By regulation or deed...Beware of "Conservation Easements"

From Oregonians in Action
Published in Eco-Logic


In recent years, there has been a two-pronged effort to set aside more and more private land for wildlife habitat, natural areas, wetland preservation, and open space. Such set-asides are considered "conservation easements" (legal interests in land) under common law and Oregon statutes (ORS 271.715).

While these objectives have merit, they must be achieved with fairness to landowners and due regard for human needs.

Of growing concern to Oregon landowners, rural and urban, governments at all levels are using regulatory power to acquire "conservation easements" by simply imposing restrictions on the use of private land without paying any compensation to the owners of the land. Here are examples:

* Cities, counties and Metro are imposing a wide range of conservation easements on their own, or under pressure from the Land Conservation and Development Commission (LCDC) and Oregon Department of Fish and Wildlife, such as ever-widening buffer areas along streams, tree preservation ordinances, and deer and elk overlays in rural areas -- unfairly taking the use and value of private land to provide public benefits.

* Federal agencies (National Marine Fisheries Service and U.S. Fish and Wildlife Service) are imposing more and more restrictions on the use of private land to protect threatened or endangered species, forcing individual landowners to bear burdens the general public should bear.

* Oregon's Division of State Lands and the U.S. Army Corps of Engineers are forcing private landowners to give up the use and value of their land to provide so-called "wetlands," areas that are merely damp a couple of weeks during the growing season and have certain kinds of soil and plants. Again, no compensation to landowners.

* Oregon Departments of Forestry and Agriculture are imposing restrictive regulations on forest land, farms and ranches under the guise of protecting fish and wildlife, without proof the regulations are needed for such purposes.

The governments that impose conservation easements can avoid the obligation to compensate the landowner by not taking possession of the land -- if they take possession, they have to pay compensation, as explained in the article: U.S. Supreme Court rejects landowners "regulatory takings" claims.

The second way to create conservation easements is by deed from the owner, under which the government or a conservation trust or other private organization purchases such interests in private land. The deed spells out in detail the resources the easement is to protect and the land use restrictions that are to be imposed, and the rights of the easement owner to enforce the restrictions. Landowners should approach such transactions with care and caution. Conservation easements carve out a significant part of the "bundle of sticks" that comprise ownership of land. The restrictions should be as detailed as possible so that the landowner fully understands the full impact of the easement on the future use and value of the land. Also of concern, landowners should be wary of provisions that allow individuals or organizations (third parties) to enforce the provisions of the easement.

Aside from the concerns of private landowners, excessive use of conservation easements has major economic impacts for the public, such as

(1) taking forest, farm and ranch land out of production

(2) reducing the amount of land available for development and increasing development costs, and

(3) reducing tax revenues for state and local government.


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