Biodiversity Protection Through Acquisition of Land or Development Rights and Management to Conserve Biodiversity: A Case Study Using Pennsylvania

• Author: Robert B. McKinstry Jr., James McElfish, and Michael Jacobson
• Pages: 293-345

Chapter 20

Biodiversity Protection Through

Acquisition of Land or Development

Rights and Management to Conserve

Biodiversity: A Case Study Using

Pennsylvania1

by Robert B. McKinstry Jr., James McElfish, and

Michael Jacobson

I. Introduction

The oldest, most common, and one of the most effective tools for

biodiversity protection is the acquisition of land by organizations that will

manage that land to conserve or improve its natural habitat. Government en-

tities or land trusts will acquire land valuable for biodiversity or acquire in-

terests in such land so that the land can be protected from development and

then manage that land to preserve biodiversity resources. This tool was first

used by the federal government to establish Yellowstone National Park in

18722and by a state in 1885 to create Adirondack Forest Reserve3in New

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1. Much of the discussion in this chapter has been adapted from an analysis of

laws prepared by James McElfish, an analysis of methods for land protection

prepared by Robert B. McKinstry Jr.and Michael Jacobson, and an analysis of

best management practices and best stewardship practices prepared by

McKinstry, Emily B. Schwartz, and Curtis P. Wagner for the Pennsylvania

Biodiversity Partnership (PBP) and the Pennsylvania Department of Conser-

vation and Natural Resources (PDCNR) and is used by their permission. The

three articles will be posted on the PBPwebsite at http://www.pabiodiversity.

org (last visited Sept. 25, 2005). The views expressed here are solely those of

the authors and should not be deemed to represent the views of either the PBP

or the PDCNR.

2. Act of Mar. 1, 1872, ch. 24, §1, 17 Stat. 32, 16 U.S.C. §21.

3. Actof May 15, 1885, 1885 N.Y. Laws ch. 283; see N.Y. Comp. Codes R. &

Regs. tit. 9, §3.119.

York. Pennsylvania, whose state laws and policies will be used for the pur-

pose of presenting examples of the types of state legal tools that can be used

to promote biodiversity through land protection, has long been a leader in

land protection, establishing one of the first state forest systems in 18974and

possessing the second largest acreage of state-owned land (4.1 million

acres)—virtually all of it devoted to biological resources conservation.

Today, the federal government, all state governments, thousands of local

governments, and private organizations are involved in the acquisition and

management of land and interests in land for the conservation of biodiver-

sity. For example, land trusts are private organizations, first formed in the late

19th century, whose primary goal is the protection of natural and historic

lands. In 2003, there were 1,537 land trusts operating in the United States,

who had protected 9.4 million acres of land.5The majority of these nonprofit

organizations make protection and management of land to conserve its natu-

ral character or biodiversity a central component of their mission. Other pri-

vate environmental or conservation groups and foundations have land pro-

tection as one of many objectives, and many government agencies, espe-

cially those owning land, have conservation of land and biodiversity as cen-

tral to their management objectives. These organizations frequently cooper-

ate to undertake projects to protect lands and landscapes important to bio-

diversity through joint acquisition, financing, and management programs.

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Biodiversity Conservation Handbook

4. ThePennsylvania State Forest System was created in 1897, largely through the

commonwealth acquiring lands that had been cut over and abandoned during

the period of “exploitation.” In his Arbor Day address delivered in Philadel-

phia on April 10, 1896, Gov.Daniel H. Hastings (R-Pa.) called for the state ac-

quisition of the “unseated lands” abandoned at tax sale for the creation of For-

est Reservations. 6 Forest Leaves 9 (1897). An act adopted in response to

this proposal, in March 1897, required and still requires each county to notify

the Commissioner of Forestry when lands became liable for tax sale. That act

further required that the commissioner examine these lands to determine their

suitability for “a Forest Reservation” for the purposes of forest preservation,

water supply protection, and flood protection. The commissioner was directed

to proceed to acquire and to manage any such lands found suitable for these

purposes. 1897 Pa. Laws 11, No. 10 (Mar. 30, 1897), codified at 32 Pa. Stat.

Ann. §161-169 (Purdon’s 1995). This act was followed by a second, which

formally constituted the Forestry Commission and required that commission

to establish three forest reservations of at least 40,000 acres in the Delaware,

Ohio, and Susquehanna River watersheds. Act of May 25, 1897, 1897 Pa.

Laws 86.

5. The Land Trust Alliance, National Land Trust Census (Nov. 18, 2004), at

http://www.lta.org/aboutlta/census.shtml (last visited Nov. 11, 2005). For the

purpose of this census, a land trust was defined as “a nonprofit organization

that, as all or part of its mission, actively works to conserve land by undertak-

ing or assisting in land or conservation easement acquisition, or by its steward-

ship of such land or easements.” Id.

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This chapter will examine the various laws and policies that authorize, re-

quire, or encourage public and private acquisition or management of land

and interests in land for biodiversity conservation. It will examine federal

law and policy applicable in all states. In looking at law and policy at the

state and local level, rather than attempting a 50-state survey, this chapter

will employ a case study approach, examining the law of Pennsylvania com-

prehensively, as an example, and taking select examples from other states

and uniform state laws where appropriate. The chapter will begin with the

laws authorizing acquisition or exchanges of land or interests in land by gov-

ernment entities for biodiversity conservation and the legal mechanisms

whereby private organizations can assure long-term or permanent protec-

tion. It will next look at the laws and policies that are employed to manage

conserved land for biodiversity conservation. It will then examine the set of

federal and state incentives intended to encourage private conservation of

land and management of private lands for biodiversity conservation.

II. Biodiversity Protection Through the Acquisition of Land or

Development Rights

A. Public Ownership of Land and Associated Tools

Government acquisition and management of land was one of the principal

tools advocated and employed during the first phase of the American envi-

ronmental movement—the Conservation Movement of the Progressive Era.

The Conservation Movement in the late 19th and early 20th centuries re-

sulted in the creation of the National Park and Forest Systems, as well as Na-

tional Wildlife Reserves. The Conservation Movement also resulted in the

creation of the Pennsylvania state park, forest, and gamelands systems, as

well as the creation of similar systems in most other states.

Awide variety of tools facilitating public ownership of land related to bio-

logical conservation is now available for most states. Public entities cannot

generally acquire land without some specific authorization to do so. There-

fore, one of the most important of these legal tools is the provision of author-

ity to public entities to acquire land and to manage it for biodiversity conser-

vation. Both federal law and Pennsylvania state law, like the law of most

other states, provide broad authorization to public and private entities to ac-

quire land and interests in land, to create a special service organizations that

can be devoted to biodiversity conservation, and to engage in land exchanges.

1. Authorization for Public Acquisition and Ownership of Land and

Interests in Land

Most federal entities and most state and local public entities are provided

with legislative authority to acquire land or interests in land by gift, lease, or

Biodiversity Protection Through Acquisition of Land