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.

Dan L. Perlman teaches at Brandeis University, in Waltham, Massachusetts, where he is chair of the Environmental Studies Program and associate professor of biology. He has coauthored three textbooks on conservation biology and ecology: Practical Ecology for Planners, Developers, and Citizens (with Jeffrey C. Milder, published by Island Press in cooperation with the Lincoln Institute of Land Policy, 2005); Conserving Earth’s Biodiversity (an interactive CD-ROM with Edward O. Wilson, published by Island Press, 2000); and Biodiversity: Exploring Values and Priorities in Conservation (with Glenn Adelson, published by Blackwell Scientific, 1997).

An avid nature photographer, Perlman’s photographs have been exhibited at the American Museum of Natural History in New York and the Museum of Science in Boston, and he has been the photographer for two children’s books (one on a Costa Rican rainforest and the other on ants). He recently launched a Web site from which he freely distributes teaching materials he has developed for ecology and environmental studies, including his photographs (click here). He has received university-wide teaching awards at both Brandeis University and Harvard University, where he taught conservation biology part-time for nine years. He holds a Ph.D. from Harvard University’s Department of Organismic and Evolutionary Biology.

Land Lines: How can ecology help planners, landscape architects, and others in the planning and design community?

Dan Perlman: The study of ecology reminds us that humans are truly a part of nature, although in our highly technological society it is easy to forget how closely our lives are tied to the land and other elements. Most of us are only reminded of these close interactions when nature unleashes her fury through a hurricane, tornado, flood, or earthquake. Given that the planning and design professions aim to make humans lives as healthy and fulfilling as possible, it is critical to attend to nature when changing the landscapes where we live and work.

Once one understands some basic concepts of ecology, it is no longer possible to view humans as being divorced from the ecosystems in which they live. Like all other organisms, humans interact with the plants and animals around them, and with the nonliving aspects of ecosystems, such as rain, wind, and fire. Unfortunately, when we design human communities without considering the particulars of the ecosystems in which they are embedded, we place people in dangerous and unhealthy situations. With a little ecological knowledge, however, planning professionals can improve human lives.

Land Lines: What aspects of ecology are especially pertinent to planners and designers?

Dan Perlman: Over the past few decades, ecologists have begun paying close attention to disturbance regimes—the natural processes that randomly change ecosystems. It turns out that disturbances greatly affect humans as well as the plants and animals around us. In recent years it has become ever clearer that ecological disturbances such as hurricanes, forest fires, tsunamis, and earthquakes have the potential to devastate human communities.

By understanding the ecological histories and disturbance regimes of the specific landscapes in which they work, planning professionals can ensure that they do not place the human population in harm’s way. While homes placed along Gulf Coast beaches or deep in the pine forests of the West are desirable to many, recognition of the dangers of hurricanes and fire will lead planners to either steer development away from dangerous settings or to create protections for the people living in potentially dangerous situations.

It is critical to remember, however, that landscapes differ in their disturbance regimes and the frequency and impact of their typical disturbances. It makes sense to focus on earthquakes, landslides, and fires in the hills of southern California and on hurricanes in Florida, rather than vice versa, for example, since those types of disturbances are most likely to occur in those locations.

Land Lines: Ecologists and conservation biologists are often accused of sounding alarm bells. Do they also offer positive visions for the future?

Dan Perlman: Actually, there are many positive aspects to increased understanding of ecological processes. Intact and healthy natural landscapes perform critical ecosystem services that would be extremely expensive or impossible to replace through technological means. Water filtration, absorption of air pollutants and greenhouse gasses, and soil protection are just a few of the many services that nature provides.

Psychologists recognize the mental health benefits of being able to interact with nature, and planning professionals can help make these benefits widely available by incorporating easy access to natural areas into their designs. Many recent studies have demonstrated that proximity to natural areas is very attractive for wide cross-sections of the populace—along with being economically valuable. In addition, being able to interact with native habitats and organisms, or even just knowing that they exist, can contribute to the mental health and well-being of people of all ages. It is especially important that young people have opportunities to experience and learn about nature so they can integrate that awareness into their future decision making about where and how they live.

Land Lines: How can the conservation of biodiversity be balanced with the needs and desires of the house-buying public?

Dan Perlman: The goal of conservation biologists is to protect and restore healthy native species and ecosystems. New York City’s recent efforts to protect its water supply through a variety of land protection programs around the upstate watersheds and reservoirs in the Catskill Mountains is a great example of balancing human and ecosystem health. By sensibly guiding development to specific areas and limiting it from ecologically fragile areas or areas that are especially important for human health, planners and policy makers can obtain real benefits for both humans and ecosystems alike.

If we also consider the well-being of nonhuman organisms and creatures that share our planet, we find that attention to conservation biology during planning can pay major dividends. Biologists know that small nature reserves isolated in seas of human development are not an effective way to protect the native plants and animals of our landscapes. Instead, wherever possible, we should create large protected areas that can support populations of larger animals, many of which play especially important roles in the functioning of healthy ecosystems.

In addition, there is some evidence that intact habitat corridors, if well planned, can link smaller reserves into networks that may approximate the functions of large reserves. If planners begin their considerations with these concepts in mind, they may be able to create healthy, diverse landscapes. It is difficult to create or protect large reserves and corridors once development has begun in earnest.

Land Lines: How will global climate change affect human health and safety, and what can planning professionals do to help?

Dan Perlman: As the global climate warms, the effects will vary considerably from location to location. Some regions will receive more precipitation and others less; some areas will become much hotter, some will only become slightly warmer, and some may actually become colder. Nonetheless, the broad outlines of the changes that can be expected over the next 50 to 100 years are becoming clearer.

The global average temperature will likely rise a few degrees Fahrenheit—and may rise even more than that—as compared to the approximately one-degree change that has occurred over the past century. As the oceans warm, the water will expand, leading to a rise in sea level. With increased warmth, the Antarctic and Greenland glaciers will melt more quickly, adding to sea level rise. As a result, coastal communities will be under threat and will either have to retreat inland or build expensive retaining walls and levees. If the Antarctic ice shelves (which hang over the ocean) break off, sea level will rise still further—and catastrophically quickly. Changing precipitation and temperature regimes will alter the basics around which communities are planned and built, and designers will have to plan in different ways. It is possible that extreme weather events, such as the major hurricanes of 2005, will become more frequent.

To help reduce the speed and amplitude of climate change, the United States will probably eventually join the international community’s consensus that carbon dioxide emissions must be reduced—and our communities can help reduce emissions by developing more public transit options and more compact development patterns. As an additional benefit, this may leave extra flexibility for setting aside and protecting natural areas, if human communities take up less of the landscape.

Land Lines: How has your work with the Lincoln Institute affected your thinking about conservation biology and ecology?

