Can Land Trusts Be Trusted?

July/August 2000

By Michael De Alessi the Ecological Economist

Al Gore has made combating “urban sprawl” a major part of his presidential campaign, but the debate about preserving open spaces is over a century old. In 1890, conservationist Charles Eliot warned that much of the Massachusetts countryside was in peril. “Several bits of scenery which possess uncommon beauty and unusual refreshing power are in daily danger of destruction,” Eliot wrote. One year later, he created a private, voluntary organization called the Trustees of Reservations—the world’s first land trust—to protect parcels that were ecologically important, scenic, or historic, by acquiring deeds and then opening the property to the public.

Today land trusts are mushrooming, but they’re also changing in form. For one thing, they are much less likely to actually own the land they are trying to protect, opting instead to acquire conservation easements which encumber property with perpetual restrictions on development. Second, many of today’s land trusts rely heavily on government. For example, as much as two-thirds of the annual budget of the Nature Conservancy—today’s largest and best known trust—has been spent purchasing property to turn over to the government. But today the federal government owns about 30 percent of America’s land, while states and localities own around another 10 percent. Given that much of this government land is already badly managed, is more government land ownership really necessary?

The Land Trust Alliance, which supports and monitors smaller land trusts, estimates there are currently over 1,200 land trusts, counting about 1 million people as members and financial supporters. The number of groups is up from just over 100 in the 1960s and about 900 in 1990. Since 1988 the amount of land set aside has more than doubled, from 2 million acres to 4.7 million acres.

The Nature Conservancy, with its $300 million annual budget, claims to protect over 10 million acres of land in North America. Founded in the early 1950s with the motto “conservation through private action” the Conservancy still considers itself “Nature’s real estate agent.” In recent years, however, the group has moved away from protecting “great places” (individual properties) in favor of preserving “whole functioning ecosystems”—in other words, manipulating public policy.

While many Nature Conservancy preserves are well taken care of, some have suffered from this new approach. The Viña Plains preserve near Chico, California, was created to protect the area’s vernal pools and their abundant native wildflowers, many of which are threatened or endangered in California. It so happens, grazing cows in the area eat weeds which would otherwise overwhelm the wildflowers. The Conservancy, however, decided that cows were a nuisance and eliminated grazing on the preserve, ensuring that far fewer flowers grew. Meanwhile, on the private Roney Land and Cattle Company ranch across the road, the endangered flowers thrive.

The Nature Conservancy’s new view that private stewardship alone cannot preserve threatened land is now shared by many land trusts. Land Trust Alliance president Jean Hocker suggests the trusts should aim to fill the void left by a “reluctance to regulate private lands or even to add land in public ownership.” She notes that “lack of bureaucratic constraint makes land trusts exceedingly good at complementing, supplementing, and implementing public open-space agendas.” Thus, land trusts increasingly strive to increase land-use regulation and government ownership of land.

Buying property with the sole intent of turning it over to government agencies is referred to as “pre-acquisition.” Sometimes the land is held only for a matter of minutes, and in certain cases trusts have made unseemly profits in the process. According to a report by the Interior Department’s inspector general, between 1987 and 1989, the U.S. Fish and Wildlife Service paid the Nature Conservancy $13.5 million for land in Texas that included $500,000 in undocumented fees. In Oregon, the Bureau of Land Management paid the Trust for Public Land $1 million for a property it acquired for $720,000. While not the norm, incidents such as these have caused land trust critic Tom Holt to charge that “at the state and federal level, land trusts are less about private conservation than about deal making.”

Is government land acquisition the best way to preserve open space? Tax relief—particularly elimination of the estate or death tax—might be equally effective. Unfortunately, the only tax reform most land trusts favor is increasing the deductibility of contributions. Trust officials ought to become more enlightened advocates for broader forms of tax relief on land.

Because tax authorities value land at its highest-value use, property owners who are cash-poor often have no choice but to subdivide and/or develop their property simply to pay taxes. Michael Bean of the Environmental Defense Fund has written that the estate tax “encourages the destruction of ecologically important land in private ownership.”

