Property Rights Foundation of America®

Speech from Proceedings of the Seventh Annual New York Conference
on Private Property Rights
(2003)

Conservation Easements — Perpetual Problems

Julia D. Mahoney, J.D.

I am very happy to be here. I am going to try to keep this reasonably brief, and, though I realize that some of you here are lawyers, reasonably non-technical. I want very much to hear what you all have to say about your experiences with these instruments.

I want to emphasize one thing before I start speaking, which is that I can't predict the future either. This is one of the most important points I think that I try to make in my paper and have tried to make since. So I certainly don't want to imply that there is never any place for any conservation easement. Nevertheless, I think that there are significant difficulties, which, as yet, have not received the full hearing that they need to receive. And I would like to explain in a little bit more detail what I see as the most likely problems and how these problems of conservation easements are or are not shared by other efforts to preserve land.

Over the past several decades, as you all know, there have been a lot of programs dedicated to the preservation of land. The idea of preservation is, to me, an extraordinarily problematic one, for reasons that I will go into in more detail. But I just want to open up by noting that the notion that a significant percentage of land ought to be preserved perhaps even, as Kathy points out, half of the continental United States, is one that is being taken extremely seriously. Land preservation has become now a multi-billion dollar enterprise, and it is fueled in large part by direct payments to private landowners from governmental organizations as well as by the availability of special federal tax and local benefits, tax benefits.

Many acts of land preservation involve acquisitions of fee simple absolute interest. Our national parks were pretty much built that way with land being acquired either by purchase from private owners or from the use of eminent domain. I live in Charlottesville, Virginia, at the foot of the Shenandoah National Park which, as you know, was acquired in large part through special uses of the eminent domain powers. But in the last few years there has been another preservation method that as emerged, that of conservation servitudes. And conservation servitudes, also known as conservation easements, have now been used to protect literally millions of acres of land.

Now these instruments work as follows: They, in effect, depart from traditional rules about the extent to which land can be burdened by servitudes and, in effect, divide up the fee simple estate. The fee simple estate is divided and a partial interest in the land is transferred to a governmental organization or to a non-profit entity such as the Trust for Public Land or, more often, I'd say, a local land trust.

What do the holders of these partial interests receive? They get the right to, in effect, prevent or limit or oversee certain specified but, and this point is absolutely crucial, by no means uniform uses of the land. In addition, they have, at times, the right to force land owners to engage in particular actions on their land. Most conservation servitudes are in effect negative easements. They give the holder the right to prevent certain land uses. But some conservation servitudes, it is important to note, involve positive rights. That is, they involve the right to, in effect, compel the landowner to engage in certain conduct.

What happens to the landowner? The landowner is still technically the holder of a fee simple interest, but now it is a fee simple interest that is burdened by a servitude.

Is the fact that someone holds a fee simple interest that is burdened by a servitude in and of itself reason for great worry? Not necessarily. As you know, many, many, many lands are burdened by servitudes. Anyone who lives in a planned community has signed on to a number of limitations in the way that he or she can use her land. But one thing that is very striking about conservation servitudes is that they are designed to be difficult to undo.

Think back to your typical servitude. Imagine, for example, that your neighbor has an easement to cross your property to use to get to his property. Is this the kind of deal that you might make with your neighbor? Absolutely. But, say that he wants to cross your property to get access to his property, and so what might you do? You might sell him an easement, the right to cross your property. But you always know, even as you have in effect divided up your land interest to convey a partial interest in your land to your neighbor, that when the time comes when this no longer seems to be a good land use arrangement, you can terminate it through private negotiation. Now I'm not saying that every private deal that ought to be made is invariably made. There are times when, for example, someone might transfer an easement to a neighbor. The day comes when it would be a good idea to, in effect, get rid of it and that deal may not be made necessarily simply because it is hard to do and bargaining costs and so forth. But I think it is important to note that we think that usually deals like that between private parties will be made.

But look at conservation servitudes. What is interesting about these instruments from my perspective as a legal scholar is that they are engineered to be hard to undo. They are meant to be perpetual. There are, in effect, provisions in numerous conservation servitudes that forbid the transferring of the conservation servitude back to the owner of the burdened fee simple. In other words, when conservation servitudes are placed on property, the objective is to prevent the reunification of all the property interests in a private property owner.

So far conservation servitudes have attracted little but praise. When I was doing research for the paper on conservation servitudes, Carol LaGrasse and James Burling were two of the only people who had even raised questions about whether or not things were going to turn out happily. In fact, one of the things that drew me to the project was that I saw instruments that could cause a lot of difficulty in the future and that were receiving praise from people all across the political spectrum.

The Left praised conservation servitudes because they were, after all, meant to provide environmental protection. Put aside for the moment whether or not trying to keep land in ranching and farming use really counts as environmental protection. The left assumed that it was and even though conservation servitude programs led to the transfer of wealth very often to very well connected and well off individuals, people on the left didn't raise real concerns. This puzzled me.

