Monday, April 18, 2011

Commentary: Oversight Needed for Conservation Easements

Conservation easements are real property arrangements designed for the insider. Specialists predominate before and after an easement is consummated in private, including the negotiators to the terms of the easement (the seller, donor, buyer, or grantor and grantee and their lawyers), the appraiser of the easement’s value, and an ecological specialist who conducts baseline surveys of the land in question. There is rarely, if ever, a public meeting to discuss the details of the easement. The public may learn about easements through after the fact press releases, but their specific provisions and public benefits may be unclear for years.

Still, conservation easements are wonderfully flexible tools for protecting land and I am a big supporter of their use in the Adirondacks and elsewhere. Their flexibility is a big reason why so many easements exist, but there is a serious downside analyzed by Jeff Pidot, who oversaw many easements for the Maine Attorney General’s office. Pidot’s 2005 publication, Reinventing Conservation Easements: A Critical Examination and Ideas for Reforms was published by the Lincoln Institute of Land Policy. A shorter version of Pidot’s ideas and a short Pidot biography can be found here.

Pidot’s paper points out that the thousands of easements completed each year in the U.S. lack uniformity in the basic terms and standards for land protection. They lack transparency about whether or not an easement is truly in the public interest. Only the insiders know the score. They lack clear standards for easement termination, or amendment. In New York State, we have had a conservation easement law since 1983, but no regulations have ever been promulgated that would inform the public about how the law is to be administered. And that point leads me to current attempts by the NYS Department of Environmental Conservation to amend one of the largest easements in the Adirondacks.

I first learned about the desired change in the conservation easement at a DEC meeting in Old Forge in 2006 because I happened to be a member of the DEC Forest Preserve Advisory Committee. DEC and Heartwood Forestland Fund III, the landowner who succeeded Champion International’s ownership of 110,000 acres in Franklin, St. Lawrence and Lewis counties, said that the change would bring the “Champion easement” of 1999 into line with all the other large easements signed in the 21st century, including International Paper. By this, DEC meant that leased hunting and fishing camp structures were allowed to remain under the terms of the IP easement (and Domtar, and Finch Pruyn).

By contrast, under the Champion easement lessees who had built hunting and fishing camps under leases granted by Champion had 15 years of reserved exclusive rights to use and occupy the cabins and one-acre around them, after which time DEC had the affirmative responsibility to remove or demolish the camps.

Under Champion’s easement, the public was to have unfettered recreational rights on the 110,000 acres fifteen years after the easement’s closing on June 30, 1999 (a conservation easement is a real estate transaction, so DEC and the seller close on an easement just as one closes on a house). And the public had paid for that unfettered recreational right.

In 1999 I well recall regional political furor over the Champion transaction, and the claim by local legislators that they had never been privy to its details. Park advocates like me were not privy to them either, although I supported the end results as a member of the regional Open Space Conservation Committee and I had been present at earlier discussions about the future of these lands sponsored by Champion in 1993 – before their decision to sell outright. I also recall the great difficulties DEC encountered in 2004 in removing the camps built on lands destined to become Forest Preserve along the St. Regis river. This was hard work, made harder by the burning of a bridge which directly endangered DEC personnel.

This would, understandably, make any agency just a bit shy about further camp removals. By 2006, the year 2014 no longer seemed such a long way off, and the new owner Heartwood Forestland Fund and DEC announced they wanted to amend the 1999 easement to allow the roughly 208 existing hunting and fishing camps to remain, and the right to build a few more up to 220. Why? Annual leases from club members help pay the taxes, which in New York are very significant. Basically, that is what it boils down to.

We were given other reasons why not removing the camps was a good thing. One was that club members could keep an eye on the property for the landowner. As a landowner myself in the Adirondacks I can applaud having trusted individuals enjoying a piece of property who send signals to lawbreakers that a place or a patch of woods are appreciated, watched over, and cared for. With respect to a conservation easement, it is a very good idea to have individuals on the land to help observe record and report potential violations of the terms of the easement. More often, the reason given for the amendment was that hunting and fishing camps were “an important part of Adirondack culture.” Usually, this reason concludes any discussion.