Some families try to preserve their property by selling or donating “conservation easements.” While allowing the land to remain in private ownership, easements can generate either cash or tax advantages in return for the surrender of development rights. A New York Times article last fall described how “with developers in Steamboat, Colorado, paying 20 times the farm value of land, the Fetchers saved the family ranch by donating development rights on 1,300 acres to a land trust. In doing so, they cut future estate taxes in half.”

Conservation easements vary widely. Some are set up to maintain scenic vistas, while others simply encourage agriculture in areas that have historically been farmed or ranched. The Colorado Cattleman’s Association recently formed a land trust to encourage this latter purpose. The first land trust to focus on agriculture was the Marin Agricultural Land Trust (MALT) in northern California. Since its formation in 1980 by ranchers and environmentalists, MALT has acquired agricultural conservation easements on approximately 20 percent of the privately owned agricultural land in Marin County. In recent years, however, MALT has strained its relationship with local ranchers and farmers by supporting legislation to add much of this private land to the Point Reyes National Seashore in the county.

One problem with conservation easements is that they can’t be repealed once they are in place. In California, for instance, the law states that conservation easements may only be created if they are perpetual in duration, and may only be held by non-profits and government. Any attempt to buy back development rights held under a conservation easement would be illegal. The IRS also allows tax reductions only for conservation easements that bind property “forever.”

Understandably, both politicians and landowners are wary of establishing rights for land trusts that can never be repealed. In North Dakota, politicians are so worried about the problem of perpetuity that each conservation easement must be individually approved by the governor. Keith Trego, who heads the North Dakota Wetlands Trust, knows that many landowners would be much more amenable to 30- or 50- year arrangements. He is currently trying to get approval from the state for such arrangements.

Of course, there are many ways other than just easements to improve land management. The Sand County Foundation in Wisconsin, for example, has for decades contracted with neighboring landowners on measures to improve local wildlife management. But such informal deals offer landowners no tax relief.

Some states, however, are changing their tax codes to ease the tax burden on maintaining open space. Texas recently revoked the Nature Conservancy’s property tax exemption, then extended tax breaks to everyone in the state who manages his property for wildlife. In California and some other states, property taxes on agricultural land are limited.

The best land trusts aid conservation without coercing land owners. For instance, the Trustees of Reservations in Massachusetts now owns and manages 79 properties throughout the state, totaling more than 20,500 acres. It has also made agreements with 164 landowners to keep 11,423 acres of private land undeveloped. Another example of successful private conservation is the Sand County Foundation in Wisconsin, which manages a 1,500-acre private reserve. Chairman Reed Coleman describes his group’s mission as “a sound, voluntary environmentalism that depends on private ownership and stewardship.”

While not formally a land trust, another sterling example of private stewardship is the Hawk Mountain Sanctuary. Earlier this century, government bounties on raptors encouraged armies of hunters to ambush migrating hawks from mountain ridges where the birds would ride warm air thermals in highly concentrated numbers. In 1934, conservationist Rosalie Edge purchased an eastern Pennsylvania mountaintop along one of the main migration routes, creating the world’s first hawk sanctuary. Today, over 70,000 people visit the mountain annually, each one doing his part to preserve hawk habitat. Mrs. Edge proved one person with a vision and a little money can use voluntary action and private property to do ecological good.

By being far more flexible and sensitive to local interests and ecological tradeoffs than government agencies are, land trusts have filled an important niche. They’ve demonstrated that private groups can target certain species or habitats and move quickly to protect them for future generations.

These advantages could be compromised if land trusts simply become adjuncts to government land buying, particularly if the trusts collaborate in government coercion of property owners. A property that has been designated for acquisition by a government agency is not worth very much on the market. It becomes easy for a land trust to make an offer on such land that a property owner “can’t refuse.” Environmental regulations such as Endangered Species Act land use restrictions also contribute to what is now called “greenlining”—the imposition of restrictions on property use that lowers land values and eases acquisition.

It would be short-sighted of land trusts to move in this direction. If all they do is act as government land collectors, land trusts will have abandoned the strengths that private conservation groups have over their government counterparts.

San Francisco resident Michael De Alessi is director of the Competitive Enterprise Institute’s Center for Private Conservation.

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