Dan Perlman: Most of my teaching is with college undergraduates. While I try to keep those classes well-grounded by bringing in guest speakers and taking field trips, I have found that traditional classroom discussions can become overly rarified. My first major project with the Lincoln Institute was to write the book Practical Ecology for Planners, Developers, and Citizens, with Jeff Milder. I found it really stimulating to be put in a position of trying to adapt and explain my scientific background to make ecological concepts understandable to planners, landscape architects, and planning board members. It is one thing to distill these concepts and discuss them with undergraduates, but it is quite different to present these ideas to professionals and decision makers who want guidance that is clear and actually useful.

As an outgrowth of the book project I have been involved in teaching and sitting on panels for several Lincoln programs. I have found that the professionals and practitioners taking these programs further challenge me to create a coherent and effective message. As with any stimulating group in a classroom, I find that I come away from these sessions with a sense that I have learned as much as anyone in the room.

Land Lines: From your ecological and conservation perspectives, what advice would you give a designer or planner today?

Dan Perlman: First, I would say that you should know the ecology of the region where you work. The ecological constraints and opportunities of Springfield, Oregon, are quite different from those of Springfields in Illinois, Georgia, and Massachusetts. There are no ecological prescriptions that fit all planning and design situations. As I learned early in my career, the First Law of Ecology is: It Depends.

Second, I would recommend paying careful attention to giving local residents easy access to nature—even to small natural areas of just a few acres. Adults and children flourish when in contact with nature, and there is no substitute for having small bits of native biodiversity nearby. I once heard Dr. Madhav Gadgil, the preeminent ecologist in India, state his wish that every child in his nation should have a little bit of wilderness near at hand. While his definition of wilderness may differ from that of ecologists in Boulder or Seattle, his hope is one that I feel deeply.

Las políticas que afectan la utilización, la regulación y la tributación del suelo en los Estados Unidos son promulgadas y aplicadas en primer lugar por los estados y los gobiernos municipales, y los mercados inmobiliarios, en su mayoría, son de alcance local más que nacional. Sin embargo, las políticas nacionales que versan sobre impuestos, derechos de propiedad y financiamiento hipotecario ejercen un impacto significativo sobre las políticas de suelo y vivienda a nivel municipal y sus resultados. Así, con mucha frecuencia resulta lógico para los legisladores municipales y activistas combinar esfuerzos para aprender de las experiencias de unos y otros y garantizar que sus puntos de vista estén presentes en los debates acerca de políticas de suelo a nivel nacional. El Instituto Lincoln ha representado –y lo sigue haciendo– un papel impor tante al patrocinar la investigación y fomentar la capacitación, la comunicación y las actividades organizacionales que promueven políticas de suelo en consonancia con la misión del Instituto.

A modo de ejemplo, podemos mencionar el papel que cumplió el Instituto Lincoln a la hora de establecer la Alianza de Fideicomisos de Suelo (Land Trust Alliance o LTA), una red nacional de organizaciones conservacionistas sin fines de lucro cuyo objeto es proteger los recursos naturales tales como tierras de cultivo, bosques y áreas de vida silvestre. En el año 1981, el Instituto Lincoln otorgó una beca a Kingsbury Browne, abogado y conservacionista de Boston, para que visitara a los líderes de fideicomisos de suelo en todo el país. Browne descubrió que estos líderes no tenían una forma organizada para comunicarse entre ellos y aprender de las experiencias de cada uno. A través de su trabajo y asesoramiento, el Instituto Lincoln llevó a cabo una encuesta nacional de las 400 organizaciones conocidas de conservación del suelo, tanto municipales como nacionales, y patrocinó una reunión nacional para 40 representantes en octubre de 1981. Como resultado de dicha reunión, se constituyó el Land Trust Exchange, que comenzó sus actividades en julio de 1982. Este año, ahora bajo el nombre de Land Trust Alliance, la organización celebra su 30º aniversario.

La presencia de LTA se ha hecho notar de forma importante dentro de la comunidad conservacionista, y el Instituto Lincoln continúa apoyando sus metas de intercambio y contacto. Por ejemplo, el Instituto Lincoln patrocina todos los años la Beca Kingsbur y Browne, con el fin de apoyar la investigación, elaboración de artículos y orientación de aquellas personas cuya visión y creatividad hayan representado un aporte a la conservación del suelo y a la comunidad de fideicomisos de suelo. El Instituto Lincoln participa, además, en la conferencia anual de LTA y ha apoyado algunos proyectos seleccionados, como el Informe del Censo Nacional sobre Fideicomisos de Suelo de 2010, que resume las actividades sobre conservación del suelo y organizacionales de los 1.760 fideicomisos de suelo conocidos al momento de realizarse la encuesta.

El Instituto Lincoln también ha representado un papel clave en los últimos años al desarrollar una red de profesionales en el área de la conservación de grandes paisajes, reuniendo a aquellos que trabajan en proyectos a escala regional, como la Corona del Continente, un área de 7,2 millones de hectáreas a lo largo de la frontera entre los Estados Unidos y Canadá y que abarca parte de Montana, Alberta y la Columbia Británica. Esta red internacional, que aún se encuentra en su fase de formación, organiza un foro semestral a fin de intercambiar información y buenas prácticas, analizar las iniciativas de políticas emergentes y avanzar en la teoría y práctica de la conservación de grandes paisajes.

El Instituto Lincoln también apoya otra iniciativa similar, la Red Nacional de F ideicomisos de Suelo Comunitarios, constituida formalmente en 2006. Los Fideicomisos de Suelo Comunitarios (Community Land Trusts o CLT) son organizaciones locales sin fines de lucro que poseen tierras y ofrecen viviendas asequibles cuyo precio se mantiene de forma permanente. Aunque los CLT han existido por más de 30 años, la coordinación y comunicación entre ellos fue muy limitada hasta que se estableció la red nacional. Esta red, que en 2012 contaba con cerca de 200 CLT, brinda capacitación, apoya la investigación y difunde pautas y buena práctica aceptadas entre sus miembros.

El Instituto Lincoln cumple un impor tante papel en el programa de capacitación de esta red, denominado Academia de Fideicomisos de Suelo Comunitarios, que ofrece cursos, conferencias y otras actividades que van desde introducciones generales para nuevos residentes y miembros del personal hasta sesiones sobre documentos legales estándar, financiamiento y asociaciones entre la ciudad y las CLT. El Instituto Lincoln publicó The Community Land Trust Reader (2010), un compendio de artículos sobre los antecedentes históricos y las prácticas actuales relacionadas con el movimiento internacional de CLT, editado por John Emmeus Davis, exdecano de la Academia. Además, el Instituto Lincoln patrocina diferentes investigaciones, que quedan plasmadas en documentos de trabajo y artículos de análisis, tales como la encuesta realizada en 2007 sobre CLT en los Estados Unidos.

