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“Environmentalism and Consensus is the Rust That Never Sleeps Upon the Republic of Property Rights.” Ric Frost, 2002.

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Presentation on theme: "“Environmentalism and Consensus is the Rust That Never Sleeps Upon the Republic of Property Rights.” Ric Frost, 2002."— Presentation transcript:

1 “Environmentalism and Consensus is the Rust That Never Sleeps Upon the Republic of Property Rights.” Ric Frost, 2002

2 Any Federal expenditures or permits on private lands associated with any Federal agency creates a Federal Nexus.

3 California Land Ownership Statistics Any Federal expenditures or permits on private lands associated with any Federal agency creates a Federal Nexus.

4 Wildlands Project Goals for California RED AREAS INDICATE LITTLE TO NO HUMAN USE!!

5 THE NEPA SPIDER WEB THIS PROCESS CAN TAKE YEARS, CAN BE EXTENDED BY THIRD PARTY LITIGATION AND CAN BE CULTURALLY, SOCIALLY AND ECONOMICALLY DEVASTATING TO THE AFFECTED LAND OWNER, LAND USERS AND COMMUNITIES!! STAKEHOLDERS

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7 POTENTIAL HUMAN CULTURE CRITICAL HABITAT? = = Specific areas: (I) essential to the conservation of the human species and (II) which may require special management considerations or protection How is This Determined? A Concept to Consider

8 Rural Economic Pressures Environmental Government Restrictions and Regulations NGO Lawsuits Weather Fluctuations Market Fluctuations Price Takers Foreign Market Dumping Without Protection Influx of Wealthy Urbanites Competing for Control Estate Taxes and Compliance Costs

9 QUESTIONS:QUESTIONS: What are the Impacts to Private Land Owners?What are the Impacts to Private Land Owners? What are the Social, Cultural and Economic Impacts Resulting From Land and Habitat Restrictions?What are the Social, Cultural and Economic Impacts Resulting From Land and Habitat Restrictions? What is the Long Range Outcome from these Restrictions on Development?What is the Long Range Outcome from these Restrictions on Development? –According to Whom? What are the Impacts to Private Land Owners?What are the Impacts to Private Land Owners? What are the Social, Cultural and Economic Impacts Resulting From Land and Habitat Restrictions?What are the Social, Cultural and Economic Impacts Resulting From Land and Habitat Restrictions? What is the Long Range Outcome from these Restrictions on Development?What is the Long Range Outcome from these Restrictions on Development? –According to Whom?

10 OVER 62 ORGANIZATIONS SUPPORT AND PROMOTE THE WILDLANDS PROJECT THE NEW MEXICO WILDERNESS ALLIANCE THE SIERRA CLUB FOREST GUARDIANS CENTER FOR BIOLOGICAL DIVERSITY NATIONAL WILDLIFE FEDERATION DEFENDERS OF WILDLIFE AMERICAN RIVERS THE WILDERNESS LAND TRUST LAND TRUST ALLIANCE THE NATURE CONSERVANCY THE NEW MEXICO WILDERNESS ALLIANCE THE SIERRA CLUB FOREST GUARDIANS CENTER FOR BIOLOGICAL DIVERSITY NATIONAL WILDLIFE FEDERATION DEFENDERS OF WILDLIFE AMERICAN RIVERS THE WILDERNESS LAND TRUST LAND TRUST ALLIANCE THE NATURE CONSERVANCY PARTIAL LIST FROM

11 The Key to the Corridors Conservation Easements: The Key to the Corridors Dave Foreman Listening to the Land by Derrick Jensen (Sierra Club Books) “If we identify a ranch … that’s between two wilderness reserves, and we feel it will be necessary as a corridor, we can say to the rancher, ‘We don’t want you to give up your ranch now, but let us put a conservation easement on it. Let’s work out the tax details so you can donate it in your will to this reserve system’.”

