A Conservation Easement (CE) is an agreement that allows a third party, such as a land trust or government entity, to control the use of a private property for a specific "conservation purpose." Landowners are often sold on the idea that they can preserve their land and its current use, like agriculture, while also receiving financial benefits in the form of tax deductions. However, the downside of conservation easements is rarely presented to landowners.
When a conservation easement is placed in perpetuity on a property, the control of that property shifts to the easement holder, and the land no longer functions as private property. The conservation purpose takes priority, even if it conflicts with existing activities on the land. The landowner's protected activities must be explicitly stated in the contract, and any changes must be approved by the easement holder. Essentially, when permission is needed to use your own land, you no longer truly own it.
While it is the landowner's right to make this decision, it is important to understand the long-term implications and limitations of a conservation easement.
1. Land under a conservation easement is no longer Private Property
Conservation easements face a fundamental issue in that they willingly relinquish primary control of the property to a third party, thus nullifying the fundamental "private property" right. The control of land is a crucial component of property rights, but by signing a conservation easement, a landowner surrenders this right.
2. Conservation easements are more accurately defined as Conservation “Servitudes.”
The term "conservation easement" as used by the environmental community is more accurately described as a "conservation servitude." Conservation easements impose a "negative servitude" on the land by restricting the landowner from taking certain actions on their property. In contrast, an "affirmative easement" grants the landowner the ability to make active decisions and utilize their land as they see fit.
For instance, when a road easement (an affirmative easement) is granted across a property, the easement holder is ensured access, but this limited right does not grant them the power to dictate the landowner's land use. The landowner retains control over their property.
However, the same cannot be said for a conservation easement, also referred to as a "servitude." In this case, the primary control over the land is to ensure that the conservation purpose is met and not disrupted by any other actions on the land. The landowner's rights become secondary to the conservation purpose. Nonetheless, using the term "servitude" instead of "easement" would likely dissuade many landowners from entering such an agreement. Therefore, it is not surprising that the environmental community opted for the more digestible but less precise terminology.
3. Does the conservation value become the primary purpose of the land?
Yes - Indeed, after the easement is established, the conservation purpose for the land becomes the primary right that dictates all other uses, indefinitely. This determination is made by the land trust or governmental entity and not the landowner.
4. Can the landowner change the use of the land in the future?
No - In fact, during the creation of a conservation easement (CE) agreement, a "baseline assessment" is established to document current productive uses, including livestock grazing, farming, existing improvements, hunting, and recreational activities. This assessment is included in the contract and typically allows these uses to continue at their current levels.
For instance, repairing an existing fence is generally permitted, but adding a new fence may require the express permission of the easement holder. However, if the contract explicitly permits such changes, they can be made without issue. Nevertheless, any modifications must not infringe on the conservation purpose, both now and in the future, and this determination will not be made by the landowner but by the easement holder.
5. If the CE allows agricultural uses, will these uses continue in the future?
Many landowners assume that the agricultural use of their land will continue as agreed upon when conveying the easement, but this is a misconception that is bound to fail. Freezing existing land uses creates problems because nature, technological and scientific advancements, and society's preferences are constantly evolving, and all activities that rely on nature must adapt accordingly to preserve the land's best qualities. However, because of the restrictive terms of the easement, landowners no longer have the ability to make reasonable changes to their operations as needed. This puts them in a position of continuing activities that may eventually harm the land, conflict with conservation purposes, and adversely affect their business.
On the other hand, the conservation easement holder, whether a land trust or government agency, has the flexibility to modify activities to achieve the conservation purpose, such as protecting endangered species habitats. When the landowner's activities and priorities clash with the conservation purpose, it is the conservation purpose that takes precedence.
When a conservation easement is placed on land in perpetuity, the conservation purpose becomes the primary concern that must be fulfilled, and agricultural activities may continue only to the extent that they are consistent with that purpose.
6. Does the conservation easement protect the land from development, forever?
No - It is a misconception that land with a conservation easement cannot be condemned for public purposes. In fact, the government can condemn any parcel of land, including those with conservation easements, for public use, such as for constructing new power lines or pipelines for carbon sequestration.
