The development, status, and viability of the conservation easement as a private land conservation tool in the Western United States

Urban Lawyer

Volumn 39, Issue 1, 2007, Pages 19-74

  Engel, J Breting ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

CONSERVATION MANAGEMENT; DEVELOPMENT STRATEGY; ENVIRONMENTAL TAX; LAND MANAGEMENT; OPEN SPACE; PRIVATE LAND; RURAL AREA;

NORTH AMERICA; UNITED STATES;

EID: 34547838609     PISSN: 00420905     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (335)

1. See Regional Economies Assessment Database (READ), Population Growth by State, 1995-2005, Center for the Rocky Mountain West, The University of Montana, available at http://www.crmw.org/read/.
2. See Jon Christensen, Who Will Take over the Ranch, HIGH COUNTRY NEWS, Mar. 29, 2004, available at http://www.hcn.org/servlets/hcn.Article?article_id= 14648 (noting that "[s]ince 1980, the population of the 13 Western states has risen by more than 20 million, or 47 percent. That's about twice the growth rate of the United States as a whole.").
3. Id.
4. Organizations that monitor legislation effecting federal lands include, the Sierra Club, Northern Plains Resource Council, and the Montana Wilderness Association.
5. U.S. Department of Agriculture (USDA) Natural Resources Conservation Service (NRCS), 2001 National Resources Inventory, Urbanization and Development of Rural Land, http://www.nrcs.usda.gov/technical/land/ nri01/nri01dev.html (last visited Dec. 15, 2006) ("The rate of development between 1997 and 2001 averaged 2.2 million acres per year. This was the same average rate experienced between 1992 and 1997, but up from 1.4 million acres per year in the previous decade (1982-1992).").
6. Land Trust Alliance, National Land Trus't Census, available at http://www.lta.org/aboutlt/census.shtml (last visited Dec. 21, 2006) [hereinafter LTA, Census].
7. Johnston v. Sonoma County Agric. Pres. & Open Space Dist., 123 Cal. Rptr. 2d 226 (Cal. App. 2002).
8. ARTHUR KING PETERS, SEVEN TRAILS WEST 7-9 (Nancy Grubb ed., Abbeville Press 1996).
9. Id. at 240 (noting in a "Chronology of the Trails" that in "1890 [t]he Bureau of Census officially declare[d] the frontier closed").
10. See, e.g., PATRICIA NELSON LIMERICK, LEGACY OF CONQUEST 66 (W.W. Norton & Co. 2006) (1987) (noting how the prolific use of water by miners led to eventual development of the doctrine of prior appropriation, the water allocation system used in the West: "Miners also agreed to allocate water on the basis of prior appropriation, and the miners' precedent was carried into water allocation for irrigation and domestic use");
11. Id. at 99-133 (noting the significance of mining generally in the West, stating in part that "no industry had a greater impact on Western history than did mining");
12. JOSEPH KINSEY HOWARD, MONTANA: HIGH, WIDE, AND HANDSOME 97 (Yale Univ. Press 1959) (1943) (republished by Univ. of Neb. Press 2003) (noting the environmental devastation of early mining practices in Butte, Montana: "The prospectors, and later industrialists, who ruled Butte stripped the Rocky Mountains of their forests within a radius of fifty miles of the city. After copper was discovered came the horror of open-hearth smelting - the reduction of copper on giant wood and charcoal fires around the city, an operation that blanketed Butte with a perpetual pall of filthy yellow sulphurous smoke, hastening the demise of citizens with influenza or pulmonary disorders and denuding the hills of vegetation.")
13. See, e.g., PETERS, supra note 8, at 53 (noting that "[ t ]he best-known frontiersmen - Kit Carson, Jed Smith, Jim Bridger - rose to occupy heroes' niches in the pantheon of American archetypes; they will properly be remembered not for decimating the beaver and buffalo populations but for being the first white men to wrest a livelihood from the prairies and mountains of the trans-Mississippi West. Beyond that extraordinary feat of survival, they will also be remembered as trailblazers who opened the way for the Oregon-California, Mormon, and Santa Fe Trails, and eventually for the Pony Express, the Transcontinental Telegraph, and the Transcontinental Railroad routes").
14. See PETERS, supra note 8, at 12 (noting, with inset map, the route of the Lewis & Clark Expedition), at 23-27 (noting in detail the river passage to the West taken by the Lewis & Clark Expedition).
15. Id. at 55-56, 88.
16. See Christensen, supra note 2 (noting "[r]oughly half of the West is public land. And that means that the other half is private").
17. Id.
18. See, e.g., Montana Department of Transportation, Montana Highway Map (Lewis & Clark Commemorative ed. 2005-06) (depicting the Yellowstone River, from beginning to end, bordered primarily by United States 89, I-90,I-94, and finally Montana State Route 16);
19. Montana's Official State Website, Dep't of Fish Wildlife and Parks, Yellowstone River, http://fwp.mt.gov/fishing/guide/ q_Yellowstone_River_1039825479787.aspx (last visited Dec. 14, 2006) (noting the importance of the Yellowstone as one of the largest undammed rivers in the United States and also the significance the river has had in settlement of the area, stating: "The Yellowstone has survived as one of the last, large, free flowing rivers in the continental United States. Lack of mainstream impoundments allows spring peak flows and fall and winter low flows to influence a unique ecosystem and aesthetic resource. From the clear, coldwater cutthroat trout fishery in Yellowstone National Park to the warmer water habitat at its mouth, the river supports a variety of aquatic environments that remain relatively undisturbed. The adjacent terrestrial environment, through most of the 550 Montana miles of river, is an impressive cottonwood-willow bottomland. The river has also been a major factor in the settlement of southeastern Montana and retains much cultural and historical significance. Id. (emphasis added).).
20. A fitting example of this condition is the Yellowstone River Valley. I-90 West in Central Montana follows the Yellowstone River, with access roads along both banks, poles carrying old telegraph and phone lines, high tension power lines, and a major rail line, all running astride the Yellowstone. Following the bend in the river, (which flows northward out of the Park, before turning east at Livingston), U.S. Route 89 turns south, and follows the Yellowstone through Paradise Valley. The highway and access roads offer easy inroads along the way for the population boom that has divided many of the ranches and open space holdings in the valley into a pockmark of house-trailers and recreational cabins, many on pieces of land now too small for stock grazing, and many of those standing as unfortunate examples of "ridgetop" building. The Yellowstone River Valley is not an anomaly; the Clark Fork River Valley into Missoula, the Gallatin Valley from Bozeman to Big Sky, the Blackfoot River Valley, and many others are similarly situated.
21. See LIMERICK, supra note 10, at 58 (noting that "America's hope thus lay in westward expansion - in the extended opportunities for the growing population to acquire property and for the nation to remain at the happy and virtuous stage of agriculture." In America, Thomas Jefferson said, "[W]e have an immensity of land courting the industry of the husbandman.... Those who labor in the earth are the chosen people of God, if ever He had a chosen people, whose breasts He has made His peculiar deposit for substantial and genuine virtue").
22. See PETERS, supra note 8.
23. See LIMERICK, supra note 10.
24. See Kemmick, infra note 29.
25. See Public Policy Institute of California, Special Survey on Californians and Their Housing: Housing Costs Lead Many Californians to Consider Moving, Nov. 18, 2004, available at http://www.ppic.org/main/pressrelease.asp?i=528 (noting that, "Although Californians deeply value their quality of life in the Golden State, a surprising number say that the cost of housing could drive them away").
26. Id. (noting that "Nearly all Californians (94 percent) perceive that home values have been increasing in their region, with 84 percent saying they have increased a lot in recent years. Some see broad benefits to skyrocketing housing prices...").