La información sobre estas redes de conser vación y fideicomisos de suelo comunitarios, así como sus programas y publicaciones, se encuentra disponible en el sitio web del Instituto Lincoln en www.lincolninst.edu.

The Lincoln Institute, with the Land Trust Alliance and the National Park Service Conservation Study Institute, is working with two dozen senior conservation practitioners from public, private, nonprofit and academic organizations across the nation to consider the grand challenges facing the North American land and biodiversity conservation community in the twenty-first century. The conservationists, who shared ideas electronically for several months prior to their March 2002 meeting in Cambridge, explored emerging and needed conservation innovations that may prove commensurate with the challenges. Organized by James Levitt of Harvard’s Kennedy School of Government, Armando Carbonell of the Lincoln Institute and Fara Courtney, an environmental consultant based in Gloucester, Massachusetts, the group exchanged ideas through presentations, case studies and working groups. E.O. Wilson, the distinguished author and biodiversity scholar at Harvard University, addressed the session and participated in the discussions. This article presents several highlights of that leadership dialogue on conservation in the twenty-first century (C21).

“We have entered the twenty-first century, the century of the environment. The question of the century is, how can we best shift to a culture of permanence, both for ourselves and for the biosphere that sustains us?” E.O. Wilson

The Historical Context

Ask almost any American concerned with natural resources, “How and when did we start practicing conservation in this country?” In most cases, the response involves the role of the federal government at the turn of the twentieth century under President Teddy Roosevelt. While Roosevelt and his close associate Gifford Pinchot do stand as giants in the history of conservation in this nation, the record shows that Americans have a remarkable tradition of conservation that stretches back at least to the early days of the Republic.

Individuals and organizations in the private, nonprofit, public and academic sectors have throughout our history brought landmark conservation innovations to life, and they continue to do so. They have focused their attention on sites that span the urban-rural continuum, from city parks to remote wildernesses. In the context of repeated waves of immigration and population growth, a chain of stunning technological advances and a pattern of long-term economic growth, American conservation innovators have acted creatively and often with considerable passion to protect and manage natural and scenic wonders, working landscapes, native wildlife and recreational open space for their own benefit, for the benefit of the public at large, and for the benefit of future generations.

Consider the history of the land trust movement. Thomas Jefferson set an early precedent for private and nongovernmental protection of natural beauty in America. In 1773, three years before he penned the Declaration of American Independence, Jefferson purchased a parcel of land known as Natural Bridge near the Blue Ridge Mountains. He treasured the parcel throughout his adult life, inviting writers, painters and dignitaries to visit the site and record its wonders. By 1815 he wrote to William Caruthers to say that he held Natural Bridge “to some degree as a public trust, and would on no consideration permit the bridge to be injured, defaced or blocked from public view.”

Some 60 years after Jefferson’s death, Charles Eliot, son of the president of Harvard University and a protégé of Frederick Law Olmsted, took another historic step toward the nongovernmental protection of open space. He proposed the formation of a private association to hold parcels of land for the enjoyment of the citizens of Massachusetts, particularly the less affluent residents of Boston who needed an escape from the “poisonous” atmosphere of the crowded city so closely associated with the technological progress and demographic turmoil of the Gilded Age. With a charter from the Commonwealth granted in 1891, that organization, now known as The Trustees of Reservations, became the first statewide nongovernmental land trust.

Eliot’s innovation has proved to be truly outstanding, a landmark conservation innovation that meets all the criteria for outstanding innovations in the public interest set out by the Innovations in American Government program at Harvard’s Kennedy School of Government. The notion behind the Trustees has proved to be novel in conception, measurably effective, significant in addressing an important issue of public concern, and transferable to a large number of organizations around the world. Furthermore, and critically important in the field of conservation, Eliot’s innovation has demonstrated its ability to endure and remain vibrant after more than a century. The Trustees’ current director of land conservation, Wesley Ward, emphasizes that nongovernmental conservation organizations will continue to be called upon in the twenty-first century to “provide leadership by identifying challenges, advocating effective responses and providing relevant models of conservation and stewardship.”

The Lincoln Institute played an important role in the resurgent growth of the land trust movement in the early 1980s, when it focused its resources as an academic institution on how an exchange of information among several dozen land trusts in the U.S. might strengthen conservation standards and practices throughout the entire land conservation community. Jean Hocker, at that time organizing the Jackson Hole Land Trust, remembers well the early discussions convened at Lincoln House by Boston-area lawyer Kingsbury Browne. She explains that emerging from those deliberations was the idea that “we ought to form a new organization called the Land Trust Exchange that could help us all do our jobs better.” Hocker moved to Washington, DC, in 1987 to run the group, which became known as the Land Trust Alliance (LTA). Under her leadership, the organization led the land trust movement into a period of rapid growth and enduring achievement. In 2002, there are more than 1,200 local and regional land trusts in the U.S. that have helped to protect more than six million acres of open space. Furthermore, the LTA’s annual Rally is a now a high point of the year for more than a thousand land conservation volunteers and professionals spread across the continent and beyond who convene to share their best ideas.

The Trustees’ long history of conservation innovation and achievement is paralleled by the histories of many other public, nonprofit, academic and private sectors organizations represented by C21 participants. Nora Mitchell and Michael Soukup of the National Park Service underscore the significance of America’s creation of the world’s first national park at Yellowstone in 1872, an innovation of worldwide significance that was in part the brainchild of two private railroad entrepreneurs, Jay Cooke and Frederick Billings. Laura Johnson, president of the Massachusetts Audubon Society, takes justifiable pride in the achievement of her organization’s “Founding Mothers,” two women who established the nation’s oldest continuously operating Audubon society in 1896 and catalyzed the campaign that led to the signing of the first international migratory bird treaty. Robert Cook, director of Harvard’s Arnold Arboretum, explains the pivotal role of that institution in the emergence of American forestry policy as far back as the1870s. And Keith Ross of the New England Forestry Foundation, who spearheaded the precedent-setting effort concluded in 2000 to place a conservation easement on more than 760,000 acres of forest land owned by the Pingree family in Maine, emphasizes that the family’s private forest stewardship practices date back to the 1840s.

Complex Conservation Challenges

Notwithstanding the conservation community’s collective record of achievement, the land and biodiversity conservationists at the C21 meeting foresee grand challenges of extraordinary complexity and difficulty in the coming 50 to 100 years. In the context of expected growth in North American and world populations, changes in demographic patterns and ongoing technological development, as well as systemic changes in climate and other earth systems, they express deep concern regarding myriad potential changes on the landscape. These may include the accelerating loss of open space; intensified landscape fragmentation; further degradation of wildlife habitat; alarming declines in the viability of a wide range of biological species; and potentially significant stresses to earth systems that provide essential ecosystem services. Will Rogers, president of the Trust for Public Land, notes, “from a conservation viewpoint, the pace of growth and development is rapidly running us out of time.”

