Property Rights Foundation of America®

Speech from Proceedings of the Fourth Annual New York Conference
on Private Property Rights
(1999)

Forest Land Easements—Freezing the Future
William R. Sayre
Chairman, Forest Policy Task Force, Associated Industries of Vermont, Montpelier, Vermont

Well, thank you very much. It is a real pleasure for me to be here today and I appreciate seeing so many friends and kindred spirits and having the opportunity to be together with you for this important meeting.

Of course, we have heard about some of the adversity that people who earn their living working the land have faced and this is nothing new to us. As a matter of fact, I am reminded about the farmer years ago who was driving his horse and wagon to town for a load of grain and he had a head-on collision with an automobile. He was lying there seriously injured, some of them permanent disabilities, and later followed the usual legal procedures—I have to get a little bit of a lawyer story in since I am on a panel with lawyers. The procedures followed with the insurance company.

He was on the stand and the lawyer asked him, while you were lying there at the scene of the accident, didn't someone come up to you and ask how are you feeling? And didn't you answer that you never felt better in your life?

Well, the farmer said, yes, yes, I remember that happening.

Later, under redirect, another lawyer was asking the questions and he said, would you mind explaining to us what the circumstances were when you gave the answer as to how you felt.

Well, the farmer said, I was lying there in pain and a car came up and a deputy sheriff got out. My horse was neighing and kicking. He had two broken legs. The deputy sheriff pulled his gun out, put it in the horse's ear and pulled the trigger to put him out of his misery. My dog had a broken back and he was whining in pain, and the deputy sheriff went over to him and did the same thing, shot him. Then he came over to me and said, now, how are you feeling?

That is kind of how a lot of us feel when the government asks how we are doing in the forest products industry.

Well, I am here to talk to you about conservation easements which, in my opinion, hold a genuine threat to the future of the working forest and the working lands of America, to the families and the communities that depend on these lands, and to all of those who believe in private property and in freedom. And precisely because these are such a growing force in our country and precisely because I believe so many people have been deceived into thinking they are harmless and innocent, I consider this in many ways a greater threat to the future of our working lands, rural people and all of us who cherish freedom, than, in fact, the outright government ownership of land as it is being presented to us today.

What are the issues involved? I think that at the heart of almost every question is the issue of trust. And so, as we look to judging how much we can trust the other party in these conservation easements, we must look to our prior experience of working with government agencies on the issues that affect the resource base. And for those of us in the timber industry and forest products our main experience is with the National Forest.

What is fascinating is that the promises being made about conservation easements as to protecting and promoting the working forest are the same promises that were made years ago about protecting and promoting timber harvesting on National Forest lands, and in many cases by the same people. I believe that twenty years from now we will look back and say that those who believed the promises made about working forest conservation easements and working agricultural land easements will regret their decision because they will then be revealed to have provided as much protection for those who want to continue to earn their living working the land as the Organic Act of 1897 provides protection for those who want to harvest timber on the National Forest or the Sustainable Yield Act of 1960 provides a protection for multiple use and working forest on the National Forest.

The working nature of the landscape has been glorified and celebrated in these easements, but what is really at stake here is, because we are precisely a free country where we compete, where philosophies compete with the language and ideas, not on the battlefield, that we are engaged in a struggle the weapons for which are words. The battle in which we are engaged defines our opponents, those who would destroy our way of life, destroy our resource base, are redefining terms that we have used for decades in ways that many of us find unrecognizable. This is how people are being deceived because they are hearing old terms like sustainable harvest, sustainable production, sustainable development, sustainable communities that for many, many years have been concepts that we have supported, even promoted, only to learn that the new definitions are hostile, hostile to our very existence. I'll get more specific on that in a minute and give you some examples from a standard easement.

But let me also draw to your attention that many people believe that the new conservation easements or the ones that have been used the last half dozen years are no different than the old concept of selling your development rights. As a matter of fact, many advocates use the terms interchangeably. Now I was no big fan of selling development rights, either. Let me be clear about that. But at least in the sale of development rights you would have some idea of what you were giving away. It was a fairly clear concept of extinguishing certain inherent rights that you had as a private property owner, the right to commercial and residential use.

Just by way of contrast, the new form of the conservation easement can go on for pages and pages, ten, fifteen pages. That should give you a hint that there is a lot more at stake. What you are really getting in a conservation easement is a full-fledged partner in the management of your land, and that partner is the person or group or entity or agency that purchases the conservation easement. It may be an environmental group, it may be a land trust, or it may be the government—local, state, even the federal government—and it feels like it will be a pleasant experience having the government as a partner in the management of your land. You are in for a big surprise.

The speakers mentioned the concept of privatizing a public good. What is really going on with these conservation easements on the land is that private property, private crops, agricultural crops, forest product crops are being socialized. They are being converted into public goods. Now this is what is happening in the regulatory process already. The land trust document solidifies that in a contract.

Let me turn specifically to a document that is being used by the land trusts in New England. As a landowner, you are told that you can choose one of these objectives as your primary objective and another as a secondary. So you might think, well, you are home free if you choose the production of forest products, this being a working forest easement.

