In June 2003 the Lincoln Institute of Land Policy and the Sonoran Institute established a Joint Venture project to assist diverse audiences in improving state trust land administration in the American West. The goal of this partnership project is to ensure that conservation, collaborative land use planning, and efficient and effective asset management on behalf of state trust land beneficiaries are integral elements of how these lands are managed. The two institutes seek to utilize their core competencies to broaden the range of information and policy options available to improve state trust land management. This article introduces the Joint Venture and describes some of the work now under way in Arizona and Montana.

State trust lands are a phenomenon that dates back to the Northwest Ordinance of 1785. With this ordinance, the U.S. Congress established a policy of granting land to states when they entered the Union as an asset to generate funding to support the public education system, a fundamental state responsibility. Starting with Ohio in 1785 and ending with Arizona and New Mexico in 1910, each new state received a set of federal lands that, under federal enabling legislation and the corresponding state constitution, were to be held in trust for the benefit of the public schools. The trust mandates established by the U.S. Congress and the states are clear: to generate revenue to support the public schools and other institutions. In some cases there are other minor institutional beneficiaries as well, but the public schools (K–12) are by far the largest beneficiary throughout the state trust land system. That singularity of purpose continues today and distinguishes state trust lands and the state programs that administer them from other types of public lands.

While Congress intended state trust lands to be perpetual, the lawmakers expected that over time some lands would be sold to produce revenue. Initially Congress provided little guidance to states on how they should manage their state trust lands. Many states that entered the Union soon after 1785 quickly sold all or most of those lands for profit, and today little remains of that heritage. Because of these actions, Congress placed increasingly stringent requirements on new states in order to limit the use of state trust lands. Since most western states entered the Union in the late nineteenth and early twentieth centuries, they retain most of the original state trust lands designated at the time of statehood.

Today these lands continue to be managed to generate income for the authorized beneficiaries. This revenue is either made available in the year in which it was generated (typically from leasing activities) or, in the case of outright sale of land or nonrenewable resources, deposited into a permanent fund that generates annual income for the beneficiaries. In Arizona, New Mexico, Texas and Wyoming these permanent funds or endowments are in excess of one billion dollars each.

What Is a Trust?

A trust is a legal relationship in which one party holds property for the benefit of another.

There are three participants in this relationship: a grantor or “settlor,” who establishes the trust and provides the property to be held in trust; a trustee, who is charged by the settlor with the responsibility of managing the trust in keeping with the settlor’s instructions; and a beneficiary, who receives the benefits of the trust.

The trustee has a fiduciary responsibility to manage the property held in trust (the trust corpus) in keeping with the instructions of the settlor and for the benefit of the beneficiary. This fiduciary responsibility can be enforced by the beneficiary if the trustee fails to meet the obligations outlined in the trust documents.

Fifteen western states continue to own and manage appreciable amounts of state trust land (see Table 1). The nine states with the largest and most significant holdings are the initial focus of the Lincoln Institute and Sonoran Institute Joint Venture: Arizona, Colorado, Idaho, Montana, New Mexico, Oregon, Utah, Washington and Wyoming (see Figure 1). Collectively these states manage more than 40 million acres of state trust lands. The landholdings are as diverse as the states that manage them and include coastal forests in Washington, mountaintops in Montana and low deserts in Arizona.

Traditionally these lands have been managed almost exclusively for natural resource production, with the leasing and sale of natural products being the principal sources of revenue. The reliance of state trust land management on natural resource extraction is understandable in the context of the natural resource–based economies of the late nineteenth and early twentieth centuries. But today, as the West continues to urbanize and the region’s economies shift to the information age, trust land managers are recognizing a need to broaden the land use activities of their trust land portfolios. Invariably that means rearranging the portfolio from one that is overly reliant on natural resource extraction to one that recognizes the real estate value associated with commercial, industrial and residential development, as well as recreation and conservation.

Like many land use decisions, particularly in areas experiencing explosive growth, state trust land administration is increasingly controversial. As on federal public lands, traditional uses (i.e., cropland, grazing and timber production, and oil, gas, coal and mineral extraction) are at odds with public interests in recreation and natural open space. Efforts to sell and lease lands for commercial and residential development can create tensions between a state agency acting as a trustee and a local community vested with managing growth. Balancing the protection of the public values inherent in many of these lands with traditional and new uses, all within the context of the state trust’s fiduciary responsibilities, is a challenge for trust land managers.

At the same time, population pressures in the West have increased demands on public education funding. State trust lands are one obvious source of revenue to meet these funding demands, which in turn may generate even more pressure on trust land managers who as trustees of a permanent trust need to achieve both short- and long-term financial returns from the trust’s assets. An additional complexity is that the application of trust principles varies among the states, based in part on differing state trust land enabling legislation created in each state at the time of statehood.

Recognizing the value of bringing diverse interests together and providing solid information to stakeholders and key decision makers in land use planning and development environments, the Lincoln Institute and Sonoran Institute Joint Venture project seeks to

• facilitate efforts to modernize state trust land laws and regulations in key western states
• foster education and research efforts that focus on key issues related to state trust land administration
• increase public awareness of the resource and economic values of state trust lands along with the impacts of state trust land management decisions on local communities, including implications for public finance
• develop and implement on-the-ground model projects designed to explore innovative approaches to collaborative land use planning and conservation management of state trust lands
• provide relevant technical information and tools to decision makers and agency staff involved in state trust land management.

Trust Land Reform in Arizona

Arizona is in the midst of a three-year discussion among diverse stakeholders to reform its laws governing state trust lands. Arizona is noteworthy because the burgeoning growth of Phoenix and Tucson is reaching significant tracts of state trust lands. These lands are some of the most valuable real estate holdings in the Intermountain West and comprise 12 percent of the land in the state. Unlike many other western states, Arizona has long recognized the real estate value of its holdings and has an active real estate disposition program that has sold thousands of acres into the urban marketplace. The revenue from these sales has been deposited into the permanent fund of the state trust entity, and the income from the fund is directed to the trust’s beneficiaries. The permanent fund is now valued at more than one billion dollars and is predicted to double in value over the next 10 years.

In the mid-1990s state trust land sales in metropolitan Phoenix came to a screeching halt when the development interests of the Arizona State Land Department encountered conflict with the goals of local communities interested in preserving some of this land as natural open space. Attempts to accommodate local concerns through state legislation have met with mixed results due to the strictures of the Arizona enabling act and state constitution. Several key court decisions interpreting these laws have constrained the Arizona State Land Department from conserving open space or enabling the department to achieve the highest and best use on these lands when sold or leased for residential and commercial purposes. An attempt in 2000 to secure voter approval to revise aspects of Arizona’s constititution and modernize state trust land management failed at the ballot box in the face of unanimous opposition from the conservation community.

This situation has set the stage for a diverse group of interests to convene in the hopes of developing a comprehensive reform proposal that the Arizona legislature and governor’s office will consider. Even with their support, the final package will need voter approval to amend the state constitution, followed by changes in the federal enabling act that will require the approval of the U.S. Congress.

The Joint Venture directed its initial efforts toward working with the conservation organizations participating in the stakeholder group. We provided analyses of the current laws and proposed changes, with assistance from the law firm of Squire, Sanders & Dempsey, to help the conservation community promote a constructive agenda that has been incorporated into the package. In addition, our information related to land use planning was useful to other stakeholders in developing elements of the package that will ensure more collaborative planning between the Arizona State Land Department and local governments charged with land planning responsibility, while also increasing the range of tools available to local communities to protect natural open space on state trust lands.

We are also working with officials from the City of Tucson (the second largest city in Arizona) and the Arizona State Land Department to assist their efforts to develop 10,000 acres in the city’s growth corridor. This Houghton Area Master Plan includes more than 7,500 acres of state trust lands. Our work is directed toward the planning effort by providing examples of smart growth development at the urban edge. A key element is to document evidence that greenfield projects are not necessarily synonymous with sprawl and that a number of examples of recent master-planned communities at the urban edge are incorporating smart growth elements, such as interconnected open space for active and passive recreational use, pedestrian orientation, mixed-use development accessible to public transit, and a diverse mix of housing types, sizes and prices. As important, these progressive master-planned communities are achieving success in the marketplace, which is a preeminent concern of the Arizona State Land Department.

