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Conservation Easements
Rescuing Private Property Or The Ruination Of Future Generations?
By J. Zane Walley The IUCN and the IRS

What are conservation easements? Picture your private property rights as a bundle of sticks with a log in the center. The sticks depict (and this varies from state to state) water rights, mining rights, grazing rights, mineral rights and so on. The log represents a property right, called "the development right," that can overshadow all lesser rights, including the right to enjoy unlimited use of your land and its natural resources. When you allow a conservation easement to be placed on your property, that "log" is what you give up. You also have given up a portion of your privacy because conservation easements require that a third party be allowed access to your land to inspect it and make sure that you are taking prescriptive care of what is now their "log."

Conservation easements (CEs) were largely unheard of until the Tax Reform Act of 1976, except for tiny acquisitions called "small wetlands," that were non-productive farmland set aside for ducks and in one case a fish hatchery. There was one notable exception. A colossal fiasco occurred in the 60s and 70s in which hundreds of Cuyahoga Valley, Ohio dwellers voluntarily gave easements on their properties to the National Park Service to create the Cuyahoga Valley National Recreation Area.

. According to a PBS documentary "For The Good of All" and testimony by residents before a U.S. House Resource Committee, they were so harassed for minor infractions of the easements that they eventually became "willing sellers."

A concept of conservation easements as a tool for government and non-governmental organizations (NGOs) to control private land was advanced in a 1972 environmental law paper by the International Union For Conservation of Nature and Natural Resources (IUCN) in Morges, Switzerland. In the IUCN paper "The Easement as a Conservation Technique," chapter two, titled "The Need For Conservation Easements In The United States" explains how governmental agencies can regulate private property without owning or paying for it. It also suggests that CEs are a method for NGOs to achieve regulatory authority. The IUCN document reads verbatim.

"The Need to Regulate. Broadly speaking, the need for an approach like that permitted by conservation easements is occasioned by limited objectives of land-use control, the achievement of which does not require assumption of full proprietary ownership of the land. This need arises for governmental agencies when the objectives are beyond their power to impose sufficient restrictions on property without compensation and in all cases for private organizations having no regulatory authorityIn the United States it is the governmental need that is particularly acute because traditionally a choice must be made between a limited regulation, which may not be sufficient to the purpose, and acquisition of full title to land, which may not be necessary."

The IUCN document further explains that CEs can be used to avoid expensive condemnation takings: "The United States federal and state constitutions require 'just compensation' to be paid to a landowner whose property has been expropriated or condemned for public purposes. The cost to the government for paying the full value of land (particularly in areas most critically in need of preserving for scenic purposes, namely, agricultural or undeveloped land located in prime areas for development) can be prohibitive; and, in addition to the high cost of acquiring full title, full acquisition may clearly not be needed to accomplish the governmental objective of preserving the land in its present state. On the other hand, if land is so situated as to be at once both ripe for development and in need of preservation for scenic or conservation purposes, the government may well be precluded from simply enacting a law to prohibit changing its natural state. This too, is because the courts have held that the general rule is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. This rule perhaps reflects the strong disposition of American law toward development and economic exploitation of land."

The Tax Reform Act of 1976 incorporated principles favorable to the IUCN vision by making the contribution of a conservation easement tax-deductible by the appraised amount of the donated easement. Carol W. LaGrasse, President, The Property Rights Foundation of America in her research paper, "Conservation Easements, A Critical Commentary" contends, "land trusts pressure property owners to sell below market and claim a tax deduction on their income tax return. It is widely said that inflated current appraisals are used to claim or decrease these deductions, and that the IRS ignores the inaccuracy of the inflated appraisals because of the influence of land trusts."

Inflated appraisals and conservation easements based on false premises are a very dangerous device. In future years when the IRS conducts an audit of tax deductions based on conservation easements and the property does not rise to the threshold of the tax code, the property owner, not the government agency or land trust will be help responsible for back taxes and penalties.

This series of articles is provided as an educational effort to stimulate discourse on conservation easements by presenting the little known consequences of such an action. The articles are intended to provide readers with beneficial information to use in making decisions on this highly controversial subject.

To view a sample Conservation Document go to Land Trust.org and scroll down the right-hand column to "Michigan Model Conservation Easement."

To order Carol W. LaGrasses excellent research paper "Conservation Easements, A Critical Commentary" write or call "The Property Rights Foundation of America, P.O. Box 75, Stony Creek, NY 12878, (518) 969-5748.

Paragon is a Constitutional rights foundation headquartered in Alamogordo, New Mexico. Visit the Paragon Foundation Website at http://www.paragonpowerhouse.org. To receive the free monthly Paragon Foundation Newsletter or the entire series of conservation easement articles, call toll free 1-877-847-3443. Speakers on conservation easements are also available (at no charge) to address your organization.


6. Article 6 Sidebar

IUCN is the world's largest conservation-related organization, bringing together 76 states, 111 government agencies, 732 NGOs, 36 affiliates, and some 10,000 scientists and experts from 181 countries.

U.S agencies with IUCN membership and providing funding include: Department of Agriculture - Forest Service, Department of the Interior, National Park Service, U.S. Agency for International Development, National Oceanic and Atmospheric Administration, Department of Commerce and Department of State.



A few of the many IUCN NGOs members are: The Nature Conservancy, Defenders of Wildlife, Environmental Defense Fund, National Audubon Society, National Parks and Conservation Association, National Wildlife Federation, Natural Resources Defense Council.


-- (thomas@bigfoot.com), August 30, 2000