The concern of many C21 participants regarding the potential impact of growing human populations starts with the straightforward projection of the U.S. Census Bureau that the population of the U.S. will grow from some 280 million Americans in 2000 to about 400 million by 2050. Beyond the numbers, it is critical for conservation planners to understand that the diversity of the American population is forecast to change significantly, with particularly strong growth in the ranks of Hispanic Americans and Asian Americans. Jamie Hoyte, an authority on conservation and diversity at Harvard University, explains, “one of the most significant challenges we face is broadening and diversifying the community of conservation-minded citizens. Those who advocate for conservation must do so in a way that speaks to people of all backgrounds and races, demonstrating an understanding of the needs of a broad range of people.” Robert Perschel of the Wilderness Society expands on the idea, advising that we need to “enter into a new dialogue with the American people … to touch the hearts and spirits and wisdom of our citizenry.”

C21 participants also pointed out that new conservation initiatives are likely to be launched in the context of continuing economic growth and personal affluence. For perspective, note that real U.S. gross domestic product (GDP) grew more than five-fold between 1950 and 2000, and many economists expect to see comparable growth in coming decades. To protect open space and biodiversity in the midst of such great affluence, conservationists will need to leverage the nation’s economic power. According to Chip Collins of The Forestland Group, “North America’s economic growth has helped fuel the loss of biodiversity. At the same time, North America has led the world in the development and implementation of conservation strategies in large measure because of the extraordinary growth and vigor of its economy. One of the great challenges will be to manage this seeming dichotomy by effectively harnessing the private sector and redirecting its immense capital power base toward constructive conservation initiatives. The private sector, in stride with its nonprofit, public and academic counterparts, must be a full and constructive partner.”

As in the past, new and increasingly powerful technologies are likely to continue to proliferate. While offering considerable social and economic benefits, the new technologies may also be closely associated with large-scale environmental disturbances. In the past half-century, for example, the spread of interstate highways has effectively stimulated the American economy but has also been associated with pervasive environmental disruptions such as urban and rural landscape fragmentation, the creation of unhealthy air quality conditions, and the generation of significant volumes of gases associated with global climate change. Similarly, more recently introduced networked technologies, such as the Internet and advanced wireless communications networks, appear to be enabling continued net migration of Americans to formerly remote and highly environmentally sensitive locations across the continent. Technology-related change is not limited to the U.S., of course. Larry Morris of the Quebec-Labrador Foundation explains that new communications and transportation networks are influencing where and how people live worldwide, from Atlantic Canada to the Middle East.

Biodiversity scientists E.O. Wilson of Harvard and Leonard Krishtalka of the University of Kansas point out that while emerging technologies may be associated with environmental disruptions in coming decades, the same technologies are also proving critical to advancing our understanding of the diversity of life on earth. Krishtalka explains that “researchers are now learning how to harness the vast store of authoritative biodiversity information in natural history museums worldwide (about three billion specimens of animals and plants) and integrate it with other earth systems data for predictive modeling of environmental phenomena.” Such a predictive model was recently built by researchers in Kansas, California and Mexico to examine the fate of a wide variety of Mexican species under a range of global warming scenarios. The outcome of this and similar studies should be particularly useful to organizations striving to prioritize land and habitat protection opportunities in ecosystems throughout the western hemisphere that may be facing significant disruption in future.

In sum, despite remarkable progress, conservationists are in no position or mood to rest. John Berry of the National Fish and Wildlife Foundation advises, “if our standard is that of the ancient Greeks, that is, to leave our nation ‘not only not less, but richer and more bountiful than it was transmitted to us,’ than we have not yet earned the laurel crown.”

A New Generation of Conservation Innovators

Inspired by the precedents set by creative American conservationists in the nineteenth and twentieth centuries, twenty-first century conservation practitioners are highly motivated to identify and implement new initiatives commensurate with the complex challenges of our day. C21 participants expressed interest in a wide variety of areas ripe for game-changing innovation, including the following.

Winning Hearts and Minds

Bill Weeks of The Nature Conservancy emphasizes that “the grandest challenge is to complete the task of getting the overwhelming majority of the public to care and act and vote like they care.” Rand Wentworth of the Land Trust Alliance agrees that conservationists should use the “tremendous power” of mass marketing to help create a national mandate for land conservation. Clare Swanger of the Taos Land Trust adds that the insight of mass marketers, but also of people living on the land, should be employed in such an effort. The outstanding question facing these conservationists is how to leverage modern marketing tools in a truly historic fashion. The aim would be to put together an effort comparable to the highly effective antismoking campaign of the last several decades, so as to build sustained momentum for the long-term protection and stewardship of “land for life.”

Building the Green Matrix

Addressing the multiple problems of open space consumption, loss of working landscapes, habitat fragmentation and biodiversity decline is a job that no single sector can tackle alone. Larry Selzer, president of the Conservation Fund and a proponent of smart conservation that balances economic returns with environmental principles, explains that effective action will require the cooperative efforts of landowners, policy makers and a wide diversity of individuals working across sectors. Furthermore, as Charles H.W. Foster of Harvard’s Kennedy School of Government points out, effective conservation efforts are at least as likely to take place at local and regional levels as at federal and international ones. Just how effective “green matrix” landscapes and organizational structures can be effectively assembled and maintained over the long term remains an area for thorough exploration and experimentation. Among other C21 participants, Peter Stein of the Lyme Timber Company, Jay Espy of the Maine Coast Heritage Trust, and Ian Bowles of the Kennedy School and the Moore Foundation are actively advancing the evolving art of assembling protected landscapes where economic and conservation goals can be pursued simultaneously.

Following Through with Stewardship

Achieving long-term conservation goals, of course, requires that once protection is gained for a given area a well-crafted stewardship plan, and in some cases an environmental restoration plan, must be conceived, agreed to by the relevant parties and then implemented. Getting this done has proved to be neither simple nor easy. Financing and organizing such stewardship efforts is too often overlooked during intense, short-fused campaigns to protect given parcels of land. Bringing a new level of attention and expertise to land and habitat stewardship and restoration efforts will be an ongoing challenge to the conservation community, particularly as its portfolio of protected lands grows in coming decades.

