Private lands conservation in Latin America: The need for enhanced legal tools and incentives

Journal of Environmental Law and Litigation

Volumn 19, Issue 1, 2004, Pages 85-139

  Swift, Byron ^a   Arias, Verónica ^a   Bass, Susan ^a   Chacón, Carlos M ^a   Cortés, Alberto ^a   Gutierrez, Martín ^a   Maldonado, Victoria ^a   Milano, Miguel ^a   Nunes, Lourdes ^a   Tobar, Monica ^a   Sanjinés, Veronica ^a   Solano, Pedro ^a   Theulen, Verônica ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

CONSERVATION; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL PROTECTION; INCENTIVE; LANDOWNER; LEGAL SYSTEM;

LATIN AMERICA; WESTERN HEMISPHERE; WORLD;

EID: 20044373847     PISSN: 10490280     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (206)

1. This report is adapted from Environmental Law Institute (ELI), Legal Tools and Incentives for Private Lands Conservation in Latin America: Building Models for Success (Sept. 2003) [hereinafter Building Models for Success]. This report was authored by Byron Swift, senior attorney at ELI in partnership with non-profit organizations in seven countries: Protection del Medio Ambient Tarija (Bolivia), Fundação O Boticário de Proteção a Natureza (Brazil), Comité Nacional pro Defensa de la Flora y de la Fauna (Chile), Centro de Derecho Ambiental y de los Recursos Naturales (Costa Rica), Centro Ecuatoriano de Derecho Ambiental (Ecuador), Pronatura, A.C. (Mexico), and Sociedad Peruana de Derecho Ambiental (Peru). In addition, contributions were made by Shelia Abed, Anita Akella, Luis Castelli, Elisa Corcuera, Federico Fahsen, Dan Janzen, Tony Langholz, Ximena de la Macorra, and Sylvia Sanchez. Funding for this study was generously provided by The Tinker Foundation, W. Alton Jones Foundation, Overbrook Foundation, John and Ginger Sall, Marshall Field, Peter Bross, Sally Davidson, Ivan Gayler, and Lisa Rarick.
2. Brazil adopted Decree No. 98.914, 31 January 1990, allowing areas to be designated as Private Reserves of Natural Patrimony (RPPNs); today, Decree No. 1922, 5 June 1996, regulates RPPNs. Subsequently, a number of other countries have adopted legislation authorizing private reserves. See infra Part IV.B.2, Fig. 3.
3. See infra Part IV.C.2, Fig. 4.
4. See infra Part VI.
5. See infra Part IV.B.2, Fig, 3.
6. Special Law for the Conservation and Sustainable Use of the Biodiversity (Ecuador); Proposed Law to Foment the Creation of Protected Areas on Private Property (Chile); Proposed Law No. 14.924, Promotion of the Conservation on Private lands, Expediente (2002) (Costa Rica).
7. See infra Part I.B.
8. See World Conservation Monitoring Centre and IUCN World Commission on Protected Areas, 1997 United Nations List of Protected Areas (1998), available at http://www.unep-wcmc.org/protected_areas/data/ un_97_list.html (last visited June 21, 2004).
9. See INEGI, VII Censo Agrícola-Ganadero y Ejidal y Programa de Titulación y Certificación de Parcelas y Solares (1994) (Mexico) (establishing that 88 percent of land in Mexico is private). Most other countries are reported to be approximately 80 percent private lands, except for Peru which has only 20 percent private lands. See Building Models for Success, supra note 1.
10. See Conservation International, Hotspots: Earth's Biologically Richest And Most Endangered Ecosystems (1999), available at http://www.biodiversityhotspots.org (last visited Mar. 10, 2004).
11. I b i d.
12. These organizations include Fundación Jatun Sacha, Natura y Cultura International, and Fundación Jocotoco. See generally http://www.jatunsacha.org; http:/ /www.natureandcultureinternational.org; http://www.jocotoco.com (last visited Mar. 10, 2004).
13. Several instances of such partnerships are described in Building Models for Success, supra note 1. Particularly important ones are: the creation of the 153,000 ha. Guanacaste Conservation Area that involved the private purchase of 70,000 ha. that were later incorporated into the park; the private conservation purchase of land at the Monteverde Cloud Forest reserve, now the largest in Central America, that led to the creation of the even larger public Arenal reserved area; and the extension of the Braulio Carillo National Park to reach the La Selva biological station.
14. Elisa Corcuera et al., Conserving Land Privately: Spontaneous Market for Land Conservation in Chile, in Selling Forest Environmental Services, 129-49 (Stefano Pagiola et al eds., 2002). In Chile, for example, the ninety-four areas in the public natural protected areas system in 2002 protect 35 million acres (14,123,571 ha.), for an average size of 375,000 acres (150,000 ha.), whereas the 132 private protected areas, aside from the 300,000 ha. Pumlin area, average approximately 1450 acres (580 ha.). Id.
