House Bill Would Give Land Trusts Power Over Private Forestlands

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CFACTUnsuspecting property owners may find themselves on the outside looking in

A seem­ing­ly innocu­ous, bipar­ti­san House bill intro­duced in late March could sub­ject unsus­pect­ing landown­ers to the whims of pow­er-hun­gry envi­ron­men­tal groups, eager to usurp the prop­er­ty rights of those who fall into their clutch­es.

At risk are own­ers of pri­vate forest­lands, who may soon dis­cov­er that they have effec­tive­ly lost con­trol over prop­er­ty they thought was “theirs.”

Rep. Chris Gibson (R-NY)

Rep. Chris Gib­son (R-NY)

Rep. John Garamendi (D-CA)

Rep. John Gara­men­di (D-CA)

Intro­duced by Reps. Chris Gib­son (R-NY) (left) and John Gara­men­di (D-CA) (right), the “For­est Lega­cy Man­age­ment Flex­i­bil­i­ty Act” would, accord­ing to its sup­port­ers, pro­mote con­ser­va­tion of pri­vate forest­lands by reduc­ing admin­is­tra­tive bur­dens for states.  Specif­i­cal­ly, it would allow con­ser­va­tion ease­ments under the U.S. Depart­ment of Agriculture’s (USDA) For­est Lega­cy Pro­gram to be held by accred­it­ed land trusts, there­by reliev­ing state agen­cies of the bur­den of over­see­ing these legal­ly bind­ing com­mit­ments.

This very sim­ple leg­is­la­tion, if adopt­ed, will estab­lish flex­i­bil­i­ty in the For­est Lega­cy Pro­gram to allow greater effi­cien­cy and effec­tive­ness, at no cost to the pub­lic,” said Peter Paden, exec­u­tive direc­tor of Chatham, New York-based Colum­bia Land Con­ser­van­cy.

It’s no won­der that the Colum­bia Land Con­ser­van­cy, Cal­i­for­nia-based Pacif­ic For­est Trust, and oth­er land trusts enthu­si­as­ti­cal­ly sup­port the bill.  The leg­is­la­tion pro­vides an oppor­tu­ni­ty for land trusts to expand their empires and gives them the pow­er to con­trol land-use deci­sions on untold  thou­sands of acres of pri­vate prop­er­ty.  And, con­trary to what the Colum­bia Land Trust would have you believe, the cost to the pub­lic will be incal­cu­la­ble.

Transferring property rights

As the USDA points out on its web­site, par­tic­i­pa­tion in its For­est Lega­cy Pro­gram is entire­ly vol­un­tary.  But once an own­er of pri­vate forest­land has signed on the bot­tom line, the vol­un­tary aspect of the pro­gram ceas­es, and strict land-use con­trols come into play.  As the USDA explains it, the pro­gram “encour­ages the acqui­si­tion of con­ser­va­tion ease­ments, legal­ly bind­ing agree­ments trans­fer­ring a nego­ti­at­ed set of prop­er­ty rights from one par­ty to anoth­er, with­out remov­ing the prop­er­ty from pri­vate own­er­ship.”

Peo­ple who have enlist­ed in the For­est Lega­cy Pro­gram may have had their squab­bles with state bureau­crats, who are some­times prone to arbi­trary deci­sions in their over­sight of the pro­gram.  But they will rue the day when land-trust busy­bod­ies are call­ing the shots on their prop­er­ty.  Once landown­ers have trans­ferred a nego­ti­at­ed set of prop­er­ty rights from them­selves to a land trust, what is to keep the lat­ter from inter­pret­ing the lan­guage of the ease­ment to suit its ide­o­log­i­cal pro­cliv­i­ties?  The USDA says most con­ser­va­tion ease­ments in its pro­gram “restrict devel­op­ment, require sus­tain­able forestry prac­tices,  and pro­tect oth­er val­ues.”  How will land trusts inter­pret the “devel­op­ment” that is to be restrict­ed?  How will land trusts define what is “sus­tain­able?” What are the “oth­er val­ues” the land trusts will decide to pro­tect?

Under the Gib­son-Gara­men­di leg­is­la­tion, land trusts will be empow­ered to enforce con­ser­va­tion ease­ments on prop­er­ty in the For­est Lega­cy Pro­gram.  But who will hold the land trusts account­able for their enforce­ment?  Landown­ers try­ing to defend them­selves against overzeal­ous enforce­ment by land trusts will have no choice but to enter into expen­sive lit­i­ga­tion.

Climate change toolkit

Accord­ing to the Land Trust Alliance, there are 1,700 land trusts in the U.S. over­see­ing 37 mil­lion acres of land – an area rough­ly this size of all the New Eng­land states com­bined.   These groups have polit­i­cal agen­das that lend them­selves to just the kind of pow­er enact­ment of the bill would give them.  The Land Trust Alliance, for exam­ple, plugs a “Cli­mate Change Toolk­it” on its web­site,  Among the actions land trusts can take on cli­mate change:

  • Antic­i­pate and plan for uncer­tain­ty through sce­nario plan­ning and/or adap­tive man­age­ment prac­tices.
  • Man­age pri­or­i­ty habi­tats for cli­mate change resilience.
  • Man­age pri­or­i­ty wildlife species for cli­mate change resilience.

Open invitation to abuse

The clear polit­i­cal agen­da behind the “Cli­mate Change Toolk­it,” com­bined with the lack of any real over­sight of how land trusts enforce con­ser­va­tion ease­ments, spells trou­ble for landown­ers in USDA’s For­est Lega­cy Pro­gram.

Martha Boneta

Martha Bone­ta

Just ask Martha Bone­ta, the Vir­ginia farmer, who has been locked in a long and expen­sive strug­gle with the Pied­mont Envi­ron­men­tal Coun­cil (PEC) over a con­ser­va­tion ease­ment the PEC co-holds on her land.  After years of intru­sive inspec­tions, relent­less harass­ment, and even an attempt to install sur­veil­lance cam­eras on her farm,  Bone­ta learned a few weeks ago that the ease­ment she signed on pur­chas­ing the prop­er­ty in 2006 is not the one the PEC filed with the coun­ty. This is the kind of treat­ment landown­ers may be to sub­ject­ed to if the For­est Lega­cy Man­age­ment Flex­i­bil­i­ty Act is enact­ed.

Trans­fer­ring over­sight of con­ser­va­tion ease­ments from state agen­cies to “pri­vate” enti­ties may seem like a step in the right direc­tion, but the scheme is blind to the harm land trusts can do. “If you don’t want pow­er abused,” the Cato Institute’s Roger Pilon says, ” don’t grant it in the first place.”

Ulti­mate­ly, prop­er­ty rights should be kept whole and retained by landown­ers to pass on to their heirs.  Both lib­er­ty and the envi­ron­ment are best served when farm­ers, ranch­ers, and tim­ber­land own­ers keep their entire bun­dle of prop­er­ty rights.