A Flexible Instrument
| Author | Laurie A. Ristino |
| Pages | 31-99 |
Page 31
Chapter III: A Flexible Instrument
Laurie A. Ristino
A. Introduction
One of the unique attributes of conservation easements is that they are simultaneously a exible and
inexible tool for land protection. On the one hand, conservation easements a re by design meant to be
inexible. For example, conservation easements generally cannot be terminated and are dicult to modify
or amend. ese attributes are intended to maintain the integrity of conservation ea sements over time,
thereby upholding their public purpose as well as any donative intent and public investment. On the other
hand, a key reason for the popula rity of the conser vation easement is that it is a exible tool. Indeed, the
use of conservation ea sements has evolved over time both in response to lessons learned (although some
would argue not nearly fast enough); to address the needs of a particular community; and to protect a range
of resources in dierent ways. e conservation easement is the populist tool of real property law, and this
reality fuels its innovation.
Local land trusts and state and local government use conser vation easements to protect resources of
value to their particular community. To leverage precious resources, they may partner with national or
regional non-prots (e.g., e Nature Conservancy or e Trust for Public Land) a nd the federal govern-
ment, which is the largest source of ea sement funding, in order to perfect conservation easements. For
example, under farm bill funded working la nds easements, the federal government provides millions of
dollars in funding for conservation easement acquisition to non-prots or governmental entities authorized
to hold such easements.1 is involves merging the priorities of the federal program w ith that of the par t-
nering entities, which could include multiple organizations as well as state or local government. e conser-
vation deed itself will reect those various priorities as long as they are not inconsistent with the purposes of
the federal program. So, one conservation easement could protect farmland soils, historic structures on the
land, and various plant and animal species. In some instances, more than one conservation easement could
be conveyed on the same land, either applying to dierent portions of the property or coterminously, in
order to protect dierent conservation values. One drawback of multiple purposes or layered easements is
that deeds become more complicated, and relatedly, long range management of the conservation easements
becomes more complex, possibly impacting ultimate conservation easement viability.
One innovation using conservation easements is to achieve investment value whi le providing a public
good. For example, Lyme Timber Company, a timber investment management organization (TIMO),
purchases timber land in fee while brokering a conservation easement on the same t imber lands. e
TIMO agrees to sustainably harvest the timber pursuant to the terms of the easement deed. In return, the
TIMO receives a ca sh payout from conveyance of the conservation easement, reducing the overall cost of
the land and adding to the prot margin. A nother example is the purchase of conventional farmland by
an organization (e.g., Farmland, LLP) that then converts the farmland to certied organic, which, among
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. Agricultural Conservation Easement Program, 16 U.S.C. §§ 3865–3865d.
Page 32 A Changing Landscape: The Conservation Easement Reader
other things, requires that no prohibited substances are used on the land for a period of three years before
the rst orga nic ha rvest.2 A conservation easement is placed on the land restricting its management to
organic practices. After the operation is certied organic, the organization sells the land subject to the con-
servation easement while receiving a premium for the fee. A similar investment strategy is being applied to
ranchlands, which under one business model, are turned back into healthy grasslands suitable for rotational
grazing of livestock and then sold to a producer subject to an easement. ese types of investment models
may also attract philanthropic investment (social impact investing), where the project investor seeks to earn
a moderate return while accomplishing a socia l benet.
Conservation easements a re a lso being u sed a s a vehicle to facilitate entr y of a new generation into
farming by lowering the cost of land acquisition. As farmers in A merica age, there is a critica l need for
new farmers to produce the nation’s food and ber.3 However, the cost of farmland is often prohibitively
high. Conservation easements are being used, alone or i n combination with other tools such a s coopera-
tive structures, to lower the entry barrier for new farmers. For example, the Schumacher Center for a New
Economics is a pioneer in the community land trust model, which u ses conser vation easements to place
lands such as farmland into the “commons” for sustainable use to support the community. To foster sus-
tainable practices, conservation easements may c ontain term s or incorporate ma nagement plans, which
ensure la nd is managed in a particula r manner, for example, using organic practices or providing other
environmental co-benets.
Many new fa rmer entrants are farming in way s that are smaller in scale and diversied in production
in order to be economic ally a nd environment ally su stainable. Traditional land tr usts a nd the conserva-
tion ea sement terms they use , which often prohibit subdivision or infrastructure, may pose ba rriers to
these diversied farming operat ions. Moreover, land trusts may not see the value in protec ting smaller
parcels closer to popu lation centers where farmers have di rect access to consumers, whic h is key to eco-
nomic succes s for smaller sc ale farmers. Land trusts need to address these issues while stil l providing for
robust protect ion of conser vation values in order to be a relevant a nd vital force in food s ystems change
and food security.
Below is a chart setting fort h major conservation easement categories, which provides a framework to
understand the diversity of uses. One can quibble with the typology, but the key take-away is that conserva-
tion easements are used in a multitude of ways to achieve dierent conservation and preservation purposes.