Fortunately, conservationists can point to some forward-looking stewardship efforts now underway. For example, Ralph Grossi, president of the American Farmland Trust, notes that the 2002 Farm Bill will provide significant levels of funding for USDA-sponsored stewardship efforts on agricultural lands. Similarly, Jaime Pinkham, a member of the Nez Perce Tribe in Idaho, offers eloquent testimony about how tribes can work with local, federal and other authorities to restore keystone species to entire ecosystems, as was accomplished with the gray wolf in the Northern Rockies. Still, there is room for a great deal of progress and innovation in this area.

Synthesizing Conservation Science

Conservation scientists E.O. Wilson, Leonard Krishtalka and Douglas Causey all underscore the argument that very significant progress can be made in the coming century to build large-scale syntheses in conservation biology and ecology. Wilson is particularly emphatic about the need to catalog all living species, a global work-in-progress that is only about 10-percent complete. The All Species Foundation that Wilson helped to form proposes to “complete the censusing of all the plants, animals and micro-organisms in the world in 25 years.” “Is this a pipe dream?,” asks Wilson, rhetorically. “No way,” he answers. “It is megascience backed by the same sort of technology drivers as the Human Genome Project. The important thing is to see the exploration of the biosphere as a crucial task.”

Gaining a comprehensive understanding of the biosphere and the ability to predict ecosystem outcomes under a variety of possible futures is indeed a grand challenge for conservation scientists. Kathy Fallon Lambert of the Hubbard Brook Research Foundation adds, “a complementary challenge is to find clear and concise ways to explain significant field and laboratory research findings to the general public and to key decision makers so that they can carry out policy debates with the best available scientific information.”

From our vantage point at the commencement of this century we cannot accurately predict just what future generations, 50 or 100 years from now, will judge to be our generation’s most significant conservation innovations, comparable to earlier creations of the world’s first statewide land trust or national park. We do know, however, that we face significant and complex conservation challenges, and our ideas for powerful innovation will only yield results if we act on them with great personal and organizational energy and intensity. There is no argument that the best time to begin such efforts is now.

James N. Levitt is director of the Internet and Conservation Project, Taubman Center for State and Local Government, Kennedy School of Government, Harvard University. His research focuses on the potentially constructive and disruptive impacts of new communications and transportation networks on land use and the practice of conservation, as well as opportunities for landmark conservation innovation in the twenty-first century.

The Mississippi River watershed has, since the administration of Thomas Jefferson, played a central role in American life. This centrality has been both literal, in a geographic sense, and figurative, in the sense that the mighty river runs through America’s agricultural and cultural heartland.

One of the nation’s greatest conservationists, Aldo Leopold, grew up along the banks of the Mississippi, in Burlington, Iowa. After gaining a forestry degree at Yale University and serving in the U.S. Forest Service in the desert Southwest, Leopold returned to the upper Midwest to teach and write his most enduring prose at the University of Wisconsin in Madison. Leopold and his family also devoted themselves to the restoration of a farm and forest landscape that included a ramshackle home, affectionately known as “the Shack,” on the sandy soils adjacent to the Wisconsin River, a tributary of the Mississippi.

In his work at both the university and the Shack, Leopold gained a first-hand view of the enormous challenges Americans face in attempting to conserve the nation’s soil, water, wildlife, and landscape. As the instigator of the first “wilderness” designation of a federally owned landscape in the Gila National Forest in Arizona, and as a founder of the Wilderness Society, Leopold was a prominent proponent of conservation on public lands. Still, he understood that unless private lands were also conserved for the long term, the conservation community would not be able to effectively protect America’s natural heritage. He wrote presciently for The Journal of Forestry in 1934:

Let me be clear that I do not challenge the purchase of public lands for conservation. For the first time in history we are buying on a scale commensurate with the size of the problem. I do challenge the assumption that bigger buying is a substitute for private conservation practice … . Bigger buying, I fear, is serving as an escape-mechanism—it masks our failure to solve the harder problem. The geographic cards are stacked against its ultimate success. In the long run, it is exactly as effective as buying half an umbrella … . The thing to be prevented is destructive private land use of any and all kinds. The thing to be encouraged is the use of private land in such a way as to combine the public and private interest to the greatest degree possible … . This paper forecasts that conservation will ultimately boil down to rewarding the private landowner who conserves the public interest. It asserts the new premise that if he fails to do so, his neighbors must ultimately pay the bill. It pleads that our jurists and economists anticipate the need for workable vehicles to carry that reward. (Leopold 1991)

More than seven decades after Leopold penned those words, American jurists, economists, policy makers, public natural resource agency administrators, nonprofit conservation leaders, and concerned citizens are still working on his challenge. In October 2005 the Lincoln Institute convened more than 30 conservation leaders to consider the most effective ways to design and use such “workable vehicles.” The Johnson Foundation cohosted the conference at its Frank Lloyd Wright–designed Wingspread Conference Center in Racine, Wisconsin.

From that base the participants visited several sites in the Upper Mississippi watershed in south-central Wisconsin that showcase impressive public-private conservation efforts. Brent Haglund and Alex Echols of the Sand County Foundation led the group to an expansive site on the Portage River managed by the U.S. Fish and Wildlife Service, where participants learned how cooperative public-private land management practices effectively enhanced wildlife habitat and helped restore native ecosystem functions. At the nearby Baraboo River we saw a public-private effort that had restored the river to health through the removal of several aged dams.

For historical perspective, the group visited the site of Leopold’s Shack, where we read from his posthumously published volume, A Sand County Almanac. Leopold (1949) lyrically describes the critical role of private stewardship in maintaining the long-term value of the region’s ecosystems. The participants also visited the campus of the International Crane Foundation (ICF), where we stood face-to-face with several of the world’s rarest birds and learned of cofounder George Archibald’s nonprofit efforts to restore their populations.

Over the next two days at Wingspread, the group discussed ways to enhance a broad array of conservation incentives in an economically efficient, measurably effective, and reasonably equitable manner. The participants focused on three types of incentive programs of interest to the conservation community in the early twenty-first century: tax incentives, market-based incentives, and fiscal (or budgetary) incentives.

Tax Incentives

Jean Hocker, president emeritus of the Land Trust Alliance (LTA), explained how the federal tax incentives associated with the donation of conservation easements, codified in the 1970s and 1980s, have become a key driver of growth in the U.S. land trust movement. Jeff Pidot, chief of the Natural Resources section of the Maine Attorney General’s office, and a 2004–2005 visiting fellow at the Lincoln Institute, followed Hocker with a critique of easement policy and practice, explaining how the use of conservation easements has resulted in a variety of unintended consequences. He argued that reform of easement law and regulation at the state and national levels would both reduce misuse of the tool and improve its effectiveness in achieving conservation purposes (Pidot 2005).