15. In Costa Rica, the forty-nine privately initiated wildlife refuges that have been created cover approximately 35,000 acres (14,000 ha.), or 700 acres (280 ha.) each; on the other hand, the other 112 areas in the public protected areas system cover 3,225,000 acres (1,290,000 ha.), or roughly 27,500 acres (11,000 ha.) each. Costa Rican Ministry of Environment (MINAE), National Information on the System of Protected Wild Areas (2003). See generally, Building Models for Success, supra note 1, at 106, 108.
16. See, e.g., Corcuera, supra note 14.
17. Almost all Latin American governments have reserved rights to minerals and other subsurface resources to the state. In many countries this is stated in the country's constitution, see Ecuador Constitution Art. 247; Mexican Constitution Art. 27, or in the framework laws relating to mining and hydrocarbons, see, e.g., Venezuela Law Regulating Hydrocarbons, Decree Law No. 1510, published in the Official Gazette of 13 November 2001 at 321.163, art. 3: "All hydrocarbons existing in the National Territory, of whatever nature ... pertain to the Republic and are public goods of inalienable character."
18. See infra Part V.
19. In 1990, the Federal Government published Decree No. 98.914, 31 January 1990, designating such areas, set forth in Article 6 of the Forest Code, as RPPNs. Currently, Decree No. 1922, 5 June 1996, regulates RPPNs.
20. Landowners in Costa Rica can establish Private National Wildlife Refuges under the Wildlife Conservation Law, No. 7317 of 1992 (Costa Rica), or private reserves under the Forestry Law No. 7575, 5 February 1996 (Costa Rica).
21. Law for the Guatemalan System of Protected Areas, Decree No. 4-89 (1989) and its reforms: Decree No. 18-89, Decree No. 110-96, and Decree No. 117-97 (Guatemala).
22. Landowners can obtain permanent designation of their lands as a private reserve through designation as a Bosque Protector. Title I, Chapter II of the Forestry Law for Conservation of Natural Areas and Wildlife Law, R.O. No. 64, 24 August 1981. The historical antecedent of this legal designation has its foundation in the Protective Forestry Law of 8 July 1964, which is published in the Official Registry No. 296 of 22 July 1964. The law is implemented through the Regulation of the Forestry Law, D.E. No. 1529, R.O. No. 965, 22 February 1983.
23. See Decree No. 1922, 5 June 1996.
24. Federal reserves total 405,114 ha., and state reserves total 82,117 ha., according to unpublished information of Fundacao O Boticário, derived from data of IBAMA (Dec. 2002). See also http:/ /www.rppn.org.br.
25. Carlos Chacon, CEDARENA, presented at the Fifth Latin American Congress on Private Lands Conservation (Cancun, Mexico, Jan. 29, 2003).
26. These three states are Nuevo Leon, Quintana Roo, and Veracruz.
27. See infra Part II, Fig. 1; Part IV.
28. See Conservation International, supra note 10.
29. See Building Models for Success, supra note 1, at 91-93 n.112.
30. Decree No. 014-2001-AG, Forestry and Wildlife Law, ley 27308 (Peru).
31. Decree No. 1.939, Art. 57, 1977, amended by Decree No. 19.606, Art. 10, No. 3, 1999 (Chile).
32. National Service of Agrarian Reform Law (INRA Law), Decree No. 1715, Article 26(3), of 18 October 1996, published Diario Oficial of 21 December 1996 (Bolivia).
33. See infra Part IV.G.
34. In the 1960s, only one state had a law authorizing conservation easements, the basic land conservation tool now used in the United States. By 1984, such laws had been passed in 44 of the 50 states. Early land trusts include the Trustees of Reservation, established in Massachusetts in 1892, the Sempervirens Fund in California in 1900, and the Society for the Protection of New Hampshire Forests in 1901. By 1980, there were only 400 or so land trusts, of which 50 percent had budgets of less than $5000 and most had no paid staff. Jean Hocker, Formation of the Land Trust Alliance in the United States, Presentation of the Land Trust Alliance, Washington, D.C. (2002); see also Land Trust Alliance, http://www.landtrustalliance.org.
35. Major financial incentives for land conservation in the United States include a property tax reduction in most jurisdictions and an income tax deduction if lands are permanently protected and donated to a qualifying non-profit organization or the government. I.R.C. §§ 170(f)(3)(B)(iii), 170(h)(5)(a) (2003).
36. See infra Part VI.
37. MINAE, Informe Nacional Sobre el Sistema de Areas Silvestres Protegidas (Feb. 2003) (Costa Rica).
38. Pronatura, A.C., Legal Tools for the Conservation of Private and Social Lands in Mexico, at 5 (Mexico 2002);
39. Building Models for Success, supra note 1, at 144. The determination of the carrying capacity of the land for the purposes of calculating maximum property holdings is made by the Technical Consultative Comissión for the Coefficient of Agostadero, part of the Secretary of Agriculture, Cattle-raising, Fishing and Food.