While the City of Tucson, in partnership with the Sonoran Institute, is working to promote infill and brownfield development, even under the most optimistic of scenarios more than 50 percent of the city’s explosive growth will be greenfield development. If successful, this master-planning effort will guide development on 50 square miles of state trust lands within the city and can serve as a local land use planning model for other state trust lands.

Trust Lands in Montana

The Joint Venture has also initiated an assessment of policy issues affecting state trust lands in Montana. Working with a local advisory group chartered by the Department of Natural Resources (the manager of Montana’s state trust lands), we have provided information that will help guide land use planning on 12,000 acres of state trust lands in Flathead County at the gateway to Glacier National Park. This effort will serve as a template for future department plans for land uses other than grazing and forest management. For example, the department has shown an interest in generating revenue from leasing land for conservation, recreational, residential, commercial and industrial uses. Increasing interest in these “special uses” is creating a paradigm shift in how the Department of Natural Resources interacts with local governments and how local governments interact with state trust lands.

As growth expands throughout much of western and central Montana, the department seeks to capture additional revenue opportunities through the development of special uses. While local communities are recognizing that state trust lands can be a source of economic growth and can contribute positively to meeting growth demands, they are also requiring those land uses to be responsive to local community values and concerns. Sound, objective land planning and valuation information are essential to the development of policies that will guide Montana state trust land management in the future.

Final Comments

In the brief time since the Joint Venture was established there has been no shortage of issues that could benefit from better information and collaboration among diverse parties. This fall the Lincoln Institute and the Sonoran Institute will convene a small group of experts from academia and the public and private sectors to identify the issues of greatest concern that will guide further research efforts. Our work in Arizona and Montana will continue as we seek to develop a broad-based approach to increasing awareness about state trust lands. The successful resolution of the issues affecting state trust land management will benefit not only local school children, but also many conservationists, developers, ranchers and businesses throughout the West.

Reference

Souder, Jon, and Sally K. Fairfax. 1996. State trust lands: History, management and sustainable use. Lawrence: University Press of Kansas.

Andy Laurenzi is the program director for state trust lands at the Sonoran Institute, a nonprofit organization established in 1990 to bring diverse people together to accomplish shared conservation goals. The Sonoran Institute is based in Tucson, Arizona, with offices in Phoenix and Bozeman, Montana (www.sonoran.org).

Conservation Leadership Dialogue

On March 1, 2011, the Lincoln Institute of Land Policy hosted its tenth annual Conservation Leadership Dialogue with a focus on The Future of Large Landscape Conservation in America. The session was organized by James N. Levitt, a fellow at the Lincoln Institute, with support from Armando Carbonell, senior fellow and chair of the Department of Planning and Urban Form. Held in the Members of Congress Room of the Library of Congress, across the street from the U.S. Capitol in Washington, DC, the meeting took place on the 100th anniversary, to the day, of President William Howard Taft’s signing of the landmark legislation that allowed for creation of national forests in the eastern part of the country. The Weeks Act of 1911, named for Congressman (later Senator) John Wingate Weeks of Massachusetts, changed the nature of cooperative conservation involving citizens active in the public, private, nonprofit, academic, and research sectors in the United States.

In the tradition of previous conservation dialogues, a cross-sectoral, geographically diverse group of conservationists convened to seek a path forward—in concert with the Obama administration’s recently released report on America’s Great Outdoors (Council on Environmental Quality 2011), as well as myriad initiatives at the state and local level. Their goals were to advance collaboration on a large landscape scale among landowners, land managers, and citizens from the public, private, nonprofit, and academic sectors. They also sought to understand and expand on the example set by large landscape initiatives that are achieving measurable, durable conservation outcomes that will provide benefits for generations to come.

Just as we can now appreciate the revival of the White Mountains of New Hampshire from their barren, moonscape-like conditions around 1900 to their majestic, verdant stature today, twenty-second century Americans ought to be able to appreciate how our foresight in working across property, jurisdictional, and even national boundaries has become a key element in the nation’s multigenerational effort to preserve essential sources of clean water, sustainably produced forest products, and expansive recreational opportunities.

Speakers’ Comments

The conference speakers emphasized the importance of sustained cooperation across many organizations and sectors to achieve lasting results. Proudly recounting how some two million acres of Maine forestland has been conserved over the past dozen years, Senator Susan Collins, Republican of Maine, reported that “we have done this by building a partnership among government at all levels, the forest products industry, environmental, forestry and recreation groups, and landowners. Through this partnership, we have been able to maintain or increase productivity for wood and harvest levels, supporting a diverse and robust forest products industry that employs tens of thousands of workers who produce paper, other wood products, and renewable energy. At the same time, we have been able to protect biodiversity, old growth and late succession forest, and public access to recreation, and also increase opportunities for tourism” (Levitt and Chester 2011, 72).

Representatives Peter Welch, Democrat of Vermont, and Rush Holt, Democrat of New Jersey, each stressed the importance of perseverance in such efforts. Welch remarked on the value of sustaining land conservation budgets during the current round of budget negotiations. He reminded the audience that in 1864 President Abraham Lincoln took his attention off a monumental crisis—the Civil War—in order to sign a bill deeding the area of Yosemite to the state of California for public use and recreation. If Lincoln could create Yosemite in the midst of the Civil War, Welch asserted, we can do our part in a time of tight budgets and economic volatility.

Holt focused his remarks on achieving a longstanding promise to fully fund the federal and stateside portions of the Land and Water Conservation Fund (LWCF), as well as a number of other legislative initiatives such as the Wildlife Corridors Conservation Act. Holt was emphatic in urging the conservation community to respond to the need for urgent action for our own sake, and for the sake of future generations. He reminded the audience of the admonition of President Lyndon Johnson, signer of the original LWCF legislation and the Wilderness Act in 1964: “If future generations are to remember us more with gratitude than sorrow,” said Johnson, “we must achieve more than just the miracles of technology. We must also leave them a glimpse of the world as it was created, not just as it looked when we got through with it” (Henry and Armstrong 2004, 123).

It was evident from the discussions that leaders from every sector stand ready to help implement the cooperative conservation aspirations of Collins, Welch, and Holt. Bob Bendick, director of U.S. government relations at The Nature Conservancy, stated that “the overall objective of AGO [America’s Great Outdoors] should be to create and sustain a national network of large areas of restored and conserved land, water, and coastlines around which Americans can build productive and healthy lives” (Levitt and Chester 2011, 74). Accordingly, Bendick shared with the assembled group his personal dream that someday his young granddaughters might, as adults, look out from the arch at the gateway to Yellowstone National Park and note that “all across America, 400 million people have been able to arrange themselves and their activities across this remarkable country in a way that reconciles their lives with the power, grace, beauty and productivity of the land and water that ultimately sustain us all” (Levitt and Chester 2011, 75).

Will Shafroth, acting assistant secretary for Fish and Wildlife and Parks of the U.S. Department of Interior, and Harris Sherman, undersecretary for Natural Resources and Environment at the U.S. Department of Agriculture, shared their frank assessments of the current situation. Shafroth described the hard work and extensive comments that helped shape the America’s Great Outdoors report. While this work serves as a good foundation for the effort ahead, Shafroth noted that it takes considerable creativity and proactive thinking to sustain conservation momentum in these times of sharp budgetary constraints.

Sherman added that the whole idea of landscape-scale conservation implies that we need to move from performing random acts of conservation to more comprehensive and collaborative large-scale initiatives that engage many agencies and ownership types. Of particular importance, he noted, will be the outcome of the debate on the 2012 Farm Bill, because its conservation provisions will be critically important to the success of large-scale conservation efforts.

The enthusiasm for large landscape conservation on the part of speakers from large public and nonprofit organizations was strongly reinforced by Jim Stone, a private landowner and ranch operator in Montana’s Blackfoot Valley. Stone helped to start the Blackfoot Challenge, a grassroots organization that has yielded impressive, measurable results over the last three decades using a landscape-scale approach.

