Weekly Column: Perpetual Conservation Easements: Forever Is a Long Time

In South Dakota, we take great pride in our land. We rely on our vast natural resources for nearly every aspect of our lives: to provide clean water, maximize ag production, provide recreation, attract tourism and more. As such, we are good stewards of our land and are willing to work with state, federal and local governments to keep it in tact for future generations. However, when it comes to permanent conservation easements, I have never been a fan. I am in favor of giving landowners the option to enter into shorter-term, renewable contracts with the federal government. Termed easements are more likely to keep the landowner and the grantee on equal footing and would result in greater public access to these lands.

A permanent conservation easement is a legally-binding agreement between a land owner and the government or in some cases, a non-profit group. They are the grantee that places restrictions on the land and typically opens it up to public access in exchange for landowner tax benefits.  Today, these conservation easement contracts are forever, they pass down through the generations or from seller to buyer. 

I understand that – in some cases – permanent easements have their place.  If a family is fully informed as to the effects, or if we’re talking about public utilities or infrastructure – permanent easements can serve the greater good. 

There have been plenty of passionate debates over property rights in South Dakota over the years – in the State Capitol while I worked as a state senator and governor and even around my own dinner table.  My family comes from a long line of hunters and conservationists. We’re also landowners and staunch supporters of property rights. We’ve developed our own working farm into a pheasant hunting paradise, through sound management and conservation. My family, like many South Dakota families, is a reflection of South Dakota’s rural and urban population. That diverse blend of South Dakota perspective makes me believe there’s a better way to protect our land, conserve habitat and honor individual property rights. 

An important point that gets lost in the discussion surrounding permanent conservation easements is that perpetual means forever. The legally-binding contract with the federal government continues even when land is passed down within the family or sold to a new owner. The economic and ecological changes that we’ll see over the coming years cannot be predetermined, and yet the government or the grantee essentially bans certain enhancement without regard to those inevitable changes – thus locking the landowner and their heirs into a contract that is unlikely to ever be revisited.  

For example, thinning efforts within forests can help deter the threat of forest fires in the Black Hills and elsewhere.  But, if the land is locked in to a permanent conservation easement and the federal government chooses to strictly abide by the terms of the contract, a permanent easement may not allow for necessary logging or underbrush thinning which increases the risk of a damaging forest fire.  Another example is that farming practices will continue to evolve over time.  A piece of valuable habitat today may not be as valuable 100 years from now, so it seems rash to put limitations on the location of certain public access points.

I’ve suggested that greater optionality for landowners would benefit everyone. Landowners have told me that they’d be more inclined to enter into an agreement with the government if they also had the option of a short-term, renewable contract as opposed to a permanent contract. Those shorter term contracts – 10 or 20 years, for example –should have the same tax benefits as a permanent easement.  And, termed conservation easements may be a better fit for someone who isn’t interested in tying up their property forever. A termed conservation easement is more likely to keep the landowner and the grantee on equal footing.  The government would have to treat the landowner fairly in order to have the easement renewed. They could not arbitrarily impose heavy-handed fines for minor, often mistaken, violations of the easement contract.  I believe more landowner options would result in greater public access.

If our goal is to increase habitat development and provide greater public access, more options seems like a good compromise. Forever is a long time and I’d rather we be stewards of the land, not stewards of the government.