But let me show you how that is defined. The first sentence talks about encouraging the long-term professional management of your forestry sources. But in that same sentence, not even a separate sentence, it provides that there shall be no compromise of water quality, scenic benefits, wildlife habitat, recreation values, or other conservation values. Well, you don't need to be a member of an extreme environmental group to see that at least on a temporary basis somebody someplace can argue that there has been some compromise of any one of these values even if it completely recovers and is better after the harvest. At least temporarily there has been a compromise. What that does in effect is convert what appears to be a primary goal of producing forest products into a secondary goal right inside its own description because there can be no harvest of forest products if any of these other values are compromised.

There will always be some type of wildlife compromised. Even though we can prove that 90 percent of the wildlife benefits from timber harvesting, there will be some kind that at least for some period is harmed. Scenic benefits? Anybody can argue that they don't like what they see. That is too much of an individualized choice. And recreation, as many of you are well aware, is becoming more and more diverse in its experience and there are people who promote the so-called primitive or back country recreation which basically means completely undisturbed land. So that interest group can argue that their experience or their value has been harmed by timber harvest.

To illustrate this, to show you the flaw in this document, many of the land trusts today, and I want to emphasize this point, are run by people who are very friendly to the working landscape. They are good people. They are sincere and genuine and they believe in the harvest of agricultural and forest products, and so they will give you verbal assurances that this kind of language would never be interpreted in a way that would be unfriendly to your opportunity to earn a living. And I believe they can assure that as long as they are administering the land trust or the government agency. Again, we have to turn to our experience with government agencies before. The people who ran the Forest Service for many years would say, well, don't worry about what is written down in the plan or the law. You know that we believe in harvesting timber and it would never be interpreted in such a way that the forest would be shut down and you would lose your opportunity to harvest. What good are those empty verbal promises today? Those administrators are long gone or the ones that are still around are saddled with appeals and lawsuits tied up in court so that they can't act, anyhow.

What we know in the competition of ideas for the words or the weapons is that ultimately we have to rely on what is written down to guide our decision making today. We can not just blindly trust the government or any well-intended environmental group to succeed in having the verbal assurances overpower what is written down, because, long after the administrators are gone, we will be left with the words.

Every single page of this document has equally threatening land mines, as I refer to them, buried land mines that are going to start exploding years from now. Five, ten, fifteen, twenty years from now, people are going to begin to discover the problems with these easements. For many people it will be too late. There are limitations on maintaining and building roads. There are limitations on unsightly and offensive material. Well, some people don't like to see tree stumps. There are limitations on the disturbance of the surface. There are limitations on wildlife, recreation, and aesthetics, as I have already mentioned, and, in case that is not good enough, they might have missed something, let me read this one for you:

"No use shall be made of the property and no activity thereon shall be permitted which is or is likely to become inconsistent with the purposes of the grant."

The interpretation of that is left in the hands of the easement holder. And finally, in the case of forestry at least you are required to submit an annual, or, excuse me, a ten-year, plan as to what you are going to do, and this plan must be approved before you can harvest your timber. So even if the current administrator, as friendly as he or she may be to timber harvesting or agricultural production, approves the current plan or even the next one, at some point you are going to require a plan that has to be approved by a person who may be hostile to your way of life and your form of earning a living, and when that person interprets these same words in a different way, you are in big trouble because without his signing your plan, you can't act.

Now, you can take them to court and spend thousands and thousands of dollars and maybe get some opportunity to harvest, but if the cost of enforcing your rights exceeds the value of what you have harvested, then you have effectively had your opportunity to earn a living destroyed. There again we have a lesson on the National Forest, because that is exactly the strategy of those who want to shut down the National Forest. They raise the cost of harvesting to the point where it exceeds the value of what is to be harvested, and then even the conservatives in Congress don't want to see timber harvested because it would create an economic loss.

It is a subtle but very effective strategy and one that has succeeded extremely well on government lands. We will see it applied to private land through the regulatory process but now, also, most assuredly through the conservation easement process.

Well, there are many more examples I could give of how this poses such a serious threat to us, but, frankly, I do want to end on a positive note. We are a country of people with a long heritage of those who have stood up and defended their freedom, and I don't expect it to change now. But the price of this freedom is the eternal vigilance about which all of us feel very strongly. We must never give up hope. Throughout history people have yearned to be free, and I believe we will overcome these obstacles just as our forefathers and foremothers have overcome obstacles ahead of us, and we can convince, if not our opponents, those who would destroy our way of life, at least we can convince the general public that private stewardship is the best form of stewardship; and that if our freedoms and rights can be taken from us, then their rights and freedoms can be taken too; and that there are reasons why those nations in which government ownership and government control of land are precisely those nations in which the environment is most degraded—the Soviet Union, China, North Korea, Eastern Europe; and that our noble American experiment in self-government was and continues to be warranted, wise, and workable; and that our efforts to defend those freedoms shall not have been in vain. Thank you very much.

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