While the idea of placing a conservation easement on your land to protect it from development may seem admirable, it is important to understand that the only activities that are restricted or prevented are those of the landowner. The easement holder gains a significant asset that is recorded on their balance sheet, and they also obtain primary control over the land. Meanwhile, the landowner and their future heirs are forever bound to abide by the restrictions and oversight imposed by the easement holder.
7. Can a land trust sell the conservation easement to a governmental entity?
Yes, it is possible for the conservation easement to be sold to another land trust or government entity. However, the conservation easement has become an increasingly convenient way for government entities to acquire private property without the public scrutiny that comes with regulations, zoning, or condemnation. In fact, according to a 2008 article published by the National Center for Public Policy, two-thirds of The Nature Conservancy's budget was spent on purchasing conservation easements from landowners and reselling them to government entities. The Nature Conservancy is one of the largest land trusts in the world. As an example, they purchased an easement for $1.2 million and resold it to the Bureau of Land Management for $1.4 million.
Another concern is that many land trusts receive federal funds for acquiring conservation easements. In the same article mentioned above, it was found that The Nature Conservancy was receiving $100 million annually for its conservation easement program. It is important for private landowners to be cautious if they are approached by government entities seeking to purchase their land, and later approached by land trusts offering protection from future development. While it may seem like the preferable option, there are no guarantees that the property won’t eventually end up in the government's control, as was originally planned.
8. Can the Landowner dissolve the conservation easement if the IRS denies the tax-deduction?
No - Many landowners use conservation easements to reduce their taxes, but the IRS requires the easement to be held by a land trust or government entity, for conservation purposes, and in perpetuity. If these requirements are not met, the tax deduction is denied. Nonetheless, the conservation easement is a permanent contract.
9. Does a conservation easement devalue the land?
Yes - The conservation easement typically lowers the taxable value of the land, which often leads to an increase in property taxes for neighboring landowners, and a decrease in revenue for states and counties for public services. According to the Nebraska Department of Revenue, the Federal Wetlands Reserve Easement caused a 40% reduction in land value.
10. What benefit does the inheriting generation receive?
None, except for the restrictions. The landowner who signed the agreement can take either an income-tax deduction, or estate-tax deduction on the property. Once this has been exercised, the inheriting generation receives no additional financial benefit, however, they will still be bound to the restrictive terms of the easement, in perpetuity.
11. Would eliminating easements “in perpetuity” better conserve lands?
Yes - To provide future generations with the opportunity to choose whether or not to continue with the conservation servitude on the land, it is suggested that the "in-perpetuity" provision be eliminated at the state and federal level. Property law acknowledges that the "dead hand" should not control land beyond the grave, and a term no longer than 30 years would allow the current generation to place their land in a conservation servitude while giving the next generation the freedom to make their own decision.
12. Would eliminating easements “in perpetuity” better protect individual liberties?
Certainly - Extending this idea, we need to consider the ethical issue of whether we have the authority to curtail the personal freedoms of forthcoming generations. We understand that property rights are crucial to our capacity to constrain the authority of government that undermines individual liberty. A conservation easement reduces our authority over our property and reduces the safeguards we have against government oppression, not only for the present generation but for future ones as well.
13. Are conservation easements being used to accomplish the Biden Administrations 30x30 agenda?
Indeed – Conservation easements in perpetuity contribute to the Department of Interior’s reported 12 percent of “permanently protected” lands. The Biden Administration’s policy statements and environmental documents highlight conservation easements as a primary tool for enrolling private lands in the 30x30 program. To achieve progress towards the 30x30 goal, advocates recognized the need to convince landowners to “voluntarily” enroll their lands in conservation programs and conservation easements in perpetuity. However, 60 percent of America’s lands are still privately owned and include some of the nation’s most productive lands, which some environmentalists, profiteers, and government agencies seek to control.
Summary
The motivations behind landowners placing conservation easements on their land may be well-intentioned, but the easement cannot guarantee that their intentions will be met, and in some cases, it may work against their interests by preventing management flexibility. The "in perpetuity" provision of conservation easements becomes the most important consideration for landowners, which may restrict future generations from changing the use of the land. As stewards of both the land and property rights, landowners have a moral obligation to protect both. Selling the primary control of the land to a land trust or government entity through conservation easements may diminish the ability of future generations to limit government power and encroachment on individual liberty.
