Working Forest Conservation Easements by Brenda Lind

Published by Land Trust Alliance, 2001.  44 pp.

BOOK REVIEW

by

Bret P. Vicary, Appraiser/Forest Analyst

James W. Sewall Company

Old Town, Maine

Published in:  Vicary, B.P.  2001.  Working Forest Conservation Easements.  The Consultant, Summer 2001, Vol. 46, No. 3, pp. 24-28.

********************************

 Working Forest Conservation Easements is the latest in the Land Trust Alliance (LTA) series of books devoted to the general subject of conservation easements.  Because the LTA easement series is regarded as the leading literature on conservation easements, this latest volume deserves a careful look.

The book’s subtitle is “A process guide for land trusts, landowners and public agencies.”  The text declares that this volume helps answer the basic question:  “How can conservation easements best protect the full range of resource, economic and community values associated with working forests?”  Many will appreciate that author Brenda Lind presents “conservation” as wise use (a la Aldo Leopold), not preservation.

Lind refers to decades of experience with conservation easements, but acknowledges that we are still early in the learning curve, which is absolutely correct.  She characterizes her book as a consensus document – i.e., consensus of groups representing forest landowners and easement holders across the United States that met at several national Land Trust rallies.  The list of participants includes representatives of 14 environmental non-government organizations (ENGOs), two public agencies, and three non-industrial private forest owners.  As I read through the book, I got the sense that it was not so much a consensus document as a compromise work slanted heavily towards the position holding that conservation easements are inherently great tools for protecting our “endangered” forests.

The author endorses a “management plan approach” and acknowledges that working forest conservation easements (WFCEs) require forester input, and are more complex than simple open-space easements which are often vaguely worded, may not mention forestry, or may simply require timber harvesting to follow “good practices.”  She notes that WFCEs protect property-specific forest management values, and are often built upon a tradition of sound forest management.

Lind mistakenly defines conservation easements as permanent, when in fact they may have a finite term.  Her presumption against limited-term easements is prevalent among ENGOs and public agencies, whereas many landowners and resource consultants argue that limited-term easements should be sought where there are concerns over the uncertainty of future land use priorities. 

The author cites long-term stewardship as a goal of WFCEs, and notes the importance of the landowner and easement holder having a “shared vision” for the resource.  However, she fails to mention the potential for this shared vision disintegrating when the names and faces on both sides of the instrument change. 

Lind also implies that a shared vision is commensurate with shared motivation.  This, however, is often not the case.  For instance, a forest owner seeking to cash in on non-timber income, such as residential subdivision potential, may evaluate two options:  subdivide areas suitable for this use, or grant a conservation easement.  The owner’s primary goal is often pecuniary, with three possible outcomes:  revenue from subdivision and lot sales; revenue from selling the easement; or a tax break from donating the easement.[1]  In contrast, the easement holder’s goal is to “protect” the property.  A more subtle example of disparate goals is where the landowner is solicited by an easement holder to encumber his property with a WFCE that will place significant forest management restrictions on the property.  The landowner might prefer not to restrict management options, but the prospect of receiving compensation by transferring the easement may more than offset his preference for keeping the forest unencumbered.

 The author emphasizes the importance of selecting a qualified forester to implement management goals, and offers four criteria for selecting a forester:  (1) hold state license; (2) completed accreditation program; (3) member of ACF, SAF, Forest Stewards Guild[2]; (4) independent “green certified” by FSC.

In discussing how to design a WFCE, Lind cites species and diameter goals for crop trees as examples, but fails to mention the kind of box this may put future managers in.  Is she aware that hard maple and yellow birch were once considered weed species and eradicated in favor of other species?  She rightly notes the concerns of some large owners that cash flows not be significantly reduced by the easement, but fails to note a greater concern, that when it comes time to sell the property, its liquidity will be reduced since many buyers shun encumbered properties.[3]

In another unfortunate example, Lind cites “a particular eagle nest” as an example of a specific conservation value that might be protected.   She neglects to note the incompatibility of temporal habitat and permanent easement provisions. 

To her credit, Lind acknowledges that WFCEs are not the right tool to protect property in all cases, noting that fee acquisition may be preferable.  She also acknowledges private owners’ concerns over “big brother” oversight, and cites an example of a WFCE that allows management flexibility within the sideboards of BMPs and state laws.  She also states,  “Both landowner and easement holder must consider current and future income streams, and design WFCE terms that balance protection of the resource with flexibility to allow acceptable future forest uses.”  Later in the book she addresses how this might play out through incorporating flexible management plans.

Lind cites language contained in the “purposes” statements of sample easements, but she does not acknowledge the vagueness and potential contradictory content inherent in these statements.  For instance, the easement shall (1) “prevent any use that will significantly impair or interfere with conservation values or interests of the property;” (2) “allow long-term responsible management of forest resources which do not compromise water quality and wildlife management;” (3) “[provide for] a working forest landscape that is dominated by natural succession and old growth characteristics.”  The author glaringly fails to note how such language is fraught with potential conflicts –between the land owner and easement holder, and even within the document itself.

Lind discusses three tools for guiding forest management plans incorporated as part of a WFCE:  (1) required forest management plan; (2) best management practices; and (3) additional specific restrictions.

