easements may therefore be an important factor in the
depopulation of the region, a goal in harmony with many environmental
programs being imposed on rural America.
g. Critical mass: The forest economy
requires a certain critical mass in any given region to be economically
viable. There must be enough land in production to supply local paper and
saw mills and to support services such as equipment suppliers and
maintenance experts. As mills close, as is gradually taking place in New
York's Adirondack Mountains as a result of State land acquisition for
preservation of "wilderness," the services available to
remaining mills are placed in jeopardy. Some producers express concern is
that a point may be near at hand where a critical mass will be reached
where the industry based on remaining private land will be unsustainable.
h. Cultural and economic impact on
local communities caused by elimination of land use by traditional
sportsmen: The reduction of access and elimination of hunting clubs and
popular related uses such as snowmobiling by club members on lands where
the government or land trusts hold conservation easements hurts local
communities by cutting ties to this important facet of local culture and
by economic impact on local businesses patronized by members of hunting
clubs, including feed suppliers for deer feeding, automotive and heating
fuel suppliers, grocery and general supply stores, restaurants, taverns,
carpenters and other businesses. Potential replacement of patronage by
hikers and canoers is negligible.
i. Impact on tax base
resulting from government or land trust acquisitions of land: Under
Section 11, the profound negative implications for the tax base are
discussed.
7.
"Opening up" access to rural holdings
The claim that conservation easements will open up access to private rural
holdings is deceptive and in most important cases deliberately false. If
the goal were to obtain access easements, the government would have
acquired these, rather than broad forms of title.
a. Cultivating the class resentment
factor: Environmentalists falsely claim that only "wealthy"
hunters have access to posted land owned by timber companies. This
cultivation of the resentment factor has helped to steer the press and the
general public away from an accurate examination of the issues.
In reality, by far most of the leases on timber company land are held by
middle class, local hunting clubs with a number of camps on each club
lease owned by couple of hunters and their families. The neat, modest
hunting camps are often a source of generations of pride passed from
father to son. The larger, bunk-style camps vary from extremely modest
clubs to some with less rudimentary, pleasant, lodge-style dining halls
and even caretaker cottages, but all with a overwhelmingly middle-class,
rather than wealthy, membership.
Contrary to environmentalist claims, the clubs respect nature and act as
stewards of the land, and they have stricter hunting standards than the
State. They take pride in building up the level of healthy game and other
wildlife. The clubs make it possible for generations of fathers and sons,
as well as family members of both sexes (One club president is a woman),
to enjoy traditional outdoor recreation together where it would otherwise
be impossible. This is just the sort of family life that our society
craves.
b. Elimination of Access: By eliminating
traditional hunting clubs, government acquisition of land, whether through
conservation easements or fee simple, eliminates access to the land in the
practical sense.
In acquiring the 139,000 acres of land from Champion International
Corporation in 1999, the State of New York announced that all 45 leases of
lands by private hunting groups will be phased out. Three hundred hunting
camps will be demolished. Boulders are already appearing across roads to
block off access.
As years go by and roads are not maintained, access in any practical sense
will gradually end, even for the supposed "public" which the
State claims will replace the hunters who currently lease the lands. The
Champion International tracts will join the other three million acres of
State-owned land in the Adirondacks, where hikers rarely enter the back
country and hunters find most of the land inaccessible for taking out
game.
8.
Profitably surviving in a global economy
The claims that conservation easements are necessary for industry to
survive global competition, realize equity and improve profitability are
partly based in distortions and are at best only partly true. The land is
often located in an area where development pressures are virtually
non-existent, tying the owner to the land for various reasons.
a. The burden of land ownership to
competitiveness: The forest or farm owner may find that the rate of return
on investment may be low enough that other investments have such a greater
rate of return as to make him leave the business. The rate of return and
the present worth of this investment will be increased as a result of the
purchase price of the easement and by the real estate tax reduction, if
granted, during future years.
The sale of the conservation easement, however, will give the landowner a
competitive advantage over others in the marketplace, and drive more
landowners to sell such easements, creating a trend that is harmful to
future private property ownership. Thus the government permanently reduces
the operation of the free market by the purchase of conservation
easements.
Through conservation easements, however, the government may also place
impositions which reduce the opportunities for profit, such as by
controlling timber harvest or by eliminating revenue from hunting club
leases.
b. Non-liquidity of land: The landowner may
not be able to sell the land to invest in other enterprises and he may not
be able to develop the land. Only a specific case study can determine
whether the burden of land ownership is excessive, driving the landowner
to seek to sell an ownership share to government.