27. See, e.g., Christine Meyers, Western Movies Turn 100: Montana Takes Star Turn in Film, BILLINGS GAZETTE, Sept. 21, 2003, available at http://www.billingsgazette.net/articles/2003/09/21/ magazine/export123136.txt (noting "[l]ong before the 'discovery' of Montana by land-deprived Californians or the trendy onslaught of sport utility vehicles, Hollywood has known about the Treasure State");
28. 'Brokeback' Could Spark Wyoming Tourism Boom, BILLINGS GAZETTE, Jan. 30, 2006, available at http://www.billingsgazette.net/articles/2006/01/30/news/wyoming/ 30-brokeback.txt (noting that Wyoming tourism officials have received much interest from abroad about the scenery in the film Brokeback Mountain, even though the film was shot in Alberta, Canada. The article goes on to explain the affect of movies portraying the West on tourism, stating, "[t]ourism officials have long known that a good movie can attract tourists. Store owners in Livingston, Montana, say customers still come to see the area where 'A River Runs Through It' was filmed...").
29. See Thomas Fuller, "Go West, Young Man!" - An Elusive Slogan, IND. MAGAZINE OF HISTORY, ¶ 100.3 (Sept. 2004), available at http://www.historycooperative.org/ journals/imh/100.3/fuller.html (noting that John B.L. Soule, not Horace Greeley, was the first to use the phrase "Go West, young man, and grow with the country," in an editorial appearing in the Terra Haute Daily Express in 1851. Mr. Greeley is credited with using a version of the phrase in an editorial of his own in 1865).
30. See, e.g., Vacation Homes Bump Montana Land Values, BILLINGS GAZETTE, May 15, 2002, available at http://www.billingsgazette.com/newdex.php?display=rednews/2002/05/15/ build/local/70-census-playground.inc (quoting an Ennis, MT realtor, discussing the "vacation ranch" market, as saying, "There's just a constant demand [for vacation homes].... People want a little piece of Montana. They want privacy, seclusion, trees, a creek. They want it all");
31. Montana Wilderness Federation, MWF Prioritizes Public Access to Public Wildlife and Public Lands, http://www.montanawildlife.com/ ed.htm (last visited Dec. 14, 2006) (noting that "[s]ome traditional livestock and farm operations have been sold and are now operated as trophy ranches for those who want to own a piece of Montana real estate...").
32. See National Park Service, Real Property Values, available at http://www.nps.gov/pwro/rtca/propval.htm (last visited Dec. 19, 2006).
33. See Scott McMillion, Booming Demand Leads to Overworked Planner, Grumbling Developers, BOZEMAN DAILY CHRON., Feb. 6, 2005, available at http://bozemandailychronicle.com/articles/ 2005/02/06/news/01county.txt (noting that in Livingston, Montana, "[t]he number of subdivision applications ...- has nearly tripled since 2002," and that during the 1980s in Livingston, "[h]ouses sat on the market for nine to twelve months before selling for an average of about $45,000. These days, the price has risen to an average of $120,000 'and it's not unusual to see multiple offers in excess of the asking price, and for the house to be under contract in 24 to 48 hours.'").
34. See, e.g., id. (noting that Gallatin County, where Bozeman is situated, "has a planning office of nine people, which spends 40 percent of its time on subdivision reviews");
35. Ed Kemmick, Builder Plans Riverside Subdivision with Range of Affordable Options, BILLINGS GAZETTE, Mar. 7, 2006, available at http://www.billingsgazette.net/articles/2006/03/07/ news/local/25-subdivision.txt (noting that "[t]he population of Billings grew 47 percent between 1974 and 2004, but the city limits expanded by 123 percent during the same period.... Local government has had to extend its services out to the edges of the growing city, putting a strain on police and fire departments, schools and other government services.").
36. See Larry Swanson, Montana's Regionally Diverse Economy: Montana's "Lopsided" Population Growth, O'Connor Center for the Rocky Mountain West, University of Montana, slide 5, available at http://ci.billings.mt.us/Online/popup/montana/ Montana_files/frame.htm#slide0066.htm (last visited Dec. 14, 2006).
37. Id.
38. See Christensen, supra note 2, (noting a 2002 study by the American Farmland Trust that defined many Western ranches as "part of the 25 million acres of 'strategic ranch lands at risk' [of development].... The trust found that ranchland at risk is concentrated in high mountain valleys and the mixed grassland areas surrounding the major mountain ranges in the region. In other words, pretty much any good-looking land with a view of the mountains: If it's scenic, it's in danger").
39. RICHARD BREWER, CONSERVANCY: THE LAND TRUST MOVEMENT IN AMERICA 8 (Dartmouth Coll./Univ. Press of New England 2003) (noting, "[w]e cannot depend on government to save land ... [T]he government as bureaucratic entity is no more likely to be on the side of conservation as on the side of the despoiler").
40. See, e.g., Patricia Nelson Limerick, Hope and Gloom out West, N.Y. TIMES, June 22, 2005, at A1 (noting that "we live in an era in which we are told daily, if not hourly, about the intense and draining polarization of our political world, and the West has its own well-developed version. Environmental conflicts - energy production and consumption, water allocation, wildfire management, land-use planning, growth control - provide fine battlegrounds for the display of the rattier aspects of human nature. But our conflicts present one great advantage: neither major political party offers much in the way of solutions. Consult the platform and mainstream positions of either the Republican Party or the Democratic Party and, on the issues that matter most to the West, you will find yourself contemplating the yawning interior of Mother Hubbard's cupboard.");
41. The National Parks Under Siege, N.Y. TIMES, Oct. 21, 2005, at A1 (editorializing a proposed revision drafted by Paul Hoffman, Assistant Secretary to the Interior Department, that would "open[] up the parks to off-road vehicles, including snowmobiles ... [by] ... eliminat[ing] the requirement that only motorized equipment with the least impact should be used in national parks.").
42. See BREWER, supra note 33, at 8-9 (noting the building of the O'Shaughnessy Dam that flooded the Hetch Hetchy Valley of Yosemite, and the current move to drill oil from the Arctic National Wildlife Reserve (ANWR), as examples that the federal government is not "up to the task of saving all the land that need[s] to be saved....").
43. National Parks Travel Website, Top Ten National Parks: Yellowstone National Park, http://www.nationalparkstravelwebsite.com (last visited Dec. 19, 2006) (noting that"[i]n 1872, President Ulysses S. Grant signed a law declaring that Yellowstone would forever be 'dedicated and set apart as a public park or pleasuring ground for the benefit and enjoyment of the people'");
44. see National Park Service, The National Park System, http://www.nps.gov/archive/crla/brochures/nps.htm (last visited Dec. 19, 2006).
45. See BREWER, supra note 33, at 23 (crediting Stephen Fox with the classification).
46. Id.
47. Restore Hetch Hetchy, Finding a Way Back to Hetch Hetchy Valley, available at http://www.hetchhetchy.org/pdf/exec_summary_final.pdf (last visited Mar. 29, 2006) (quoting John Muir, from his book The Yosemite: "Dam Hetch Hetchy! As well dam for water-tanks the people's cathedrals and churches, for no holier temple has ever been consecrated by the heart of man").
48. Paul Schullery, Foreword, to GIFFORD PINCHOT, FISHING TALK [ 3 (new ed., Stackpole Books 1993) (1936).
49. See BREWER, supra note 33, at 23 (noting, "[t]he battle ... pitted the utilitarians against the preservationists. Gifford Pinchot, first head of the U.S. Forest Service, was point man for the utilitarian viewpoint. In this view, the Earth is a basket of resources to be extracted in a manner to provide the greatest benefit to humans. About Hetch Hetchy, Pinchot wrote, 'I am fully persuaded that the injury by substituting a lake for the present swampy floor of the valley is altogether unimportant compared with the benefits to be derived from its use as a reservoir.'").