Regarding the management plan, Lind rightly advises that the plan allow flexibility so management can evolve and respond to current needs of the forest and landowner.  Sound advice, to be sure.  She states that the easement should obligate the “easement holder to engage in a review and/or approval process.”  Fortunately, she stops short of saying that all WFCEs should render management activities subject to the easement holder’s approval of a plan.  The reader is left to read between the lines on this point.  However, Lind’s bias toward the easement holder’s position is apparent when she states, “The [management plan] review ensures that the forest management plan conforms to the easement, conservation values are protected, and easement holder interests are maintained.”  Note that she fails to acknowledge the importance of ensuring that the landowner’s interests are maintained.

Lind cites several advantages of the management plan approach, mainly that it can be amended, and that it may decrease the need for prescriptive language within the WFCE document.  She states that this “gives the landowner greater certainty about expectations and flexibility, allowing the deal to move forward.”  Again, this leaves me wondering whether she is more concerned for the landowner or the deal.

The author cites collateral benefits to the landowner from a management plan, mainly that land under professional management will provide better returns and a better forest.  Yet, how many landowners want to be bound by a management plan, subject to someone else’s approval?  She correctly notes that this can be a “deal-breaker.”  I concur with Lind that the management plan approach, provided it allows for periodic updates, is more desirable than the easement prescribing one set of management criteria forever.  But let’s not forget that hiring a professional forester is always an option, inside or outside the context of a WFCE.

Lind squarely addresses the issue of whether to require the easement holder to review or to review and approve the management plan, citing varied opinions of landowners and ENGOs, and noting a range of approaches taken by the latter. 

The author notes that “[H]olding approval rights can increase the easement holder’s leverage to achieve the easement’s purposes.  However, it is accompanied by a major stewardship commitment for the easement holder.”  Well stated.  And the jury has begun to weigh in with examples of easement holders who fail to or lack the capacity to enforce easement terms, sometimes resulting in conflict between landowner and easement holder.

Lind notes that many state agencies issue BMPs for water quality control, but they don’t cover the full scope of forest conservation values that a WFCE must protect.  She states that BMPs may be the only way to meet landowner needs or address the easement holder’s own capacity issues, and cites sample language that combines BMP and state and federal forestry laws.  One may perhaps assume that “landowner needs” refers to their preference for avoiding more onerous provisions such as specific forest management restrictions or easement-holder approval of management plans. 

Lind offers good advice regarding additional specific restrictions contained in a WFCE:  “Any easement terms that limit forest management practices should be easily and objectively measurable and monitorable” so landowners know the bar can’t be raised or lowered, and easement holders can measure and monitor compliance.  However, as good as this advice is, it rings as a hollow platitude.  No one can predict how, in the future, easement terms will be interpreted or enforced.  Paradoxically, the more precise the language, the less flexible the easement becomes.  Lind later notes that WFCEs must retain their flexibility to accommodate new technologies, markets, and forest conditions.  Good advice.

Lind lauds “outcome-based” prescriptions, focusing on the resource to be protected, as preferable to “formulaic forestry” in which the landowner focuses on the standard rather than the purpose.  This provides more flexibility regarding the approach towards a desired outcome.  Again, sound advice.

The author also calls for specific restrictions to be “appraisable.”  However, she ignores the reality that some restrictions are simply not appraisable, but this does not necessarily mean that they should be excluded from the easement.

Under baseline documentation, Lind describes timber inventory as “highly desirable as a benchmark of the forest condition,” and goes into some detail regarding what level of information might be needed under various types of easements.  She also discusses “biological inventories” for establishing the condition of non-timber conservation values.

Lind reviews the monitoring process, and emphasizes the importance of easement holders building good relationships with landowners.  She discusses violations, and the importance of having adequate funding to “defend” WFCEs.  This may involve hiring foresters and other experts.  She cites an interesting case example in which the easement holder learned a valuable lesson:  prescriptive language can encourage poor forestry practices, even if intended to prevent them, and that it is better to craft an easement so that the impact of its provisions on the goals of the easement can be successfully demonstrated to a judge.

The author cites the importance of clearly defining terms such as commercial harvest and clearcutting.  She also notes that easements should address “acts of God,” since the landowner should retain the ability to respond appropriately to “violations resulting from fire, storm, earthquake, and other events beyond the landowner’s control.”  Good advice on both counts.

Lind notes that the possibility of transfer of the WFCE to another easement holder “can be a roadblock for landowners,” for instance a landowner who objects to a public agency holding the easement, or who is nervous about its being transferred to an ENGO “that might not support the landowner’s goals.”  She notes one solution to this as being language that limits transfers to specific qualified easement holders.

The author concludes by noting that WFCEs are not the only tool for forest protection, and cites other efforts such as fee acquisition, forest banking, developing carbon credit market mechanisms, and green certification.

If you expect to be directly involved with conservation easements as a landowner or advisor, Working Forest Conservation Easements should be part of your library.  I also recommend it to those who are interested in land use trends across North America, for WFCEs will continue to grow in number, and will have a significant impact on the ability of our forest resources to provide for future generations.