In some regions of the country such as New York's Adirondacks, choice is
foreclosed by the regulatory impositions on property owners. Low
profitability can result from the effects of either the cost of taxation
or the burden of regulation, or the combined effects of both.
In such cases, the government imposes regulations and taxes and relieves
the burdens of regulation and taxes by sullying title to land through the
acquisition of conservation easements.
It should be kept in mind that even if taxes were lowered and the
regulatory burden eased, land may still be subdivided and sold, as a
result of market considerations.
c. Profitability: In order to increase
profitability, the landowner may elect to sell conservation easements
irrespective of the issues of low profitability or the burdens of
government. Where funding for conservation easements is readily available,
political decisions result in purchases of conservation easements as a
result of insider relationships with landowners seeking windfalls or
interested in seeing short term jumps in profitability.
9.
Relieving the real estate tax burden
Real estate taxes are unquestionably a burden to the forest industry in
New York, Vermont, New Hampshire and Maine, according to a federally
funded study published in 1994. (12) Agriculture pays a level of real
estate taxes that are disproportionate to the real estate tax-based
services received by farmers. By transferring a portion of the title to
government or a land trust affiliated with government, conservation
easements are used to reduce the real estate taxes that the property owner
must pay
a. The better solution of strict
"current use" taxation: Environmentalists advocate the wrong
solution to the real estate burden. Their solution involves encumbering
the title to land in perpetuity. The solution which would perpetuate the
American structure of private land ownership would be to reduce real
estate taxes on the basis of land use. A simple change to current use
taxation would accomplish the same result for the landowner as the
transfer of conservation easements without the landowner having to forfeit
equity in his land. This solution also saves the taxpaying public the cost
of purchasing the conservation easements.
b. Other existing solutions: Existing
solutions available in the tax structure of certain states include
agricultural districts and forestry tax exemptions. Unfortunately, these
statutes may require commitments that penalize property owners when land
is sold or when market uses dictate the sale of timber at a time that
differs from the government-approved forestry plan. However, by avoiding
perpetual government control over land and other disadvantages, these
programs are superior to conservation easements.
c. Eliminating certain taxes on land
which doesn't require relevant government services: A further improvement
in real estate tax structure would be to completely eliminate charges for
school taxes on unimproved forest land and land in solely agricultural
production.
d. The uncertainty of tax abatement
through conservation easements: The promise of a reduction of real estate
taxes by selling a conservation easement is sometimes false, however,
because, where no development pressure exists, the tax assessor will often
already be assessing the land on the basis of forest, recreational, or
agricultural value. New York State case law bears this out, agreeing with
the local government where such a seller of a conservation easement makes
a claim for tax abatement. (13)
10. Tax
advantages of conservation easements
Tax advantages of transactions and ownership relationships of conservation
easements are based on fundamental violations of property rights in the
tax codes, and on inequities, loopholes and favoritism in the tax codes
and their enforcement. While enjoying their non-profit status, the land
trusts present enticing financial prospectuses to landowners to persuade
them to sell land and interests of land to them for preservation. The
elimination of these injustices would help to stabilize the ownership of
rural land and would distribute the tax burden straightforwardly and more
equitably. Furthermore, all of the tax advantages are artificially
constructed by government and interest groups and should be eliminated by
eliminating the taxes themselves.
a. IRS deductions for
"donations": Land trusts pressure property owners to sell
"below market" and claim a tax deduction on their income tax
return. It is widely said that inflated current appraisals are used to
claim or increase these deductions, and that the IRS ignores the
inaccuracy of the inflated appraisals because of the influence of the land
trusts.
b. Reducing real estate taxes: The
claim that conservation easements are necessary to relieve the real estate
tax burden is false because fair, straightforward measures to alleviate
real estate taxes exist which would cost less. (See above, Section 9.)
d. Estate taxes: Landowners and heirs are
pressured by land trusts to deed over property and conservation easements
to avoid or reduce estate taxes. The use of inflated appraisals is
said to widely come into play here. The IRS should bring enforcement if
such reputed land trust practice is indeed true. But, more fundamentally,
estate taxes should be eliminated as confiscatory.
e. Capital gains tax: The land trusts
also exploit the motivation to avoid capital gains taxes to encourage the
deeding of interests in land to a land trust or the government. Other
approaches advocated by tax reformers are to take account for inflation in
capital gains, allow more favorable deductions for long-term capital
gains, and to otherwise reduce or eliminate the capital gains tax.
