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ALCS Submits Comments on Pennsylvania Model Conservation Easement

Appalachian Land & Conservation ServiceS, LLC
6482 Rt. 414 Highway Cammal PA 17723 Ph: (717) 232-8335

September 22, 2016

Mr. Andy Loza, Executive Director
Pennsylvania Land Trust Association
119 Pine St. Harrisburg PA 17101

Dear Andy,

Here are a few thoughts on the Model Easement, as you have requested.

1) My field experience dealing with the model easement is different than what is represented by PALTA and many land trusts. I find land trusts are generally unwilling to deviate much from the boilerplate.

2) The "conservation goals" are no such thing, not even close, not one bit conservation. These are at the core of the first observation, the land trusts' unwillingness to move toward landowner interests. Why are the "conservation goals" not what they are claimed to be? Because these measures have absolutely nothing zero nada to do with natural resource conservation, and they have everything to do with iron-grip control and micromanagement of private lands. I fear that most of the newer easements are unenforceable due to these incredibly detailed goals and practices. These standards are setting up land trusts for failure and the total loss of the easements they hold.

3) A conservation easement is about conservation - shaping and limiting land subdivision and building. In Pennsylvania add in mining. Conservation easements used to be about these relatively simple, enforceable goals. Under the new "standards" and the model easement, perpetual agreements now bind the landowner into a pretzel shape, with the land trust hanging on for dear life. In practical life, an easement cannot be about how many trees will get cut, or got cut last year, and stream buffers, and so on and all the other minutiae now in the model easement. This big-control solutions to small problems (or no problems at all) micromanagement attitude directly conflicts with most landowners' interests and basic needs. Landowners deal with reality, not desktop theory. And if landowners are asked to give up the basic activities that naturally go with owning land, then who is going to want to go along with this? And who is going to monitor and enforce these?

4) Do you recall the survey I did many years ago, where I asked land trust staff and leaders if they owned land, beyond a homesite? Do you recall the results? Land ownership experience within the land trust community professional ranks was extremely low. That meant then (and probably still holds true today) that the people in charge of developing, implementing, monitoring and enforcing conservation easements were completely unaware of how those easements would fit into the real world of active land management. This sets up everyone involved for conflict and frustration.

The impression that flowed from that fact back then remains now: Most land trust professionals do not know themselves, personally, what it means to be a landowner and a practicing, active, successful market-based natural resource manager, because they themselves do not own and manage land. Therefore, we end up with clueless model easements that are the brainchild of people whose vision and values involve essentially shrink-wrapping land. This goes hand in glove with a culture of big government and big control of everything, and the use of conservation easements to achieve those goals. Instead of just buying the land and turning it over to public or private land managers.

This is the same old dynamic that birthed the Malpai Borderlands Project, where landowners (ranchers) had to create a land trust that served their actual interests and practices, not the unrealistic dreams of disconnected urbanites.

This is the same dynamic that resulted in my last appearance at a PALTA event, in 2009, when I brought several investors who had collectively donated over 10,000 acres of conservation easements in Pennsylvania, and who in our panel discussion described their growing frustration with land trusts' pursuit of ever more detailed, pointless, unworkable goals in easements, and the increasing disputes they had with land trusts.

5) I conveyed this message for eight years while on the PALTA policy board, and I am saying it now with more information and hindsight: PALTA is self-selecting members who enjoy the echo chamber of easy mutual agreement. The model easement is very much a child of that insular environment. I do not believe PALTA has had a politically conservative, pro-landowner, pro-resource management, pro-land conservation voice since I left in 2009, and I was just one voice and thus not very effective. As a result, the PALTA model easement has gotten much worse than it was back then.

6) The LTA and PALTA standards and credentials have become cumbersome and a dead weight to the kind of dynamic process that is involved in most land deals. The model easement is representative of that bureaucratic mindset.

In sum, every day I put my own money at risk to buy more land and find ways to conserve that land directly or exchange it for other land that we can conserve in perpetuity. I am not a theoretician, I am a practitioner, whose market-based risks and sacrifices and real world experiences shape my views. PALTA's model easement is a car wreck not waiting to happen, it is happening in slow motion now. By the time land trust professionals realize the mistakes in it, it will be too late. A few lawsuits about failed enforcement, or even fraud, will result in the house of cards coming down. Much will be lost. My recommendation is to make conservation easements super simple, super basic, super brief, and sleep easily at night.

Thank you for considering my observations.

Josh First Signature

Josh First