Attorney Calls Easements A ‘Government Land Grab’

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Harriet Hageman, Attorney

Har­ri­et Hage­man, Attorney

In recent years, con­ser­va­tion easements—agreements between landown­ers and non­prof­it organizations—have gained pop­u­lar­i­ty as a way to pro­tect wildlife, pro­vide var­i­ous kinds of tax exemp­tions as well as pre­vent land and min­er­al devel­op­ment with an eye toward per­ma­nent preservation.

At the same time, there has been con­cerns these ease­ments have caused ero­sion of local tax bases and prop­er­ty deval­u­a­tions, along with imposed man­age­ment restric­tions, arbi­trary con­trac­tu­al lan­guage and fears of close rela­tion­ships between multi­na­tion­al envi­ron­men­tal groups, fed­er­al agen­cies and land trusts.

The Kansas Nat­ur­al Resource Coali­tion, an orga­ni­za­tion of 32 coun­ty gov­ern­men­tal units orig­i­nal­ly joined togeth­er to fight the list­ing of the less­er prairie-chick­en onto the Endan­gered Species List, has since expand­ed its mis­sion to include what a brochure said is the “col­lec­tive coor­di­na­tion of nat­ur­al resource con­ser­va­tion and envi­ron­men­tal pro­grams with fed­er­al and state gov­ern­men­tal agen­cies,” recent­ly spon­sored a forum at Oak­ley, Kansas, to “unearth facts, facil­i­tate pub­lic dia­logue and devel­op aware­ness of con­ser­va­tion ease­ment pro­grams, ben­e­fits, restric­tions and ramifications.”

The con­fer­ence includ­ed pre­sen­ta­tions from:

—Har­ri­ett Hage­man, a Cheyenne, Wyoming, attor­ney whose prac­tice is active­ly involved in address­ing the impact of fed­er­al and state reg­u­la­tions on land and water use;

—Jesse Richard­son, a land-use pro­fes­sor from the West Vir­ginia Uni­ver­si­ty Col­lege of Law;

—Kim­mi Lewis, a Kim, Col­orado, ranch­er who is the imme­di­ate past pres­i­dent of the Col­orado affil­i­ate of the Ranch­ers-Cat­tle­men Action Legal Fund, Unit­ed Stock­grow­ers of Amer­i­ca, and;

—Ric Frost, a for­mer reg­is­tered water rights adju­di­ca­tion medi­a­tor for the New Mex­i­co Third Dis­trict Court and for­mer senior pol­i­cy ana­lyst with Land and Water USA.

Hage­man, as keynote speak­er, said there needs to be more pub­lic dis­cus­sion about the val­ue of con­ser­va­tion ease­ments and the impli­ca­tions they bring to coun­ties in terms of tax­a­tion and long-term prop­er­ty man­age­ment issues.

Those issues include par­tial own­er­ship of the land by the grantor of the ease­ment while relin­quish­ing the right to use the land for development.

It often lim­its all devel­op­ment,” Hage­man said. “That includes min­er­al devel­op­ment and that sort of thing.”

Ease­ments are con­tracts, and the lan­guage that is used, Hage­man said, will dic­tate how the con­tract is enforced. Often, the ease­ment can be trans­ferrable by the grantee, and some­times, the per­mis­sion of the landown­er-grantee is not needed.

That means you may very well find your­self as the landown­er being a part­ner with some­one you nev­er entered into that con­tract with. That can be the fed­er­al gov­ern­ment, it can be anoth­er land trust, all dif­fer­ent things,” Hage­man said.

If the land is sold, the ease­ment remains in perpetuity.

It doesn’t mat­ter who the land is sold to. It runs with the land,” Hage­man said. “It is held in per­pe­tu­ity. In Wyoming, we inter­pret that to be 999 years. All future landown­ers are bound by the terms of that deed.”

There are tax incen­tives asso­ci­at­ed with ease­ments and dis­as­ters, too, Hage­man said.

In Col­orado, when they start­ed pushed (sic)these con­ser­va­tion ease­ments, one of the things they did was require peo­ple to have their land appraised,” Hage­man said. “The land was appraised at high­er val­ues than what they ulti­mate­ly were worth. So they got high tax incen­tives. Now, the IRS is attempt­ing to claw back those tax incen­tives. Farm­ers and ranch­ers are now going broke pay­ing the gov­ern­ment the tax relief they nev­er should have received in the first place.”