40. Land reform laws proposed by the Chavez government could limit private holdings to around 5000 ha. See Law of Land and Agrarian Development, Decree Law No. 1.546, published in the Offical Gazette of 13 November 2001.
41. See Food & Agriculture Organization, Latin America's Agrarian Reform: Lights and Shadows, available at http://www.fao.org/ docrep/x1372t/x1372t02.htm (last visited Aug. 22, 2004).
42. See, e.g., the first paragraph of Article 27 of the Mexican Constitution, which states: "In the Nation is vested the direct ownership of all natural resources of the continental shelf and the submarine shelf of the islands; of all minerals or substances; petroleum and all solid, liquid, and gaseous hydrocarbons; and the space above the national territory ...."
43. For example, the Mexican Constitution establishes a restricted zone (100 kilometers from a border and 50 kilometers from a coast) in which direct foreign ownership is prohibited, Mexican Constitution Art. 27(I); Ecuador prohibits any foreigner from owning land within 50 kilometers of the border. See Ecuador Constitution, Art. 15.
44. Restrictions on foreign ownership of farmland and other lands include Alberta (20 acres); Saskatchewan (10 acres); Manitoba (40 acres); and Quebec (10 acres). See, e.g., Alberta, Agricultural and Recreational Land Ownership Act; Foreign Ownership of Land Regulations (Alta. Reg. 160/79, s.1), available at http:// laws.justice.gc.ca/en/C-29/SOR-79-416/75434.html (last visited May 22, 2004).
45. See generally http://www.prairiecentre.com/pdf/2003/farmland.pdf (last visited May 22, 2004).
46. See, e.g., Bolivian Constitution Art. 169, which establishes that any property must fulfill the socio-economic function, which is further defined in Article 2 of the Agrarian Reform (INRA) Law as "the use of the land in the development of farming and forestry activities and others of productive character, as well as those of conservation and protection of the biodiversity, research and ecotourism, according to the land's capacity of greater use, in benefit of society, the collective interest and the interest of its owner."
47. Traditionally, rural lands are owned as small, medium, or large holdings in the farming or cattle-raising categories. In Mexico, there is a limit to the land that can be owned in either category, up to a maximum of 800 ha. for farming and enough land to raise 500 cattle for ranching. See Legal Tools in Mexico, supra note 38, at 5; Building Models for Success, supra note 1, at 11.
48. For example, the current general rule being implemented by the Bolivian government is that a private property owner classified as a cattle rancher can own only five ha. for each head of cattle owned.
49. See, e.g., Agrarian Law at 117-23 (1996) (Mexico).
50. See, e.g., Food & Agriculture Organization, supra note 40.
51. Bolivia's Agrarian Reform (INRA) Law allows the justification of the socioeconomic function through conservation and biodiversity protection activities, as well as research and ecotourism. See Bolivian Constitution Art. 169.
52. By approving the conservation easement or other instrument, the state, in effect recognizes that a valid use is being made of the land, fulfilling the requirement of socioeconomic use.
53. See infra Part II, Fig. 1.
54. Local NGOs have been active in buying land for conservation purposes in all countries. International funding sources have supported many such initiatives, but in almost all cases the funding is allocated to in-country NGOs that hold the title and assume management responsibility. See generally The Nature Conservancy, available at http://nature.org/joinandadopt/adoptanacre (last visited Mar. 3, 2004);
55. World Parks, available at http://www.worldparks.org (last visited June 21, 2004).
56. The history of the creation of the Monteverde (established 1972) and La Selva (1968) areas is summarized in Building Models for Success, supra note 1, at 104-05. See sources cited supra note 55.
57. See, e.g., Civil Code Art. 99 (Peru) (regulating non-profit foundations); Civil Code Art. 21-23 (1982) (Venezuela).
58. The Monteverde Cloud Forest Reserve was started in the 1960s when the Quaker community at Monteverde initiated a forest reserve on the mountaintop to assure a continuous supply of water for its dairy herds. In 1972, the Tropical Science Center (TSC) acted to establish a private reserve to counter the growing threat of deforestation. The TSC purchased an initial 328 ha., and in 1975 integrated the 554 ha. community watershed reserve into the Reserve. The TSC has continued to expand and manage the Reserve, which is now 10,500 ha. Starting in 1988, the Monteverde Conservation League began to purchase additional lands, financed by donations from school children around the world. This effort resulted in the creation of the neighboring 20,000 ha. reserve. See Children's Eternal Rainforest, at http:// www.barnens-regnskog.net/index_e.htm (last visited June 27, 2004).
59. See generally Tropical Science Center, at http:// www.cct.or.cr (last visited June 27, 2004);
60. http://www.monteverdeinfo.com (last visited June 27, 2004).
