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Reprinted by permission of The Paragon Foundation from Paragon Powerhouse, December 2000

A Clear And Crucial Need For Land Trust Regulation
By J. Zane Walley

The conservation easement money train is picking up speed. On December 7, Agriculture Secretary Dan Glickman announced that the Department of Agriculture plans to protect almost 750,000 acres of environmentally important private forestland from development. These plans include among others:

The State of New Mexico Forestry Division has been earmarked to receive $50 million USDA money through the Forest Legacy Program, if they can cajole the citizens of that strongly pro-property rights state to participate. The Forestry Legacy Program, administered by the U.S. Forest Service, helps participating states acquire forestlands through conservation easements from landowners. Conservation easements enable the government to purchase development rights that protect and regulate forestlands.

New Mexico Forestry has indicated that it will employ the services of non-profit land trusts to purchase the conservation easements and the land trusts will be paid a percentage of the action for closing "deals," as has been done in many other states.

Left out of the "deals" entirely are state regulatory agencies, the legislative body and community government. Indeed, they are left out of the communication loop to the point that tens of thousands of acres are frequently removed from the future tax base before elected officials are aware of the transaction.

This problem can be traced to a complete lack of land trust regulation. Although agents of land trusts put together multi-million dollar real estate deals, they are not licensed, they are not responsible for providing full disclosure, nor are they legally obligated to conduct business in an honest manner. At present, land trust agents may safely, with complete disregard for honesty and accepted real estate laws, say anything and everything that they wish to a potential seller in order to close the "deal." Because of "hold harmless" wording common to most conservation easements, they are as immune from civil and criminal prosecution as an ambassadorial representative from a foreign nation.

State legislators and county commissioners have the authority and indeed the moral responsibility to investigate the long-term ramifications of conservation easements and pass rules and regulations protecting their citizens from unrestrained land trusts. A regulatory agency such as state real estate commissions should be enabled to license and regulate the actions and indeed, the very words of the land trust real estate agents.

In New Mexico, the law exists to justify these actions but is not being enforced by the Attorney General's office. New Mexico Statue 61-29-1: Prohibition reads: It is unlawful for any person, business association or corporation to engage in the business, act in the capacity of, advertise or display in any manner, or otherwise assume to engage in the business of; or act as, a real estate broker or real estate salesman within this state without a license issued by the New Mexico real estate commission.... The term "real estate," as used in Chapter 61, Article 29 NMSA 1978 shall include leaseholds and other interest less than leaseholds, including rights to use property.

Because of the intent stated by New Mexico Forestry to "pay a percentage of the purchase price" to land trusts, the Attorney General also has the statutory duty to examine the non-profit status of the land trusts involved in real estate transactions. A similar situation occurred in Texas when Dan Morales was the Attorney General of the Lone Star state. Mr. Morales investigated land transactions by The Nature Conservancy and stripped them of their non-profit status.

The landowners of New Mexico and other states have excellent opportunities to remove some of the dangers associated with conservation easements by lobbying their elected representatives to enact protective and restrictive land trust regulations. Further, landowners and members of the regulated real estate sector should loudly demand that their Attorney General speedily and rigorously enforce existing laws.

Because of the massive political and financial muscle wielded by the giant land trusts, it falls upon the citizen to bring this situation to the attention of their elected officials and urge that strong regulations be speedily inaugurated.

Reprinted from Paragon Powerhouse, December 2000

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