Conservation Easements & Land Trusts: Read the fine print before you sign!

[Sassy]

Conservation Easements (CEs)*:Read the fine print before you sign

December 18, 2010 by ppjg

by W.R. McAfee, Sr.  (c)copyright 2010 All Rights Reserved

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     "A normal easement by a landowner usually grants a right to someone to do something on the landowner's property; but a conservation easement gives away the landowner's rights to do something on his or her own property.

    Land trusts and environmental groups regularly use conservation easements to take control of private property."

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Read the fine print before you sign

A basic Constitutional tenet of private property ownership in America is the landowner's right to determine the use and disposition of his or her land.   This ownership gives the property owner the right to occupy, use, lease, sell, develop, and deny public access to his or her land. 

Today, landowners can lose these rights simply by signing a 'standard' or 'model' conservation easement (CE) offered by 'nonprofit-environmental-friendly' land trusts, NGO environmental organizations, or government agencies unless the easement has been worded to protect the landowner's rights.
The growing number of land trusts

In the early 1950s, there were some 50 land trusts in the U.S.  Today, there are more than 1,700.  Among the largest are the:

    * Nature Conservancy (TNC),
    * American Farmland Trust (AFT),
    * Conservation Fund, and
    * Trust for Public Land.

Land trusts exist to remove private property from production 

They do this by acquiring ranch, farm, forest, or other private land either through donation, purchase, or by acquiring CEs to property as well as water.  They act as unofficial arms of government agencies—third party intermediaries or 'land agents'—and routinely flip (sell) donated as well as purchased land and CEs to these government agencies.  When they do, they're paid with tax dollars which, in turn, are used to purchase more private property.

In 1994, the Government Accounting Office reported approximately 61 percent of the Trust for Public Land's operating revenue was gained from the sale of donated land.

In 2001, the U.S. Forest Service and TNC signed a five-year 'memorandum of understanding' to 'protect the land' from things like 'invasive species' which, according to some eastern congressmen, includes cattle that graze federal land even though their owners pay the government a per unit (head) fee to graze it.

That same year, government officials at Fort Huachuca, Arizona, made available to the TNC several million dollars to acquire water rights from private property owners around the base through the use of conservation easements.

Primary recipients of land trust acquisitions are the Fish and Wildlife Service, the National Park Service, and the U.S. Forest Service.

Government already owns almost half the land in America.
Why land trusts are used to acquire land for the government

Government agencies are prohibited by the Constitution from buying land within a state unless the sale is approved by that state's legislature—a pesky, time-consuming process that usually has to withstand legislative scrutiny and public debate as the Founders intended. Article I, §8, 01.07 of the Constitution states that:

[Congress is authorized] "...To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States (emphasis added), and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be (emphasis added), for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings..."

Once fed agencies gain control of private property, they have difficulty maintaining it.  The reason being the money to purchase the land comes to them unearned in the form of tax dollars.  In April 2002, the Department of the Interior's Inspector General estimated the agency had an $8-11 billion dollar maintenance backlog affecting land and facilities it already owned.

Lester Thurow gave a good explanation why this happens in 1986 when he wrote:     

        "... government ownership of production fails because it cannot answer the   question:  Who should stay up all night with a sick cow?

       "In America, it's the owner. In a socialist country, the answer isn't clear and is     often—no one."
Land trusts operate with few restrictions

Land trusts are under few restrictions when it comes to landowner transactions. They: 

    * Buy targeted land (a ranch, farm, or private property location) for federal agencies when it becomes available; then hold the land until the agency that wants it has the tax dollars to buy it.
    * Provide what appears to sellers an alternative to having to deal directly with government agencies.
    * Are not required to buy a real estate license or provide full disclosure of their transactions.
    * Can be less than forthcoming about their agenda when signing up  'willing sellers'; often conducting their 'real estate transactions' in a manner that best suits their causes and goals.
    * Are generally accountable only to their boards.
    * Mostly are immune from civil and criminal litigation due to hold harmless clauses in their 'standard' or 'model' CE agreements.

Congress won't check these land trusts.
Conservation Easements take private property rights away from landowners

A normal easement by a landowner usually grants a right to someone to do something on the landowner's property; but a conservation easement gives away the landowner's rights to do something on his or her own property.

Land trusts and environmental groups regularly use conservation easements to take control of private property.
Read the fine print before you sign a CE

If a landowner is seeking a CE to reduce taxes on a part of his or her property, then he or she must make sure the easement agreement meets the required IRS codes.

To meet IRS requirements for a tax deduction, the CE must include the following:

    * Be granted in perpetuity (forever) to a government agency or 'nonprofit' land trust or organization,
    * Prohibit all surface mining on the easement, including oil and gas exploration, and
    * Allow public access onto the easement if the leaseholder—the party with whom the landowner signs the easement agreement—so specifies.
  con't at link below...

http://ppjg.wordpress.com/2010/12/18/conservation-easements-cesread-the-fine-print-before-you-sign/

[Don_P]

Those comments are legitimate.
In my state over half of the forested land is held by small landholders. Many of them know little about maintaining their forest and are basically taking it out of production. This land is being further and further fractured with each generation. So although we have more forested acres it's availability and quality are not what they should be. The area I've been working in for the past 5-7 years is a pocket inside the national forest. It really would have been better for the forest if it had reverted back to gov't ownership when the last generation died out. Instead it was auctioned, divided and developed. For me this has been a blessing but for the forest I'm not as sure. The folks that moved in were environmentally conscious, don't believe in cutting trees and don't hunt. They have a non native invasives problem, need to do timber stand improvements that they cannot or will not and need to shoot a bunch of long legged rodents. Most of the land targeted for conservation easments is under developmental pressure so it isn't taking a farm out of production as much as keeping the farm or forest from becoming a suburbia. I still haven't decided on our little piece of heaven, I don't want my stewardship and forestry goals to be totally ignored at the end of my short span here but don't necessarily trust big bro to treat it much better than an unknown buyer. It is something to take one's time studying, deep subject for sure.