50. See Restore Hetch Hetchy, supra note 39 (noting the acts of this nonprofit organization working as part of the strong movement to have the Hetch Hetchy Reservoir drained, and the valley restored. Interestingly, preservationists are now making a utilitarian, if economic, argument, stating that restoration of the valley will prove to be in the best economic interest of the area, given the potential for significant increase in income from a profound influx of tourism; possibly up to $60 million a year. The report also relates the plan that these preservationists have to locate alternative water and power sources to replace the reservoir. Again, these arguments sound in utilitarianism, in that they posit that this dam and reservoir are no longer the best economic use of the land and water. These preservationists believe that, with a little help from man and machine, and somewhere under a billion dollars, the valley could be restored and wildlife returned in a period of "less than ten years.").
51. See U.S. Department of the interior, America's National Parks: Investing to Preserve Their Future, at 7, available at http://www.doi.gov/news/040813c.pdf (last visited Dec. 19, 2006) (noting "the controversy surrounding the construction of Glen Canyon Dam and the creation of Lake Powell contributed to the birth of the modern day environmental movement.").
52. See BREWER, supra note 33, at 23.
53. See, e.g., U.S. EPA, EPA History: Timeline, 1970s, http://www.epa.gov/history/timeline/70.htm (last visited Dec. 30, 2006) (noting the chronology of important environmental legislation in the 1970s and 1980s, including: the creation of the EPA by President Nixon on July 9, 1970, the passage of the Clean Air Act (CAA) in 1970, the Toxic Substances Control Act (TSCA) and Resource Conservation Recovery Act (RCRA) in 1976, the CAA amendments and Clean Water Act (CWA) in 1977, and passage of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA/Superfund) in 1980).
54. See, e.g., ZYGMUNT J.B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURAL, LAW, AND SOCIETY, 57 n.23, 1010 (3d ed., Aspen 2004) (noting that "[t]he first Federal Register order published in the name of President Ronald Reagan was a one-sentence Executive Order reversing [President Jimmy Carter's] ban on the export of unregisterable substances ... By 1982, 30 percent of the nation's chemical pesticide exports were of substances unregisterable in the United States.");
55. Amanda Griscom, How Green Was the Gipper?, GRIST MAG., June 10, 2004, available at http://www.grist.org/news/muck/2004/ 06/10/griscom-reagan/ (noting "'The Reagan administration adopted an extraordinarily aggressive policy of issuing leases for oil, gas, and coal development on tens of millions of acres of national lands - more than any other administration in history, including [the Bush II administration].' ... Before delving further into Reagan's track record, it's worth recalling his infamous public statement that 'trees cause more pollution than automobiles do,' and that if 'you've seen one tree you've seen them all.' This is not, in other words, a president who demonstrated much ecological prowess").
56. But see President Ronald Reagan, Remarks and a Question-and-Answer Session with Representatives of the Western Forest Products Coalition in Klamath Falls, Oregon, Mar. 5, 1983, available at http://www.reagan.utexas.edu/archives/speeches/1983/ 30583b.htm. President Reagan, in a speech to forest industry personnel, stated the following: In '66, when I was running for Governor - and I remember I addressed a forestry products group in San Francisco, and my opponent went out and said that I, in my address, had said that if you've seen one tree, you've seen them all. I never said any such thing. But then it was outdoor recreational land. You remember that there was a big wave. They were even foreclosing on some mining claims, and they were buying up land and using eminent domain to do it, claiming that it was needed for the future so there would be outdoor recreational space. Well, finally when they'd exhausted about all they could do with that, then came the environmental surge and the urge that - for the environment - [inaudible]. We have 80 million acres of wilderness land now. This is land that you cannot have a road in or anything of the kind. It's there because out of the 250-odd million Americans in this country, we realize that at least 240 million of them are backpackers who want to hike into that wilderness area. [Laughter]. President Reagan went on to make an astonishing claim: "There is today in the United States as much forest as there was when Washington was at Valley Forge." Id.
57. Mark Squillance, The Monumental Legacy of the Antiquities Act of 1906, 37 GA. L. REV. 473,474 n.6, 8 (2003) (noting "Roosevelt designated eighteen monuments covering approximately 1.5 million acres of land ... Clinton's twenty-two monuments encompass[] nearly six million acres ..." and that "[t]he only other president whose [national monument designations] might compare with Clinton's [is] Jimmy Carter, who still holds the record for protecting the most land.').
58. See, e.g., The National Parks Under Siege, N.Y. TIMES, supra note 34;
59. Bush Renews Call for Alaskan Oil Drilling as Oil Prices Spike, CNN.com, Mar. 9, 2005, available at http://www.cnn.com/2005/ ALLPOLITICS/03/09/bush.energy/ (quoting President Bush as saying: "Developing [a] small section of ANWR would not only create thousands of new jobs, but it would eventually reduce our dependence on foreign oil by up to 1 million barrels of oil a day.").
60. See BREWER, supra note 33, at 23.
61. See USGS, infra note 244.
62. See CNN.com, supra note 48 (noting that while "the American Petroleum Institute, the oil industry's trade association, say[s] the refuge sits atop enough oil to replace U.S. imports from Saudi Arabia for two decades ... [e]nvironmental groups like the Sierra Club say that figure is wildly overstated, arguing that any oil reserves beneath the refuge's coastal plain would last less than a year - while opening the refuge to oil exploration would inflict irreparable damage to the vast wilderness area.").
63. See BREWER, supra note 33, at 9 (stating, "Americans believed for a long time that federal and state governments were going to do the job of conserving land; all that was needed from us was encouragement. By the mid-1970s, this belief had faded. Opposition had surfaced to the government's acquiring land for the purpose of preservation and even to protecting land that was already government owned. Some people began to object to paying taxes for any public good. Government always has many choices competing about how to spend money, and other issues seemed to gain priority by 1980. As a result, citizens around the country began to recognize that government was no longer up to the task of saving all the land that needed to be saved; they'd have to do it themselves. From 1986 to 1995, people were forming new land trusts at the rate of one per week.").
64. See Land Trust Alliance, Frequently Asked Questions: What Does a Land Trust Do?, http://www.lta.org/faq/(last visited Apr. 2, 2006) [hereinafter LTA]. In response, the LTA states: Local and regional land trusts, organized as charitable organizations under federal tax laws, are directly involved in conserving land for its natural, recreational, scenic, historical and productive values. Land trusts can purchase land for permanent protection, or they may use one of several other methods: accept donations of land or the funds to purchase land, accept a bequest, or accept the donation of a conservation easement, which permanently limits the type and scope of development that can take place on the land. In some instances, land trusts also purchase conservation easements.
65. See BREWER, supra note 33, at 1.
66. Id. at 13-14.
67. Id. at 14.
68. Id. at 15-16.
69. Id. at 17.
70. Id.
71. See Peters, supra note 8, at 7-9.
72. BREWER, supra note 33, at 1.
73. See LTA, supra note 53.
74. Land Trust Alliance, Conservation Options for Landowners: Land Donation, http://www.lta.org/conserve/options.htm (last visited Dec. 15, 2006) (noting that a "charitable remainder unitrust" involves a transaction whereby land is preserved via conservation easement, then sold by the trustee, with the proceeds distributed to one or more beneficiaries, and a "bargain sale" of land, whereby a seller generates immediate income from donation of conservation land to a trust, which can acquire the land more easily due to the lower sale price).