Stone’s colleague Jamie Williams of The Nature Conservancy explained that the Blackfoot Challenge has achieved remarkable success over the years because it has taken the time to engage so many landowners and partners in consensus-based approaches to conservation. Initial small successes were critical to building the foundation of trust that led to larger successes later (Williams 2011). In the area of stream restoration alone, the Blackfoot Challenge has helped to engage more than 200 landowners in some 680 projects involving 42 streams and 600 stream-miles that have contributed directly to an 800 percent increase in fish populations in the 1.5 million acre valley. Stone is emphatic in saying that, with the right people in the right places, what has been done in the Blackfoot region could be done across the nation.

Complementing the program was a panel of researchers and academic officials representing universities, colleges, and research institutions that are helping to catalyze large landscape initiatives. Matthew McKinney of the University of Montana moderated a dialogue with David Foster of Harvard Forest and Harvard University, Perry Brown of the University of Montana, and Karl Flessa of the University of Arizona. They explored how institutions, within their own walls and beyond, can use their analytic and convening capacities to advance initiatives with extensive impacts.

Perry Brown pointed out that those universities that will play a role in real-world conservation initiatives will not be insular, but rather will cherish their relationships with nonacademic partners such as Indian tribes, state and federal government agencies, and large national and small local nonprofits. David Foster reinforced that idea by describing the Harvard Forest’s outreach efforts to develop and disseminate its recent report on Wildlands and Woodlands New England (Foster et al. 2009).

Large Landscape Cases

There are many exemplary cases of on-the-ground progress in large landscape conservation across the country from Maine to Montana and from Southern Arizona to Northern Florida. One of the longest operating and most important cases is in the ACE Basin in South Carolina’s celebrated Lowcountry. The ACE Basin, comprised of some 350,000 acres that drain into the Ashepoo, Combahee, and South Edisto Rivers between Charleston and Beaufort, is one of the largest undeveloped estuaries along the U.S. Atlantic seaboard (figure 1).

In the late 1980s, a group of public, private, and nonprofit organizations banded together to form a partnership that would protect the remarkable scenic, wildlife, and water resources in the region. Among members of the ACE Basin Partnership are federal agencies such as the Fish and Wildlife Service and the National Oceanic and Atmospheric Administration; state agencies including the South Carolina Department of Natural Resources; national nonprofits including The Nature Conservancy and Ducks Unlimited; local nonprofits including the Coastal Conservation League and the Lowcountry Open Land Trust; philanthropic organizations and individuals including the Gaylord and Dorothy Donnelley Foundation; and private interests such as MeadWestvaco Corporation.

Partnership members have conserved more than 134,000 acres, covering a contiguous core in the heart of the ACE Basin that stitches together easements on private land, a National Wildlife Refuge, South Carolina Wildlife Management Areas, and a Charleston County natural and historical interpretive center, among other properties.

As a large landscape initiative, the ACE Basin truly stands out from other efforts. Mark Robertson, the executive director of The Nature Conservancy in South Carolina, has noted that the effort “set a standard of how to get conservation done on a large scale using collaboration between private landowners, conservation groups and government agencies.” Asked about the significance of the progress in the ACE Basin to date, Dana Beach, director of the Coastal Conservation League, is emphatic: “It’s real importance is that it has given many people for the first time hope that a place of great importance is not inevitably going to be developed” (Holleman 2008).

Next Steps

The leadership dialogue concluded with general agreement that there is a great deal of work to be done, as well as an historic opportunity to expand on initial progress in the field of large landscape conservation. The discussion of next steps was organized to focus on four types of initiatives.

Policy Dialogues

There is a need for ongoing policy dialogue, both among conservationists in the public, private, nonprofit and academic sectors and between the conservation community and local, state and federal decision makers, regarding the very timely opportunities to realize landscape-scale conservation initiatives across the nation. The dialogue should celebrate existing success stories about both cultural and nature-oriented properties (both being highly valued by the public), consider ongoing regional conservation efforts, and envision new ones.

In the political sphere, these dialogues should connect with conservation caucuses at multiple layers of government (local, county, state, federal, and international). In nonprofit and academic contexts, the dialogue should reach across disciplines and institutional boundaries. Such intersectoral, interdisciplinary discussions are most likely to come up with creative solutions and novel ideas. While the dialogues may be able to take advantage of the socially neutral nature of universities as conveners, they nevertheless need to be responsive to the practical, on-the-ground issues of vital concern to field practitioners and landowners.

Research

Another immediate need is to build on existing maps and inventories (e.g., the Regional Plan Association’s Northeast Landscape Partnership database) to offer a more comprehensive picture of existing public, private, and nonprofit initiatives. A more comprehensive overview of nationwide efforts should be of particular use to groups and networks working to advance the practice of large landscape conservation, including the Large Landscape Practitioners Network, a program of the Lincoln Institute, and the U.S. Fish and Wildlife Service’s Landscape Conservation Cooperatives (LCCs).

Such research efforts should be more regionally relevant and cost-effective if they involve cooperation among a wide assemblage of public and private organizations. They might also serve to augment environmental education initiatives that already are spread thin.

Additional research is also needed to measure the impacts, performance over time, and conservation outcomes of landscape-scale initiatives, and to identify the key factors of success for initiatives that are able to show significant measureable results. Of particular importance is research that is able to identify where, when, and how certain efforts are able to yield measurably improved ecosystem services, such as improved water quality, increased wildlife populations, and enhanced sustainable production of forest products.

Networking

A number of large landscape networks have been created recently or are now emerging, including the Large Landscape Practitioners Network and the LCCs mentioned above. As they evolve, the networks are likely to nest within one another at larger and larger geographic scales, but they will also need to focus on sharing knowledge and building capacity at the local level to yield lasting results. Notwithstanding the need to be grounded in local realities, the networks have an opportunity to reach out to international partners with lessons to share. Within their own territories, large landscape conservation networks need to be linked to diverse constituencies, including philanthropists interested in landscape-scale conservation, university faculty and students, a range of public agencies, and, most importantly, property owners and land managers.

Demonstration and Implementation

Given what are expected to be very tight constraints on new conservation programs at the federal, state, and local levels over the next few years, participants focused much of their attention on the creative use of existing budgets for landscape-scale conservation purposes. One noted the significant role that is already being played by the Department of Defense to conserve (and limit development on) lands adjacent to active military reservations. Such programs are now being used effectively to protect habitats and working lands from development and to limit landscape fragmentation. They also may be used in the future to address water supply protection issues. Another participant noted the potential significance of state and federal transportation budgets that could be used to mitigate the disruptive impact of new roads and highways.

Particularly enthusiastic support came from several participants for public-private-nonprofit partnerships that have a proven track record for protecting and enhancing locally valued natural and cultural resources to form the backbone for a regional green infrastructure. Examples include Santa Fe, New Mexico; the Chattahoochee/Apalachicola basin in Georgia, Mississippi, and Florida; the Crown of the Continent in Montana, Alberta, and British Columbia; and the New Jersey Highlands.

Additional opportunities for funding large landscape conservation initiatives include state incentives for private land protection that can be used to match selected federal programs (e.g., the matching monies required by funds provided by the North American Wetlands Conservation Act); community forest programs that are now gaining momentum around the nation; selected opportunities for foundation Program-Related Investments (PRIs); and emerging ecosystem service markets assisted by federal policy and public-private partnerships, including mitigation banking and statewide markets for carbon credits, such as those in California.

Conclusion

Notwithstanding evident federal budget constraints, myriad opportunities are available to pursue conservation projects that are expansive in scale, extensive in scope, able to achieve measureable conservation outcomes, and enduring. The conference participants themselves offered clear evidence that the concept of large landscape conservation has spread to initiatives across the continent. These individuals and their colleagues at home and abroad are now and will continue to be at the forefront of initiatives that protect nature in the context of human values at a scale commensurate with the conservation challenges they face.

