HB 1890 / SB 2099

If passed this bill gives the Department of Agriculture the ability to acquire and administer real estate interests in the state by way of an “agricultural easement,” also known as a conservation easement. A CE conveys to a third party, either a land trust or government entity, the right to control the use of the private property being encumbered for a “conservation purpose.” It is marketed as a way for landowners to ensure their property will remain in a natural state, protected from future development forever. They are told their current use of the land will continue, such as agricultural use. For this consideration, they are offered an income or estate tax deduction and other financial benefits.

Rarely are landowners presented with the downside of conservation easements, and there are many. It is the landowner’s right to decide whether to place a conservation easement in perpetuity on their land. But once they do, that land no longer retains the characteristics of private property because the control of that property now belongs to the easement holder. The conservation purpose is now the priority purpose for the land. Additionally, much of the potential tax benefits require the easement to be held in perpetuity, making future owners of the land, including parties who later purchase the property and/or family who could inherit the property, to be held indefinitely to the easement requirements and limitations.

Existing activities may be protected, but if there is conflict between these and the conservation purpose, it is the landowner’s use that must give way. The protected activities of the landowner must be specifically enumerated in the contract. If the landowner needs to make changes to those uses, it must be agreed to by the easement holder. And if you must get permission to use your land, you don’t really own the property.

This concern is compounded by the fact that easement control might not always stay with the initial government department that initiated the contract. These rights can conceivably be sold to newly created entities such as Natural Asset Companies (NACs). Under these types of entities, the right to dictate the use of the property can be purchased by activist investors, foreign governments, and others who look to thwart the private property control of the land over both the current and future owners.