75. Julie Ann Gustanski, Protecting the Land: Conservation Easements, Voluntary Actions, and Private Lands, in PROTECTING THE LAND, CONSERVATION EASEMENTS PAST, PRESENT, AND FUTURE 15-16 (Julie Ann Gustanski & Roderick H. Squires eds., Island Press 2000) (noting, "[i]n essence, granting a conservation easement creates a legal partition of the ownership bundle of rights. The recipient organization retains the rights associated with development. In turn, the landowner continues to hold fee simple title to the property, with an understanding that uses must be in keeping with the terms of the easement.").
76. Id. at 15 (noting, "[r]ights typically removed from the land by a conservation easement include development and mining. Those rights that remain with the land are generally those seen as nondestructive and otherwise conducive to the protection of the resource itself.").
77. Land Trust Alliance, Conservation Easements: What Is a Conservation Easement?, http://www.lta.org/faq/#ce_head (last visited Dec. 31, 2006) [hereinafter LTA, Conservation Easements];
78. accord, Uniform Conservation Easement Act (1981) § 1, available at http://www.law.upenn.edu/bll/ulc/fnact99/1980s/ ucea81.pdf (last visited Dec. 31, 2006) [hereinafter UCEA]. The LTA offers the following definitions: (1) "Conservation easement" means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open-space values of real property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property. (2) "Holder" means: (i) a governmental body empowered to hold an interest in real property under the laws of this State or the United States; or (ii) a charitable corporation, charitable association, or charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic, or open-space values of real property, assuring the availability of real property for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property. Id.
79. Land Trust Association, Working to Save America's Land Heritage, http://www.lta.org/aboutlt/ (last visited Mar. 31, 2006).
80. LTA, Private Land Conservation in U.S. Soars: Land Trusts Double the Acres Under Protection, Nov. 18, 2004, available at http://www.lta.org/newsroom/pr_111804.htm.
81. See LTA, supra note 53.
82. See Upper Valley Land Trust, ULVT's Stewardship Commitment: Defending Conservation Easements/Resolving Violations, available at http://www.uvlt.org/html/stewardship_commit.html (last visited Dec. 31, 2006) (offering an explanation of how a land trust typically resolves easement violations: "Although most landowners embrace the conservation provisions, problems sometimes arise. UVLT staff promptly and diligently investigates any suspected easement violation, taking care to thoroughly understand both the landowner's activities and the restrictions contained in the conservation easement. Non-compliance may be a simple matter of landowner ignorance, or may be much more serious and difficult to remedy. UVLT prefers to resolve problems cooperatively, but is prepared to go to court if necessary to carry out its enforcement obligations. Conservation easements are only as strong as our commitment to stand behind them.").
83. Nancy A. McLaughlin, Amending Perpetual Conservation Easements: A Case Study of the Myrtle Grove Controversy, 40 U. RICH. L. REV. 1031, 1062 (2006) ("The land protected by the Myrtle Grove easement is located on Maryland's Eastern Shore in the Chesapeake Bay watershed, so the controversy is close to home for proponents of protection and restoration of the Bay.");
84. see Sean P. Ociepka, Protecting the Public Benefit: Crafting Precedent for Citizen Enforcement of Conservation Easements, 58 ME. L. REV. 225, 230 (2006) (discussing "Existing Enforcement Case Law").
85. See Ociepka, supra note 71, at 247.
86. See generally Land Trust Alliance, Land Conservation Case Law Summaries (Rob Levin ed., 2006) (described by the Land Trust Alliance as: "A review of [seventy] cases on standing, merger, violations, amendment and termination, and more....").
87. See Ociepka, supra note 71, at 247;
88. see also LTA, FAQs, infra note 82 (noting, "A land trust that does not carefully select its projects may open itself to public criticism, credibility problems and even legal problems.").
89. LTA, Conservation Easements, supra note 66 (noting this reason for donating an easement: "People execute a conservation easement because they love their open space land, and want to protect their land from inappropriate development while keeping their private ownership of the property.").
90. See Julia D. Mahoney, Perpetual Restrictions on Land and the Problem of the Future, 88 VA. L. REV. 739, 751 (2002) (implying that charitable donations that offer a tax deduction are not motivated by a desire to do good, rather "[t]he motivations for granting conservation servitudes ... are not entirely altruistic. In exchange for the conveyance, landowners receive either direct cash compensation or indirect compensation in the form of tax benefits.").
91. Land Trust Alliance, Benefits of Conservation: Are There Tax Benefits Associated with Land Protection?, http://www.lta.org/aboutlt/ faq.shtml (last visited Dec. 14, 2006).
92. See BREWER, supra note 33, at 32 (noting, "[t]he years from 1930 to 1941 were hard times, the years of the Great Depression. Most people focused on their own family's survival, not on forming organizations to save land.").
93. Id. at 32-34 (noting the correlation between the broader environmental movement of the early 1970s, and private land conservation, stating: "The first Earth Day, in April 1970, quickened the pulse of many young conservationists. Earth Day was much more focused on pesticides, pollution, and population than on saving natural lands, but it was an energizing event.... In this atmosphere of concern for the Earth, the activities of The Nature Conservancy and the Trust for Public Land were taken as models for land-saving action by groups of concerned citizens.... [T]hese national groups were the impetus for many reinventions of the idea of a local land trust.").
94. LTA, National Land Trust Census: Graph 3: Growth in the Number of Land Trusts, 1950-2005, available at http://www.lta.org/aboutlt/ census.shtml (last visited Dec. 18, 2006) [hereinafter LTA, Census].
95. See STEPHEN J. SMALL, An Obscure Tax Code Provision Takes Private Land Protection into the Twenty-First Century, ch. 3 in GUSTANSKI, supra note 64, at 56 (noting "[t]he easement provisions added to the Internal Revenue Code in 1976 occurred virtually without debate and without any notice whatsoever.... When the statute was amended in 1980, only a few interest groups were involved. Once section 170(h) became law in 1980, however, the fledgling land trust movement around the country began to pay attention....").
96. See, e.g., UCEA, supra note 66;
97. GUSTANSKI, supra note 64, at 11-12.
98. See Ociepka, supra note 71, at 229-30.
99. See SMALL, supra note 80, at 56.
100. See generally Land Trust Alliance, Frequently Asked Questions, http://www.lta.org/aboutlt/faq.shtml (for an overview of the growth of the land trust movement, and links to specific information) (last visited Dec. 14, 2006).
101. See LTA, Census, supra note 79.
102. The easements are held by more than 850 land trusts. See LTA, Census, supra note 79.
103. Id.
104. Id.
105. See SMALL, supra note 80, at 56.
106. Id.
107. Id.
108. Id. at 56-57 (noting that legislative history shows Congress only anticipated a loss of perhaps "$5 million annually in income tax revenue through conservation easement donations.... [Yet a]t least one easement donated in 1998 had a value of more than $10 million.").
109. The National Conference of Commissioners on Uniform State Laws, Background, http://www.nccusl.org/nccusl/ DesktopDefault.aspx?tabindex=0&tabid=9 (last visited Dec. 19, 2006) ("The National Conference of Commissioners on Uniform State Laws (NCCUSL) is now in its 116th year, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.") [hereinafter NCCUSL, Background].
110. See TODD D. MAYO, A Holistic Examination of the Law of Conservation Easements, in GUSTANSKI, supra note 64, at 26-27.
111. The National Conference of Commissioners on Uniform State Laws, Uniform Conservation Easement Act, http://www.nccusl.org/nccusl/ uniformact_summaries/uniformacts-s-ucea.asp (last visited Dec. 19, 2006).
112. Id.
113. See NCCUSL, Background, supra note 93.
114. See BREWER, supra note 33.
115. Id. (noting that historic preservation easements are also covered by the UCEA. Just as the drafters of the UCEA note that conservation easements keep ranches working in commerce, they also note that preservation easements keep historic structures protected, while still allowing the property to continue "serving commercial or residential purposes.").