I was similarly puzzled not to find, again, with the exceptions I just mentioned, all that much suspicion among people who are adherents to the Republican party. I had expected for them to focus on the fact that here were large amounts of government money going to landowners often in exchange for not doing things on their land which they very likely wouldn't necessarily want to do anyway, which seemed to me to have "boondoggle" written all over it. Why was it that Republicans praised these instruments?

One obvious answer is that conservation servitudes work their magic, as those espouse them often refer to it as, through the transfers of property rights, and certainly there are powerful reasons for preferring to achieve these objectives through property rights transfers than through command and control regulation.

With command and control regulation, as you all are very aware, property owners generally receive no compensation, absent very unusual circumstances, and through conservation servitudes property owners who are willing to surrender their rights, say, to build strip malls, subdivisions and so on, do get some compensation. They get a direct payments or they get tax benefits, and so that in many situations would be, I think, more palatable than if the same objectives want to be achieved through command and control regulation.

So again, I am not arguing that conservation servitudes have zero benefits at any time. But I do think that conservation servitudes deserve enormous scrutiny and this is, in effect, why.

In my view, support for conservation servitudes has been based on two widely held, emotionally appealing, but fundamentally flawed, notions. The first notion is that today's land owners, together with non-profit institutions such as The Nature Conservancy and at times governments—governments, like the local county government or at times, of course, the federal government—have the competence to make long-term land-use decisions, and we don't just mean a year or two. I mean, we all understand that when zoning was first brought into being at the beginning of the 20th century when zoning became widespread, the idea in concept was, wow, this is great. We'll write a zoning code, and, sure, it will need a little tweaking from time to time, but pretty much that's it. This is going to work. Well, we know what happened. We know it didn't work. We know that zoning codes need constant, constant, constant amendment, and this constant amendment gets very messy.

But, suddenly, here we are with conservation servitudes, and I see statement after statement about how, oh, let's figure out what land needs to be preserved forever. Let's put restrictions on it that are designed deliberately to be expensive and burdensome to undo and this will all work out happily. I think it is important to note that there is all available evidence to suggest that our ability to, in effect, pinpoint certain pieces of land as meritorious of perpetual protection is at best likely not to work out so well. But the idea that the present generation has the right and maybe even the duty to try to do this for future generations is again very much embedded in support for conservation servitudes, and I think it is very crucial not to underestimate the enormous emotional impact that this has had.

Why is it that I think that our competence doesn't extend that far? Simply put, nature is always changing. We are in the middle of a shift, we really have had a great paradigm shift. A lot of environmental statutes and a lot of planned preservation frameworks were developed against the backdrop of the notion that nature is stable, that nature, in effect, will remain as she is. So if the place is a good habitat for a species that people like, well, then it is going to remain so. We don't even think about the fact that the climate will change and the species may migrate and maybe the land that we have set aside as a habitat won't be habitat for that animal anymore, as it has moved on. Maybe we won't want it. And, of course, our scientific knowledge is in its infancy.

One thing that is most interesting about the language and the writings on land preservation, not just conservation servitudes, but all land preservation, is that people will say, we don't know very much yet. We are really just learning and, oh yeah, we can figure out which land we want to preserve forever, what we want to do on them and not do on them forever and lock them up as much as we can and that is a good idea. It seems to me that is a huge contradiction.

Finally, there is the issue of cultural values. We know that what a lot of land preservation tries to do is to, in effect, fix land uses as they are because we like that particular human culture. We like rural landscapes. We like ranching landscapes. There is nothing wrong with this preference. There is nothing wrong with people thinking, I like to have rural landscapes, and I think it looks better than the strip mall. But there is a difficulty, I think, when we begin to say, we like these landscapes and therefore we are absolutely sure that those who follow us will like them, too, or, a slight variation, ought to like them.

Again, this relationship between the generations is always a very complicated one. I started out my article on conservation servitudes by quoting George Orwell, who said that each generation thinks that it is more intelligent than the one that came before it and wiser than the ones that come after. I think that pretty much sums it up. There are very few people who don't think that they are smarter than their parents and very few people who don't think that they are going to be wiser than their children and grandchildren.

The second assumption that I think is flawed that support for conservation servitudes rests on is that the present generation represents nature's, in effect, last chance, or nearly so. This is what I refer to as the around-back-bank idea. Once lands are developed, and, again, remember the definition of development ranges very widely... There are concepts of preservation development that are highly unstable, but put that aside for just a moment. Once the land is developed, it is not going back to be "preserved." Of course, history teaches us the exact opposite.

Many, many, many lands that were at one point the subject of intense human involvement have been, in effect, reclaimed by nature. We are all familiar with the story of the northeastern forests and how many lands that used to be farms in Vermont have been taken back by nature. Nature has an enormous capacity and proclivity for, in effect, eradicating what humans do to the land. So thinking of it as a one-way ratchet is, I think, very flawed. But again, this runs through support for conservation servitudes, in particular, and actually for most land preservation efforts in general.

