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.