About the Author

James N. Levitt is a fellow in the Department of Planning and Urban Form at the Lincoln Institute of Land Policy and director of the Program on Conservation Innovation at the Harvard Forest, Harvard University.

References:

Council on Environmental Quality. 2011. America’s great outdoors: A promise to future generations. Washington, DC: Government Printing Office. http://americasgreatoutdoors.gov/report

Foster, D., D. Kittredge, B. Donahue, K. Fallon Lambert, M. Hunter, L. Irland, B. Hall, D. Orwig, A. Ellison, E. Colburn, A. D’Amato, and C. Cogbill. 2009. Wildlands and woodlands: A vision for New England. Harvard Forest Paper 32. Petersham, MA: Harvard Forest.

Henry, Mark, and Leslie Armstrong. 2004. Mapping the future of America’s national parks: Stewardship through geographic information systems. Redlands, CA: ESRI.

Holleman, Joey. 2008. Ace Basin: Protected forever. The State, Local/Metro Section, November 10. http://www.thestate.com/2008/11/10/584599/ace-basin-protected-forever.html#ixzz1W3yQd7KP

Levitt, James N., and Charles N. Chester. 2011. The future of large landscape conservation in America. Cambridge, MA: Lincoln Institute of Land Policy. http://www.lincolninst.edu/pubs/1916_The-Future-of-Large-Landscape-Conservation-in-America

Williams, Jamie. 2011. Scaling up conservation for large landscapes. Land Lines 23(3): 8–13. https://www.lincolninst.edu/pubs/dl/1923_1246_LLA_071103.pdf.

Related Resources

Levitt, James N., ed. 2005. From Walden to Wall Street:Frontiers of conservation finance. Washington, DC: Island Press and the Lincoln Institute of Land Policy.

———. 2010. Conservation Capital in the Americas: Exemplary Conservation Finance Initiatives. Cambridge, MA: Lincoln Institute of Land Policy, in collaboration with Island Press, the Ash Institute for Democratic Governance and Innovation at the Harvard Kennedy School, and the David Rockefeller Center for Latin American Studies at Harvard University.

McKinney Matthew J., and Shawn Johnson. 2009. Working across boundaries: People, nature, and regions. Cambridge, MA: Lincoln Institute of Land Policy.

McKinney, Matthew J., Lynn Scarlett, and Daniel Kemmis. 2010. Large landscape conservation: A strategic framework for policy and action. Cambridge, MA: Lincoln Institute of Land Policy.

A conservation easement is private land, held by a private nonprofit corporation (typically a land trust) or a government agency. Though conservation easements are perceived as a win-win land protection strategy, there are several downfalls in their design—requiring this fairly new real estate law to come under increased scrutiny.

Conservation easements leave the land in private ownership and often achieve the goals of land protection without regulation or adversity, and usually without any government oversight. There is often concern that the terms of the conservation easement will be honored and that the conservation easement holder will have the capacity and resolve to monitor, enforce and defend the restrictions of the conservation easement in perpetuity, as conservation easements promise.

Because conservation easements are privately held property, most states have no public registry for conservation easements, no particular legal structure and no public review, transparency or accountability concerning their design, monitoring, enforcement, defense or stewardship.

This article identifies issues with the current practices for conservation easements and seeks solutions for the future of the conservation easement. Should their be standards enforced by federal or state governments? Should more responsibility be placed on the land owners? How would new regulations affect the use of the land? If conservation easements are to serve future generations as is their promise, they will have to resolve the issues they face.

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No recent happening in land conservation rivals the deployment from coast to coast of conservation easements. Beyond tax and other public subsidies, one of the driving forces favoring this phenomenon is that conservation easements are perceived as a win-win strategy in land protection, by which willing landowners work with private land trusts or government agencies to provide lasting protection for portions of the American landscape. Conservation easements leave land in private ownership, while allowing the easement holder (the land trust or agency) to enforce voluntary, contracted-for, often donated but increasingly paid-for restrictions on future uses of the easement-encumbered property. Conservation easements are often welcomed as achieving the goals of land protection without regulation or adversity, and usually without any government oversight.

At the same time, the rapid increase in the use of conservation easements raises the concern that they may present something of a time bomb that requires preventive action. Most of the laws and conventions concerning conservation easements were created at a time when no one could have foreseen their explosive growth and complexity. These laws and conventions require well-considered approaches to reform, lest we ultimately risk losing the public benefits that we thought conservation easements would secure in the future.

Definitions

A “conservation easement” (in some states referred to as a conservation restriction or similar term) is a set of permanently enforceable rights in real property, held by a private nonprofit corporation (typically a land trust) or a government agency. These rights impose a negative servitude (in other words, a set of promises not to do certain things) on the encumbered land, and they are permanently enforceable by the easement holder. Conservation easements are a relatively recent invention of real estate law and are enabled by statute in virtually every state.

A “land trust” is a loosely defined concept that usually includes at least two basic elements. First, it is a private, nonprofit charitable corporation incorporated under the laws of a state and qualified as tax-exempt and entitled to receive tax-deductible donations under section 501(c)(3) of the Internal Revenue Code. Second, depending on state law, a land trust’s mission, but not necessarily its exclusive or even primary one, is the conservation of land.

The Public Stake in Conservation Easements

Why should the public, and therefore its government at all levels, care about how conservation easements are created and managed? One reason is that virtually every conservation easement is associated with a significant public subsidy. Although most easements are donated by private landowners to private land trusts, they almost always result in public subsidies in the form of income tax deductions to the easement donors. In many cases a further subsidy comes in the form of reduced real property and estate taxes in the future. Increasingly, conservation easements are being purchased with public money, sometimes on a grand scale involving millions of dollars.

The public should care about how its money is being spent, whether it is being spent for something of long-term public benefit, and whether it is being spent efficiently; that is, the public should be interested in whether it is getting a fair public bang for its buck.

Beyond the public’s financial investment, its interest in conservation easements as a form of charitable trust transcends the interests of the private parties to the transaction. Further, some conservation easements guarantee public access to the property, such as for hiking or scenic enjoyment, giving the public an added stake in the long-term security of the easement. In the case of conservation easements granted by developers as a quid pro quo for regulatory permits, these easements may also comprise a public investment because they are part of the consideration in exchange for the right to proceed with a project that may cause environmental harm. Finally and not least importantly, the public has an abiding concern in the orderly future of legal understandings and the stability of interests in real estate.

In sum, when a conservation easement is created there is a legitimate public interest and concern that the terms of the easement will be honored and that the easement holder will have the capacity and resolve to monitor, enforce and defend the restrictions of the easement in perpetuity, as conservation easements promise. Indeed, the very purpose of state and federal laws that support and subsidize the creation of conservation easements is that the public interest is intended to permanently benefit from them.

Trends and Problems

Rapid growth. The attractiveness of conservation easements is demonstrated by the explosive growth of land trusts established to accept easements. Land trusts have become a big business in America, both for their vast holdings of conservation easements and other properties and for their increasing memberships and finances. Even so, many land trusts have come into existence only during the past 15 years and operate at a local level. While land trust creation continues to increase rapidly, an important policy question is whether the ever-expanding number of small land trusts throughout the nation is something that is good for our (and their) future.

The Land Trust Alliance (LTA), an organization that serves many land trusts nationwide, reported in its national census that between 1998 and 2003 the number of local and regional land trusts increased 26 percent from 1,213 to 1,526; the number of conservation easements held by these land trusts grew from 7,400 to nearly 18,000; and the area covered by these easements expanded from nearly 1.4 million acres to more than 5 million acres (Land Trust Alliance 2004; see Figures 1 and 2). In addition, there are a number of national organizations, such as The Nature Conservancy and the American Farmland Trust, that hold additional thousands of conservation easements. Untold thousands of easements also are held by federal, state and local governments.

Often land trusts and government agencies alike focus on, publicize and celebrate the accumulating numbers of conservation easements in their portfolios, as well as the numbers of acres that they cover, without equivalent regard for the quality of the easements or of the lands they protect. Since conservation easements bring with them long-term and costly responsibilities for the holder in monitoring, stewardship, enforcement and defense, this focus on numbers can be short-term thinking that leads to long-term problems.

