- a weekly column published in the Pioneer Press

It appears that the Scott and Shasta Valleys are swarming with hoards of representatives from various land trusts and conservancies pushing to make quick deals for conservation easements (CEs) and purchased development rights (PDRs) from local farmers and ranchers. Speculation is that the easements could be resold to the federal government for a tidy profit as environmental mitigation for PacifiCorp or the BoR Klamath Project. Others believe that they could be resold to environmental NGOs (non-government organizations) who seek legal standing in local land and water use issues.

Let me say up front that I personally believe that CEs and PDRs are not a good thing for the landowner, for the future landowner, for the neighboring landowner and for the local community. I do, however, support the Farm Service Agency’s Conservation Reserve Program, which operates under a 10-15 year lease agreement. (http://www.fsa.usda.gov/dafp/cepd/crp.htm )

When one owns land, what they own is like a “bundle of sticks.”  Each stick is a different land use, such as mineral, oil, grazing, water or hunting use rights. Each can be split off and sold separately to another owner. PDRs are one of these “split estate” rights. The landowner sells off the right to develop the land forever and keeps the remaining bundle of sticks.

The Conservation Easement (CE) is not like a road or utility easement. It is a restrictive easement that forbids certain uses of the land forever. CEs prohibit the landowner from actions that will change the ecological, open, natural, scenic or historical features that make up the character of the land. The more obvious uses likely to be prohibited would be uses such as timber harvest, exploration for minerals or building a house. In effect, the CE conveys these rights to the purchasing conservancy, trust or federal agency, leaving the landowner with only a right to non-impacting residual uses.

The easement owner dedicates the use of the property to purposes such as open space, wildlife habitat or wildlife diversity. Many easements allow the agriculturalist vague "approved" practices, which are periodically changed. Farmers and ranchers have found that restrictions can be imposed by the easement owner on chemicals that may be used; seed and plant types; earth moving; clearing of vegetation; harvest; access; stocking of cattle; recreational use; activities that may cause erosion, changes in soil composition or degrade habitat, stream banks or water quality. In most cases specific permission must be sought from the easement owner for many actions.

The fine print of the agreement generally includes legal and substantial financial penalties for CE and PDR violations. The easement owner has the right to enter the property to monitor the agricultural owner’s compliance with the terms of the easement. If they find that actions have injured their property interests, they typically require the farmer, at his expense, to restore the property to the condition they desire. If legal action is necessary, it is also at the entire expense of the agriculturalist. In addition, often third party citizen activists are allowed to sue to enforce CE and PDR provisions.

Both the CE and the PDR are “perpetual.” This means forever, not just 99 years. It binds all heirs and future owners of the property. Many easements permit the sale or transfer of the title to the easement title to the federal government or other organizations. If the easement holder is a federal agency, a federal nexus may be established requiring compliance with additional environmental regulations, such as federal endangered species Section 7 consultations, and considerations for tribal trust, all at the expense of the subordinate landowner

Through the CE or PDR, the seller has sold off a good portion of the land’s value, generally from 50-90%. This may substantially affect the willingness of financial institutions to grant a loan against the property as collateral. Future buyers may be reluctant to purchase a property with such a clouded title. Selling an easement may actually harm cash flow and invite mortgage and tax complications.

Immediate community impacts of conservation easements is that the trust, conservancy or federal government pays no property tax on the value of its interest. This depletes the county’s tax base and shifts the expense of county services and special districts to remaining property owners. Flexibility in siting future infrastructure projects, such as roads, utility lines, etc. can also be impacted by the existence of a CE.

In my opinion, the worst thing about CEs and PDRs is that they reach into the future and restrict the range of available land use options available to our children and grandchildren. They rob the potential for future owners to get the highest possible economic return from their property. They further the immediate interests of the present generation at the expense of future generations.

Links to articles on the internet about CEs and PDRs:

http://www.nmagriculture.org/Conservationeasmentsfrms.htm
http://www.paragonfoundation.org/conservation_easements1.htm
http://www.citizenreviewonline.org/nov_2003/conservation.htm
http://www.prfamerica.org/LandTrustsThreatenPP.html
http://www.fb.org/news/nr/nr2002/nr0106g.html
http://www.fb.org/news/nr/nr2000/nr1208.html