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Senate Vote Tied at 15 to 15

Wyoming Conservation Easement Bill Defeated

Legislation would have enacted the Uniform Conservation Easement Act

By Carol W. LaGrasse
March 15, 2003

The Wyoming State Senate defeated the Uniform Conservation Easement Act on March 4 with a floor vote that tied at 15 to 15 after a spirited debate. The vote was a victory for private property rights and for the preservation of private land ownership in Wyoming.

The legislation would have legalized perpetual conservation easements in Wyoming, and provided for their enforcement not only by the not-profit organizations that hold the easements but also by third parties mentioned in the easements.

The Wyoming Constitution prohibits perpetuities and monopolies. The Majority Leader of the Senate, April Brimmer Kunz (R - Laramie), argued eloquently against the passage of the Act, pointing out that if the proponents want to reverse the prohibition against perpetuities, the correct thing would be to try to tackle the Constitution directly.

The vote against Wyoming's enabling legislation was the first such defeat for the Uniform Conservation Easement Act, a model law advocated by preservationists, which originated in 1981 as a result of a close vote of approval by the influential National Conference of Commissioners on Uniform State Laws. This month's vote came in the final hours of the session of the Wyoming Legislature, which means that the measure can not be brought forward for at least another year.

The Wyoming Farm Bureau opposed the passage of the conservation easement act, reasoning that it would serve to tie up agricultural land in the future. Ken Hamilton, the lobbyist for the State Farm Bureau, pointed out that under the existing legal situation, "If you own a piece of property and you go broke, there's a mechanism where that property goes to someone else, but under a conservation easement it is hard to see that the property will pass down to another owner who will carry on using the land."

The Wyoming victory for property rights came just a few days after property rights legislation was introduced into House of Representatives of the neighboring state of Montana to restrain conservation easements and prohibit their use to restrict resource-based production.

Without the passage of the conservation easement act in Wyoming, it will continue to be necessary to engage in legal maneuvers to acquire the easements in that state. Negative encumbrances that have the characteristics of conservation easements are prohibited in classical American law.

Backed by the wealth of the major land trusts and powerful foundations such as the Pew Charitable Trusts, the conservation easement movement has gathered seemingly unstoppable momentum during the past two decades. The well-funded Wildlands Program, which has published its central goal to restore ninety percent of the contiguous United States to wilderness, is a promoter of conservation easements.

Conservation easements divide the title to land into two parts, the conservation easement, which restricts the uses of the land and is held by a non-profit organization or the government, and the remainder of the title, which is held by the original property owner, usually a farmer, rancher or forest owner. The original owner becomes the residual owner. Although conservation easements purportedly aim to preserve the land in use for resource-based industry, there is a danger that the wording in the actual easement may require that natural resource protection supersede productive use.

According to Mr. Hamilton, the advocates for the passage of the bill appeared not to be able to explain why they wanted the third party enforcement provision. "The only reason to have the provision in there is for future enforcement," he reasoned.

The Wyoming legislation had been moving forward until the Senate defeat. It had come out of the House Agricultural Committee with a close, but favorable, vote of 5 to 4 in spite of opposition from the Farm Bureau. The bill next passed the House by a floor vote of 43 to 17 and went to the Senate. Instead of referring the bill to the Senate Agricultural Committee, where it would have died, Senate Majority Leader Kunz referred the bill to the Judiciary Committee, which was supportive of it. However, on the Senate floor, the bill ran into trouble. Because Sen. Kunz had referred the bill to a favorable committee, observers had gotten a misimpression that she supported the bill. Sen. Kunz actually opposed passage of the legislation. The bill was the last matter to be voted on, and, after the third reading and spirited debate, failed to obtain the simple majority necessary for passage. One Senator, Grant C. Larson (R - Jackson), changed his position in support and voted against the bill.

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