Responding to Pidot’s critique, the participants, led by Mark Ackelson of the Iowa Natural Heritage Foundation, considered a number of potential reforms, paying special attention to opportunities for strong voluntary standards, improved training and accreditation programs, stronger enforcement of existing regulations, and revision of appraisal standards. Several of these reforms have since been implemented, including LTA’s establishment of a voluntary accreditation program.

In response to persistent advocacy by the conservation community, the U.S. Congress in August 2006 approved an expansion of conservation easement tax benefits. In the opinion of James Connaughton, chair of the White House Council on Environmental Quality, the new provisions provide “substantial new incentives to landowners who want to commit their land to open space while keeping our nation’s working farms and ranches working” (The Chattanoogan 2006).

Market-based Incentives

Adam Davis, a California-based expert on ecosystem services, explained how private interests, in the context of public cap-and-trade regulatory structures, were becoming increasingly active in providing public and private goods, by employing new ecosystem service trading mechanisms for land and biodiversity conservation (Davis 2005). He noted that U.S. Army Corps of Engineers regulations for the mitigation of adverse impacts to wetlands were evolving to require all mitigators to meet measurable, relatively efficient performance standards. Such developments, he reported, would allow commercial wetlands banking firms to compete effectively and efficiently, improving the per-unit cost and quality of mitigation banking initiatives over time.

Davis’s remarks were expanded upon by several speakers, including Fred Danforth, who offered a case study of his own entrepreneurial experience in ecosystem service provision on a ranch in Montana’s Blackfoot River valley; George Kelly of Environmental Bank & Exchange (EBX) and Wiley Barbour of Environmental Resources Trust, who offered insights on the importance of clear norms and standards in ecosystem service markets; and Leonard Shabman, resident scholar at Resources for the Future and a widely respected economist, who has published several papers on the future of mitigation banking.

Recent events offer considerable hope that some of the legal and regulatory reforms discussed at the session will be implemented in the near future. Specifically, in the spring of 2006 the U.S. Army Corps of Engineers published new draft regulations that appear to address many of the concerns raised about wetlands mitigation. As reported by Ecosystem Marketplace (2006), “central to the proposed new regulations is the requirement that all forms of mitigation meet the same environmental standards already required of mitigation banks … . The proposed regulations will raise accountability levels for projects funded by in-lieu fee payments and will implement a more timely approval process for mitigation banks.”

Fiscal Incentives

The third type of incentive is generally funded through governmental budgets. Ralph Grossi of the American Farmland Trust; Craig Cox of the Soil and Water Conservation Society; Roger Claassen of the U.S. Department of Agriculture; and Jeff Zinn of the Congressional Research Service offered a variety of perspectives on the complex negotiations associated with reauthorization of the Farm Bill, which offers opportunities to expand and change federal farm programs in 2007.

Whether or not the next Farm Bill provides for growth or shifts in incentive programs, achieving measurable impacts will depend on skillful program implementation. Jeff Vonk, director of Iowa’s Department of Natural Resources, offered detailed insight into the challenges of using a conservation budget to address agricultural water quality problems. He argued persuasively that even if conservation budgets increase over time, they will not achieve their intended effect without careful resource allocation analysis and follow-through.

Howard Learner, director of the Chicago-based Environmental Law and Policy Center, offered a detailed case of how a federally funded agricultural renewable energy program benefited from focused legislative design and follow-through on implementation. Andrew Bowman of the Doris Duke Charitable Foundation added the idea that, if implemented in a well-coordinated fashion, the State Wildlife Action Plans submitted to the federal government by the 50 states offered another important opportunity to make progress in wildlife and habitat conservation.

Help for the Mississippi River Watershed

Recent progress in strengthening U.S. tax and market-based incentives for land and biodiversity conservation, combined with potentially significant fiscal incentives, could provide an historic opportunity to realize ambitious conservation objectives in the next decade. There are many thorny conservation challenges that might be addressed with such incentives.

One of most urgent is associated with the Mississippi River watershed where Aldo Leopold spent much of his life. Stretching from Montana to Pennsylvania to Louisiana, the watershed picks up an enormous load of phosphorus and nitrogen from farms, parking lots, and lawns. These chemicals and other pollutants are carried by the great river into the Gulf of Mexico, where they are instrumental in creating hypoxia—an ecological condition characterized by a shortage of available oxygen. It can be caused by surplus amounts of phosphorus and nitrogen that feed huge, oxygen-consuming algal blooms on the ocean’s surface. As the blooms grow rapidly, deeper ocean waters may become relatively depleted of oxygen, sometimes resulting in the death of massive numbers of fish.

A combination of innovative tax, market-based, and fiscal incentives could make a significant impact in improving the ecological character of the watershed and reducing hypoxia in the Gulf. For example, incentives targeted to encourage stream bank restoration, the establishment and stewardship of buffer strips, the implementation of crop rotation schemes that reduce fertilizer runoff, and the reduction of impervious surfaces near watercourses could, after sufficient trial and error, prove to be efficient, measurably effective, and reasonably equitable across geographic and socioeconomic lines. If implemented across the Mississippi watershed, such tools would benefit marine and bird populations, as well as the Gulf fishing industry and local economies. Aldo Leopold would likely applaud news of such an effort’s success, seeing private landowners rewarded to conserve the public interest.

James N. Levitt is director of the Program on Conservation Innovation at the Harvard Forest, and a research fellow at the Ash Institute for Democratic Governance and Innovation at Harvard’s Kennedy School of Government.

References

The Chattanoogan. 2006. Conservation incentives pass Senate: Waiting on President’s signature, August 7. http://www.chattanoogan.com/articles/article_90539.asp.

Davis, Adam. 2005. Mainstreaming environmental markets. In From Walden to Wall Street: Frontiers of conservation finance, James N. Levitt, ed., 155–171. Washington, DC: Island Press in association with the Lincoln Institute of Land Policy.

Ecosystem Marketplace. 2006. Ecosystem Marketplace Commentary: Draft mitigation regulations signal growing private sector role in conservation, Press Release, March 27. http://www.ewire.com/display.cfm/Wire_ID/3033.

Leopold, Aldo. 1949. A Sand County almanac. New York: Oxford University Press.

———. 1991. Conservation economics. In The river of the Mother of God and other essays by Aldo Leopold, Susan Flader and J. Baird Caldecott, eds., 193–202. Madison: University of Wisconsin Press.

Pidot, Jeff. 2005. Reinventing conservation easements: A critical examination and ideas for reform. Cambridge, MA: Lincoln Institute of Land Policy.

Policies affecting the use, regulation, and taxation of land in the United States are promulgated and applied primarily by states and local governments, and real estate markets are largely local and not national in scope. However, national policies including those on taxation, property rights, and mortgage financing have a significant impact on local land and housing policies and their outcomes. Accordingly, it often makes sense for local policy makers and activists to combine forces so they can learn from each others’ experiences and ensure that their viewpoints are present in national land policy debates. The Lincoln Institute has played, and continues to play, an important role in sponsoring research and fostering training, communication, and organizational activities that promote land policies consistent with the its mission.

