What began as a benign effort to allow financially strapped property owners to receive tax benefits in exchange for specified development rights, has morphed into a government land grab. The chief culprit here is The Nature Conservancy (TNC), a well-funded 501(c) (3) organization founded in 1951 that is closely partnered with the federal government. TNC is flush with revenue in excess of $700 million, according to its recent tax forms, and has active chapters in all 50 states.
All told, land trusts control almost 40 million acres of land throughout the U.S. with at least nine million of this amount held in conservation easements, according to the Land Trust Alliance. TNC figures most prominently into this equation as it controls over three million acres in conservation easements, according to congressional testimony. They are described as “powerful, effective tools” on the TNC web site and that much is true. But the selfless, benevolent motives TNC attaches to its vigorous pursuit of easements in its public relations pitch belie its own financial incentives and its relationship with government officials, policy analysts and private property advocates have observed.
Conservation easements are legally-binding agreements between property owners and nonprofit organizations such as a land trust or government agency that restrict development in exchange for tax benefits. The property owner who sells the easement maintains partial ownership but relinquishes certain rights to use the property for development. The purchasing entity holds interest in the property and oversees the restrictions.
Although private land trusts worked effectively with property owners to preserve land in early to mid 20th Century, some of larger non-profit environmental organizations dramatically altered this altrustic approach toward easements as a consequence of the “suspect relationships” they entered into with government agencies, Dana Joel Gattuso, a scholar with the National Center for Public Policy Research (NCPPR), has argued.
“Any chance conservation easements have in being effective stewards of land is lost when land trusts cease to work as independent, private organizations obtaining easements through purely voluntary means and become agents of governing aiding in public land acquisitions,” she wrote. “Yet land trusts, particularly the larger organizations, are changing their focus from independent and private approaches to working in tandem with government agencies in an effort to assist government in obtaining private lands.”
“From Maine to California, conservation easements protect open space and enhance the quality of life in rapidly growing urban and suburban areas,” TNC claims on its site. “Conservation easements preserve agricultural lands, from family farms to ranches to timberlands. And easement lands on which use is restricted to agriculture often generate more in local revenues than they require in community services.”
Conservation easements are individually tailored to protect targeted conservation values and to meet the landowner’s needs,” TNC continues. “Many types of private land use, such as farming, ranching and timber harvesting, can continue under the terms of a conservation easement. The easement may require the landowner to take certain actions to protect land and water resources, such as fencing a stream to keep livestock out.”
To the extent easements are “individually tailored,” they are often done in a way that constrains and restricts private enterprise while empowering government-backed environmentalists, Karen Bulich Moreau, a New York attorney, warns.
Federal, state and local land use policies provide environmental groups with an unfair advantage, she explained in an interview. Green non-profit groups work very closely with government officials and lobby successfully for grant money so they can promote conservation easements in local zoning ordinances, she said. Those who wish to subdivide and sell a building lot are only permitted to do so if they surrender their rights on their remaining land to government entities or non-profits through mandatory conservation easements, Moreau continued. In New York, this is known as a “conservation subdivision,” which is hardly voluntary.
“It’s what you call a quiet exaction of rights, a malignant method of taking private land,” she said. “It’s tragic because the most financially vulnerable people in the private sector are being run over by our government policies. These landowners may be convinced that selling or donating a conservation easement is their only way to keep the family farm going, because they are already burdened with high property taxes, dire economic conditions, and the threat of losing the farm through estate taxation. If the environmental groups were truly concerned about open space preservation, they would use their enormous clout to lobby for estate and property tax relief, instead of mechanisms which result in diminished rights of private ownership. The most serious problem with conservation easements is that they typically restrict land forever, and the generation who restricts their property rights today may be inadvertently depriving their heirs, the next generation of farmers or forest owners, of the ability to do business in the future.”
Under this arrangement, the door is open to outside environmental groups to sue to enforce the terms of the easement, should they oppose a landowner’s interpretation of farming practices.
“In addition to restricting land through conservation easements, a pattern has developed in New York State where groups like the Nature Conservancy purchase large blocks of private forest land ‘in fee,’ meaning full ownership rights,” Moreau added. “They make the purchase having already made a sweetheart deal with the state of New York to purchase it from the Nature Conservancy in the short term, at a price exceeding by millions of dollars what the nature conservancy paid for the property. In effect, taxpayers are involuntarily subsidizing a wealthy private non-profit environmental group. Despite declining real estate values of the past few years, TNC has turned a handsome profit on its transactions by shrewdly exploiting its relationship with compliant government officials.”
The bottom line here is that TNC is not satisfied with just a couple hundred thousand acres, instead it wants the whole pie.
“Once millions of acres are removed from the private sector, this can change the economics of an entire region, as shown by the crippled Adirondack economy,” Moreau said. “I really believe the best stewards of property are the private owners, the people who have bought the property with their hard earned money. In most cases, there is an incentive for the farmer or private forest owner to take care of the land because the better they take care of it, the more it produces over a long period of time. Once the government gets involved there are too many different agendas that interfere with productive enterprises, and typically a lack of expertise in land management.”
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