Conservation Easements Explained

[Big Fin]

Not sure what happened when I was in the Yukon, but I came home to a flurry of comments, messages, and emails of how bad conservation easements are and how the USFWS was going to take people's land and force them into conservation easements. Obviously they have no understanding of how useful conservation easements can be for private landowners.

Given that, I decided to do a deeper dive into the topic of conservation easements on this week's Fresh Tracks Weekly episode. The ignorance on this issue and the fervor with which some of the uninformed will rant against easements is surprising.

How anyone can be against a tool that gives a landowner the right to do as they damn well please, is beyond me. Especially when that tool can be one of the many helpful ways to allow working landowners to stay on the land as working landowner. Any politician or wonk who rails against conservation easements with private landowners is self-identifying as being for infringement upon private property rights.

Anyhow, if you're interested in my best 20-minute effort to explain this concept, here it is.

 

[atlas]

Crazy how misunderstood they are.

 

[WapitiBob]

Good video and a darn good program, yet I see some chucklehead on yt already started chirping about how bad they were. Reading between the lines I'd guess he's one of those siblings that's been counting the days when he could sell the place.

 

[Nameless Range]

Thanks for making this video. I had a local county official reach out to me about some things he had heard regarding a potential vehicle for CAs. Some of the things he had heard were absolutely outrageous.

There’s a lot of misinformation out there from the usual suspects who, unfortunately have a large and influential reach.

 

[Big Fin]

When Kerry White opens his mouth, something stupid and uninformed is soon to be spoken.

Any doubt of his anti-property rights position is clarified when considering that Kerry was the Communist who introduced the bill in the Montana Legislature requiring any conservation easement to be subject to final approval by the County Commission. At the time, his brother was a Gallatin County Commissioner. Since when does the 5th Amendment require a County official to approve when a private property owner wants to sell or donate some/all of certain property rights. That bill was killed in committee, but it was disappointing to see many supposed groups who claim to represent property rights be conspicuously absent for testimony against that bill.

And Kerry White claims to be a property rights champion. GMAFB.

He is one of the many hypocrites who claim to support property rights, but only support those rights if it results in their preferred outcome. Unfortunately, the Montana legislature and Land Board is populated with many of them.

 

[Gerald Martin]

It’s especially disingenuous for so many folks worried about the disappearance of family farms and ranches to be opposed to CE’s when in some cases a CE is vital in keeping their ranch within the family.

 

[44hunter45]

It was a big day for me when I realized that often those who talk the most about "rights" are really just scheming to get our stuff, be it public or private.

 

[Dakotakid]

The fearmongering seems to be on who is buying the CE and what are they buying. The opponents are claiming blackrock and wall street are the buyers and they are locking up… something.

Only nit on video might be the negative easement aspect. The CE doesn’t grant the purchaser the right to develop like a mineral right or wind right grants a purchaser the right to extract. Rather most CE I am familiar with grant a right to stop develop they don’t then own a right to start.

 

[WanderWoman]

The fearmongering seems to be on who is buying the CE and what are they buying. The opponents are claiming blackrock and wall street are the buyers and they are locking up… something.

Only nit on video might be the negative easement aspect. The CE doesn’t grant the purchaser the right to develop like a mineral right or wind right grants a purchaser the right to extract. Rather most CE I am familiar with grant a right to stop develop they don’t then own a right to start.

The point of a conservation easement is to “conserve” the values of the land, whereas mineral developments/wind energy, etc. may erode those values. Generally with a CE if another party owns the mineral rights, that CE can’t stop them from developing them, but there’s usually terms in the deed about how that development occurs and surface mitigation.

Some other purchaser can always buy someone’s mineral, etc. rights and then develop those, but that’s not a CE.

I think this is a great video, but I wish Randy had touched just a skosh more about access. I understand this video casts a broad net about CEs in general, but one of the things that makes MT FWP conservation easements so special is that they do have a public access component.

A few individuals in the early 19th century had the foresight (like TR) and/or the fortitude and willingness to make short-term sacrifices for long-term benefits (like sport hunters). 120 years later we are still reaping those benefits; we have wildlife and public lands because of this. I feel like CEs are our generation’s version of seeing and recognizing something in danger (whether it be open space, critical habitat or migration corridor, ACCESS) and doing something about it. So, in 120 years, we will still have traditional family ranches with open space, good habitat, and in some cases, access.

CEs are a win-win for everybody and I hope to see more hunters and the general public advocate for them.