One example is the Lincoln Institute’s role in helping to establish the Land Trust Alliance (LTA), the national network of nonprofit conservation organizations that protect natural resources such as farmland, forests, and wilderness areas. The Lincoln Institute in 1981 provided a fellowship to Kingsbury Browne, a Boston-based conservationist and lawyer, to visit land trust leaders throughout the country. He discovered that they had no organized means to communicate and learn from each others’ experience. His work and counsel led the Lincoln Institute to carry out a national survey of the 400 known local and regional land conservation organizations at the time and to sponsor a national meeting for 40 representatives in October 1981. As a result of that meeting, the Land Trust Exchange was incorporated and initiated activity in July 1982. This year, as the Land Trust Alliance, the organization is celebrating its 30th anniversary.

LTA has become a major presence in the conservation community, and the Lincoln Institute continues to support its networking goals. For example, the Lincoln Institute sponsors the annual Kingsbury Browne Fellowship, which supports research, writing, and mentoring by outstanding individuals whose vision and creativity have contributed to land conservation and the land trust community. The Lincoln Institute also participates in LTA’s annual Rally and has supported selected projects, such as the 2010 National Land Trust Census Report that summarizes the land conservation and organizational activities of the 1,760 known land trusts at the time of the survey.

The Lincoln Institute has also played a key role over the past few years in developing a practitioners’ network on large landscape conservation, bringing together those working on projects at a regional scale, such as the Crown of the Continent, an 18-millionacre area spanning the US–Canadian border including portions of Montana, Alberta, and British Columbia. Still in its formative stages, this international network provides a semiannual forum to exchange information and best practices, examine emerging policy initiatives, and advance the theory and practice of large landscape conservation.

In a similar initiative, the Lincoln Institute supports the National Community Land Trust Network, formally organized in 2006. Community land trusts (CLTs) are local nonprofit organizations that own land and provide housing whose affordability is preserved permanently. While CLTs have existed for more than 30 years, coordination and communication among them was limited until the national network was established. With about 200 member CLTs in 2012, the network provides training, supports research, and disseminates guidelines and good practice to its members.

The Lincoln Institute maintains a role in the network’s training program, the Community Land Trust Academy, which offers courses, conferences, and other activities ranging from a general introduction for new residents and staff members to sessions on standard legal documents, financing, and city-CLT partnerships. The Lincoln Institute published The Community Land Trust Reader (2010), a compendium of articles on the historical background and current practices of the international CLT movement, edited by John Emmeus Davis, former dean of the Academy. In addition, the Lincoln Institute sponsors research disseminated in working papers and analytic work, including a 2007 survey of CLTs in the United States.

Information about these conservation and community land trust networks and their related programs and publications is available on the Lincoln Institute website at www.lincolninst.edu.

Editor’s note: This article summarizes a recent Lincoln lecture by Dean Gerald Korngold of the Case Western Reserve University School of Law. He outlined the current status of the law on nonpossessory rights in property and discussed its future direction.

Everyday life presents many examples of agreements that divide the rights to possession of property. A typical lease allows the tenant a period of possession in exchange for payment of rent, and joint ownership arrangements provide a means of sharing or dividing possession. But, nonpossessory interests are equally important because they provide a mechanism for private land use regulation. Some examples are condominium owners’ rights in their building’s common areas, storekeepers’ agreements with the operator of the shopping center in which they are located, and gated communities’ covenants to restrict access. None of these convey possession, but all affect daily living and business arrangements. The widespread adoption of public zoning restrictions over the past century has by no means diminished the role of private land use agreements, and may even have enhanced it by making limitations on a possessor’s rights of use a familiar and accepted aspect of property ownership.

An agreement concerning the use of property could, of course, take the form of a simple contract, whether between neighbors, store owners and a mall operator, or condominium residents and their homeowners’ association. But such a contract would not necessarily survive a sale, inheritance or other transfer of ownership of the property in question. A generation later, a court might well refuse to enforce an agreement where neither the person violating its provisions nor the person seeking to uphold them were parties to the original contract. For this reason, long-term durability requires that private land use restrictions take the form of a conveyance of a property interest, rather than a contract.

The New Restatement of Property

Part of the complexity of nonpossessory rights stems from the numerous and often ambiguous distinctions among them in the common law. They fall within four traditional categories:

• An easement is a nonpossessory right in the land of another.
• A profit allows the holder to enter on land that he or she does not possess and remove resources from it, as by mining coal or harvesting timber.
• Covenants, including both real covenants and equitable servitudes, are promises between owners of neighboring land, differing only in the remedy available in the event the promise is broken.
• An equitable servitude can be specifically enforced by ordering action to be taken and the promise kept; breach of a real covenant would only result in monetary damages.

It is clear even from this cursory description that a given interest might be assigned to more than one category. For example, an agreement between neighbors not to construct commercial buildings on their properties might be characterized as an easement, an equitable servitude, or a real covenant, and each result would carry different legal consequences.

Traditionally, courts were most favorably disposed toward easements, and were much less likely to enforce real covenants and equitable servitudes. Over time two distinct categories of property law developed to address similar issues in these different contexts. In 2000 the American Law Institute, an organization of practitioners, jurists and scholars concerned with legal reform, took a major step in attempting to simplify and rationalize the law of nonpossessory interests. Its Restatement (Third) of the Law of Property adopted a single unified approach and a new category, termed “servitudes,” encompassing all earlier classifications. Restatements have no binding legal effect, but they often influence both legislatures considering changes to the law and courts charged with its interpretation.

Policy Arguments: Pro and Con

Judicial decisions concerning nonpossessory interests often give weight to larger issues of public policy in determining whether to enforce these agreements. Four major policy considerations often support enforcement: the moral obligation accompanying a promise; interests of economic efficiency; respect for freedom of choice; and a desire to promote certainty in business agreements.

Moral Obligation. This issue reflects a sense of fairness in enforcing a promise and applies both to the original parties to the agreement and to their successors in ownership. When restrictions that are intended to affect future purchasers (i.e., restrictions that “run with the land”) are recorded at public registries and available for inspection, failure to enforce these agreements will produce an unwarranted windfall for the parties who breach them. The original owners who entered the agreement did so voluntarily and in anticipation of some benefit. Later purchasers presumably made their own bargains in light of these agreements. A buyer of restricted property will generally pay less for it than he or she would if a more profitable use were permitted. Thus the new owner would receive an unfair benefit if the lower purchase price were followed by a release from the obligation to adhere to the restrictions.

