Enter with caution: Pros and cons to signing land trusts
November 1, 2018
At the beginning of September, California Rangeland Trust in Sacramento, Calif., released the short film, A Common Ground, which tells the stories of land owners in California who have put their land into conservation easements through the trust.
Produced by Chris Malloy, the film explains why the California Rangeland Trust believes that conservation through land easements is so important.
"Many people don't realize how important rangeland is to the environment," said Nita Vail, CEO of California Rangeland Trust. "While much of California is being lost to development, rangeland maintains critical open spaces that provide beautiful viewsheds, healthy protein sources, carbon storage, endangered species habitat, renewable energy and clean air and water. For that reason, and so many more, we must ensure these open working lands are conserved before it's too late. That is why we produced A Common Ground."
With the rise of interest in recent years of preserving the environment and using practices what ensure that land is used in a healthy way, the United States has also seen a rise in land trusts and conservation easements.
“Never do a conservation easement for the money
— financial considerations are important but should not be the driving reason behind the agreement.” Dave Sands, executive director of the Nebraska Land Trust
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According to the National Conservation Easement Database, an organization that gathers and shares information about easements in the U.S., more than 27 million acres of land have been put into conservation easements.
Many easements involve the land owner selling their development rights to an organization or trust with the permanent agreement that the land will remain as it is currently being used and will never be developed. The agreed upon easement is perpetually tied to the land, even after it is sold to the next owners.
Land owners who choose to enroll their land into an easement often do it to conserve the land, keep the property as a working agricultural piece of land, or for the financial benefits provided through the trust.
After setting up the easement, land owners receive financial compensation per acre of land that they commit to the easement. The rates vary depending on the type/quality of the land. Many of these land trusts are nonprofit and are funded through donations and grants from various partners depending on the trust.
"The amount that land trusts have grown is just phenomenal," said Kimmi Lewis, a Colorado House Representative for District 64.
Lewis runs a cow/calf ranching operation in south eastern Colorado and has worked firsthand with ranchers from her district through the trials of conservation easements and has carried three conservation easement bills in the state house.
"If you want to save the land as it is, you will get a land trust and a conservation easement, but you're taking on another partner — you're selling your development rights," Lewis explained.
She went on to say that land trusts' motives and financial information can also be elusive. "The problem with land trusts is that it is a nonprofit so you can't research them — you can't find out what they're all about," she explained.
According to Lewis, her district is the most sparsely populated area in Colorado, but it has the most amount of conservation easements in the state. Many land owners in her district are also facing issues with "default conservation easements."
Default easements are agreements where the paperwork for the easement wasn't filed correctly, the land appraisal was incorrect or some other filing error was made from the start. Land trusts are now calling these default easements "disallowed" which results in court cases to try to fix the easement between land owners and land trusts in these permanent agreements. Battling with land trusts incurs significant court costs for land owners and along with that none of the Colorado cases that Lewis is familiar with have been able to remove the easement from their land.
"People need to keep the rights to their property free and clear," Lewis said.
Dave Sands, executive director of the Nebraska Land Trust, said he believes there is a need for conservation easements. "When ranches are being sold these days, they are being developed…they're no longer a legacy — it becomes an investment," he said.
Sands said he tells interested land owners two things when they begin inquiring about putting an easement on their land: "First, never do a conservation easement for the money — financial considerations are important but should not be the driving reason behind the agreement. And second, call us because we won't call you. This is not out of lack of interest, but it is (the land owner's) decision and we are not going to push the land owner in any way."
The Nebraska Land Trust "started in 2001 because of the loss in farm land in Lower Platte Valley and the projected increase in population for that area," Sand explained. So far, the trust has conserved 25,000 acres.
Recently the trust has added the Pine Ridge region in northwest Nebraska as their second focus area.
Gary and Nancy Fisher are one ranching couple who have placed their land in the Nebraska Land Trust.
"We were seeing a lot of—I guess you could call it—urban sprawl," Nancy Fisher explained. "[We saw] people moving out on 10 acres and breaking up the landscape and taking good land out of production, so we wanted to preserve what we have…for whoever comes after us."
Fisher said it took a few years to set up the easement, but they finished the agreement in 2011.
"We basically wrote up our own easement to address the things we wanted to do," she explained. The couple focused on three main things in their easement: the land couldn't be divided and developed, they prohibited mining, and the land always had to be treated as agricultural land and managed as a ranch.
"We feel like we have protected the important things," Fisher stated.
On the flip side, Angus McIntosh, executive director of the Range Allotment Owners Association, spoke about land trusts in general and said that land easements are "a really touchy subject for some people in livestock."
"Some of them (land trusts) are on the up and up, but some aren't done for the purpose of actually helping the rancher—they're done for their own purposes of the land trust," McIntosh explained.
He went on to say that the ranchers that he knows have regretted putting an easement on their land because it restricts what you can do with your property.
The transfer of land is another concern that McIntosh brought up. "These land grants will sometimes end up selling these trust agreements to another land trust. When that happens, you aren't even dealing with the original people," he explained.
McIntosh cautioned against land trusts by saying "my experience has been that way too often what you think the agreement involves is not in the end how it is interpreted—don't sign anything you don't agree with." F