12 The Key to the Corridors Conservation Easements: The Key to the Corridors "The only hope of the Earth is to withdraw huge areas as inviolate natural sanctuaries from the depredations of modern industry and technology. Move out the people and cars. Reclaim the roads and the plowed lands." Dave Foreman Confessions of an Eco-Warrior Source: Dave Foreman Confessions of an Eco-Warrior Source:

13 The Key to the Corridors Conservation Easements: The Key to the Corridors ”Conservation Easements are the key to the Corridors. Once the Easements are Legally in Place, We can Impose Habitat Restrictions for Wildlife thus Ending Grazing and Other Agricultural Practices. If the Landowner Refuses, the Easement Management Loophole will Allow Us to Sue the Landowner and Impose those Restrictions.” New Mexico Wilderness Alliance Meeting, May 1999

14 Typical violations were reported by neighborsTypical violations were reported by neighbors Violations range from surface, to denial of entrance, to cutting of vegetation and timberViolations range from surface, to denial of entrance, to cutting of vegetation and timber Typical violations were reported by neighborsTypical violations were reported by neighbors Violations range from surface, to denial of entrance, to cutting of vegetation and timberViolations range from surface, to denial of entrance, to cutting of vegetation and timber Land Trust Alliance Study of LT & Third Party CE Litigation “The Violation Study”, Exchange, Winter 2000, Vol. 19 #1

15 Of 498 violations reported, 22 were litigated, only one landowner won in court but was still made to paid land trust expensesOf 498 violations reported, 22 were litigated, only one landowner won in court but was still made to paid land trust expenses CE Landowner always pays Land Trust legal and penalty expensesCE Landowner always pays Land Trust legal and penalty expenses –Built into CE (PDR) Language –Average cost per case is $35,000 with range of $5,000 to $100,000 Of 498 violations reported, 22 were litigated, only one landowner won in court but was still made to paid land trust expensesOf 498 violations reported, 22 were litigated, only one landowner won in court but was still made to paid land trust expenses CE Landowner always pays Land Trust legal and penalty expensesCE Landowner always pays Land Trust legal and penalty expenses –Built into CE (PDR) Language –Average cost per case is $35,000 with range of $5,000 to $100,000 “The Violation Study”, Exchange, Winter 2000, Vol. 19 #1 Land Trust Alliance Study of LT & Third Party CE Litigation

16 Definition Conservation Easements: Definition Fragmentation of land title to deny future generations a full range of productive land use options. David Guernsey, Alliance for America Fragmentation of land title to deny future generations a full range of productive land use options. David Guernsey, Alliance for America

17 Impacts Conservation Easements: Impacts Owners give up management and control of the land : Jimmie Hall, PCA, NM Severely diminished loan value of land : John Johnson, First Western Bank, SD CE’s eliminate property loan value : Dee Gidney, Texas Bank Ag Loans, TX Loan Value for Operational and Other Loans is Reduced up to 90% with an Easement Owners give up management and control of the land : Jimmie Hall, PCA, NM Severely diminished loan value of land : John Johnson, First Western Bank, SD CE’s eliminate property loan value : Dee Gidney, Texas Bank Ag Loans, TX Loan Value for Operational and Other Loans is Reduced up to 90% with an Easement

18 Impacts Conservation Easements: Impacts Creation of Federal Nexus should managing tax exempt Land Trust receive any Federal funding from Federal Agencies for CE (PDR)! –Imposition of Section 7 Consultation on Top of a Section 9 Take on Private Lands Vulnerability from non-trust third party lawsuit –Litigation Exposure is in the Easement Act Creation of Federal Nexus should managing tax exempt Land Trust receive any Federal funding from Federal Agencies for CE (PDR)! –Imposition of Section 7 Consultation on Top of a Section 9 Take on Private Lands Vulnerability from non-trust third party lawsuit –Litigation Exposure is in the Easement Act

