Not long ago, a message asking about baseline documentation for conservation easements was posted on the landtrust-L website at Indiana University. The post, which boiled down to a question of how to assure that the baseline document will be admissible in court, drew about three dozen quick responses, several of which were pertinent and authoritative.
An eddy that curled off the main current, however, is what I want to talk about here. A couple of biologists set forth the view that baseline documents ought to include sound, detailed information on the biological basis of the conservation purposes of the easement. These are a part of the justification for the use of government money to buy the easement or, in the case of a donated easement, justification for a charitable deduction for income taxes.
One contributor to the discussion made the point that many farmland conservation easements do little other than remove development rights. Since the basis for such easements is keeping the land available for agriculture, the plants and animals and natural features of the property are irrelevant.
Black River Sanctuary of the Michigan Nature Association, Van Buren County, copyright Richard Brewer 2009
I responded on the listserv that if a land trust is considering a conservation easement on a farm that includes natural ecosystems worthy of protection, the conservation easement should protect these by appropriate restrictions. If the donor is unwilling to allow this protection, I said, the land trust should walk away from the deal. If the property has no conservation value other than maintaining land for crops, the land trust ought to consider whether it couldn’t spend its time better on another project with greater values.
Why, the person posting the farmland observation asked, is the protection of productive agricultural land from development a lesser conservation value than the protection of other conservation values?
It’s a fair question, but a full answer would take a while. I’d make a start on an answer this way: Consider three 120-acre parcels of land for which a conservation easement is contemplated. Parcel A is nearly all relatively undisturbed natural vegetation. Parcel B is prime agricultural land almost completely occupied by row crops. Parcel C is mostly prime farmland but also includes patches of other soils occupied by relatively natural vegetation and a section of stream.
Here’s a partial list of conservation values for Parcel A, some obvious and others a little more obscure: scenic beauty; providing a model or subject for art, literature, landscape architecture, etc.; fulfilling an innate human need for wildness; roles in biogeochemical cycling; soil development and renewal of fertility; purification of air and water; tempering floods and droughts; homes for pollinators and game animals; protection of soils and shores from erosion; maintenance of biodiversity with its many practical and aesthetic effects; sequestering carbon hence moderating global climate change; a classroom for many types of education; providing wild foods such as mushrooms, berries, and nuts.
What is the conservation value of the Parcel B? We know that it may have a conservation purpose because that is the way that the IRS tax code is written: One of the purposes that can justify a charitable deduction for a donation of land for conservation is “the protection of open space (including farmland and forest land) where such preservation is a) for the scenic enjoyment of the general public, or b) pursuant to a clearly delineated federal, state, or local governmental conservation policy and will yield a significant public benefit.”
It’s possible that the general public, or some members, may enjoy the scenery provided by 120 acres of tall corn in Illinois or 120 acres of peppers poking up through shiny black plastic in California. There may well be more-or-less clearly delineated government policies that encourage farmland protection for more-or-less sensible reasons (mostly listed in Chapter 12 of Conservancy: The Land Trust Movement in America).
The public benefit argument is a little tougher. Do the words refer to the existence of any public benefit, or do they mean that a net benefit remains when we add up the pluses and subtract the minuses?
The minuses don’t get a lot of attention anymore, though some of the early commentators on agricultural easements worried about them. Let’s run through a few. One is all but universal: the loss of native vegetation and the accompanying birds, mammals, insects, soil organisms, and all the rest. Two others are extremely widespread: loss of topsoil to erosion and pollution of air, surface water, and ground water from pesticides, herbicides, and fertilizers. Others are more localized; examples are soil salinization, spread of antibiotic-resistant diseases from feedlots, groundwater depletion, and loss of fauna from streams and wetlands caused by water diversion from streams to agriculture.
So it’s not so clear what the net might be, especially when we consider that some of the pluses aren’t really so plus when looked at closely. For example, saving land from development may be listed as one of the pluses, but in some of the less scenic parts of the West the threat of development any time soon is quite remote.
It’s worth mentioning that some agricultural uses may allow elements of the native biota to persist. Examples are grassland birds nesting in hayfields in the East and native flora, birds, and mammals persisting on some grazing lands in the West. These are conservation pluses, but they are tenuous and temporary. Nowadays hayfields are cut several times a year starting early, so that many of the grassland birds attracted to them fail to produce young. Some of the western grazing lands are susceptible to sod-busting, that is, conversion to croplands that will be home to few if any members of the native biota.
A conservationist might think that a conservation easement over farmland which possesses such conservation values should protect them. Why not write the conservation easement so that no hay can be cut on a field in Michigan or Massachusetts before the middle of July? Why not specify that if grazing is halted on an easement property in Montana or the Dakotas, the grassland must not be plowed to plant wheat but instead must be allowed to undergo the rather quick recovery to near-natural vegetation possible on this land if not too badly overgrazed?