61. See generally Area de Conservación Guanacaste, at http://www.acguanacaste.ac.cr (last modified Aug. 5,).
62. See also William Allen, The Green Phoenix: Restoring the Tropical Forests of Guanacaste, Costa Rica (Oxford University Press 2001).
63. See Conservation Land Trust, at http:// www.theconservationlandtrust.org/LAND_English/introduction.htm (last visited June 27, 2004).
64. See generally Compania Vale Do Rio Dole, Linhares Vale Do Rio Dole Natural Reserve: Master Plan (2001). The Vale do Rio Natural Reserve is one of the last and most significant remnants of the Atlantic Forest ecosystem in the state of Espírito Santo. Id. at 3.
65. See Cementing the Natural Heritage, Economist, July 20, 2002, at 31;
66. see also CEMEX's conservation model, available at http:// www.cemex.com/qr/mc_pr_07270l.asp (last visited June 27, 2004). Part of their strategy in Maderas del Carmen was to establish a Museum of Natural History as a joint venture with a local ejido, with the ejido lands placed in the museum trust. Id.
67. See Sociedade de Pesquisa em. Vida Selvagem e Educação Ambiental (SPVS), Environmental Conservation and Carbon Sequestration (Brazil 2002);
68. see also Guaracqueçaba Environmental Protection Area, Brazil, The Nature Conservancy, at http://nature.org/initiatives/ climatechange/work/art4254.html (last visited Mar, 11, 2004). Funding of $5.4 million was provided by American Electric Power for the Guaracqueçaba Climate Action Project of 7000 ha., and ten million dollars was provided by General Motors for the Atlantic Rainforest Restoration Project of 12,000 ha. In both cases, assistance was provided by the Nature Conservancy, which has worked for over a decade to protect the ecosystems within the APA of Guaracqueçaba.
69. See generally Jatun Sacha Foundation, at http:// www.Jatunsacha.org (last visited June 27, 2004);
70. Nature and Culture International, at http:// www.natureandculture.org (last visited June 27, 2004);
71. Foundation Jocotoco, at http://www.jocotoco.com (last visited June 27, 2004).
72. See Hato Pinero, at http://www.hatopinero.com/english/ about.html (last visited June 27, 2004). Due to the vision of the Branger family, no hunting has been allowed on the 73,000 ha. Hato Pinero for fifty years. More recently, the Pinero Foundation, composed of family members and two independent directors, was established to own and conserve over 17,000 ha. of woodlands on the ranch. Information of Jaime Perez de Branger (2004) and Don Antonio Julio Branger (2002), President of Pinero Foundation.
73. See generally The Nature Conservancy, at http://nature.org/ joinanddonate/adoptanacre (last visited June 27, 2004);
74. World Land Trust, at http://www.worldlandtrust.org (last visited June 27, 2004);
75. World Parks, at http://www.worldparks.org (last visited June 27, 2004).
76. Art. 13 (V) of the Forestry Law 1700 (June 12, 1996) (Bolivia).
77. In 1990, the Brazilian government published Decree No. 98.914, 31 January 1990, authorizing the designation of areas as Private Reserves of Natural Patrimony (RPPNs). Currently, Decree No. 1922, 5 June 1996, regulates RPPNs.
78. Private reserves can be created under Costa Rica's Wildlife Conservation Law No. 7317 (1992).
79. Art. 14, Regulation of the Forestry Law, D.E. No. 1529, R.O. No. 965 (Feb. 22, 1983) (Ecuador).
80. Private reserves can be created under Guatemala's Protected Areas Law, Decree 4-89 (1989).
81. Law 352 of 1994, Chapter V; Resolution No. 79, Establishment of Procedures for the Legal Creation of Natural Protected Areas under Private Dominion in Paraguay, Dept. of National Parks and Wildlife (May 9, 2000) (Paraguay).
82. Regulation of the Protected Natural Areas Law, Supreme Decree No. 038-2001-AG, art. 61 (pub. 26 June 2001). Chapter IX (Peru).
83. See, e.g., Regulation of the Forestry Law, D.E. No. 1529, published in the Registre Oficial No. 965, Feb. 22, 1983 (Ecuador). In order to be a Bosque Protector in Ecuador, the government must conduct a number of studies, including location and boundaries, physiographic characteristics and ecological classification of the area, composition of the existing flora and fauna, and physical and morphologic aspects of the hydrographic basins of influence.
84. See, e.g., Law 352 of 1994, chapter V; Resolution No. 79, Establishment of Procedures for the Legal Creation of Natural Protected Areas under Private Dominion in Paraguay, Dept. of National Parks and Wildlife (May 9, 2000).
85. See, for example, Brazil's law, art. 7, supra note 65. Permitted uses in RPPNs are only for scientific investigation and visitation for tourism, recreation, or education objectives.