Hage­man said ease­ments deval­ue the largest sin­gle hold­ing farm­ers and ranch­ers have.

The rea­son there is a tax con­se­quence is that there is a dif­fer­ence between the val­ue of the before the ease­ment is grant­ed as com­pared with the val­ue after it’s grant­ed,” Hage­man said. “Ease­ments are inten­tion­al­ly designed to deval­ue your property.”

Kansas is the state with the fewest num­ber of fed­er­al­ly owned acres, Hage­man said.

I envy you, because com­ing from a state that is made of 50 per­cent gov­ern­ment land, you have a heavy fed­er­al impact on what hap­pens in your state,” Hage­man said. “There is an $11 bil­lion main­te­nance back­log in the nation­al parks, which means the coun­try can­not take care of the lands it already has. It’s one of the rea­sons I believe there is such a push for con­ser­va­tion easements.”

With ease­ments, Hage­man said, the IRS can dic­tate land use deci­sions while some­one else is respon­si­ble for the maintenance.

We need to be talk­ing to the fed­er­al gov­ern­ment about man­ag­ing the resources it already has before we start restrict­ing and imping­ing upon pri­vate prop­er­ty rights through con­ser­va­tion ease­ments,” Hage­man said.

There are plen­ty of com­pet­ing demands for pri­vate prop­er­ty, Hage­man said, rang­ing from agri­cul­tur­al, to indus­tri­al, to com­mer­cial, to residential.

There’s oil and gas and min­er­al extrac­tion, recre­ation, schools. We have a lim­it­ed num­ber of acres and munic­i­pal­i­ties that are grow­ing along with high demands for food pro­duc­tion and high­er demands for lands for recre­ation­al use,” Hage­man said.

So we have to be care­ful about what kinds of restric­tions we want to put on pri­vate prop­er­ty ownership.”

Amer­i­ca is fed­er­al­iz­ing its pri­vate prop­er­ty rights, Hage­man said.

We are allow­ing gov­ern­ment agen­cies and non-prof­its to make deci­sions regard­ing land use and we are slow­ly allow­ing the fed­er­al gov­ern­ment to take our pri­vate prop­er­ty rights by tol­er­at­ing per­pet­u­al con­ser­va­tion ease­ments. The man­ner by which this is hap­pen­ing is large­ly under the radar,” Hage­man said.

She list­ed a num­ber of orga­ni­za­tions that receive fed­er­al dol­lars annu­al­ly for man­ag­ing ease­ments, rang­ing from $1 mil­lion to the Amer­i­can Farm­land Trust to $100 mil­lion to the Nature Con­ser­van­cy, as well as the NRCS award­ing $328 mil­lion for 328 ease­ments in the 2014 allo­ca­tion in the Agri­cul­tur­al Con­ser­va­tion Ease­ment Program.

I believe it’s a gov­ern­ment land grab. I’m going to be blunt,” Hage­man said. “Ease­ments become not a means to pro­tect pri­vate-sec­tor land through a part­ner­ship between landown­er and land trust but are a non-trans­par­ent tool for gov­ern­ment to obtain pri­vate prop­er­ty with­out pub­lic knowl­edge or approval.”

Round­ing out the con­fer­ence was a ques­tion and answer pan­el dis­cus­sion between Hage­man and Lewis along with Lynn Thur­low, U.S. Depart­ment of Agri­cul­ture Nat­ur­al Resources Con­ser­va­tion Ser­vice Kansas soil con­ser­va­tion­ist and ease­ment pro­grams coor­di­na­tor; Mike Beam, exec­u­tive vice pres­i­dent of the Kansas Live­stock Asso­ci­a­tion; and Stan­ley Ras­mussen, act­ing direc­tor of the Cen­tral Region­al Envi­ron­men­tal and Ener­gy Office for the Assis­tant Sec­re­tary of the Army for Instal­la­tions, Ener­gy and Environment.

Jim Carl­son of Gar­den City, Kansas-based Still­wa­ter Tech­ni­cal Solu­tions, who serves as KNRC exec­u­tive direc­tor, led the discussion.