Conservation Easements as Part of Strategic Resource Planning

• Author: Laurie A. Ristino
• Pages: 411-458

Page 411

Chapter VI: Conservation Easements as

Part of Strategic Resource Planning

Laurie A. Ristino

A. Introduction

Eective use of conservation easements requires integration into a strategic plan, which targets use based

upon conservation priorities and the ecacy of this tool to achieve particular conservation objective(s).

Moreover, such planning should consider conservation easements within a matri x of land protection tools

such as fee acquisition, public lands, and z oning, each targeted based upon the ecacy to achieve con-

servation objectives within a particu lar ecological, social, and political landscape. A lthough there is some

evidence that land trusts are adopting more strategic approaches to conservation acquisition,1 there is still

a compelling need for strategic protection models that work. e very exibility of conservation easements

and the multiple actors that use them can result in seemingly random and opportunistic use. Further,

organizations and governments have dierent missions and priorities, potentially manifesting in inecient

or even conicting resource protection. To add to this complexity, planning is both an issue within conser-

vation organizations (some have strategies that guide their conservation easement acquisitions while others

do not) and between organizations and various levels of government. In order to achieve a critical mass

of protection—enough land of t he right kind to ma ke a resource dierence—conservation must occur at

scale (e.g., critica l habitat or watershed) and this, in turn, requires a highly ordered coordination of our

patchwork of public and private lands protection. us, landscape-level protection requires a high degree of

coordination between various conservation organizations and government, and involves the use of multiple

tools to eectuate desired conservation outcomes. Achieving t his level of strategic protection ta kes vision,

commitment, and often catalyzing facilitation.

A fundamental hurdle to incorporatin g c onservat ion e asements into st rategic planning is the lack

of inform ation as to their location and purpose. De eds conve ying conservation easements are recorded

locally, creating a diuse data set.  is is one exa mple of t he tension inherent in conservation e ase-

ments—c onservation ea sements have a public pur pose, but the benets c an be inv isible to the public

due to their “private” nature.2 e National C onservation Easement Dat abase (NCED) is an impor tant

attempt to create a centralized databa se of all digitiz ed easements. However, the map does not include

all recorded easements because some of them have not yet been digiti zed, their locations have been with-

held, or NCED is still working to obtain the easement locat ion from holders. Another related critic al

need i s geo spatial data, which provides in formation as to t he types and locations of natura l resources

being protected.

Given the ubiquity of conservation easements and the critic al need for resourc e protection, use of thi s

tool i n more a strate gic manner is a primary challenge of the conservation community (including all

Editors’ Note: We omitted most citations in the excerpted works for bre vity and reada bility. Asterisks were used to indicate delete d

portions of the tex t. And a “leaf ” icon was placed betwee n each excerpt.

1. Ka C, L T A, 2010 N L T C R: A L  V C  A

(Rob Aldrich & Christina Soto eds., 2011).

2. e persistence of the idea of privacy around private lands protection is undercut by the reality that deeds are recorded in public records and

satellite imagery of private land holdings are readily available.

Page 412 A Changing Landscape: The Conservation Easement Reader

levels of government) moving for ward. Accordingly, this chapter excerpts writings on aspects of strategic

resource protection. is is another a rea that begs for i nterdisciplinary research, including long-term

study of how conservat ion easements work in practice on dy namic landscapes, to help determine how

conservation easements ca n be used a s part of a suite of integrate d strate gies to protect landscapes and

key natu ral resources.3

B. Transparency and Data

1. James L. Olmsted, The Invisible Forest: Conservation Easement Databases and the End of

Clandestine Conservation of Natural Lands, 74 LAW & CONTEMP. PROBS. 51 (2011)

THE INVISIBLE FOREST

For the purposes of this article, the phrase “invisible forest” refers to forest lands —and, for that mat-

ter, any other land types—protected by a perpetual conservation easement, the existence a nd location of

which are concealed from the public, whether deliberately or because of the opaque nature of the easement

process. is is not to say that conservation easements can be completely hidden from the public. Because

easements, like other forms of deed s, must be recorded at the loca l land registry or recorder’s oce, they

can never be made undiscoverable. But, despite the eorts of some states and conser vation organizations

to compile conservation ea sement data for public consumption, there are few functional s ystems that

comprehensively track and provide easy access to conservation easement data. After addressing the ques-

tion of whether the existence, location, and other information related to conservation easements should be

concealed or disclosed to the public through databases, t his article provides updates on recent, ambitious

eorts to gather, organize, and make ava ilable to the public conservation easement data on a state-by-state

basis and, ultimately, national basis through the use of databases and data sets.

