stewardship and individual freedom understand the potential disadvantages of conservation easements as well. One important disadvantage is rigidity– some state statutes and federal tax laws require that easements must be “perpetual.” This discourages some donors and, if the restrictions have ceased to fulfill their original purpose, imposes wasteful under-utilization of land on others and their communities. Another disadvantage is that easement holders (which most states require to be governmental bodies or charities such as land trusts) may not be faithful to their obligations. Self-dealing, laxity, and over-zealous enforcement all are real possibilities. The technical requirements of state laws and federal tax codes also create traps for the unwary. Finally, and of profound importance to those who might prize conservation easements as combining stewardship and individual liberty, some land trusts may have worked hand-in-glove with public officials to intensify governmental coercion and to hold conservation easements out as a more palatable alternative. The challenge remains to enhance the benefits of conservation easement statutes and to eliminate these potential problems.
Many landowners pride themselves on their careful stewardship of their lands. They often want to ensure that their love for the environment is respected by succeeding family generations and others who eventually might own their lands. Since they want their progeny to continue using the land, an outright gift or sale to a land trust or similar conservancy group would not achieve their purposes. They also realize that family ownership coupled with heavy-handed governmental regulation is not the answer. Even if regulators understand and respect their environmental concerns, they are apt to effectuate them in an undifferentiated and clumsy manner. They certainly cannot be expected to respect the careful balance between conservation of the environment and the continuation of family heritage and traditional uses that the original landowner wants to achieve.
One answer is for landowners to inculcate a conservation ethic in their children and grandchildren. Yet, even if owners were confident that this could be done successfully, there would still the problem of maintaining stewardship traditions through uncertain times and future generations. In any event, confiscatory death and inheritance taxes often force even conscientious heirs to sell or over-develop lands in order to raise cash.
The conservation easement is a device that attempts to deal with all of these problems. Partly a creature of common law and partly a creation of recent statutes, the conservation easement does not operate through regulations. It does not modify or increase existing regulatory schemes or apply them to parcels not previously subject to them. Rather, the conservation easement works through private ownership. It divides a fee simple (i.e., ownership of all of the rights in a parcel of land) into two distinct interests. The first is the easement itself, which imposes conditions upon land use. The second is the original fee ownership, now subject to the easement. The owner of this interest has full ownership of the land for all purposes except those conflicting with the easement to which it is subject. Thus the owner of a ranch might give to a land trust an easement precluding residential or commercial development. The donor still owns the land and can use it for ranching, but no longer owns the right to use the land for residential or commercial purposes.
The tax benefits resulting from the grant of qualified conservation easements provide some landowners with funds for their retirement years, or allow them to fund or endow conservation management projects on the land at no additional net cost. Also, on the donor’s death, the lower appraised value may mean that family members will be able to keep the land instead of very possibly having to sell large parts of it to pay large estate and inheritance taxes.1
Since a conservation easement is established through a private agreement betw