Conservation Easements: Typology
Main Categor y Sub-Types
Working Lands farmland, fo rest/timber land, a nd ranchland; social im pact investing
Community afarmland, urb an gardens, community fore sts
Cultural Resourc es historic place s and structures; scared s paces
Scenic open space, sce nic/historic vist as; urban spa ces, viewsheds
Habitat /Biodiversity buffer eas ements around public lands ; wetlands; forests ; grasslands; water sheds; coastal
zones
Ecosystem Se rvices carbon s equestration; wate r quality and quantity ; soil conservation
Mitigation /Compliance Used to offse t habitat losses elsewhere or com ply with state/fe deral law (e.g., Clean
Water Act mitigat ion, superfund)
a. See Shumacher Center for New Economics, at http://www.centerforneweconomics.org/ content/community-land-trusts.
is chapter presents articles that document the various ways in which conservation easements are being
used to protect resources. is chapter is not exhaustive, but aims to provide a sampling of the breadth of
conservation easement utility. One challenge in providing a robust overview of the breadth of use is that
the literature on conservation ea sements tends to be clustered around certain issues (perpetuity, tax, and
critiques of legitimacy). Until recently, for example, there has been a dearth of literature on historic and cul-
tural resource protection (such as the challenges faced by Native Americans when using this tool on Indian
2. See generally National Organic Program Regulations, 7 C.F.R. 205.
3. See http://www.agcensus.usda.gov/Publications/2007/Online_Highlights/Fact_Sheets/Demo graphics/ farmer_age.pdf.
A Flexible Instrument Page 33
lands4); the use of easements in social impact or “green” investing; barriers to conservation easement usage
and access by people of color and lower income populations; and case studies of complex land transactions
where conservation ea sements were used a s part of an integrated strategy. Scholars and practitioners may
take note of these gaps in the literature as needing research and publication. ere is a part icular need for
multidisciplinary approaches on the subject of conservation easements because the issues related to conser-
vation are multifactorial and systems-based.
is chapter features writings on biodiversity; working lands; cultural resources; compliance (or extrac-
tive) easements; and ecosystem service s (including carbon sequestration and osetting).
B. Biodiversity
1. Nancy A. McLaughlin, The Role of Land Trusts in Biodiversity Conservation of Private Lands,
38 IDAHO L. REV. 453 (2002)
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II. THE ROLE OF LAND TRUSTS IN BIODIVERSITY CONSERVATION
Althou gh land trust s are involved in a wide variety of land conservation activit ies, and easements
can be donate d under section 170(h) for four ver y dierent conservation pu rposes, includ ing habitat
protection, many land trusts l ist t he protection of habitat either as their sole focus or as one of their
primar y focus es. Examples of the use of conservation easements to protect biodiversity abound. In
addition, even land trust s that focus on conservation purposes other than habitat protection can
achieve incidental but nonetheles s signic ant protection of biodiver sity in the course of fu llling their
particular missions.
Conservation easements acquired by l and trusts generally are not well suited to the protection of
biodiversity in core are as. e proper le vel of biodiversity protection i n core area s often can be ach ieved
only if the landow ner agree s to refrain from most or all uses of the land or to act ively manage the land
for biodiversity protection purposes. In most cases landowners are not w illing to accept such restric-
tions or responsibilities. However, conservation easements acquired by land trusts may be particularly
well-suited to the protection of areas c onsidered to be “ buer zones” around core areas, where the land-
owners’ retained rights to u se the land are compatible wit h biodiversit y protection goals. In such cases,
acquiring a conser vation easement may be as benecial, more cost eective, and more fea sible than
obtaining fee title to the land.
Even in a situat ion where a conservation easement does little more tha n restrict t he development of
the land to whic h it relates and, thu s, may allow continued uses of the la nd that are not compat ible with
biodiversity protection goals, such an easement can be viewed as an important rs t step in the protection
of the land. Nothing in the sa le or donation of a conservat ion easement to a land tr ust prevents the lay-
ering of additional restrict ions on the use of the land subjec t to the easement, whether those additiona l
restrict ions are imposed by regu lation or purchased from or donated by the current or a successive owner
of the land.
e voluntary nature of t he sale or donation of conser vation easements to land trusts, the numerous
conservation purposes for which deductible easements may be donated under section 170(h), and the
myriad of la nd trusts with diverse objectives that acquire easements ma ke it dicu lt to incorporate such
easements into any coordinated biodiversity conservation initiative. However, the existence of a myriad of
4. One of the fe w resources addressing this important area is T L, by Beth Rose Middleton (e University of Arizona Press
(2011)). In her book, Middleton explores where and under what conditions conservation easements may be used to achieve Native goals and
priorities, thereby providing a critically needed perspective regarding how this tool can be adapted by Tribes.
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