It was even included in the APA’s justification for a permit issued this past week for the Heartwood application to allow up to 220 camps to remain. Few of us want to end any part of Adirondack culture, including its hunting and fishing traditions, and most of us want to encourage more outdoor experience and appreciation in today’s wired society. The problem in my mind was that the change might compromise the conservation values in the original easement, and that nobody was discussing whether on balance the public interest in these 110,000 acres was being upheld or not. The landowner might need the lease income, but that should be a secondary concern to the primary issue of public interest. And public interest is what DEC should be primarily concerned with.

The purpose of the easement was clearly outlined on papers signed on the 30th of June 1999. Here is the language in the easement taken directly from DEC’s website:

1. the principal objective of this Easement is to perpetuate, as a sustainable working forest, the productive forest resources on the Protected Property; to encourage the long-term, professional management of those forest resources; and to facilitate the biologically and economically sustainable production of forest resources while minimizing the impacts on water quality, scenic benefits, wildlife habitat, recreational and other conservation values.

2. The second objective of the Easement is to conserve the wildlife habitat and other natural resource features, especially the diversity of forest types and conditions.

3. The third objective of the Easement is to provide opportunities for Public Recreation in a manner consistent with the forest management and resource conservation purposes outlined above.

Back in 1999, DEC and Champion believed that retaining 200 hunting and fishing camps would compromise these purposes. The State was committed to providing full public recreational rights after 15 years, had paid over $24 million to ensure them, and was wary of conflicts between hikers, paddlers and lessees. Running trucks or ATVs to and from hundreds of camps did cause environmental damage and encouraged riders to get wild and muddy off-road. Forest managers had every reason to control this situation. Ending the leases and the structures after a use reservation of 15 years became a permanent part of the easement, or so we thought.

From 2006 to the present day, instead of enforcing the easement (and promulgating the long sought regulations) DEC has lobbied hard to amend it. To date, DEC claims they have a letter from the Attorney General’s office which gives this amendment the green light and demonstrates it is in the public interest. When I inquired, I was told it was an emailed letter sent several years ago. It was not made part of any APA materials made public this week, at least I couldn’t find it.

Adirondack Wild’s Dan Plumley has tried mightily to persuade the DEC or the APA (which acted this week to allow the camps to remain by permit) into holding a hearing which would allow the public an opportunity to ask questions and assess the scope and scale of the easement modification, environmental impacts, public values, what the Attorney General thinks of the change, and so forth. APA staff said in response to that request this week that there was insufficient public interest to hold a hearing.

Dick Booth, the sole member of the APA to vote against the permit this week, said during committee discussion in Ray Brook: “I’m not troubled by the proposal (to allow the camps to remain). What troubles me is how got here. All discussions have been behind closed doors. This change is a policy change, and there are important policy issues at stake. A legislative hearing would be a low risk but important action for us to take.”

Jeff Pidot in Reinventing Conservation Easements writes: “Laws also should set clear standards for conservation easement termination and amendment. If conservation easements are to withstand the tests of time, there must be a definite process for revising their terms to meet unforeseeable contingencies or new circumstances. An amendment that does not undermine the easement’s purposes may be agreed to by the easement’s parties, but changes that compromise these purposes should require at least the approval of the state attorney general, as representative of the public interest, and may require a court proceeding….A conservation easement should be able to be significantly modified or terminated only if it no longer benefits the public, regardless of the economic benefit to the landowner.”

It is high time that New York State promulgated regulations to its 1983 Conservation Easement law (Article 49 of the Environmental Conservation Law). The failure to do so after all these years, and the resulting lack of standards for amending easements like this is a big part of the current problem.

Photo: APA staff lead a field trip to a conservation easement, fall 2010.


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Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for over 30 years as executive director of the Association for the Protection of the Adirondacks, executive director of Protect the Adirondacks and currently as managing partner with Adirondack Wild: Friends of the Forest PreserveDuring Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history. Currently, Dave is managing partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.

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