And shouldn’t the conservation easement for Parcel C–mostly farmland but some natural–include restrictions that will protect the conservation values of the natural lands? Possibilities are control of purple loosestrife in the marsh, limited single-tree harvest in the woodland, and no livestock on the steep slopes or anywhere near the river.
Some conservationists might ask these questions but not many land trusts will. Rather, a high percentage of today’s land trusts take pride that the farmland easements they write do nothing that will hamper the land remaining in agriculture, no matter how destructive and noxious the activities referred to as agriculture become.
Some people think that the best road to retaining biodiversity and other conservation values in the landscape is to set aside preserves and sanctuaries where human activity is sharply limited while allowing the rest of the countryside to go wherever agriculture, development, and commerce take it. Some think that preserves won’t do the job and that instead we must educate (and regulate) the public so that all the landscape–farms, housing developments, factory lands, etc.– is managed in ways that retain at least patches of natural diversity.
Agricultural easements that take the approaches described in the last few paragraphs would be a modest start down the second road.
The landtrust-L website started by Tom Zeller of IU (and the Sycamore Land Trust) has for several years been an excellent source of information about land-trust operations. It’s probably the best place to go to ask (and answer) nuts-and-bolts types of questions. Those interested in land trusts can subscribe by emailing listserv@indiana.edu the message: subscribe landtrust-L.
rbrewer,
A nice article bringing out many of the various issues land trusts face. I think the biggest difference here between agricultural protection and ‘natural’ lands protection gets more at the mission of the organization. Some land trusts were started specifically for farmland preservation, others for habitat, etc.
Since each organization is set up initially for a specific type of work, I am not sure it is fair to fault an organization who started as a farmland protection group for ignoring habitat protection. Sure, some balance would be ideal, but organizations might not have the capacity/knowledge to achieve a dual mission. Since these are grass roots organizations, whatever those peoples’ concern is should be the focus of that groups work.
Environmental issues are too intertwined to be meaningfully isolated, as you eluded to with how certain farmland can be habitat, but as an organization, choices must be made for the practical purpose of getting work done. While this will leave other important issues ignored, I think it is inevitable. It just leaves room for another organization to come in and fill in gaps. Aiming to achieve environmental nirvana on a property is an impractical goal for land trusts. The world is dynamic and habitat/species are always moving and transforming. We can do some work to help limit habitat destruction and preserve quality habitat, but for the most part natural processes will do what they will, regardless of any of our attempts (ie, New Orleans!). Species will die, “invasive” will move in…its all just part of a process. I once asked a biologist at a local university what they considered to be “native” plant and they said anything that existed pre-colonization. It all just depends on your perspective you choose to take.
Keep up the good work, these are important questions for every Board to consider to ensure their organization is accomplishing what they hope to in the best possible way.
Richard,
While it should be the goal of every land trust to provide the most comprehensive protection possible, I’m not sure if you’re looking truly with all of its pluses and minuses. Obviously some land trusts with missions dedicated towards protecting particular natural areas shouldn’t accept any easement which degrades them, but for the most part, most land trusts accept agricultural land as land worth protecting, and which makes “walking away” so extreme.
After all, agricultural easements don’t mandate agriculture as an affirmative action, the landowner doesn’t have to destroy those natural areas. By establishing a beneficial relationship with the landowner the land trust may have positioned itself to negotiate an easement amendment for better protection later. However, what have you gained by “walking away?” You’ve probably soured the relationship with the landowner, achieved no measure of protection leaving the entirety of the property, agricultural or natural, open for development. The agricultural activities the landowner wanted to pursue in the natural areas of the property are likely going to be pursued anyways, with the added disadvantage that the property could be turned into a shopping mall later.
That, unfortunately, is the true extent of the pluses and minuses. We can’t afford to be absolute puritans with every easement deal. Every land trust should start from the strongest bargaining position, but, at the end of the day, an entirely agricultural easement is profoundly better than no easement at all.
Richard wants to restore the land to indigenous flora and fauna? At the end of the last ice age there was nothing but tundra mosses and lichens anywhere in North America.
Much of this continent was cursed with fatal dirt storms that lasted for decades. Who decides what are native plants and what is natural? Arrogant ivory tower armchair biologists that are working to destroy agriculture?
Outstanding! This is the exactly the approach of the easement writing accomplished by our trust, the Weantinoge Heritage, in Northwestern Connecticut. Agricultural easements need not be monochromatic, as few farms are farmed from edge to edge.
As to the dark comment of “Steve”, above, who likes to play the “what is natural” game, ignore him. His baseline condition is “immediately post-glacial” … now there’s a deep thinker. We encounter this type of character all of the time – all too often it’s a forester who challenges what is natural by defending his overharvests with the myth that the Native Americans manipulated ecosystems … of course, he ignores the relative population density and the lack of technology, etc. etc.