Efficiency and Freedom of Choice. Nonpossessory agreements promote efficiency by greatly expanding the range of possible property interests that may be transferred. Consider the case of an owner seeking to insure that there is no intrusive construction on a neighboring lot in the future. Absent the availability of a nonpossessory interest, the owner’s only recourse would be to purchase the entire neighboring lot, even if outright ownership was not desired and in fact precluded other nonobjectionable use by a different party. The ability to acquire only part of the bundle of rights constituting the property allows flexibility that can benefit all affected parties. In this way efficiency concerns are closely related to those favoring freedom of choice. The value our society places on individual autonomy leads to a presumption in favor of voluntary private arrangements concerning land ownership. This is especially important when the subject matter concerns one’s home, as do many land use agreements.

Certainty. Enforcement of private agreements also promotes the certainty and stability necessary for long-term planning and investment. By contrast, a zoning ordinance may be varied in individual instances or altered in response to political pressure. This is one important incentive for private agreements to restrict land use, even when such limitations are already part of the local zoning code.

These concerns, however, are balanced by other policy considerations that may argue against enforcement of a servitude. Perhaps the most significant is the centuries-old common-law distrust of restrictions on future land use, development and sale. Recognizing that we have no special power to predict the social and economic concerns of future generations, courts have traditionally limited the extent to which contemporary agreements may bind later owners. In fact, the term “mortmain,” referring to property held without the power of sale, literally refers to the “dead hand” of past restrictions. From this perspective, policy considerations favoring efficiency, flexibility and personal choice can militate against as well as in favor of enforcement of restrictions in specific cases.

In some instances, this concern centers on restraints on alienation, or provisions that make the land more difficult to sell. However, the very flexibility fostered by the introduction of a market for new partial property interests will often obviate this objection. A prospective owner who wishes to buy property free and clear of a longstanding servitude can often accomplish this by a two-part transaction: purchasing the encumbered property at the lower price it currently commands on the market and simultaneously paying the holder of the servitude the amount needed to release it. Thus, a purchaser of property limited by private agreement to residential use could build a retail structure there (assuming it were permitted by local zoning ordinances) if he or she were able to negotiate with the neighbor a termination of the agreement prohibiting such construction. The lifting of a “cloud on title” of this type is extremely common, as in the case of a new owner who negotiates with a current tenant over payment for early termination of a lease.

New Models for Judicial Decisions

Given the effort of the Restatement to release some of the “dead hand” of common law classification, and given the enormous proliferation of commercial, condominium, homeowner and conservation restrictions in recent years, what new criteria should courts apply in determining whether to enforce a specific agreement?

One frequently discussed criterion concerns subject matter: should certain categories of restrictions be suspect because they may infringe on special rights, such as the right to individual expression and free speech? Should a homeowners’ association be able to bar the display of flags and political posters from its members’ premises? One real-life dispute pitted the governing board of a cooperative on the East Side of Manhattan against a unit owner who refused to cease sponsoring baptisms in the apartment’s swimming pool. (The owner argued that often the ceremonies involved college football players, who were too large to fit in a bathtub.) Note that these disputes do not involve the First Amendment, which only prohibits governmental restrictions on speech and religion, not voluntary private agreements. Restrictions also increasingly address architectural and aesthetic issues, which combine concerns for common amenities with problems of limiting personal expression and individual freedom.

Instead of allowing the subject matter to determine the outcome of these cases, an alternate approach would enforce only those covenants that regulate external behavior, not those that seek to limit personal status or activities within a private residence. This would permit restrictions on outside flags and posters, but not prohibitions on unmarried couples living together or the conduct of church services within a home (including baptisms in the bathtub). Of course, it would permit restrictions on the external effects of such arrangements, such as garbage, traffic, parking and noise. Similarly, it would generally support architectural limitations on landscape and external building elements, for these have important “spillover” effects on other residents.

The new Restatement of the Law of Property does not attempt to formulate this approach into a formal rule. However, it does recommend that general considerations of public policy guide courts in determining whether to enforce a specific servitude, and it notes the need for special concern in addressing issues of personal autonomy.

The Special Case of Conservation Easements

Conservation easements are currently one of the most significant and fastest-growing types of servitudes. They convey to a conservation organization or governmental unit the right to enforce a limitation on development of privately owned property, illustrating the great potential of nonpossessory interests. Often families who are the most committed to the preservation of their land and have a strong sense of its value as open space are the least interested in selling the property to a charity or to the government. The conservation easement permits protection against development while the land remains in private ownership. The organization holding the easement does not have the responsibilities of ownership, and some portion of the property value remains on the tax rolls. The net expenditure, even when the easement must be purchased, is less than the cost of the entire parcel. It is easy to see why conservation easements have become tremendously popular land preservation tools.

At the same time, some of the public policy concerns that argue against enforcement of other servitudes can be operative here as well. In particular, unease over long-term restrictions on land use is magnified in this case because federal income tax law allows a deduction for the gift of an easement only if it operates in perpetuity. Perpetuity is a long time, and appropriate land use may change dramatically in the future. Conservation easements are also “in gross,” meaning that they can be held by organizations that are not neighboring property owners. The original limitation of covenants to nearby owners reflected a concern that distant parties might be uninterested in or uninformed about local issues, with no necessary stake in promoting efficient land use and economic development. They could also be difficult to locate if needed to release a covenant or servitude. Finally, there are troubling antidemocratic aspects of a system that permits private parties to impose perpetual land use restrictions without public oversight.

These concerns are not grounds for recommending wholesale changes to the law of conservation easements, such as a restriction to type of ownership or a uniform limitation on duration. These requirements would be too rigid a response, particularly when more time is needed to understand how well-founded such misgivings might be. Individual decisions informed by experience, rather than expansive rulemaking on the basis of abstract reasoning, is the greatest strength of our common-law heritage. This approach permits courts to intervene selectively in the rare cases where the public interest may not support specific enforcement of an easement. This is already a familiar response in, for example, the law of nuisance, where individual awards may be limited to monetary damages alone. State attorneys general may also be able to exercise increased oversight and represent the public interest more actively as conservation easements come into ever-broader use.

Conclusion

Nonpossessory interests in property are as widespread as rights of way and as familiar as the covenants in a homeowners’ association agreement. The enormous usefulness of these servitudes makes efforts to modernize and rationalize their application critically important. At the same time, because their influence is felt in numerous facets of everyday life, judicial analysis of their legal effects provides a context within which to consider bedrock issues of public policy.

Joan Youngman is senior fellow and chairman of the Lincoln Institute’s Department of Valuation and Taxation and an attorney who writes on legal aspects of property taxation policy and practice. She has developed and teaches numerous Institute courses on conservation easements, land valuation techniques and the interaction of property taxation and public finance.