Lack of uniformity. The terms of conservation easements are infinitely variable. Calling something a conservation easement tells one nothing about what protections it affords or even what legal boilerplate it includes. Many conservation easement advocates extol the virtues of this flexibility, since it allows the landowner and easement holder to tailor each easement to their mutual interests.

However, this increasing variability of conservation easements inevitably will result in more problems over time for both easement holders and future successions of landowners in understanding, undertaking, monitoring, defending and upholding all of the legal rights and responsibilities of each easement. Heightening this effect is the fact that many conservation easements are increasingly negotiated, nuanced and complex agreements, leaving even legal experts challenged in easement preparation, interpretation, oversight and enforcement.

Valuation issues. The valuation problem for conservation easements arises in two forms: the opportunity for excessive claims of income, estate and property tax deductions or reductions; and uncertainty as to the societal and cost-benefit calculus of each easement. The valuation of donated conservation easements has become a major cause for alarm by the Internal Revenue Service, which says that it will be applying an increasingly watchful eye on the deductions taken for these donations. However, part of the problem may be that the IRS has not been precise enough in stating how conservation easement appraisals should be undertaken.

Even if the IRS adopts a more rigorous approach to easement appraisal in the future, it will never be in a good position to determine whether each easement, for which a charitable deduction is taken, is worthy in terms of conferring a public benefit commensurate with the public subsidy. That task must be undertaken by others, starting with the land trust or other easement holder and embracing some degree of broader public participation.

Lack of legal standards. While conservation easements are intended to be permanent servitudes on privately held property, most states have no public registry for conservation easements, no particular legal structure and no public review, transparency or accountability with respect to their design, monitoring, enforcement, defense or stewardship. Accordingly, there may be a growing disconnect, or perhaps it is a correlation, between the massive deployment of these new interests in real estate, their nearly infinite variability and the multitude of new-born land trusts that hold them on the one hand, and the largely undisciplined laws and conventions that govern them on the other.

In sum, potential legal and other reforms should be considered to respond to many diverse issues related to conservation easements.

This state of affairs, already evident in many thousands of conservation easements, cannot serve future generations well. Under the present laws and conventions, how can we expect holders of these easements and succeeding generations of landowners to understand, no less attend to, the often subtle differences in their terms and to comply with, uphold, defend and enforce conservation easements forever?

Although the nearly exponential trends in the deployment of conservation easements may be heartening to many in the land conservation community, they also pose equivalent challenges that require critical examination and consideration of reform. The evident solution is to create standards for conservation easements and their holders that are more uniform, explicit, publicly transparent and rigorous. Doing so would be in the long-term best interests of those in the conservation easement community and the public at large.

Potential Solutions

Among the general approaches to reform are changes to federal tax laws; greater state oversight of conservation easements and their holders; increased self-regulation by the land trust community; consolidation and networking of land trusts; and greater supervision of conservation easements and their holders by funding sources. The purpose of advancing these reform ideas is to create more predictability and stability in the design and long-term management of conservation easements, so there can be a greater degree of assurance that these new inventions of real estate law will deliver on the promises that they make to future generations.

The most universal approach to reform would be to create more rigorous IRS standards for conservation easements, their appraisals and their holders, so there is greater assurance that their public subsidy will result in conservation easements that are permanently monitored and enforced. A second and complementary approach would be for the National Conference of Commissioners, which gave birth to the Uniform Conservation Easement Act in 1981, to reconvene and consider the issues that went unresolved in its earlier work. A third approach would be for each state to consider amendments to its conservation easement enabling act that respond to these issues. Finally, the Land Trust Alliance is already making efforts to inform and encourage its members to take affirmative but voluntary action to resolve many of these concerns.

Even while considering needed change, these reforms should not impose unreasonable transaction costs on conservation easements. The goal is to select reforms that are efficient in making a difference. At the same time, it is important to consider the tremendous and increasing public subsidies of conservation easements, their opportunity costs and potential effects on government regulatory and land acquisition programs. This scrutiny is not a condemnation of conservation easements, but rather is aimed at articulating issues and possible reforms that can make easements deliver their promises.

Conclusions

This should be an uneasy time for those in the conservation easement community. Because of alleged abuses widely reported by the media, both Congress and the IRS are investigating easement practices by their donors and holders. Congressional proposals are emerging to substantially reduce tax incentives for donations of conservation easements. The time is right to explore potentially useful reforms of all kinds in order to avoid throwing the baby out with the bathwater.

The principal source of many issues with conservation easements is the laws and conventions that govern these interests in real estate, which were created at a time when no one could have anticipated the explosive growth of easements and land trusts. While national organizations like the Land Trust Alliance have shown outstanding leadership in devising and promoting standards, practices and other assistance for land trusts, these standards are purely voluntary, and land trusts have no legal obligation to follow them. Moreover, in some cases the worst problems with respect to long-term management of conservation easements involve understaffed or inattentive government holders.

How dire is the future of conservation easements? Just as conservation easements are intended to endure, each of the problems reported here will have its day, and some already have. When evaluating the effectiveness of conservation easements under the prevailing legal structure, perhaps the best answer is that the jury will be out for 100 years, but one should be sufficiently concerned about a possibly adverse verdict to consider these issues and ways to resolve them.

If conservation easements are to serve future generations as is their promise, they will have to live up to three essential principles.

1. The value of conservation easements depends upon their being able to effectively and permanently deliver the public benefits they promise.
2. Landowners and conservation easement holders, who receive the benefits of the state and federal laws that provide for and subsidize conservation easement acquisition, should be legally accountable for upholding their part of the bargain, including monitoring and upholding the terms of each easement and assuring that its public benefits are secured in the future.
3. The process by which conservation easements are designed, appraised and managed should be more rigorous, publicly transparent and accountable.

With these principles in mind, there are many approaches to resolving the issues presented by conservation easements. However, to fashion the solutions one must first acknowledge the problems. If ever we are to take action to assure the future of conservation easements, the time to do so may never be better, nor easier, than now.

Jeff Pidot is a visiting fellow at the Lincoln Institute, on leave from his work as chief of the Natural Resources Division of the Maine Attorney General’s Office, a position he has held since 1990. He has been an active participant in the land trust movement in Maine and has a wealth of experience with conservation easements in both his professional and volunteer work. While at the Lincoln Institute, he is researching and writing about the challenges of conservation easements and reforms that may be considered to meet these challenges.

His working paper, Reinventing Conservation Easements: A Critical Examination and Ideas for Reform, is available on the Institute’s website.

Reference

Land Trust Alliance. 2004. National Land Trust Census. November 18 http://www.lta.org/census/index.shtml

Jay Espy se unió a la Fundación Elmina B. Sewall como su primer director ejecutivo en enero de 2008. Esta fundación, con sede en Brunswick, Maine, está centrada en la defensa del medio ambiente y el bienestar de los animales y los seres humanos, principalmente en el estado de Maine.

En las dos décadas anteriores, Espy fue presidente del Fideicomiso del Patrimonio Costero de Maine, una organización estatal de conservación de suelos. Durante su ejercicio, este fideicomiso aceleró sus esfuerzos de protección de suelos en toda la costa de Maine, conservando más de 50.000 hectáreas y estableciendo la Red de Fideicomisos de Suelos de Maine, que fomenta el crecimiento de fideicomisos de suelos locales en todo el estado. También lideró la exitosa Campaña de la costa del fideicomiso, recaudando más de 100 millones de dólares para conservación y duplicando la cantidad de suelos protegidos en la costa y las islas de Maine.

Espy recibió su licenciatura en Bowdoin College y un título de maestría en Administración de Empresas y Estudios Medioambientales de la Facultad de Administración y la Facultad de Estudios Forestales y Medioambientales de la Universidad de Yale. Es miembro de la junta directiva del Centro Filantrópico de Maine y la Alianza de Fideicomisos de Suelos de Canadá. Fue presidente de la Alianza de Fideicomisos de Suelos, una organización nacional que presta servicios a fideicomisos de suelos en los Estados Unidos. En octubre de 2010 fue nombrado Kingsbury Browne Fellow para 2010–2011 a través de un programa conjunto de la Alianza de Fideicomisos de Suelos y el Instituto Lincoln.