116. See Christensen, supra note 2.
117. National Resources Conservation Service, Farm and Ranch Lands Protection Program, http://www.mt.nrcs.usda.gov/programs/frpp/ (last visited Dec. 19, 2006).
118. I.R.C. § 170(h)
119. See Small, supra note 80, at 55.
120. Staff of Senate Joint Committee on Taxation (JCT), 109th Cong., Options to Improve Tax Compliance and Reform Tax Expenditures 277, available at http://www.lta.org/publicpolicy/jct_excerpts.pdf.
121. Id. The JCT report summarizes the categories of "conservation purposes", taken from I.R.C. § 170(h)(4)(A), as follows: " qualified conservation contribution is a contribution of a qualified real property interest to a qualified organization exclusively for conservation purposes; qualified real property interest is (1) the entire interest of the donor other than a qualified mineral interest; (2) a remainder interest; or (3) a restriction (granted in perpetuity) on the use that may be made of the real property; qualified organizations include certain governmental units and land trusts; conservation purposes include (1) the preservation of land areas for outdoor recreation by, or for the education of, the general public; (2) the protection of a relatively natural habitat of fish, wildlife, or plants, or similar ecosystem; (3) the preservation of open space (including farmland and forest land) where preservation will yield a significant public benefit and is either for the scenic enjoyment of the general public or pursuant to a clearly delineated Federal, State, or local governmental conservation policy; and (4) the preservation of an historically important land area or a certified historic structure. Id.
122. Land Trust Alliance, Conservation Options for Landowners: Conservation Easements, http://www/lta.org/conserve/options.htm (last visited Dec. 19, 2006).
123. See I.R.C. § 170(f)(11); Land Trust Alliance, available at http://www.lta.org/publicpolicy/pl_108 357.htm ("quoting H.R. 108-755: Under Pub. L. No. 98-369, a qualified appraisal means an appraisal prepared by a qualified appraiser that includes, among other things, (1) a description of the property appraised; (2) the fair market value of such property on the date of contribution and the specific basis for the valuation; (3) a statement that such appraisal was prepared for income tax purposes; (4) the qualifications of the qualified appraiser; (5) the signature and taxpayer identification number of such appraiser; and (6) such additional information as the Secretary prescribes in such regulations.").
124. Montana Land Reliance, Tax Implications of Conservation Easements: Income Tax, http://www.mtlandreliance.org/tax.htm (last visited Dec. 19, 2006) [hereinafter MLR, Tax Implications].
125. Id.
126. Id.
127. Id.
128. See ANTHONY ANELLA & JOHN B. WRIGHT, SAVING THE RANCH 35 (Island Press 2004) (noting that agricultural assessment classification would prevent a reduction in property taxes, but also noting that "[p]roperty taxes might go down in states where such taxes are based on potential use rather than current use.").
129. See MLR, Tax Implications, supra note 108.
130. Id.
131. Id.
132. Id.
133. See ANELLA & WRIGHT, supra note 112, at 5.
134. See Laurel A. Florio, Mortgage Subordination: When and Why It's Necessary, EXCHANGE, Spring 2002, at 19, available at http://www.lta.org/publications/exchange/exchange_21_02_05.pdf. This source explains mortgage subordination for purposes of a conservation easement as follows: If a conservation easement is placed on a property with an existing mortgage, the easement is at risk of being dissolved in the event of a mortgage foreclosure. Unless the lender legally commits to leaving the conservation easement intact, ... [it] could be lost. A mortgage also prohibits landowners from claiming federal income tax deductions for an easement donation "unless the mortgagee subordinates its rights in the property to the right of the qualified organization to enforce the conservation purposes of the gift in perpetuity," according to Internal Revenue Code [§] 170A14 (g)(2). A mortgage subordination is an agreement in which a mortgage holder consents to give a conservation easement priority over the mortgage, although the mortgage was recorded prior to the easement.... Unless a previously-recorded mortgage was subordinated to the conservation easement, and the subordination agreement was recorded immediately prior to the conservation easement, the conservation easement may be automatically extinguished if the lender forecloses on the mortgaged property. Id.
135. See Christensen, supra note 2 (demonstrating how a conservation easement can help ranchers revalue their land to reflect agriculture values. Christensen applies the formula to development-threatened land in Gunnison County, in central-west Colorado). Further information applied here on acreage, number of cattle, land value, income possibilities, and variability of market, climate, and disease was gathered from interviews with several ranchers in Sweet Grass County, in south-central Montana, in order to reflect the discrepancies between development and agricultural value specific to that region. Every rancher interviewed expressed the impossibility of determining income from year to year, and the striking difference between how many animal units were possible on a given piece of land with or without irrigation. Development values rarely take water or irrigation rights - the most important element to a Western rancher - into consideration. One rancher answered the inquiry into the local ranching economy in a letter as follows: 2000 acres may run seventy mother cows who in a perfect world each have a calf that doesn't die somewhere along the way. In October or November those seventy calves average a weight of 590 pounds. With hormone's [sic] added at branding you may add another 20 pounds, but we raise natural beef. Steers bring $1.18 per pound, heifers always bring a nickel less. (This is [in] a good year mind you - we have sold a lot more critters for 80 and 90 cents.) And oddly enough male and female are about even each year. So the average is $681.45 per calf. The calf check is $47,701.50. Right there on the spot you have to pay a dollar a head for beef check off (another sore subject) a brand inspection fee and a fee for use of the stockyards and scales. But those are expenses right and you can deduct them! Like we need a deduction.... That big check looks so good until you realize that in 2006 a John Deere tractor will cost $70,000 and a track to feed the big bales in the winter will be $40,000 and that is without a bale feeder gizmo thing on the back that can lift the bales and roll them out. And of course there is no choice here because no one at this ranch can lift or roll a 1200# bale. Now do you believe us when we say, "WE LOVE OUR COWS!?" Oh yes, I forgot the bulls which you need to get those calves. A cheap bull will be $1500 but more likely about $3000. Of course you may spend $10,000 but we have resisted that. And we need a minimum of three, better have four in case one is lazy and hangs out in the shade near the water hole all day. Or one gets hurt fighting over a cow and is put out of commission (he does make a lot of good burger though). When breeding season is over those bulls need to be put in a far away remote pasture away from the cows which is ten months out of the year. If you don't have that far away pasture available the corral will do, but hay must be fed everyday. Bulls can't be kept for years and years either for fear of in-breeding. The buyers won't buy a freaky looking calf. I say it again: "WE LOVE OUR COWS!" Letter from a Sweet Grass County Rancher, Anonymous, to Bret Engel (Mar. 30, 2006) (on file with the UMKC Leon Bloch Law Library and with the author) [hereinafter Letter from Sweet Grass County Rancher].
136. Id.
137. $5,000,000 × .02 = $100,000.
138. $100,000 AGI × 30 percent exclusion = $30,000 × 6 years (year of the donation + 5 subsequent years) = $180,000.
139. See, e.g., Michael Jamison, Drought Leaving Many Montana Farmers in the Dust, THE MISSOULIAN, Nov. 17, 2002, available at http://www.missoulian.com/articles/2002/11/17/ export22225.txt. (In 2002, The Missoulian gave a seven-part special report in which several ranchers related the successive depletion of their stock throughout the drought which lasted from 1997-2005. In one story, an Eastern Montana rancher relates needing 5,500 acres for only 30 head of cattle; down from 150 before the drought began); Letter from Sweet Grass County Rancher, supra note 119.
140. See S. 701, 107th Cong. (2001), available at http://www.mtlandreliance.org/docs/s701.pdf;
141. see, e.g., Jerry Townsend, A Problem with a Solution: Maintaining Montana's Agricultural Heritage, HELENA INDEP. REC. , May 1, 2002 (editorial), available at http://www.helenair.com/articles/2002/05/01/stories/opinions/4a3.txt.