11. Economic impact on
communities resulting from failure to maintain tax base of private land
Discussed below are the direct impacts to the real estate tax base that
could result from an expansion of government and non-profit land trust
acquisition of conservation easements. In addition, the future tax base
will gradually be negatively effected by conservation easements as a
result of foreclosed options for land development. The inflexibility of
conservation easements will ultimately cause the latter effect to be
profound. Furthermore, much of the land that is split between conservation
easements and residual title may ultimately slide 100 percent into
government ownership, a status under which negative tax base patterns for
local municipalities are well-established.
a. Federal government: When the
federal government acquires land, it removes this land from the tax rolls.
Payments in lieu of taxes are sometimes arranged with the federal
government, but maintaining these payments at appropriate levels in future
years is problematic. Further intervention by Congress is sometimes
required. Or formulas based on timber harvests may become outdated as
harvests are curtailed for environmental reasons; reductions of such
payments to localities in the Northwest have forced municipalities to
curtain basic services such as road maintenance. Since policies haven't
been completely formulated, it is unclear how federal acquisition of
partial title to land in the form of conservation easements will effect
the tax base.
b. Land trusts: Where land is acquired by
non-profit land trusts for preservation purposes in states with laws
similar to New York's, the non-profit is not subject to real estate taxes.
Some land trusts voluntarily pay real estate taxes on their land and some
do not, or a land trust may voluntarily pay taxes on land in some
locations but not in other locations (while maintaining that it
"always' pays taxes). Land trusts that voluntarily pay taxes may drop
that policy. The land trusts always oppose any movement in the legislature
to remove the tax-exempt status of land held for ecological, wilderness or
similar purposes. Where interests such as conservation easements are
acquired by tax-exempt non-profits, it is unclear precisely how these
acquisitions will affect the long-term ability of local municipalities to
collect real estate taxes on the non-profit interests in land. In one New
York municipality, land trusts own fully 10 percent of the land area.
c. State government: When States
acquire the land or interests in land, the policies of payment of local
real estate taxes vary greatly. Within New York's borders, the policy of
State payment of real estate taxes on large park or forest tracts varies
depending on the category for the land established by the legislature.
State-owned Forest Preserve land in the Adirondack and Catskill Mountains
is subject to local real estate taxes. However, the State has made a
practice of suing local municipalities that attempt to assess State-owned
lands at fair market value. The cost of defending such a lawsuit routinely
exceeds $100,000, a great burden to a small rural municipality. Thus, even
when the law provides for State payment of taxes, it is difficult for
municipalities to collect the taxes that the State is legally obligated to
pay to the locality. With respect to conservation easements, New York
State has established a policy of paying a set share, or allocation, of
the taxes on lands in the Forest preserve for which it holds the
easements; at present, however, the experience with the easements under
the current law is too new to see the full impact on local real estate
taxes.
Overview and Summary
In order to enact the conservation easement law in 1983, New York passed a
statute that specifically swept away centuries of common law that had
protected property from such non-functional negative encumbrances. (14)
"Conservation easements work by splitting an estate in real property
into two or more parts and throwing one of those parts into the dustbin of
history." as cogently summarized by James Burling, senior counsel for
Pacific Legal Foundation. (15); The much-heralded long-term benefits of
conservation easements are questionable, at best. Future use of the land
for working forests, and possibly for agriculture, is questionable. There
are no environmental benefits for forestry conservation easements, and
environmental benefits for
agricultural conservation easements may be strictly confined to the
maintenance of open space, rather than the long-term perpetuation of
agriculture.
The main benefits to the timber industry are immediate cash flow, and,
perhaps, real estate tax reduction. Except for tax reduction, which is
questionable and can be more fairly and easily achieved by other means,
long-term future impacts on forestry are negative and may foreclose future
forestry. The relatively immediate benefits to agriculture are unreliable
because of inconsistent terms to agricultural conservation easements and
enforcement practices of government agencies; long-term benefits are even
more questionable while the future negative impacts are specific and
significant.
The current popularity of conservation easements is based on distortions
purveyed by interest groups, especially land trusts; misconceptions of
land-use incentives; unjust tax structures; and anti-competitive,
anti-private property concepts. In addition, political pressure and pork
barrel is involved in the passage of law and the funding for land
acquisition program, including those involving conservation easements.
Exactly contrary to the claims of advocates, conservation easements
present a threat to the future of rural economies and cultures.
Conservation easements are not a private conservation achievement, but
instead are based on fundamental changes in the structure of private
property to abandon a large proportion of the split title to perpetual
government ownership and all (in the case of forestry) or a large part (in
the case of agriculture) to government control. Conservation easements tie
up property indefinitely, and do not allow flexibility for future change
in needs or values.
Furthermore, considering that the lands may become a burden because of the
conservation easements, the future of ownership of these lands is
uncertain and they may end up entirely owned by government.