Land Lines: ¿Cómo se involucró inicialmente en el campo de la conservación de suelos?

Jay Espy: A comienzos de mi último año en Bowdoin College, un maravilloso consejero vocacional me sugirió que quizás tener alguna experiencia en el “mundo real” podría resultarme útil para conseguir un empleo remunerado. Comencé así una pasantía documentando aves marinas en la Bahía de Casco, Maine, como parte de un proyecto de planificación de contingencias en caso de un derrame de petróleo. Esta experiencia despertó en mí una intensa pasión por la costa de Maine y me sirvió de plataforma de lanzamiento para mi carrera profesional. Después de un período en el que trabajé para una empresa consultora medioambiental, realicé estudios de posgrado en Administración de Empresas y Ciencias Forestales y Medioambientales en la Universidad de Yale, y varias pasantías más, acepté entusiasmado un trabajo a nivel de principiante en el Fideicomiso del Patrimonio Costero de Maine (Maine Coast Heritage Trust, o MCHT ) en Topsham. Por aquel entonces, MCHT era un pequeño fideicomiso estatal de suelos y una buena manera de “descubrir la dura realidad” para un aspirante a conservacionista de veintitantos años de edad, prácticamente sin credenciales.

Land Lines: ¿Cuáles son algunos de los proyectos de conservación de suelos más significativos en los que estuvo involucrado?

Jay Espy: A fines de la década de 1980, una gran corporación que se estaba deshaciendo de sus activos madereros en el noreste de los Estados Unidos y el Canadá marítimo, puso a la venta una parcela de 5.000 hectáreas de suelos costeros en Down East Maine, cerca de la frontera con Canadá. Este era el bloque sin desarrollar más grande del suelo costero de Maine, y uno de los mayores de toda la costa este de los Estados Unidos. MCHT nunca había tenido un desafío tan apasionante ni de tamaña envergadura.

En asociación con el estado de Maine, el Fondo de Conservación y la Fundación Richard King Mellon, MCHT lideró un esfuerzo para adquirir la propiedad y trabajar con funcionarios locales y estatales en un plan para conservar el suelo, incorporando asimismo la gestión de bosques activos, el desarrollo de sendas recreativas y viviendas económicas en el pueblo de Cutler. Si bien no lo sabíamos en ese momento, estábamos realizando “conservación comunitaria” al hacer participar a una amplia gama de sectores con intereses variados. Este proyecto sirvió para que MCHT se iniciara en la conservación de paisajes. Desde entonces se han completado docenas de proyectos en dicha región, conocida como la Costa Escarpada (Bold Coast) de Maine. Ahora el público puede acceder a más de 32 kilómetros de impresionante costa que brindan grandes oportunidades económicas a la comunidad.

Me siento privilegiado por haber podido ayudar a proteger muchos otros suelos, tanto extensos como reducidos. La Isla Marshall, una joya de 400 hectáreas a 24 kilómetros de la península de Blue Hill, que en una época estuvo a punto de ser blanco de grandes emprendimientos inmobiliarios, ahora cuenta con un extenso sistema de sendas costeras desarrolladas por MCHT. La granja Aldermere, en Camden y Rockport, es una emblemática granja de agua salada. Albert Chatfield comenzó a criar ganado Belted Galloway aquí en la década de 1950, y la granja ha albergado a este galardonado ganado de cría desde entonces. Después de que la propiedad fue donada en 1999, MCHT ha expandido considerablemente los programas agrícolas y ganaderos para la juventud de la zona y la comunidad en general, y ha protegido tierras vecinas que se usan para sostener el creciente movimiento de alimentos locales.

Land Lines: ¿Cuándo se enteró del trabajo de conservación de suelos del Instituto Lincoln, y cómo se ha involucrado usted en nuestros programas?

Jay Espy: Mi ingreso en el campo de la conservación fue completamente fortuito. A los pocos meses de comenzar a trabajar en MCHT, fui invitado a una reunión de profesionales de la conservación en el Instituto Lincoln, co-patrocinada por la Alianza de Fideicomisos de Suelos (en ese entonces conocida como el Intercambio de Fideicomisos de Suelos). Había conocido previamente a Kingsbury Browne brevemente en una conferencia en Washington, DC, pero en esa reunión tuve la oportunidad de pasar un día entero con él y con algunos de los otros venerados líderes del moderno movimiento de conservación de suelos.

Con el transcurso de muchos años, el Instituto Lincoln se convirtió en el lugar de encuentro para los conservacionistas, muchos de ellos reunidos originalmente por Kingsbury, que fueron valiosos mentores míos a medida que iba aprendiendo este oficio. El Instituto ha seguido siendo un lugar en el que las mentes creativas se reúnen para innovar, y donde se fomentan la investigación de vanguardia y la comunicación con el resto de la comunidad de conservación de suelos. Me siento honrado de formar parte de este legado como Kingsbury Browne Fellow.

Land Lines: ¿Cuáles son a su juicio las futuras tendencias en la conservación de suelos?

Jay Espy: El campo de la conservación está creciendo, cambiando y madurando de una manera que considero muy saludable. No hace mucho la mayoría de nosotros pensábamos que la conservación tenía que ver solamente con los suelos. Recuerdo bien los primeros folletos de los fideicomisos de suelos, llenos de fotos de hermosos paisajes, pero completamente vacíos de gente. Afortunadamente, esto ya no es así.

Hoy en día, la mayoría de los que participamos del movimiento comprendemos que la conservación se refiere tanto a los suelos como a la gente. Se trata de cómo las comunidades se benefician de ecosistemas saludables; cómo las oportunidades de recreación cerca del hogar combaten la inactividad juvenil y la obesidad; cómo los suelos agrícolas protegidos contribuyen a la seguridad alimentaria y la disponibilidad de comida nutritiva local; cómo los espacios al aire libre, que incorporan artes y entretenimiento locales, contribuyen a crear centros vibrantes en las ciudades; cómo el agua limpia, los bosques y multitud de otros recursos naturales gestionados de manera sustentable pueden respaldar el desarrollo económico y la creación de puestos de trabajo; y cómo los suelos bien gestionados nos permiten vivir vidas más ricas y completas, tanto individual como colectivamente.

En todo el país, los silos que han separado el trabajo de conservación, la salud pública, las artes, la educación, el hambre, la vivienda, la producción de alimentos y el desarrollo económico están desapareciendo. Esta tendencia me resulta alentadora. El trabajo que hagamos hoy sólo perdurará en el tiempo si genera un beneficio directo y tangible para la gente a lo largo de muchas décadas. La participación colaborativa de todos con estos intereses amplios y variados es un ingrediente esencial en cualquier receta exitosa de conservación duradera.

Land Lines: ¿Cómo podemos convertir los problemas de financiamiento de la conservación en oportunidades?

Jay Espy: Tenemos, en efecto, muchos desafíos en el frente financiero. El financiamiento público de las fuentes gubernamentales estatales y federales tradicionales ha ido disminuyendo, las fundaciones privadas han sufrido una erosión de sus activos, y los donantes individuales han adoptado, comprensiblemente, una actitud más conservadora con sus inversiones filantrópicas, debido a los altibajos de la bolsa. En consecuencia, hoy se emprenden menos proyectos a gran escala de conservación de suelos que requieren decenas de millones de dólares, como los que vimos a fines de la década de 1990 y a comienzos de la década de 2000.