86. See, e.g., Peru, supra note 70.
87. I b i d.
88. See Decree No. 1922, 5 June 1996.
89. Bolivia's law specifies that a private forestry reserve must last for at least ten years but does not specify a maximum period. Art. 13 (V) of the Forestry Law 1700 (June 12, 1996) (Bol.).
90. See Wildlife Conservation Law, Ley No. 7317 (1992) (5-20 years, renewable).
91. Note that Argentina and Paraguay have no formal networks, but in Argentina the Fundación Vida Silvestre has created a landowner recognition program called Programa Refugios de Vida Silvestre. FVSA, Program of Wildlife Refuges: Promoting the Conservation of Private Lands in Argentina (Buenos Aires, December, 2001). In Paraguay, the Fundación Moisés Bertoni operates a Programa de Reservas Naturales Privadas.
92. In Chile and Costa Rica, the land data for formally designated reserves combines data for state-declared reserves and those created through private initiative, and so cannot be quantified here; information is lacking on formal reserves in Argentina and Colombia.
93. See infra note 92.
94. Corcuera, supra note 14, at 127-49.
95. Network of Private Natural Reserves, Guia de Reservas Naturales de la Sociedad Civil (Cali., Colombia 1999).
96. National Corporation of Private Forests of Ecuador; Inventory of Bosque Protectors at the national level, Environmental Ministry (2001).
97. Association of Private Natural Reserves of Guatemala (2003).
98. Fundacion Moises Bertoni & United States Agency for International Development USAID-Paraguay, Programa de Apoyo a Iniciativas Privadas de Conservacion-Una Revision de 10 Anos de Experiencias (Program of Support to Private Conservation Initiatives-A Review of 10 Years of Experience) (Para., 2000).
99. See Decree No. 1922, 5 June 1996 (Brazil).
100. See Wildlife Conservation Law, Ley No. 7317 (1992) (Costa Rica).
101. In Chile, Article 35 of the 1994 Environmental Framework Law No. 19.300 authorizes the government to implement a system of private protected areas. Regulations implementing this law were not passed until 2003, and no areas have yet been designated. See generally James Langman, Chilean Agency OKs New Regulations To Protect Privately Held Ecosystems 26 Int'l Envtl. Rep. 578 (June 4, 2003). In Mexico, Article 59 of the General Law of Ecological Equilibrium and Environmental Protection establishes that property owners and communities can designate their lands to conservation use with government approval, as areas called " Areas Productivas Dedicadas al Interés al Interés Público." However, complex procedures and a lack of incentives have meant that to date only one such reserve has been created (of 13,500 ha. in Jalisco).
102. Regulation of the Law of Natural Protected Areas, Supreme Decree No. 038-2001-AG, Chapter IX, published in Diario Oficial, 26 June 2001.
103. The Environmental Law [Environmental Law No. 1333 (1992)] authorizes the creation of private protected areas with a more general application than the existing ones under the Forestry Law. Pursuant to this law, the General Regulation of Protected Areas authorizes the creation of private protected areas: "private protected areas are those managed and financed voluntarily by individuals that without being part of the National Service of Protected Areas, will develop their activities within the framework of the system and of the assembly of norms that regulate the subject matter." General Regulation of Protected Areas, Supreme Decree No. 24716, Art. 18. Unfortunately, the specific regulation to implement this has not been issued. Hence, this mechanism for private conservation does not yet have practical application. Building Models for Success, supra note 1, at 52.
104. Fundação O Boticario de Proteção à Natureza (Dec. 2002) (unpublished, Curitiba, Brazil) (drawing on IBAMA data). See also www.rppn.org.br.
105. Decree No. 7251, 16 June 1993, Mato Grosso do Sul; State Decree No. 4262, 21 November 1994, Paraná; Decree No. 19,815, 2 June 1997, Pernambuco; Decree No. 39,401 of 22 January 1998, Minas Gerais (Brazil).
106. Decree No. 1922, 5 June 1996 (regulating RPPNs). See generally www.rppn.org.br.
107. Id. Owners of RPPNs may obtain a rural property tax exemption from the National Institute of Colonization and Agrarian Reform (Instituto Nacional de Colonização e Reforma Agrária), as they become part of the National Protected Areas System of the Environment (SISNAMA).
108. Decree No. R.O. 64, 24 August 1981, Ley Forestal y De Conservacion De Areas Naturales y Vida Silvestre. The historical antecedent of this legal designation has its foundation in the Protective Forestry Law of July 8, 1964, and published in the Official Registry No. 296 of July 22, 1964. The law is implemented through the Regulation of the Forestry Law, D.E. No. 1529, published in Offical Registry No. 965 (Feb. 22, 1983).