Notes:
(1) LaGrasse, Carol W., The Property Owner's
Experience, Property Rights Foundation of America, Inc., 1998. See
chapters 14, 15, and 16.
(2) Examples of industrial forest landowners who
have sold off large conservation easements but are later seeking to
dispose of the residual title are beginning to surface in upstate New
York. In 1993, Lyons Falls Paper Co. sought help from the State to buy
conservation easements. The company had been helped with a State easement
two years earlier but, according to the Associated Press at the time,
"that money, from a 1986 bond act, is all gone now." (Michael
Hill, Associated Press, "Mill in the middle of easement
controversy," Post-Star, Glens Falls, Mar. 16, 1993).
According to a regional group, the Blue Line Council, environmentalists
sounded a false alarm in 1991 when they said that 87,000 acres in the
Adirondacks which Lassiter Properties put up for sale were threatened by
development. The Blue Line Council pointed out that 40,000 acres of the
land were covered by conservation easements that the State had acquired in
1988, when The Nature Conservancy acted as a third party intermediary.
This example also demonstrates how environmental organizations continue to
fabricate the threat of development even after conservation easements are
acquired. (Mele, Chris, "Blue Line group tells state not to buy
Lassiter land," Adirondack Daily Enterprise, April 18, 1991)
(3) "Buffalo developers sell pieces of ranch
ownership," Wyoming Livestock Roundup, May 16, 1998, p. l.
Eighteen forty-acre "ranch-steads," totaling 720 acres, would
raise $18 million, leaving the great expanse of the 10,400-acre Waggonhead
Ranch, 22 miles from Douglas, largely open for grazing.
(4) Franciosi, Robert, Ph. D., "Preserving
Open Space-The Private Alternative," Goldwater Institute, Feb. 1999,
p. 8.
(5) LaGrasse, Carol W., "Unrepentant
Congress," Positions on Property, July 1995. This expose' called
attention to the problem of conservation easements imposed on farms by the
Farm's Home Administration (now the Farm Services Agency). As a result, in
1996, an act of Congress repealed the ability of the Secretary of
Agriculture to impose wetlands easements, but vaguely worded wildlife
habitat easements are still imposed.
(6) Miller, Dennis, "President's
Report," Landowners Association of North Dakota newsletter, March
2000, p. 1.
(7) Sayre, William R., Chairman, Forest Policy
Task Force, Associated Industries of Vermont, "Forest Land
Easements-Freezing the Future," The Best Alternative-Enhancing
Private Property Rights, Proceedings of the Fourth Annual New York
Conference on Private Property Rights, Property Rights Foundation of
America, 2000, p. 13.
(8) Canham, Hugh O., Ph. D., and King, Kevin S.,
Just the Facts-An Overview of New York's Wood-Based Economy and Forest
Resource, Empire State Forest Products Association and New York Center for
Forestry Research and Development, SUNY Environmental Science and
Forestry, 1998, pp. 6, 17.
(9) James W. Sewall Company, "Northern Forest
Lands Council Land Conversion Study," Old Towne, Maine, April 9,
1993.
(10) New York State Department of Environmental Conservation,
Division of Lands and Forests, Assessment Report, Adirondack Windstorm,
July 15, 1995, Draft -November 20, 1995, pp. 23 & 25.
(11) Chase, Alston, Playing God in Yellowstone, Atlantic Monthly
Press, Boston, 1986
(12) A federally funded study by the Northern Forest Lands Council
reported, "Rising property taxes have severe impacts on the ability
of landowners to own and manage forest land," urging local
governments to tax the land based on current use, rather than development
potential, according to John H. Cushman, Jr., as reported in
"Property Tax Changes Are Urged To Help Preserve Northeast
Forest," New York Times, March 4, 1994.
The economist's report prepared for the Council states, "It appears
that timber management in the Northern Forest Lands Region is only
profitable at low taxes per acre (generally under $2 per acre) and even at
that level, only the better sites are profitable." (Hugh O. Canham,
Ph. D., Forest Economist, "Property Taxes and Economics of Timberland
Management in the Northern Forest Lands Region," Feb. 1992, p. 15.)
(13) Adirondack Park Mountain Reserve v. Board of Assessors of the
Town of North Hudson, Appellate Division Third Department, New York State,
1984.
(14) Environmental Conservation Law, Art. 49, Title 3: 49-0301
through 49-0311, McKinney's Consolidated Laws of New York. See Especially
49-0305, "Conservation easements; certain common law rules not
applicable."
(15) Burling, James, Pacific Legal Foundation, "Conservation
Easements," Comments at the Wise Use Conference, Reno, Nevada, May
1999, pre-publication copy, p. 1
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