A pesar de ello, se sigue financiando una gran variedad de trabajos importantes de conservación en todo el país. El respaldo público para la conservación local sigue siendo alto, y la mayoría de las iniciativas de financiamiento local por emisión de bonos sigue siendo aprobada por amplios márgenes. Las donaciones individuales y de fundaciones para proyectos de conservación no se han derrumbado, como se temía. Los patrocinadores siguen proporcionando fondos, pero ahora son más selectivos. Además, los proyectos de conservación que tocan múltiples intereses humanos y que cuentan con la participación de múltiples socios están atrayendo nuevas fuentes no tradicionales de apoyo financiero. Recientemente hablé con un patrocinador de proyectos de salud que cree que es importante disponer de más suelos para la recreación pública como una medida preventiva sanitaria fundamental. El financiamiento de conservación de suelos agrícolas también ha crecido sustancialmente en los últimos años, impulsado en parte por la popularidad explosiva del movimiento por los alimentos locales.

Land Lines: ¿Puede compartir con nosotros algunos ejemplos de éxitos innovadores en la conservación de suelos?

Jay Espy: En un área remota del este de Maine, el Fideicomiso de Suelos de Downeast Lakes ha estado trabajando desde hace más de una década para proteger grandes extensiones forestales que bordean la costa cerca de la comunidad de Grand Lake Stream. Estos suelos y aguas han respaldado la economía maderera y de recreación durante más de un siglo. Con el declive de la industria del papel y la pulpa, se han vendido varias empresas comerciales madereras de gran envergadura.

En vez de esperar simplemente a que se produzca el desarrollo inevitable de casas de vacaciones y la pérdida de la cultura local, la comunidad ha trabajado de manera extraordinaria para adquirir decenas de miles de hectáreas, y varios kilómetros de suelos costeros, para usarlos como bosques que generan ingresos, preservación de la vida silvestre y áreas recreativas apartadas. Los empresarios locales, los guías de caza y pesca, los representantes de agencias estatales y federales, los miembros de la tribu indígena Passamaquoddy y funcionarios electos a nivel local, estatal y nacional unieron sus fuerzas al fideicomiso de suelos para adquirir estas propiedades y gestionarlas para obtener ingresos sustentables de la madera así como de otros usos tradicionales, incluyendo la caza, la pesca, el camping y el remo.

En el pueblo de Skowhegan, en la parte central de Maine, una joven mujer emprendedora adquirió una vieja cárcel del condado y la está convirtiendo en un molino de cereales. Una vez que entre en funcionamiento, el molino procesará aproximadamente 600 toneladas de cereales anuales, un monto que requiere alrededor de 250 hectáreas de suelos de cultivo. Esta zona de Maine fue en su momento una próspera región triguera, y se cree que suministró a las tropas de la Unión una parte importante de su pan durante la Guerra Civil. Ubicado en el centro del pueblo, el lote del estacionamiento de la vieja cárcel es ahora un exitoso mercado de granjeros locales. También se ubicarán en la cárcel una cocina comercial y varias empresas de alimentos y artesanías, ayudando a crear un “centro alimenticio”.

Skowhegan es el asiento de uno de los condados más pobres de Maine. ¿Podrá este centro alimenticio cambiar la fortuna de la región? ¿Podrá una demanda creciente de cereales revertir la pérdida de suelos agrícolas y conservar y cultivar más hectáreas de campo? Todos los signos sugieren que la respuesta a ambas preguntas es “sí”. Creo que lo que está ocurriendo en Skowhegan es un ejemplo maravilloso de la nueva cara del movimiento de conservación. Todavía no se puede reconocer a simple vista, pero sospecho que iremos conociendo mejor este tipo de enfoque comunitario en los años venideros.

Land Lines: ¿Cuáles son sus expectativas sobre el rol de la conservación en la economía volátil de la actualidad?

Jay Espy: Soy bastante optimista, porque la adversidad hace que la gente se una más. Con menos, estamos aprendiendo a trabajar colectivamente para lograr más. A medida que participa más gente en la conservación, desarrollando relaciones con y alrededor del suelo, y viendo como esas relaciones tienen un impacto positivo en sus vidas, estoy convencido de que veremos logros más extendidos, significativos y duraderos de conservación. El suelo, la gente y la comunidad están profundamente interrelacionados. Irónicamente, estos tiempos difíciles pueden estar acelerando la transformación inevitable de la conservación hacia una actividad que beneficie a más personas y más aspectos de la vida comunitaria.

In recent decades conservation easements—promises to restrict land development—have become enormously popular, but now they are in trouble. News reports have created concern that some easements are little more than tax avoidance schemes with no public benefit. In response, the IRS has stepped up audits, and some members of Congress want to curtail deductions for easements, or even eliminate them altogether.

Neither approach is desirable. Tax laws governing easements are so vague that the IRS seldom prevails against abusive appraisals. The meat-axe approach, meanwhile, would eliminate many beneficial easements yet fail to address serious, long-term problems. Fortunately, there are better answers. A set of simple reforms would ensure public accountability in easement creation, appraisal, and enforcement.

Few anticipated today’s problems when Congress enacted tax benefits for easements in 1980. Then conservation easements were relatively rare. But today there are more than 1,500 local and regional land trusts holding almost 18,000 easements—double the number of five years ago—covering over five million acres. And that doesn’t count thousands of easements held by federal, state, and local governments and by national organizations such as The Nature Conservancy and the American Farmland Trust. The public investment in direct expenditures and in tax deductions is difficult to estimate, but clearly substantial.

Despite this, most states have no standards governing the content of conservation easements. Nobody even knows where all the easements are, let alone their price in lost tax revenue and enforcement costs. Virtually no state ensures that land trusts have the capacity to manage the easements they hold. Few land trusts have the funds to enforce or defend just one easement in court, and challenges are certain to mount as land passes to new owners, economic incentives to develop property grow, and land subject to easements is subdivided.

Almost no states have measures to protect the public interest when land trusts—many created in the last two decades—dissolve, as some inevitably will, or when landowners attempt to terminate or amend existing easements. A recent survey by the Land Trust Alliance, a voluntary standard-setting organization, found that an overwhelming majority of land trust representatives fear that the easements they hold may not withstand the test of time.

The remedy must begin with transparency. Every state should have a comprehensive public registry of easements, and opportunity for public comment on how proposed easements fit overall developmental policies and priorities. Individual appraisals should be public and subject to closer scrutiny. It also would help to standardize easement terms. Their great variability complicates efforts to value them and to determine whether they merit their public subsidy. States should spell out procedures enforcing easements when land trusts fail, and for ensuring a public voice when landowners or easement holders seek to terminate or amend easements. That’s only fair. Conservation easements are financed with public money to achieve a public interest in the long-term preservation of open space. Failure to protect this defeats the very purpose of using public resources to create them in the first place.

These changes may not be politically popular. Some will object to increasing the role of government, and others will protest that transparency may discourage landowners from donating easements. Fortunately, these fears already have been put to an empirical test. Massachusetts has led the nation with a system of mandatory public review and approval of conservation easements at both the state and local levels for nearly four decades. Far from stifling the easement movement, government supervision has strengthened it. In fact, the Bay State has more conservation easements than almost any other state. With easements under close scrutiny in the media and losing support in Congress, this approach offers a model for reform.

For more background and analysis on this topic, see the recently published Lincoln Institute report, Reinventing Conservation Easements: A Critical Examination and Ideas for Reform>/I>, by Jeff Pidot, http://www.lincolninst.edu/pubs/pub-detail.asp?id=1051.

Jay Espy joined the Elmina B. Sewall Foundation as its first executive director in January 2008. Based in Brunswick, Maine, the foundation focuses on the environment, animal welfare, and human well-being, primarily in Maine.

For the prior two decades, Espy served as president of Maine Coast Heritage Trust, a statewide land conservation organization. During his tenure, the Trust accelerated its land protection efforts along Maine’s entire coast by conserving more than 125,000 acres and establishing the Maine Land Trust Network, which helps build capacity of local land trusts throughout Maine. He also led the Trust’s successful Campaign for the Coast, raising more than $100 million for conservation and doubling the amount of protected land on Maine’s coast and islands.