142. See ANELLA & WRIGHT, supra note 112 (noting that "conservation value" can be used as a sort of commodity which can be used to supplement the value of a cattle ranching venture, much as "recreational value" is commonly tapped from the land by allowing hunting access at a price. A conservation easement, say the authors, is simply a way for "the rancher to claim[ ] the financial benefits of this conservation value.").
143. See S. 710, 107th Cong. § 2(a) (2001).
144. Id.
145. But see S. 1780, 109th Cong. (2005);
146. LTA, Charities Legislation, infra note 193.
147. See H.R. 1836, 107th Cong. (2001).
148. David Cay Johnston, Few Wealthy Farmers Owe Estate Taxes, Report Says, N.Y. TIMES, July 10, 2005. Mr. Johnston is the author of PERFECTLY LEGAL: THE COVERT CAMPAIGN TO RIG OUR TAX SYSTEM TO BENEFIT THE SUPER RICH - AND CHEAT EVERYBODY ELSE (Penguin Group 2003).
149. Id.
150. Id.
151. Id.
152. Id.
153. The State of the Estate Tax, N.Y. TIMES, Aug. 8, 2005, at A14, available at http://select.nytimes.com/gst/ abstract.html?res=F00B16FC3C5A0C7B8CDDA10894DD404482.
154. See e.g., Internal Revenue Service (IRS), Tax Law Changes for Gifts and Estates and Trusts, Nov. 26, 2006, available at http://www.irs.gov/formspubs/article/0,,id= 112782,00.html#estate_exclu_2003;
155. Joel Friedman, Estate Tax "Compromise" With 15 Percent Rate Is Little Different Than Permanent Repeal, Center on Budget Policy and Priorities, July 27, 2005, available at http://www.cbpp.org/ 7-27-05tax.htm [hereinafter IRS, Tax Law Changes].
156. Gift and Estate Resources for Professionals, Charitable Trust and Estate Planning: Estate Tax Information in 2001, http://gift-estate.com/article/tax2001.html (last visited Dec. 30, 2006) [hereinafter Gift & Estate].
157. EUGENE WILLIS ET AL., WEST FEDERAL TAXATION: COMPREHENSIVE VOLUME 27-8 (2006 ed., Thomson South-Western 2006).
158. See Gift & Estate, supra note 137.
159. See, e.g., The State of the Estate Tax, supra note 135 (noting that if the estate tax were abolished, the loss in revenue "would [be] an estimated $745 billion during the first 10 years of repeal");
160. FRIEDMAN, supra note 136 (noting that if the $3.5 million 2009 exemption level is solidified, with a tax rate of 15 percent as Senator Jon Kyl has proposed, the loss in revenue will be $595 billion over 10 years).
161. See The State of the Estate Tax, supra note 135.
162. See Johnston, supra note 130.
163. See SMALL, supra note 80, at 60.
164. See Land Trust Alliance, Conservation Options for Heirs to Land, http://www.lta.org/publicpolicy/heirs_updated.doc (last visited Dec. 30, 2006).
165. See SMALL, supra note 80, at 60;
166. Open Space Protection Collaborative, Tax Incentives: Estate Tax Treatment, Land Subject to a Qualified Conservation Easement, http://www.openspaceprotection.org/tax_estate.htm# (last visited Apr. 1, 2006) [hereinafter OSPC].
167. OSPC, supra note 145.
168. Id.; I.R.C. § 2031(c)(3) (2005), available at http://www4.law.cornell.edu/uscode/html/uscode26/ usc_sec_26_00002031.-000-.html.
169. 34 Am. Jur. 2d Federal Taxation 143,900.3 (noting that before Jan. 1, 2001, there were additional conditions for the estate to qualify as "land subject to a qualified conservation easement." Namely, the earlier version of the act required the land be within a certain radius from a metropolitan area, national park, or wilderness area. It would appear that now, land is required to be "under significant development pressure.").
170. I.R.C. § 2031(c)(4)(A).
171. I.R.C. § 2031(c)(8)(A)(ii).
172. See I.R.C. § 2031(c)(2);
173. OSPC, supra note 145.
174. See, e.g., I.R.C. § 2031(c)(8)(B);
175. SMALL, supra note 80, at 62.
176. See SMALL, supra note 80, at 63.
177. I.R.C. § 2031(c)(6).
178. See I.R.C. § 2031(c)(9), SMALL, supra note 80, at 63.
179. I.R.C. § 2055(f) (2005), available at http://www4.law.cornell.edu/uscode/html/uscode26/ usc_sec_26_00002055.-000-.html (last visited Dec. 14, 2006).
180. See OSPC, supra note 145.
181. See, e.g., SMALL, supra note 80, at 61-62;
182. OSPC, supra note 145.
183. 26 U.S.C. § 2031(c)(3).
184. See H.R. 1836, 107th Cong. (2001).
185. See IRS, Tax Law Changes, supra note 136.
186. Id.
187. See The State of the Estate Tax, supra note 135.
188. Id.
189. See Land Trust Alliance, Threats to Conservation Tax Incentives: Joint Committee on Taxation Report, http://www.lta.org/publicpolicy/ ppc_background.htm#threats (last visited Dec. 14, 2006) (detailing the 2005 recommendations of the Joint Committee on Taxation to change § 170(h)).
190. See, e.g., Jonathan Weber, A Class War Runs Through It, N.Y. TIMES, Sept. 6, 2005 (noting the attention to easements in Congress because some developers were "gaming the system" by "claiming conservation easements for golf courses," and further noting how recreational ranches are in some cases limiting stream access to locals, stating, "[T]here's something wrong when a billionaire buys a ranch, gets a tax break for an easement and then chases the locals off the river in the name of conservation.");
191. see Terry Anderson & Jon Christensen, How to Stop Conservation Donors from Cheating on Their Taxes, The Chronicle. of Philanthropy, Apr. 28, 2005, available at http://www.lta.org/ publicpolicy/anderson_christensen.htm.
192. See, e.g., Weber, supra note 166;
193. Julia D. Mahoney, Perpetual Restrictions on Land and the Problem of the Future, 88 VA. L. REV. 739, 751 (2002), available at http://www.law.virginia.edu/lawweb/Faculty.nsf/FHPbI/5806. Julia D. Mahoney is a professor of law at University of Virginia School of Law.
194. See Weber, supra note 166.
195. See SMALL, supra note 80, at 55.
196. David B. Ottaway & Joe Stevens, The Nature Conservancy, WASH. POST, available at http://www.washingtonpost.com/ wp-dyn/nation/specials/natureconservancy. The Post website describes the TNC series as follows: "This ... series describes The Nature Conservancy's transformation from a grassroots group to a corporate juggernaut." The Post site further explains that while the series began in 2001, it was postponed by 9/11 and the wars in Afghanistan and Iraq. It is perhaps these major issues of national security that prevented the reactionary legislation limiting easement deductions from sailing through Congress. However, the impact of the Post series cannot be underestimated, especially when considering that Senator Baucus was simultaneously introducing the Rural Heritage Conservation Act to broaden the scope of tax incentives, just as reports of the abuses by TNC hit the nation's capital. Id.
197. Id.
198. Bob Keller & Daniél Morgan, National Legislation Would Handicap Local Land Trusts, What.com Watch Online: Story Display (May 2005), available at http://www.whatcomwatch.org/php/ WW_open.php?id=551 (reporting that a TNC executive reportedly took a bargain sale of a $2.1 million piece of property from the Conservancy for $500,000 and then turned the $1.6 million difference into a tax deduction as a qualified conservation donation).
