The fight against conservation challenges

In 2011, a Nebraska state senator, upset by conservation easements that take land out of crop production (for other uses that the landowner chooses), introduced an alarming bill that would make the government the sole provider of conservation easements, allow counties to deny easement renewals for any reason and limit state funding for conservation easements.

In 2016, a Kansas state senator worried about eroding tax bases introduced a bill to grant counties the right to terminate conservation easements or limit them to the life of the grantor. And in 2020, the South Dakota legislature initiated a bill that would allow successor landowners to terminate conservation easements on their properties.

Across the country, from California to New Hampshire, the perpetuity of conservation easements is being challenged at the state level. Most of these challenges arise in the form of bills introduced in state legislatures.

The issues driving the legislative challenges are distinctive to each state, but the solutions that land trusts have found are similar. Land trusts are monitoring legislative bills, joining with partners to address legislative challenges and using individual property rights as their most effective argument in favor of perpetual conservation easements.

Land trusts in the Midwest have faced many legislative challenges in recent years. The organizations have learned to be alert. Knowing what’s going on in your statehouse is crucial, but that can take many forms, says Jerry Jost, executive director of the accredited Kansas Land Trust. “We are a smaller land trust,” he says. “I’m generally not involved with the legislature unless there is a challenge to the integrity and perpetuity of conservation easements.”

That’s where a network of like-minded organizations comes in. “There will be people in every legislature who pay attention day to day to what bills are moving,” Jost says. Sometimes these are fellow land trusts, and sometimes they are organizations like the Sierra Club and the Audubon Society, he says.

Travis Entenman was fairly new in his role as executive director at the Northern Prairies Land Trust, headquartered in Sioux Falls, South Dakota, when he heard about the 2020 South Dakota bill. “We thought the bill would have a tremendous impact on state conservation practices, and not just ours,” Entenman says.

While the Northern Prairies Land Trust had always worked closely on conservation easements with groups such as the accredited Ducks Unlimited and Pheasants Forever, their shared concerns about the bill showed Entenman that outdoor organizations are also allies in opposing legislation against perpetual conservation easements.

The accredited Nebraska Land Trust did not work alone to address the misinformation about conservation easements that surrounded the 2011 legislation, says Dave Sands, the land trust’s executive director. It joined a coalition of land trusts, landowners, hunting and fishing organizations, wildlife groups and advocacy organizations that created talking points, worked with senators, solicited media coverage and coordinated testimony on the bill.

In 2011, the coalition’s strongest allies were the farmers and ranchers whose land is protected by conservation easements. More recently, the land trust has worked to create a broader range of allies with an advisory board of interested locals that guides conservation priorities in the ruggedly beautiful, politically conservative northwestern corner of the state, Sands says.

Kansas Land Trust partners with Fort Riley’s Army Compatible Use Buffer Program to protect wildlife habitat and the military installation against conflicts with its neighbors, as well as to make sure wind turbines don’t interfere with radar. So when there was a challenge to conservation easements, a U.S. Army representative testified to a legislative committee about the importance of permanent conservation easements to the installation’s role in national defense.

“The people who care about land conservation are all throughout the political spectrum,” Jost says. “Look for conservation allies and build working relationships.”

Educating legislatures and the public often means turning one of the biggest objections against conservation easements into a reason to support them. “A successful argument is that land conservation is an essential part of property rights. People have the right to leave a conservation legacy with their land,” Jost says.

“We were effective in convincing people that conservation easements are the flip side of the property right that allows people to develop their land,” says Sands. “When you take a farm and turn it into a subdivision, it will never grow food again. It’s a forever decision. A conservation easement allows people to keep their land in agriculture forever as well.”

The 2011 bill did not pass, but land conservation in Nebraska did not escape unharmed. Today, a commission appointed by the governor no longer allows state grants to fund conservation easements, Sands says. The 2016 Kansas bill died in committee later that year. In South Dakota, the bill failed to pass out of committee just three weeks after it was introduced.