 

[Straight Arrow]

one of the things that makes MT FWP conservation easements so special is that they do have a public access component.

Unfortunately the CEs proposed here are not MT FWP easements.

However, I am hoping that access will be discussed and considered.

 

[WanderWoman]

Unfortunately the CEs proposed here are not MT FWP easements.

However, I am hoping that access will be discussed and considered.

Hopefully so, but even without access CEs are an incredibly good way to leverage conservation.

 

[Straight Arrow]

CEs are an incredibly good way to leverage conservation.

You are preaching to a gospel singer!

 

[WanderWoman]

You are preaching go a gospel singer!

I like that!

 

[Hunting Wife]

Unfortunately the CEs proposed here are not MT FWP easements.

However, I am hoping that access will be discussed and considered.

USFWS easements do not have an access component, and that is frankly outside the mission of the agency. But the great thing about having a variety of easement types and easement terms is that they appeal to a broader swath of landowners and their unique situation/concerns/desires for their property.

 

[WanderWoman]

USFWS easements do not have an access component, and that is frankly outside the mission of the agency. But the great thing about having a variety of easement types and easement terms is that they appeal to a broader swath of landowners and their unique situation/concerns/desires for their property.

Absolutely. Different strokes for different folks but something for everybody who wants to leave a lasting (positive) legacy.

 

[Big Fin]

An argument often presented by opponents to easements is that placing a property under partial constraints of a conservation easement limits the options for future owners. Well, the obvious rebuttal is that such is the right of the current property owner. They can do as they damn well please. For some, that's not a good enough response, as their fringe political beliefs don't support full property rights under the 5th Amendment.

There is a huge gap in the logic part of those opposing CE's based on the claim is that development limits the options for future owners. It is a purposeful omission on their part and when presented with the hypocrisy, they change the topic.

Fact - When a landowner decides to subdivide, that is a decision that stands in perpetuity, no different than when a landowner decides to strip the development rights from the land under a CE.

Has anyone ever seen a development get bulldozed and reclaimed as open land? Me either.

Many decisions made with regard to property rights can be everlasting and possibly eliminate the future options of successor owners. The "perpetuity" argument is a straw man claim that reveals how little support their opponents have for property rights.

Point being, most every argument made against conservation easements is an argument against property rights, and that reflects the CE opponent wanting to control what others do with their land, based on ignorance, or to support their personal, political, or other beliefs.

I'm crafting a podcast on this topic with two very experienced folks. They will explain the times when a CE wasn't the best idea, which at times it is not. And we will use examples of successes, such as the fact that 30% of Montana's Madison Valley is under conservation easement and how that benefits all of us, not just wildlife, but also reduces strain on county resources and helps landowners stay on the land.

 

[BuzzH]

Has anyone ever seen a development get bulldozed and reclaimed as open land? Me either.

Yes, I have.

One of the properties that Ted Turner owns in SW Montana had several homes on it built by the previous owner. They removed all but a couple and reclaimed the areas to native prairie.

For the record, Ted is a huge fan of CE's with a lot of his land holdings enrolled in same.

Anyone that opposes CE's is clueless.

 

[Dakotakid]

It is inexplicable how the cognitive dissonance has developed around CE.
Private property advocates arguing for government involvement, permission and authorization. Very bizarre.

I heard one county commissioner argue that mineral split estates should never have been “allowed”.

 

[BuzzH]

It is inexplicable how the cognitive dissonance has developed around CE.
Private property advocates arguing for government involvement, permission and authorization. Very bizarre.

I heard one county commissioner argue that mineral split estates should never have been “allowed”.

Follow the money.

 

[Dougfirtree]

I work with conservation easements and I'm a supporter of easements as a tool. They can be awesome for many things and they do have limitations, too. One thing that's important to remember when hearing negative stories about CE's is that they're a relatively recent development and a lot has been learned over the time we've been using them. So, yeah, there are some CE's out there that had unintended consequences or weren't fully thought out. But when I run into one of those situations (not often), it's usually an older easement.
Another important aspect of CE's, that hunters and anglers should be able to identify with, is that a conservation easement is just about meaningless without the ongoing stewardship from whatever land trust, state, etc. holds the easement. The land is not conserved when the ink dries. It's conserved when the folks who steward that easement keep actively monitoring and enforcing the easement, year after year. In the case of state-held CE's, the citizens can be a valuable check on any abuse, or neglect of that agreement.

Looking forward to the podcast, Randy!