Great column, Richard. Thanks.
I think you’ve made a good case for considering the broader ecological issues in considering the “public benefit”. I think your paragraph about the aesthetics of agricultural land is a straw man, though. The public benefits of local agriculture are more than what it looks like when you drive by a field of “peppers poking up through shiny black plastic”. Relocalizing food production is an important and worthy goal that potentially can yield great public benefits.
I must say the narcissistic elitist “Harry White” delivered quite the condescending comment. He paints a broad brush of denigration to the messenger and apparently does not like those that live and work in forests or that are Native Americans. He does not like the message and thus feels justified to shoot the messenger in an attempt to negate the message.
He also makes large assumptions as to who the messenger is accusing “Steve” of being a forester and limited in thinking abilities. I guess one would expect that of a Eurocentric “white” elitist that takes the position of being more “enlightened” on natural matters than others. After all, he fails to even make any attempt to discover who this “Steve” person is to qualify his “white” assumption.
Oh, and by the way “Harry”, just so you know, I manage the Truckee River water program for the Paiute Tribe here in Nevada that runs from Lake Tahoe to Pyramid Lake. We manage it for habitat for endangered fish species, habitat restoration for riparian species, irrigated native farmlands and working watershed landscapes that dwarfs your anglo land trust’s holdings by several hundreds of square miles.
I also happen to be part Caddo Native American.
Sincerely,
“Steve”
@Marc:
I agree building a relationship with a land owner is likely to be an important part of many deals. I’ve seen several significant deals come to fruition years after the initial contact and sometimes after seemingly intractable differences between owner and land trust.
I was making a couple of points in saying that if the land owner refuses to protect what ought to be protected, the land trust should walk away. First, being ready to walk away is always the strongest negotiating position. It doesn’t necessarily mean going away mad or closing the door. It does mean not wasting more time. Almost no land trust is likely to have enough land protection staff and volunteers and money to conserve as many pieces of land as they ought to be protecting this month or this year. In the absence of unlimited resources, time spent on a deal that’s headed toward a second-rate result is going to be time unavailable to spend on a better deal.
It’s easy to fall into the trap of saying to one’s self that since we’ve already spent months on this deal, we can’t give up now. But those are sunk costs; the aphorism of throwing good money after bad applies.
@Harry White:
Thanks for your thoughts. It’s my impression that a lot of land trusts have begun to take a more perfunctory approach (insofar as conservation values) to their easement deals than in earlier times. It’s good to hear that Neantinoge Heritage is employing a comprehensive conservation approach.
@Steven Brewer:
Thanks for checking out your dad’s revamped website. I suspect that the whole family agrees on the many benefits of locally grown food.
Maynard Kaufman has always contended that not as much farmland has been lost as is claimed. Maynard has a long history of sound thought on food production: he and others incorporated one of the earliest farmland trusts in 1976–four years earlier than the Marin Agricultural Land Trust. His reasoning on the loss of farmland issue is that much of the land contained in suburban ranchettes of 5 or 10 acres could readily be turned back to food production if the need arose. When I look at the small size of the many of the organic garden plots that are supplying lots of produce to
farmer’s markets these days, I’m inclined to think he’s right. I know of one person raising organic poultry on less than 10 acres using a paddock approach. Of course, he can’t raise as many chickens as he could sell and hopes to buy more land.
One of the problems with ordinary agriculture these days is that it’s often not local or even food. The Illinois corn may be going to high fructose corn syrup or grain for the feedlot or even for ethanol to burn in our cars. The peppers or other produce in the Salinas valley is food, but the fate of much of it is to end up thousands of miles away. It would be possible to write easements that strongly encourage cultivation of organic food for local consumption. But few land trusts are bold enough to do this. They have two pretty good reasons: They don’t want to tie the hands of the owners, and the restrictions might turn out to hard to write and time consuming to enforce.
Steve
You said it well.
Where do these people get off trying to impose there “will” on everyone else. They are so engrossed in themselves they don’t care about anyother persons “wants,needs and rights”
Dear Richard:
I very much appreciated your inclusion of the Massachusetts Trustees of Public Reservations in your history of the land trust movement. I have researched the archives of this organization for its influence on the development of the Hancock County Trustees of Public Researvations, the first Maine land trust established by Harvard President Charles W. Eliot, the father of landscape architect Charles Eliot. This Maine connection is little noted in the historicval record yet is of no small importance for its members assembled through gifts five thousand acres of land that in 1916 were ghifted to the federal government as Sieur de Moints National Monument (Later Acadia National Park), championed by Eliot’s friend, George Bucknam Dorr, about whom see my biography which is forthcoming from the Library of American Landscape History /UMASS Press. Through Dorr and Eliot federal protection was secured through a corporate gift, changing forever the way national parks were developed and managed (unlike the earlier personal gift from Congressman Kent in 1908 that led to the creation of Muir Woods).