109. See Regulation of the Forestry Law, supra note 71. An additional seventy Bosque Protectores covering 2,237,183 ha. also have been established by the government over private lands for such purposes as watershed protection. Although these use the same legal instrument, they represent government designations of managed resource use areas and not private reserves.
110. Decree No. 7317, 1992, Ley de Conservación de Vida Silvestre (Costa Rica).
111. I b i d.
112. Costa Rica Poverty Law, Law No. 7575 (1996).
113. Regulation for the law of Protected Natural Area, Supreme Decree No. 038-2001-AG, Chapter IX (June 26, 2001).
114. Resolucion Ministerial No. 134-2001-AG, D.O. 12.12.2001.
115. See Decree No. 1922, 5 June 1996. (Brazil).
116. Ley No. 1700 Ley Forestal, published in Diario Oficial 12 June 1996. The Forestry Law entered into force on June 12, 1996 and makes reference to protection lands, which are defined in Art. 13 as: "lands with or without vegetal covering, that due to their degree of vulnerability to degradation, and/or the ecological services they render to the hydrographical basin, specific objectives, or to social interest or private initiative, are not susceptible to farming or forestry activities, limiting themselves to hydroenergetic, recreational, investigative, educational and any other indirect non-consuming uses."
117. No. 1715 Law of National Service of Agrarian Reformation 18 October 1996, published in Diario Oficial 21 December 1996 [hereinafter INRA Law]. The INRA Law establishes that all the properties, with or without title, must be subjected to the INRA title search process until the year 2006.
118. The conservation, or "in gross" easement, has been used successfully in the U.S. for several decades. In most cases, the landowner enters into an agreement with a qualified conservation organization that monitors the land use and enforces the easement. Such easements remain in effect even when the land passes to a new owner and may be created for a period of years or be permanent. Landowners may qualify for various financial incentives, including reductions of property and income tax, for entering into a conservation easement.
119. See Chacon, supra note 25.
120. A. Sibileau & E. F. Santagada, Environmental Easement for the Perpetual Protection of Private Land in Patagonia, Argentina: Case Study "Las Lagunas de Epulauquen," Fundacion Neuquen (2003) (on file with Fundacion Nenquen).
121. See Chacon, supra note 25.
122. Unpublished information provided by Centro Ecuatoriano de Derecho Ambiental, Quito, Ecuador (2003).
123. Unpublished report provided by Association of Private Natural Reserves of Guatemala (Guatemala City, Guatamala 2003).
124. Martin Gutierrez, Pronatura, presented at the Fifth Latin American Congress on Private Lands Conservation (Cancun, México, Jan. 29, 2003).
125. Information from Natural Land Trust and Guyra Paraguay (Asuncion, Paraguay, 2003).
126. See Chacon, supra note 25.
127. Building Models for Success, supra note 1, at 23-24.
128. Id. at 24. In Mexico, an easement was created at Rancho el Paval within the El Triunfo Biosphere Reserve in Chiapas, in which the dominant estate was the Reserve itself. Id. In Costa Rica, several easements have been created with public land as the dominant estate. See also Chacon, supra note 25.
129. See Gutierrez, supra note 112.
130. Building Models for Success, supra note 1, at 24.
131. See, e.g., Nuevo Leon; Quintana Roo Civil Code, article 2215.
132. Building Models for Sucess, supra note 1, at 22.
133. Id. at 19.
134. See Gutierrez, supra note 112.
135. Sibileau, A., and E. F. Santagada, 2003, Environmental Easement for the Perpetual Protection of Private Land in Patagonia, Argentina: Case Study "Las Lagunas de Epulauquen"; Fundación Neuquen, San Martin de los Andes, Argentina, available at http:// www.prodiversitas.bioetica.org/des50.htm (last visited Mar. 10, 2004).
136. See Gutierrez, supra note 112.
137. See generally, Jared Hardner & Richard Rice, Rethinking Green Consumerism, Scientific American, May 2002, at 89, available at http://www.sciam.com (last visited June 27, 2004) (describing conservation concessions).
138. Decree No. 1,939, Art. 57, 11 October 1977, article 57° et seq. (modified by Art. 10°, No. 3 of Decree No. 19,606 (1999)).
139. I b i d.
140. Claudia Sepúlveda et al., Catastro de Iniciativas Privadas en Conservación de la Biodiversidad Implementadas en Chile, (Working Paper No. 49), Centro de Investigación y Planificación del Medio Ambiente (CIPMA) (1998).
141. Decree No. 27,308, of 16 July 2000, Forest and Wildlife Law and its Regulation, Supreme Decree 014-2001-AG; see also Resolutión Ministerial 0566-2001-AG created complementary dispositions for conservation concessions (Peru), and Resolucion Jefaturial No. 059-2004 - INRENA for private reserves.
142. Resolucion Ministerial No. 134-2001-AG (published 27 December 2001).
143. Information of Amazon Conservation Assoc., http:// www.amazonconservation.org. See also Building Models for Success, supra note 1, at 172-73.