One argument that I keep running into in discussing these issues is pretty much the following: You may be right that undoing these institutions, undoing conservation servitudes can be expensive. It is not that it's impossible, because we know that if in 50 years or 100 years a conservation servitude turns out to be a terrible idea, it is not that future generations won't do anything because we said this land couldn't be, that we said the conservation servitude couldn't be extinguished. They can always extinguish our institutional arrangements. We all know this. We know that South Dakota may not necessarily always have two senators. Right? But it is a question of cost. The cost could be very high. And the response that I have gotten to my arguments is often as follows: Sure, the cost of undoing these conservation servitudes might be very high, but it has got to be less than the cost of putting the land back. And to this I say, absolutely wrong. It is not clear that the costs of reclaiming land are always going to be greater than the cost of modifying institutions. We have to look at this on a case-by-case basis. Although it is attractive to imagine that our current conceptions of preservation and development serve as proxies for reversibility or irreversibility, if we decide to preserve land, we can always reverse that decision or at least we can reverse that decision at small cost and develop it later, but if we develop land, oh, that is irreversible. We can never get the land back to anything that we think is preservation-worthy. I think that that is ultimately the big mistake in this area.

Two final points before I turn this over to my co-panelist, and then I hope very much to you all for questions and insights:

First, in thinking about conservation servitudes I think the contradictions inherent in the belief that land can be preserved are highlighted. It is absolutely correct that the idea that the present generation can and should set aside large quantities of land so that future generations can experience nature as she really is exerts enormous appeal, and, as was, of course, noted earlier this morning, the conviction that the National Park Service accomplishes precisely that with the Yellowstone, Yosemite, and the like is one of the chief sources of its popularity. But again, I think it is crucial to note that we can't do that even if we want to. The fact that nature is dynamic means that, in effect, there is no environment to be saved. We are making it up as we go along. And that's fine. It is something that, of course, cuts against a lot of the emotional appeal of land preservation, but it doesn't necessarily mean not to have national parks or not to try to provide recreational amenities. It simply means that the idea that we by putting legal restrictions on land can preserve a particular experience of nature for those who come after is misguided. Once we accept that the natural world is dynamic and dynamic not just because humans are interacting with it constantly, although of course humans are, but it would be dynamic even if we were wiped off the face of the earth tomorrow, at that point, I think, we can begin to think more sensibly about how legal institutions have to be crafted to accommodate these possible changes unless we are willing to simply say, the hell with future generations. We'll do what we want and they can shoulder whatever expenses we impose on them. But I think most people are not quite willing to do that, and certainly people who identify themselves as environmentalists are always saying they care deeply about the costs they impose on future generations.

This flaw, this idea of the failure to recognize that human-constructed legal institutions have to take account of nature's dynamism, I wish to emphasize, runs through all environmental law. It is not just something that is an issue with conservation servitudes or with land preservation.

Second, final, point. Even if there were a stable nature, which of course there is not, we would not want to save it. Again, I think that we should be very frank about this, and, again, I think that this is not any kind of invitation to do terrible mischief to the ecology or an abandonment of ecological values. I think it is a crucial starting point for any sensible discussion about land use and land regulation, because we are, I think it is fair to say, gardeners.

Even those who speak in the most transcendental terms about nature's right have a stopping point. Yes, some people think that trees and rocks should be recognized as having legal rights, but I have never been able to find anyone, not even the most fervent self-identified environmentalist, who wants to give fungus rights. But I ask you—think about the rights of fungus. It is not that I want to run into court to represent them, but I really want to highlight the fact that a lot of the world is the micro-world, and the micro-world, by and large, gets very little respect. Charismatic megafauna and megaflora tend to evoke all kinds of very loving responses, but people tend to react, well, they don't like insects and they don't like fungus and so on. But when you look at something like what is happening in California with a lot of beautiful oak trees being, in effect, killed by fungus, if you really, really, really cherish nature in all her variety, you ought to be neutral, shouldn't you? Tree versus fungus. Who should win? Well, let's let nature take its course. But my point is that no one really thinks that way. Everyone I know, even the most, again, fervent West Coast environmentalist, and I have a brother who teaches at Berkley so I have certainly been out there a good bit, wants to save the trees from the fungus. Is that wrong? No, of course it is not wrong to want to save beautiful trees from some kind of fungus that appears to be running amuck, just as it is not necessarily wrong to want to drain some of the Everglades if there is a public health problem being caused by mosquitoes.

That has also been something that we have tried to do over the course of our history and it has at times been sensible. We might want to fight a fire vigorously if it threatens one of the last remaining groves of redwoods. Why? For no better reason than that we prefer redwoods to a landscape where fire has obliterated them. Again, I don't think that we should have any difficulty with this. But what this means, I think, is to acknowledge that humans have always cherished some aspects of nature and have always rejected other aspects of nature, and we are going to continue to do this.

Thanks very much and I look forward to hearing from you.

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