***

Conservation easement creation is sometimes referred to as a process of private negot iations bet ween

private parties. In t ruth, however, conser vation easement transactions a re seldom, if ever, private. One

reason for this is that most enabling laws requi re the holder to be a public entity or a nonprot sect ion

501(c)(3) corpor ation whose mission is to create, hold, a nd monitor conservation easements. Because

nonprots are corporations released from the payment of most taxes because they serve public, charitable

purposes , any conservat ion easement transaction with a nonprot land trust is to some extent subsidized

by the public. A n even greater form of public subsidy of ea sements occu rs when landowners take advan-

tage of federal a nd st ate tax laws that provide for income ta x deductions (and in some states cre dits)

for donating conservation easements that meet speci c criteria. Likew ise, many federal, state, and local

governments directly subsidize conservation ea sement creation by providing funding for their purchase.

Another form of public subsidy occurs when state attorneys general a nd courts en force conservation

easement restrictions. Although it is beyond the scope of this article, at least some conservation ease-

ments a re fu rther subsidized at the local level when tax assessors va lue the subject land at lower levels

than ot herwise comparable properties.

When one considers conservation easements’ public nature and the millions of acres they encumber,

purportedly in perpetuity, the lack of a publicly accessible means of locating them and determining their

attributes on an easement-by-easement basis prevents their being f ully utilized for the public good. ere

are many powerfu l arguments for the creation of publicly accessible conservation easement databases,

3. For a discussion regarding the need to address knowledge gaps related to how eective and under what circumstances land trusts and conserva-

tion easements are at protecting biodiversity, see Adina M. Merenlender et al., Who Is Protecting What for Whom, 18 C B

65 (February 2004).

Conservation Easements as Part of Strategic Resource Planning Page 413

which in almost e very instance preva il over arguments to the contrary. Also, the need for tra nsparency in

the creation and maintenance of conservation easements has been recognized by a number of major institu-

tions in the land protection movement—institutions that have already taken bold steps to create a national

conservation easement database.

***

WHY SHOULD WE NOT DISCLOSE MORE?

Some lands under conservation easements are open to the public. Arguably, this is as it should be because

the creation of a conservation easement is always, to some extent, subsidiz ed with public funds. Indeed,

some conservation easements have as a prima ry conservation value the creation of recreational opportuni-

ties for the public. Nevertheless, though there is no ha rd data, it appea rs that most lands encumbered by

conservation easements are not open to the public. Reasons for this include protection of the landowner’s

privacy, protection of fragile species and habitats, and a desire to avoid the management and liability issues

associated with public utilization.

A primary concern among landowners and holders of conservation ea sements that do not allow access

to the protected land is that the disclosure of information regarding the existence and location of conserva-

tion easements— at least in the absence of add itional information explaining that the underlying land is

closed to the public—may result in unwanted intrusions by trespa ssers. ere is logic to this concern. e

very existence of a conservation easement suggests to many that t he land it protects is some sort of public

park. If signage on the perimeter of the land indicates that the easement was purchased with public funds,

some may believe that the land is (or should be) open to the public. Even signage indicating that the eased

land was protected using funds from a charitable foundation may be read as an invitation for public use. In

a worst-case scenario, trespassers may damage the property a nd the conservation values the easement was

intended to protect.

***

WHY WE SHOULD DISCLOSE MORE

A. Avoiding Stealth Land Use Planning

Nowhere does the invisibility of conservation easements elicit more consternation than in the land use and

zoning processes. Most city and c ounty governments are charged with creating land use plans to provide

for future land utilization. e failure of planners to adequately accommodate future residential, retail,

commercial, industrial, a nd open space needs can result in social, economic, politica l, and environmental

ills. B ecause the land use planning process cannot reasonably involve title searches of e very land parcel,

planning eort s can be frustrated or contradicted by the presence of land under a conservation ea sement

that ca nnot be developed at all, let a lone in the fashion the planners may designate. For ex ample, plan-

ners may establish a seemingly suitable area for residential use, only to discover that the area is subject to a

perpetual prohibition of such use under a conservation easement. An associated problem stemming from

lack of knowledge about the location of easement lands is that land use planners may designate open space

and recreational areas when these uses are already provided for in nearby areas as the result of conservation

easements. In such a case, land that could otherwise have been designated for needed low-income housing,

for example, is instead need lessly designated for uses made redundant by preexisting conservation ease-

ments. In sum, the encumbrance of large areas and strategic locations under conservation easements can

make planning dicult, particularly where these areas are unknown to planners. In such cases, it is fair to

think of easement deployment as a form of stealth land use planning in which private parties make deci-

sions about land use that will literally last into perpetuity.