144. Decree No. 271, Art. 7, 28 February 1967.
145. Article 26 (3) of Ley INRA "authorize[s] concessions of state land for conservation and protection of biodiversity, investigation and ecotourism, previously certification of INRA concerning existing property rights in the area of concession, modifying these, revoking these, terminate them, and establish fees for such use." An impediment to the use of concessions in Bolivia today is that most properties lack clear land title, a problem that is likely to continue until Bolivia's land titling "saneamiento" process has been completed.
146. See Hardner & Rice, supra note 125.
147. The Land Trust Alliance calculates that of the over six million acres (2.4 million ha.) of private land protected by over 1200 local and regional land trusts in the United States, 2.4 million acres were bought and transferred to the government to hold in conservation status. Land Trust Alliance, National Land Trust Census 2000 (2001), available at http://www.1ta.org/newsroom/census_summary_data.htm (last visited June 27, 2004). In addition, the largest national land trust, The Nature Conservancy, has transferred about half of the fourteen million acres it has saved in the United States to government entities. It continues to manage 7.3 million acres. See generally The Nature Conservancy, Science at TNC (July 2002), available at http://nature.org/theScience (last visited Mar. 11, 2004).
148. Dan Janzen, who helped lead the private efforts to the purchase of 70,000 acres of private land that form part of the 153,000 ha. Area de Conservación Guanacaste in northwestern Costa Rica, writes: "Irrespective of considerations of management logic, such a single property would have been substantially too large to be allowed by the social forces characterizing Costa Rica's contemporary democratic society to exist as one private holding in a tiny country." E-mail from Dan Janzen to World Parks (Oct. 2002).
149. The first protected areas in Argentina were created in 1903 from a donation of lands of great scenic beauty in Patagonia by Perito F.P. Moreno, to be preserved intact for future generations by the National Government. Soledad Aguilar, Environmental Non-Government Organizations in Argentina, Reciel Vol. II, Issue 2, at 225 (2002).
150. "In March 1997 an agreement was reached with the Provincial government of Misiones for the adoption of the reserve by the government as a Provincial Park. This relieves the charity of all responsibility for management and protection of the area although rights of access are retained and an area of three hectares has been designated a Private Park on which a study center and residential building can be erected. This is a very satisfactory arrangement for all concerned and represents a successful conclusion of the first phase of the Cat Survival Trust's involvement in South America." The Mission Rainforest Foundation, Cat Survival Trust Report (Nov. 13, 2002), available at http://members.aol.com/cattrust/MRF.htm (last visited Mar. 3, 2004).
151. See Alejandra Herranz, Argentina's First National Coastal Park Created in Patagonia, Environment News Service (June 5, 2001).
152. See Sepúlveda, supra note 128.
153. See generally InBio, http://www.inbio.ac.cr/en/inbio/ inb_premioinbio02.htm (describing the Fundación de Parques Nacionales) (last visited Sept. 29, 2004).
154. See Area de Conservacion Guanacaste, supra note 56.
155. Resolucion Ministerial No. 134-2001-AG, published in Diario Oficial of 12 December 2001.
156. Interviews with Peter English, Director & Charlie Munn, President, Tropical Nature (Nov. 2002); see also Tropical Nature, at http://www.tropicalnature.org (last visited Aug. 22, 2004).
157. VII Censo Agrícola-Ganadero y Ejidal, INEGI, 1994 y Programa de Titulación y Certificación de Parcelas y Solares (PROCEDE) (Mexico).
158. See Environmental Law Institute, Legal Aspects of Forest Management in Mexico 91-103 (1998) (discussing creation and enforcement of the Special Biosphere Reserve for the Monarch Butterfly).
159. See generally Pronatura, available at http:// www.pronatura.org (last visited Mar. 3, 2004).
160. See Environmental Law Institute, supra note 146 (providing a general description of legal steps and conservation actions taken in the Special Biosphere Reserve for the Monarch Butterfly).
161. Building Models for Success, supra note 1, at 29.
162. I b i d.
163. Id. at 29-30.
164. Id. at 30.
165. I b i d.
166. Fundacion Jatun Sacha, Tito Santos Biological Reserve, at http:// www.jatunsacha.org/english/tito_santos.html (last visited Mar, 11, 2004).
167. Information from Michael McComb, Executive Director of Jatun Sacha Foundation (Nov. 2002). See also, Building Models for Success, supra note 1, at 30.
168. See infra, Part II, Fig. 1.
169. In a federal common law jurisdiction such as the United States, such restrictive rules can be imposed by state governments. To a limited extent, such rules have been imposed in special areas such as the Adirondacks State Park and margins of the Chesapeake Bay. See infra note 170.