19 Third Party Enforcement Conservation Easements: Third Party Enforcement Uniform Conservation Easement Act 1981 –Section 3(a)(3): “...The Act enables the parties to establish a right in a third party to enforce the terms of the transaction…” –“…Third-party right of enforcement means a right … granted to a governmental body, charitable corporation, charitable association or charitable trust, which, although eligible to be a holder, is not a holder…” –“…Holders and persons having third-party rights of enforcement might obviously wish to bring suit to enforce restrictions on the owners’ use of the burdened properties…” Uniform Conservation Easement Act 1981 –Section 3(a)(3): “...The Act enables the parties to establish a right in a third party to enforce the terms of the transaction…” –“…Third-party right of enforcement means a right … granted to a governmental body, charitable corporation, charitable association or charitable trust, which, although eligible to be a holder, is not a holder…” –“…Holders and persons having third-party rights of enforcement might obviously wish to bring suit to enforce restrictions on the owners’ use of the burdened properties…”

20 California Legal Impacts Conservation Easements: California Legal Impacts California – Civil Code Section (c) “... The holder of a conservation easement shall be entitled to recover money damages for any injury to such easement or to the interest being protected In addition to the cost of restoration and other usual rules of the law of damages, the loss of scenic, aesthetic, or environmental value to the real property subject to the easement... ” (d) “... The court may award to the prevailing party in any action authorized by this section the costs of litigation, including reasonable attorney’s fees... “

21 California Legal Impacts Conservation Easements: California Legal Impacts California – Civil Code Section 816. “... The provisions of this chapter shall be liberally construed in order to effectuate the policy and purpose of Section 815…”

22 Myths Conservation Easements: Myths “Perpetual Means 99 Years” –False: Perpetual is Forever. “I Retain Full Title to the Land” –False: Title Becomes Split with Easement Holder Which Can be Transferred Without Consent of Landowner. “A CE (PDR) is the Only Way the Land is Managed to My Intent” –False: The Easement Holder or Future Easement Holder can Change Management Practices at Any Time Including Development! “A CE (PDR) Allows Me to use the Property as I Always Have” –False: You Give up Control of all Easement Property Forever! “Property with a CE (PDR) will Sell Easy” –False: A CE (PDR) may Reduce the Property Value and Affect the Willingness of Financial Institutions to Loan Money on a Split Title –The Collateral of Highest Value is Severed, The Development Rights

23 Economic Impacts Conservation Easements: Economic Impacts Reduced Management Options on Taxed Lands of Land Owner and Heirs –Restrictions on Chemicals Used (Herbicides, etc.) –Restrictions on Seed and Plant Types –Restrictions on Farm and Ranch Management Practices Reduction of Income due to Restrictions Reduction of Direct, Induced and Indirect Economic Benefits to all Related Industries within Community, County and State Reduction of County Tax Base Forcing Tax Increases and Reduction of County Services on Other Property Owners in County to Make Up Loss

24 Economic Impacts Conservation Easements: Economic Impacts Imposition of EA and EIS Study Expenses on Land Owner for New Species, Restriction and Proposed Management Changes Reduction on Land and Business Value Forcing Owner into a “Willing Seller” Status - (Actually a Compromised Seller) Recent Studies Show the Majority of Lands With CEs (PDR) Do Not Necessarily Remain in Agriculture and are Rendered to Untaxed “Open Space” in the Hands of the Government or Low Taxed “Open Space” for Wealthy Non- agriculturists

25 QUESTIONS: What are CE (PDR) Impacts to Private Land Owners?What are CE (PDR) Impacts to Private Land Owners? Do the “Benefits” Offset the Impacts? (Lost Economic Activity and Lost Tax Revenues)Do the “Benefits” Offset the Impacts? (Lost Economic Activity and Lost Tax Revenues) What are the Other Impacts and Implications from Imposing a CE (PDR) on Private Land?What are the Other Impacts and Implications from Imposing a CE (PDR) on Private Land? –Non-trust Third Party Litigation –Federal Nexus and Section 7 What are CE (PDR) Impacts to Private Land Owners?What are CE (PDR) Impacts to Private Land Owners? Do the “Benefits” Offset the Impacts? (Lost Economic Activity and Lost Tax Revenues)Do the “Benefits” Offset the Impacts? (Lost Economic Activity and Lost Tax Revenues) What are the Other Impacts and Implications from Imposing a CE (PDR) on Private Land?What are the Other Impacts and Implications from Imposing a CE (PDR) on Private Land? –Non-trust Third Party Litigation –Federal Nexus and Section 7