Espy received his A.B. from Bowdoin College and master’s degrees in business and environmental studies from Yale’s School of Management and its School of Forestry and Environmental Studies. He serves on the board of the Maine Philanthropy Center and the Canadian Land Trust Alliance. He is a former chair of the Land Trust Alliance, a national organization serving land trusts throughout the United States. In October 2010 he was named the Kingsbury Browne Fellow for 2010–2011 through a joint program of the Land Trust Alliance and the Lincoln Institute.

Land Lines: How did you first become involved in the field of land conservation?

Jay Espy: Early in my senior year at Bowdoin College a wonderful placement counselor pointed out that some real-world experience might be useful in helping me secure gainful employment. I landed an internship documenting seabirds in Maine’s Casco Bay as part of an oil spill contingency planning project. This experience kindled an intense passion for the Maine coast and set the stage for my professional career. Following a stint working for an environmental consulting firm, graduate study in business, forestry, and environmental science at Yale, and several more internships, I was thrilled to accept an entry-level job at Maine Coast Heritage Trust (MCHT) in Topsham. At the time MCHT was a small statewide land trust and a great “school of hard knocks” for an aspiring 20-something conservationist with virtually no credentials.

Land Lines: What are some of the most significant land conservation projects in which you have been involved?

Jay Espy: In the late 1980s a 12,000-acre parcel of coastal land in far Down East Maine near the Canadian border was put up for sale by a major corporation divesting all of its timberland holdings in the northeastern United States and Maritime Canada. This was the largest remaining undeveloped block of coastal land in Maine, and one of the largest anywhere on the eastern seaboard. MCHT had never before faced such an exciting or daunting challenge.

In partnership with the State of Maine, The Conservation Fund, and the Richard King Mellon Foundation, MCHT led an effort to acquire the property and to work with local and state officials on a plan to conserve the land while incorporating appropriate working forest management, recreational trail development, and affordable housing in the Town of Cutler. Although we didn’t know it at the time, we were doing “community conservation” by engaging a wide range of constituents with varying interests. This project also put MCHT in the business of landscape-scale conservation. Dozens of projects have since been completed in that region, known as Maine’s Bold Coast. More than 20 miles of breathtaking shoreline are now accessible to the public and provide economic opportunities for the community.

I feel privileged to have helped protect many other lands, both large and small. Marshall Island, a 1,000-acre gem 15 miles offshore from the Blue Hill peninsula, was once slated for major development, but now has an extensive coastal trail system developed by MCHT. Aldermere Farm in Camden and Rockport is an iconic saltwater farm. Albert Chatfield began raising Belted Galloway cattle here in the 1950s, and the farm has been home to an award-winning breeding herd ever since. Following donation of the property in 1999, MCHT has greatly expanded farm programs for local youth and the community in general and protected additional nearby lands that are being used to support the growing local food movement.

Land Lines: When did you become aware of the Lincoln Institute’s work in land conservation, and how have you been involved in our programs?

Jay Espy: The timing of my entry into the conservation field was most fortuitous. Within months of joining MCHT, I was invited to a gathering of conservation professionals at the Lincoln Institute, co-hosted by the Land Trust Alliance (then known as the Land Trust Exchange). I had previously met Kingsbury Browne very briefly at a conference in Washington, DC, but at that gathering I had the chance to spend a full day with him and some of the other revered leaders of the modern land conservation movement.

Over the course of many years, the Lincoln Institute became a “watering hole” for conservationists, many of them originally assembled by Kingsbury, and they became valued mentors to me as I learned the trade. The Institute has continued to be a place where creative minds gather to innovate and where cutting-edge research and communication for the broader conservation community are encouraged. I am honored to be part of that legacy as a Kingsbury Browne Fellow.

Land Lines: What do you see as future trends in land conservation?

Jay Espy: The conservation field is growing, changing, and maturing in what I believe is a very healthy way. Not long ago many of us in the field thought land conservation was all about the land. I well remember early land trust brochures full of pictures of beautiful landscapes, but entirely devoid of people. Fortunately, that’s no longer true.

Today, most of us in the movement understand that land conservation is about land and people. It’s about how our communities benefit from healthy ecosystems; how outdoor recreational opportunities close to home combat youth inactivity and obesity; how protected farmland contributes to food security and the availability of nutritious local food; how outdoor spaces incorporating local arts and entertainment contribute to vibrant downtowns; how clean water, forestland, and a host of other sustainably managed natural resources support economic development and jobs; and how well-managed land allows each of us individually and collectively to live richer, fuller lives.

All across the country, the silos that have separated the work of conservation, public health, arts, education, hunger, housing, food production, and economic development are coming down. I’m encouraged by this trend. Our work today will only stand the test of time if it has direct and tangible benefit to people over many decades. Collaborative engagement of those with wide and varied interests seems an essential ingredient in any successful recipe for enduring conservation.

Land Lines: How can the challenges of funding conservation become opportunities?

Jay Espy: We do face many challenges on the funding front. Public funding from traditional federal and state government sources has been declining, private foundations have seen the corpus of their endowments erode, and individual donors have been understandably more conservative with their philanthropic investments as the markets have seesawed. As a result, fewer of the mega-scale land deals requiring tens of millions of dollars that we saw in the late 1990s and early 2000s are being launched today.

That said, there is still a great deal of very important conservation work being funded around the country. Public support for local conservation remains high, with most local bond initiatives continuing to pass by wide margins. Foundation and individual giving for conservation has not tanked as many feared. Funders remain supportive, but have become more discerning. Also, conservation projects that address multiple human interests and engage multiple partners appear to be attracting new, nontraditional sources of support. I recently spoke with a health funder who views securing more land for public recreation as a critical preventative healthcare measure. Funding for farmland conservation has also grown substantially in recent years, fueled in part by the explosive popularity of the local food movement.

Land Lines: Can you share some examples of innovative land conservation successes?

Jay Espy: In a remote area of eastern Maine, the Downeast Lakes Land Trust has been working for more than a decade to protect large swaths of forestland with extensive shore frontage near the community of Grand Lake Stream. These lands and waters have supported the timber and recreation-based economy for more than a century. With the decline in the paper and pulp industry, several large commercial timber holdings have been sold.

Rather than simply wait for the inevitable development of seasonal vacation homes and resulting loss in local culture, the community has worked in remarkable ways to acquire tens of thousands of acres and miles of shore land for use as a revenue-generating forest, wildlife preserve, and remote recreational areas. Local business owners, fishing and hunting guides, representatives from state and federal agencies, members of the Passamaquoddy Indian Tribe, and elected officials from the local to the national levels have all joined forces with the land trust to acquire these properties and manage them for sustainable timber revenue, as well as for other traditional uses, including hunting, fishing, camping, and paddling.

In the central Maine town of Skowhegan, an enterprising young woman has acquired an old county jail, which she is converting into a grain mill. Once operational, the mill will process approximately 600 tons of grain annually, an amount requiring roughly 600 acres of farmland cultivated in grain crops. This area of Maine was once a thriving wheat-growing region, and is purported to have supplied the Union troops with a substantial portion of their bread during the Civil War. Located in the heart of town, the parking lot of the old jail already serves as the site of a successful local farmers market. A commercial kitchen and several food and crafts business are co-locating in the jail, helping to create a “food hub.”

Skowhegan is the county seat of one of the most impoverished counties in Maine. Could the food hub start to change the fortunes of this region? Could a growing demand for grain stem the tide of farmland loss and result in more farmland acres being conserved and cultivated? Signs suggest the answer is to both questions is “yes.” I think what’s happening in Skowhegan is a wonderful example of the new face of conservation. It’s not yet readily recognizable, but I suspect we’ll get to know this community-based approach better in the years ahead.

Land Lines: What are your expectations about the role of conservation in the current volatile economy?

Jay Espy: I’m quite optimistic because adversity has a way of bringing people together. With less, we’re learning how to work collectively to do more. As more people participate in conservation, develop relationships with and around land, and experience the positive impact those relationships bring to their lives, I’m convinced we will see even more widespread, meaningful, and durable conservation achievements. Land, people, and community are all deeply intertwined. Ironically, these trying times may be accelerating the inevitable transformation of conservation into an endeavor that benefits even more people and more aspects of community life.