Good, bad or ugly: Hageman discusses conservation easements

Cheyenne – When discussing the philosophy of conservation easements, Cheyenne attorney Harriet Hageman asks what they mean for Wyoming, livestock producers, landowners and the future.
    “Are they good, bad or ugly? They are some of all three,” she said in a discussion with Wyoming Farm Bureau members at their annual convention in Cheyenne in November.
    “As landowners and producers, and with what you do for a living in producing the country’s food supply, we need to talk about all the aspects of conservation easements,” said Hageman. “There are some good things a land trust can do, but at the same time people need to understand all the sides, so they know whether a conservation easement, and what kind, is appropriate for them.”
    According to the Congressional Western Caucus, the federal government owns 29 percent, or 654,885,389 acres, of the land in the United States.
    “We claim to be a free country, but we have a federal government that dictates decisions from Washington, D.C. and owns a third of the land base,” she stated, adding that a risk with conservation easements is that they’re sometimes sold by the original purchaser – a land trust – to the federal government, which results in even more federal control of lands in the U.S.
    “I don’t believe conservation easements are always in the best interest of the citizens of Wyoming and the surrounding states,” said Hageman. “I’m afraid we’re federalizing our private property rights. Many of us are here today because of what we and our ancestors and family members have done in carving out a niche, a home, our society and a place to call home and raise our families. The concept of private property rights is very important in terms of who and what Wyoming will be in the long term.”
    “What we have is a situation that, as government acquisition and regulatory restrictions on land use have become prohibitively costly and ineffective, the government has looked to conservation easements as an effective and less expensive method for controlling lands without having outright government ownerships,” said Hageman. “What we have is a government using conservation easements to control private property rights without having to acquire those rights themselves.”
    Hageman said that, initially, conservation easements seemed to hold some promise as an unobtrusive means for preserving open space while upholding private property stewardship, private initiative and the rights of private landowners.
    “The land trusts that were first set up to manage the easements were typically small, non-political and independent of government involvement,” she said. “Land trusts have grown in size, and so has their association and influence with the government. This has been the case with large national organizations, and, for many land trusts, the close working relationships with private landowners have become a close relationship with government agencies.”
    “Their mission has evolved from protecting open land and private stewardship to aiding government agencies in acquiring private lands,” she continued. “Some land trusts now operate like government agents, acquiring easements from private landowners, only to turn around and quietly sell them, sometimes at an enormous profit, to state or federal governments. They don’t all act this way, but enough of them do that we should all be concerned about the unholy alliance they’ve created.”
    Because most easements are purchased at the low market value, Hageman said land trusts can sell the easement to the government at market value and pocket the difference.
    “Land trusts benefit because they can earn a profit from the taxpayer-funded arrangement, and government agencies like it because, unlike seizing private land through land use regulations, zoning laws or eminent domain, they can obtain private property without public scrutiny,” she stated.
    Also, Hageman asked why there is even a third party involved in the transaction.
    “If these conservation easements are worth that kind of money, and if our federal government is willing to give that kind of funding, why aren’t they working directly with you? If that kind of money is available, why is it going to TNC instead of directly to the landowner, who is burdened by the easement from the day it’s signed? Because it’s corrupt, and it’s a way that people have found to make more money off the government and federalize our private property rights,” she said.
    In addition to federal ownership of conservation easements, Hageman said she has a philosophical opposition to the concept of perpetual conservation easements.
    “Federal tax incentives for conservation easements require landowners to encumber their land in perpetuity,” she explained. “If you want children to stay in farming and ranch, you cannot put a perpetual conservation easement on your property, because if you do you will guarantee they will not be able to hold on to that land and make the decisions they need to in the long run.”
    “The entire purpose of a conservation easement is to bring somebody else in as your partner – not your son, daughter, nephew or cousin, but the federal government, TNC or the Fish and Wildlife Service. You’re bringing in an unaccountable, nameless person who will come onto your property and dictate what you can and cannot do,” noted Hageman.
    She added that another issue with conservation easements is their decrease in land value.
    “When a conservation easement is put on property, you are, by definition, decreasing the value of the most important asset you own – that’s the point of the tax write-off. Why, when the primary asset you own as farmers or ranchers is that real property, do you want to put something on it that will knock the legs out of the value? Why do you want to take the most important asset you have and undermine the value?” she asked. “That tax benefit is a one-time thing, but the easement will be on that property into perpetuity, and that is what we need to change.”
    She continued, “I’m not opposed to conservation easements – I believe it is wrong to have a perpetual conservation easement. If you want to enter into an arrangement for 10 years, do that, but don’t impose an easement on your property until the end of time.”
    “If conservation is a priority of our country, people ought to pay for it,” she said. “That’s your asset. If they want to pay for it in 2010, they ought to get a conservation easement, but they ought to pay for it again in 2030 at 2030 values. I’m not opposed to conservation easements, but this idea of perpetuity has got to be fixed.”
    Hageman said that, if land trusts continue to respond to the temptation of working with the federal government, land conservation will become even more political.
    “History teaches us that market incentives for conservation are strongest when individuals pay market prices and receive market values,” she said.
    Christy Martinez is managing editor of the Wyoming Livestock Roundup and can be reached at christy@wylr.net.