170. Decree No. 13.273, and its regulation, Decree 710, 1995 (Argentina).
171. Regulation of the Law of Silviculture Decree No. 24453, Art. 3 (Bolivia).
172. Forest code amendment, Decree No. 7.803, (1989) (Brazil).
173. Decree No. 4,363, 1931; Decree no, 18378 and its regulation, Decree no. 259 de 1980 Art. 4; Decree no. 19.300, Art. 10 (Chile).
174. Forestry Law, No. 7575 (1996) (Costa Rica).
175. Regulation of the Forest Law, D.E. 1529, R.O. 965 (Feb. 22, 1983).
176. Forestry and Wildlife Law, Law No. 27308 and its regulation, Supreme Decree 014-2001-AG.
177. Law No. 4.771 of 1965 was promulgated to implement the new Forest Code and is still in force, although amended by laws No. 7.511, of 1986 and No. 7.803, of 1989 (Brazil).
178. Decree No. 750, 1993 (Brazil).
179. Anita Sundari Akella, James B. Cannon, and Heloísa Orlando, Conservation International, Center for Conservation and Government and Instituto de Estudos Socio-Ambientais de Sul da Bahia, Enforcement Economic and the Fight Against Forest Crime: Lessons Learned from the Atlantic Forest of Brazil (draft, Washington, D.C. October 2002).
180. Id. at 14.
181. Id. at 30-31.
182. The only equivalent regulation in the United States can be imposed by state law, and the best example is the Adirondack State Park, which covers six million acres in upstate New York, of which 57% is privately owned. The act creating the park and its regulations subject private lands within the park to restrictions on land use, development, and subdivision. N.Y. Exec. Law §§ 801-820 (Consol. 2003);
183. N.Y. Comp. Codes R. & Regs. tit. 9 §§ 572-580 (2004). Landowners must apply for and receive an agency permit before undertaking any development project such as buildings or roads within the park or else have an approved land use program for their land. Land use, development, and subdivision involving a shoreline are subject to regulations regarding minimum lot width, building setbacks, and sewer setbacks. In addition, no more than thirty percent of the shorefront may be cleared of vegetation. Id., tit. 9 § 575.1(e). Further rules and regulations apply to land within wild, scenic, and recreational river areas.
184. See infra, Part V.C, Fig. 5.
185. A.C. Pronatura, Herramientas Legales para la Conservación de Tierras privadas y Sociales en México (México, D.F. 2002).
186. UNEP World Conservation Monitoring Centre, Protected Area Database (2003), at http://www.unep-wcmc.org/protected_areas (last visited Oct. 6, 2004).
187. Information of Fundacao O Boticário, derived from data of IBAMA (Dec. 2002).
188. MINAE, Informe Nacional Sobre el Sisterna de Areas Silvestres Protegidas. (San Jose, Costa Rica Feb. 2003).
189. I b i d.
190. See Regulation of the Forestry Law, supra note 71.
191. I b i d.
192. Article 64 of Law 352/94, referring to the use restrictions established in article 24(b) (Paraguay).
193. Fundacion Moises Bertoni & United States Agency for International Development USAID-Paraguay, Programa de Apoyo a Iniciativas Privades de Conservacion-Una Revision de 10 Anos de Experiencias (Program of Support to Private Conservation Initiatives-A Review of 10 Years of Experience) (Asuncion, Paraguay, 2000).
194. Costa Rica gives first priority to private lands within parks and other public protected areas, then to private lands officially recognized as private reserves, and then to other private areas. Funding is typically only sufficient for the first category. See Chacon, supra note 25.
195. CODEFF, Las áreas silvestres protegidas privadas en Chile: Una Herramienta para la Conservación (Santiago de Chile, 1999).
196. MINAE-SINAC, Tenecia de la Tierra en Áreas Silvestres (Costa Rica, Sept. 2001).
197. See Pronatura, supra note 172.
198. Ley Forestal No 7575 of 13 February 1996.
199. See infra, Part II, Fig. 1.
200. Owners of RPPNs may obtain a rural property tax exemption from the National Institute of Colonization and Agrarian Reform (Instituto Nacional de Colonização e Reforma Agrária), as they become part of the National Protected Areas System of the Environment (SISNAMA).
201. Ley Forestal No 7575 of 13 February 1996.
202. The original Guatemalan law, Decree 4-89, provided in articles 31 and 32 land and income tax exemptions, but these were rescinded in 1997 through Decree 117-97.
203. However, it is important to point out that this situation is changing, as governments are increasing their efforts to raise their income to reduce their high public deficits. On one hand, governments, such as Brazil's and Costa Rica's, are improving their tax collection systems so tax breaks become more attractive to landowners. On the other hand, in Ecuador and Bolivia, tax exemptions are being eliminated, and therefore this type of incentive no longer exists.
204. Building Models for Success, supra note 1, at 113.
205. Ley Forestal No. 7575 of 13 February 1996.
206. See Chacon, supra note 25.