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 matrix of land protection tools

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

servation objectives within a particular ecological, social, and political landscape. Although 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 the right kind to make 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 this level of strategic protection ta kes vision,

commitment, and often catalyzing facilitation.

A fundamental hurdle to incorporating conservation easements into strategic planning is the lack

of information as to their location and purpose. Deeds conveying conservation easements are recorded

locally, creating a diuse data set.  is is one example of the tension inherent in conservation ease-

ments—conservation easements have a public purpose, but the benets can be invisible to the public

due to their “private” nature.2 e National Conservation Easement Database (NCED) is an important

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

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

held, or NCED is still working to obtain the easement location from holders. Another related critical

need is geospatial data, which provides information as to the types and locations of natural resources

being protected.

Given the ubiquity of conservation easements and the critical need for resource protection, use of this

tool in more a strategic 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 interdisciplinary research, including long-term

study of how conservation easements work in practice on dynamic landscapes, to help determine how

conservation easements ca n be used a s part of a suite of integrated strategies to protect landscapes and

key natural 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 and 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 deeds, must be recorded at the local land registry or recorder’s oce, they

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

to compile conservation easement data for public consumption, there are few functional systems 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, this article provides updates on recent, ambitious

eorts to gather, organize, and make available 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 negotiations bet ween

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

reason for this is that most enabling laws require the holder to be a public entity or a nonprot section

501(c)(3) corporation 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. An even greater form of public subsidy of easements occurs when landowners take advan-

tage of federal and state tax laws that provide for income ta x deductions (and in some states credits)

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

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

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

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

ments are further subsidized at the local level when tax assessors value the subject land at lower levels

than otherwise 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 powerful 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 every instance prevail over arguments to the contrary. Also, the need for transparency 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, subsidized with public funds. Indeed,

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

ties for the public. Nevertheless, though there is no hard data, it appears 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 additional information explaining that the underlying land is

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

very existence of a conservation easement suggests to many that the 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 county 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, and open space needs can result in social, economic, politica l, and environmental

ills. Because the land use planning process cannot reasonably involve title searches of every land parcel,

planning eorts can be frustrated or contradicted by the presence of land under a conservation easement

that ca nnot be developed at all, let a lone in the fashion the planners may designate. For example, 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 needlessly 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.