199. Id.;
200. see also Joe Stephens, IRS Starts Team on Easement Abuses, WASH. POST, June 9, 2005, at A6 (reporting that over a three-year period in South Carolina, "[s]even of the most lucrative tax deductions went to the owners of golf courses, who placed the easements on their fairways and claimed deductions totaling $125 million.").
201. See, e.g., sources cited supra in notes 104-05;
202. Land Trust Alliance, Protect Private Conservation, http://www.lta.org/publicpolicy/ppc.htm (last visited Dec. 14, 2006) (LTA has followed this legislation closely from Washington and provided updates on its website, including copies of letters to JCT from conservative and liberal congressmen and governors opposed to the draconian measures.).
203. See Joint Committee on Taxation, supra note 104, at 281.
204. See Staff of Senate Comm. on Finance, 103d Cong., Committee Report on The Nature Conservancy, available at http://www.senate.gov/ %7Efinance/hearings/other/tnccontents.pdf [hereinafter Senate TNC Report].
205. Id.
206. See Ottaway & Stevens, supra note 170.
207. See Keller & Morgan, supra note 172.
208. See, e.g., ANELLA & WRIGHT, supra note 112, at 112 (noting, "The Montana Land Reliance holds 515 easements on more than 500,000 acres of ranch land - an unrivaled record of accomplishment.");
209. Montana Land Reliance, Who We Are, What We Do and How We Do It, http://www.mtlandreliance.org/who.htm (last visited Dec. 14, 2006) (noting that the number of acres now protected by conservation easements held MLR at 573,875).
210. Montana Land Reliance, 2004 Financial Report, available at http://www.mtlandreliance.org/finance.htm.
211. The Nature Conservancy, Consolidated Financial Statements as of June 30, 2004 and 2003, available at http://nature.org/aboutus/ annualreport/files/arfinancials2004.pdf (reporting The Nature Conservancy's 2004 assets at $4.065 billion).
212. Montana Land Reliance, About Us, http://www.mtlandreliance.org/ who.htm (last visited Dec. 14, 2006).
213. Montana Land Reliance, How We Do It, http://www.mtlandreliance.org/ who.htm (last visited Dec. 14, 2006).
214. See The National Conservatory, Our Mission, http://nature.org/aboutus/(last visited Dec. 19, 2006).
215. See Senate TNC Report, supra note 176, at Executive Summary 2. The report notes; The Committee commends TNC for its cooperation during this investigation. The volume and complexity of TNC's activities required the Committee to compile several information requests. TNC responded to these requests in a very detailed, organized and timely manner which greatly assisted the Committee staff in sorting, reviewing and understanding the documentation provided.
216. S. 1780, 109th Cong. (2005);
217. See Planned Giving Design Center, Santorum, Lieberman Reintroduce [Charity, Recovery, and Empowerment] CARE Act, Sept. 29, 2005, available at http://www.pgdc.com/usa/item/?itemID=304178.
218. Land Trust Alliance, Congress Introduces Charities Legislation, Oct. 7, 2005, available at http://www.lta.org/publicpolicy/ adv_archive/adv_100705.htm.
219. Id.
220. Id.
221. Id.
222. Id.
223. Land Trust Alliance, Congress Introduces Charities Legislation, Oct. 7, 2005, available at http://www.lta.org/publicpolicy/ adv_archive/adv_100705.htm [hereinafter LTA, Charities Legislation]. LTA also notes that while the House of Representatives is considering a similar bill to extend incentives for charitable donations, that bill, known as the Charitable Giving Act of 2005, (H.R. 3908) does not include the conservation incentives of S. 1780.
224. Id.
225. Land Trust Alliance, Congress Approves Expansion of Tax Incentive for Conservation, http://www.lta.org/publicpolicy/ tax_incentives_updates.htm (last visited Dec. 30, 2006).
226. Id.
227. Id.
228. See Land Trust Alliance, Conservation Incentive Combined with Solid Tax Reforms, http://www.lta.org/publicpolicy/hr4_factsheet.htm.
229. Id.
230. Id.
231. See Nancy A. McLaughlin, Rethinking the Perpetual Nature of Conservation Easements, 29 HARV. ENVTL L. REV. 421 (2005);
232. University of Utah, Faculty and Administration, available at http://www.law.utah.edu/faculty/bios/mclaughlinn.html. Nancy A. McLaughlin is a professor of law at University of Utah, S.J. Quinney College of Law.
233. See Julia D. Mahoney, Perpetual Restrictions on Land and the Problem of the Future, 88 VA. L. REV. 739, 751 (2002), available at http://www.law.virginia.edu/lawweb/Faculty, nsf/ FHPbI/ 5806. Julia D. Mahoney is a professor of law at University of Virginia School of Law.
234. McLaughlin, supra note 201, at 424.
235. Mahoney, supra note 202, at 743.
236. Id. at 744.
237. Id. at 787.
238. McLaughlin, supra note 201, at 431.
239. Id. at 431.
240. Id. at 424.
241. Id. at 430.
242. Id. at 494-95;
243. see Nancy A. McLaughlin, A Constructive Reformist's Perspective on Voluntary Conservation Easements, NEWSL. STENGER CENTER, S.J. Quinney School of Law, Univ. of Utah, Fall 2005, at 8, available at http://old.law.utah.edu/faculty/bios/mclaughlinn/ 2005_constructive_reformists_perspective.pdf.
244. McLaughlin, A Constructive Reformist's Perspective, supra note 211;
245. see McLaughlin, supra note 201, at 499, 513-14.
246. See McLaughlin, supra note 201, at 519-20.
247. See Mahoney, supra note 202, at 744 (stating, "[F]uture generations ... will be stuck with their forbearers' land preservation choices, which will almost certainly fail to reflect contemporary cultural values and advances in ecological science.");
248. Id. at 768-69. The article states: The present generation should recognize that our definition of development is unlikely to be [the same as future generations'] definition of development, just as our conclusions about which land uses pose the greatest threats of environmental harm will not be theirs. As a result, we would do well to give serious attention to what will happen when (not if) present-day determinations about which lands merit preservation are revisited. Id.
249. Mahoney, supra note 202, at 764.
250. Id. at 764.
251. Id. at 769.
252. Id.
253. Mahoney, supra note 202, at 760. Strangely, Mahoney has no "vantage point" issue with the philosophy of Heraclitus. Perhaps those individuals who step into the same rivers generation after generation from time immemorial disagree with both Professor Mahoney and Heraclitus.
254. Id. at 740 (quoting Orwell: "Each generation imagines itself to be more intelligent than the one that went before it, and wiser than the one that comes after it").
255. Id. at 754.
256. Id. at 760.
257. Mahoney, supra note 202, at 760.
258. See Jim Robbins, Hunting Habits of Yellowstone Wolves Change Ecological Balance in Park, N.Y. TIMES, Oct. 18, 2005, at F3.
259. Id.
260. Id.
261. Mahoney, supra note 202, at 760.
262. See id. at 758.
263. Id. at 759.
264. U.S. CONST. amend. V ("nor shall private property be taken for public use, without just compensation.");
265. Kelo v. City of New London, 125 S. Ct. 2655 (2005) (The 5-4 Kelo decision held that economic development is a valid public use within the meaning of the Fifth Amendment, even where a municipality condemns property and then turns it over to a private developer. Even if the current Supreme Court were to limit this decision in the future, it is difficult, if not impossible, to imagine eminent domain not being available to provide land for a hospital for lack of classification as a "public use.").
266. See Missouri Governor's Office Home Page, Blunt Signs Bill to Protect Missouri Farm Families; Property Owners, http://www.gov.mo.gov/press/HB1944071306.htm (last visited Dec. 14, 2006) (noting the purpose behind the reactive state legislation was to "fix" the "blow to homeowners" that was "dealt" by the Kelo decision, as it related to "the use of eminent domain solely for economic development purposes.").