26 QUESTIONS: What is the Long Range Outcome from Imposing a CE (or PDR) on Private Land Owners?What is the Long Range Outcome from Imposing a CE (or PDR) on Private Land Owners? –According to Whom? (Tax Exempt Organization) Would a Limited Liability Company, Incorporation or a Family Trust Better Serve the Landowner’s Tax Needs Instead of a CE (PDR) That Brings in Third Party Issues and Potential Federal Management?Would a Limited Liability Company, Incorporation or a Family Trust Better Serve the Landowner’s Tax Needs Instead of a CE (PDR) That Brings in Third Party Issues and Potential Federal Management? What is the Long Range Outcome from Imposing a CE (or PDR) on Private Land Owners?What is the Long Range Outcome from Imposing a CE (or PDR) on Private Land Owners? –According to Whom? (Tax Exempt Organization) Would a Limited Liability Company, Incorporation or a Family Trust Better Serve the Landowner’s Tax Needs Instead of a CE (PDR) That Brings in Third Party Issues and Potential Federal Management?Would a Limited Liability Company, Incorporation or a Family Trust Better Serve the Landowner’s Tax Needs Instead of a CE (PDR) That Brings in Third Party Issues and Potential Federal Management?

27 Options for Consideration License and Regulate Land Trust AgentsLicense and Regulate Land Trust Agents –Regulation by State Real Estate Commission –Bonding Requirement on Each CE Transaction Equivalent to Value of Encumbered Property Before Transaction Renegotiation Language Built into CE Contract that Allows Grantee to Renegotiate Every 5 YearsRenegotiation Language Built into CE Contract that Allows Grantee to Renegotiate Every 5 Years –If Renegotiations Cannot be Accomplished to Satisfaction of Landowner, the CE Contract Becomes Null and Void No CE Shall be Valid and Enforceable Unless the Limitations or Obligations Created by the Easement are Clearly Presented in Writing on the Face of Any Document Creating the CE Including Information From the UCEA 1981No CE Shall be Valid and Enforceable Unless the Limitations or Obligations Created by the Easement are Clearly Presented in Writing on the Face of Any Document Creating the CE Including Information From the UCEA 1981

28 Water, Grazing, Farming and Mineral Rights Shall Not be Encumbered by Conditions or Restrictions Imposed or Agreed to in the CE Contract. Grantee Retains Rights of Transfer on All Rights Not Expressly Identified in CEWater, Grazing, Farming and Mineral Rights Shall Not be Encumbered by Conditions or Restrictions Imposed or Agreed to in the CE Contract. Grantee Retains Rights of Transfer on All Rights Not Expressly Identified in CE Local and State Legislation Expressly Prohibiting Transfer of CE to Other Parties Without Formal Written Consent of LandownerLocal and State Legislation Expressly Prohibiting Transfer of CE to Other Parties Without Formal Written Consent of Landowner Land Trust Pays Taxable Value of Severed Development Right to County to Prevent Erosion of Tax Base as Community Infrastructure Demands IncreaseLand Trust Pays Taxable Value of Severed Development Right to County to Prevent Erosion of Tax Base as Community Infrastructure Demands Increase Options for Consideration

29 Elimination of Third-party Enforcement Clause Language From CE ContractsElimination of Third-party Enforcement Clause Language From CE Contracts Local and State Legislation Expressly Prohibiting Transfer of CE to Other Parties Without Formal Written Consent of LandownerLocal and State Legislation Expressly Prohibiting Transfer of CE to Other Parties Without Formal Written Consent of Landowner Options for Consideration

30 Parting Thought When it Comes to the Endangered Species Act, Conservation Easements and the Human Dimension: –Are We Asking the Right Question? –Is the Emphasis on the Right Syllable? When it Comes to the Endangered Species Act, Conservation Easements and the Human Dimension: –Are We Asking the Right Question? –Is the Emphasis on the Right Syllable?


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