In February 2021, a bill (AB 721) introduced in the California assembly could potentially eliminate the permanence of conservation easements in the state, land trusts and other conservation advocates believe. The bill’s goal is to create affordable housing, a major issue in the California legislature this season. The bill would make any restrictions on the number, location or size of residences unenforceable against the owner of an affordable housing development.

“The legislature is now considering several dozen bills to address the need for more affordable housing in California,” says Tamara Galanter, a partner in the law firm of Shute, Mihaly & Weinberger LLP, which serves as an adviser to the policy committee of the California Council of Land Trusts. “Originally, we thought this couldn’t possibly mean conservation easements. So we contacted the bill’s sponsor and learned they are concerned about conservation easements.”

Even worse, the assembly member who introduced the bill is otherwise a strong supporter of environmental legislation. As written, the bill does not exempt conservation easements, so unless protected by other laws, land conserved for wildlife habitat, water quality or agriculture would be fair game for development.

“We are working to find a solution that removes roadblocks to affordable housing while at the same time protects the perpetuity of conservation easements,” Galanter says. The policy committee of the California Council of Land Trusts is working with lobbyists and the bill’s sponsors to amend the bill.

“The goal is to ensure that this legislation does not put legitimate conservation easements at risk of being extinguished. The conservation community recognizes the need for affordable housing. I am hopeful that with specific amendments to address conservation easements, we can support this legislation,” Galanter says.

The other warning from the bill is that legislation threatening the perpetuity of conservation easements may not even use the term “conservation easement,” she says. “This bill applies to ‘restrictive covenants.’ But the definition of restrictive covenants makes clear it would include conservation easements,” Galanter says. “When reviewing legislation, make sure to look for this type of language.”

Sometimes legislation isn’t the problem but rather provides the solution to a state-level challenge to conservation easements. In 2016, the Supreme Court of Virginia ruled that a winery was within its rights to build a retail facility on land conserved by a conservation easement. The ruling stated that the conservation easement language was unclear and, as with other restrictive covenants, any uncertainty should be decided in favor of the landowner.

Defending the integrity and purpose of conservation easements, says Dan Holmes, director of state policy for The Piedmont Environmental Council, “calls for protecting the original donor’s intent and reaffirming the intent of the general assembly.”

The solution would take the form of legislation because, says Mike Kane, director of land conservation for the accredited PEC, “the courts had made a decision that in our opinion went against the intent of the general assembly. We wanted to give the general assembly an opportunity to reaffirm that commitment to the easement program.”

PEC is part of a mature network of land trusts and conservation organizations in Virginia, including the Virginia’s United Land Trusts and the Virginia Conservation Network, which has over 100 members ranging from garden and bicycle clubs to faith organizations and land trusts. Members of VCN work together to perfect language for legislative purposes. Each year the group agrees to a shared agenda and then develops ways to communicate their shared goals.

“It really helps when you’ve already developed a way to talk about an issue, what’s at stake and why the legislation is needed,” Holmes says. It also helps when legislators know these goals are shared broadly. Collaboration on the shared agenda gives a greater voice to organizations both big and small, Holmes says, and shows elected officials how much support there is for an idea.

It took a year to craft the right language. PEC, The Nature Conservancy and VaULT took a lead role in honing legislative language for consideration during the 2021 Virginia General Assembly session. Sen. Chap Petersen (D-34) and Delegates Michael Webert (R-18) and Wendy Gooditis (D-10) championed the legislation.

In the end, the suggested legislation included one simple sentence: “Notwithstanding any provision of law to the contrary, an easement held pursuant to this chapter shall be construed in favor of achieving the conservation purposes for which it was created.”

By putting the focus on the conservation purposes of an easement, the bill gave the courts flexibility in how the dispute is resolved while still ensuring the protection of the underlying conservation values, such as agriculture, forestry or water quality, Holmes says. Virginia Governor Ralph Northam signed the bipartisan bill into law in March of 2021.

“I’m just happy that we can focus on positive things again,” Holmes says. “We can do what we do best, which is conserving land and ensuring that it is a part of the conservation fabric for future generations.”