267. See Mahoney, supra note 202, at 761.
268. See DEBRA L. DONAHUE, THE WESTERN RANGE REVISITED: REMOVING LIVESTOCK FROM PUBLIC LANDS TO CONSERVE NATIONAL BIODIVERSITY 93 (Gordon Morris Bakken ed., Univ. of Okla. Press: Norman 1999). Noting the perpetuation of the "cowboy myth" as follows: Many commentators have undertaken to explain - and to debunk - the cowboy myth. William Cronon explains that the real cowboy was not the idealized figure of the cattle drives of the 1860s-80s, ... but simply a hired laborer: "Far from being a loner or rugged individualist, he was a wageworker whose task was to ship meat to the cities.... "Montana economics professor Thomas Michael Power describes the cowboy in similar terms, contrasting him with Jefferson's idealized yeoman farmer: "[The cowboy] was not an independent businessperson responsibly managing his land, livestock, and buildings. He was a migrant worker employed by a ranch owner, working for meager wages and engaged in backbreaking labor. It was antisocial, this life of the single male who owned nothing but his saddle, a horse, and a change of clothes, and who had a reputation for barging into western towns disrupting them with his trigger-happy carousing." [William L.] Graf further rejects the collective view of western society - "still dominated by the image of the independent cowboy, the ranching family surrounded with its hard-won herds of cattle, and a rural lifestyle" - which he claims is held by easterners. The "reality," which Graf says "was invisible in the popular mind," is that western towns by the 1920s "had streetcar systems, automobile garages, department stores, and movie houses (that also showed Western films")).
269. Id. at 92 (noting that "[flor those who cannot afford to savor the Old West for a week or two at a price of $80 to $270 per day [on a 'dude ranch,' - a 'western-themed' vacation resort], rodeos and stock shows offer a less costly, but tantalizing, taste. A common, even weekly, summer attraction in many small western towns and an indispensable component of county fairs, rodeos reflect the continuing appeal of the Old West.").
270. Mahoney, supra note 202, at 785.
271. See Mahoney, supra note 202, at 784-86 n.161 (quoting Thomas M. Parris, The Environmental Sites of Central and Eastern Europe, ENVIRONMENT, Apr. 1997, at 3 (noting that "[t]he world was stunned by the magnitude of the environmental degradation unveiled in Central and Eastern Europe after the fall of communism in 1990.")).
272. See Mahoney, supra note 202, at 784-86.
273. Id. at 785.
274. See GRANT S. NELSON ET AL., CONTEMPORARY PROPERTY 4-5 (2d ed., West Group 2002) (1996), noting: Under [the "bundle of rights" approach], "property" consists of a "bundle of rights or expectations in a tangible or intangible thing that are enforceable against third parties, including the government." This "bundle" may consist of some or all of the following rights: The right to possess; The right to use; The right to exclude; and the right to alienate (transfer).
275. See McLaughlin, 29 HARV. ENVTL. L. REV. 421. Noting all 50 states and the District of Columbia require that conservation easements be conveyed: (1) for one or more specified conservation purposes and (2) to a government agency or charitable organization, each of which is either directly or indirectly accountable to the public. Moreover, many easements are eligible for the federal charitable income tax deduction and state tax benefits because they encumber land that has been expressly designated as worthy of protection by the federal or a state or local government.
276. See Sweet Grass County Montana, Growth Policy § 1.2, available at http://www.co.sweetgrass.mt.us/ 2003growthapproved.pdf, stating: A growth policy is not a regulation; rather, it is an official statement of public policy to guide growth and change within the county. The goals and objectives included in this growth policy provide a basis for the policies and regulations implemented by the county. The Sweet Grass County Growth Policy is designed to be a tool for decision making and further planning.... Any directions given in this Growth Policy are general guidelines to follow and are not intended to be specific and inflexible. In practice, the result of such policies is that they may simply be ignored, but in the least, by being nonbinding, they offer little assurance to ranchers who would like to see their area stay in agriculture, and not under development pressure.
277. See GUSTANSKI, supra note 64, at 17 (noting, "the granting of a conservation easement to a qualified organization is ensured the same treatment under federal law as other charitable organizations, such as cash donation to the United Way.").
278. Id. at 766.
279. See U.S. Geological Service, What Is Geological Time?, available at http://wrgis.wr.usgs.gov/parks/gtime/index.html (relating that: "Concealed within the rocks that make up the Earth's crust lies evidence of over 4.5 billion years of time. The written record of human history, measured in decades and centuries, is but a blink of an eye when compared with this vast span of time.").
280. See Kelo, 125 S. Ct. at 2676 (O'Connor, J., dissenting). In Kelo, Justice O'Connor stated the following in her dissent: The Court rightfully admits, however, that the judiciary cannot get bogged down in predictive judgments about whether the public will actually be better off after a property transfer. In any event, this constraint has no realistic import. For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. Id.
281. See Montana Land Reliance, An Introduction to Conservation Easements: What are the Terms of a Conservation Easement?, http://www.mtlandreliance.org/easment.htm (last visited Dec. 19, 2006) (noting: "The terms of the easement do not in any way negate or modify state or federal law. Specifically, a conservation easement cannot prevent condemnation.").
282. Johnston v. Sonoma County Agric. Pres. & Open Space Dist., 123 Cal. Rptr. 2d 226, 228 (Ct. App. 2002).
283. Id. at 229.
284. Id.
285. Id. (quoting CAL. GOV'T CODE § 65562(a) (West 2002)).
286. Johnston, 123 Cal. Rptr. 2d at 229.
287. Id.
288. See Montana Land Reliance, An Introduction to Conservation Easements, supra note 246.
289. Johnston, 123 Cal. Rptr. 2d at 229.
290. Id. at 229 n.2.
291. Id. at 229 n.3.
292. Id. at 229 n.2.
293. Johnston, 123 Cal. Rptr. 2d at 237.
294. Id. at 229 n.3.
295. Johnston, 123 Cal. Rptr. 2d at 230.
296. Id. at 231.
297. Id. at 230.
298. Id.
299. Johnston, 123 Cal. Rptr. 2d at 230.
300. Id. at 231.
301. Id. at 230.
302. Id. at 230.
303. Johnston, 123 Cal. Rptr. 2d at 231.
304. Id.
305. Id.
306. Id.
307. Johnston, 123 Cal. Rptr. 2d at 232 (citing CAL. PUB. RES. CODE § 5542.5(a) (West 2002)).
308. Id.
309. Id.
310. Johnston, 123 Cal. Rptr. 2d at 232.
311. Id.
312. Id.
313. Id.
314. Johnston, 123 Cal. Rptr. 2d at 233.
315. Id. at 234-35.
316. Id. at 228.
317. Id. at 230.
318. Johnston, 123 Cal. Rptr. 2d at 230, 234.
319. Johnston, 123 Cal. Rptr. 2d at 236.
320. Id. at 236.
321. Id. at 236.
322. Id. at 238.
323. Johnston, 123 Cal. Rptr. 2d at 236.
324. Id. at 237 (citing Pac. Outdoor Adver. Co. v. City of Burbank, 86 Cal. App. 3d 5, 12 (1978)).
325. Id.
326. Id. at 232.
327. Johnston, 123 Cal. Rptr. 2d at 238-39.
328. Id.
329. Id. at 238.
330. Id. at 232.
331. Johnston, 123 Cal. Rptr. 2d at 232.
332. Id.
333. Johnston, 123 Cal. Rptr. 2d at 231.
334. Id. at 232.
335. MONT. CODE ANN. § 76-6-102 (2005).