There is an unfortunate downside to conservation easement donations that is not much talked about.
My purpose here is not to discourage landowners from donating easements, but rather to inform them of possible negative consequences.
When landowners donate a conservation easement, they give away some of their rights as landowners. Usually they give up their development rights, but most assume that they are retaining the right to farm and to hunt.
The easement may even state that nothing in the donation will impede the landowner’s right to farm and hunt.
The problem is that the entity that holds the easement cannot legally guarantee the landowner any rights at all.
Some say that our rights come from God, but the reality is that they come from local, state, and federal government. Will our governmental bodies ban farming and hunting? Probably not.
However, what the government can do is pass legislation that will make farming and hunting difficult, if not impossible.
We already know that many environmentalists are attempting to have cows banned from the creeks and valleys. There is another bunch of environmentalists lurking in the shadows who claim that cows contribute to global warming. (If this is true, we could’ve used a lot more cows this winter.)
So today, it is ban the cows from the creeks; tomorrow, maybe the hillsides, if not altogether.
If the main reason that a landowner chooses to donate an easement is that he or she wants the land to continue to be farmed by future generations in a similar fashion, then the landowner may be disappointed.
In a similar vein, many landowners have a passion for hunting with hounds. Coon hunting, rabbit hunting and fox hunting seem to be the most popular.
Their primary motivation for donating easements is to perpetuate this passion for future generations.
Several years ago in the state legislature, there was a proposed law concerning the retrieval of wayward hounds. The law would not have banned hunting with hounds, but would have made it very difficult to do so.
Thankfully, the law did not pass.
Some few years ago in England, fox hunting was, in fact, banned. Who would have ever thought that was possible? What will happen here in the future, no one knows.
So suppose you want to donate an easement on your farm to perpetuate farming and hunting, and some years down the road these two rights became so restricted by law that they became impracticable. What good is your land, other than to look at?
Perhaps future easements will contain an escape clause whereby the landowner can pay back the tax credits and get out of the easement should the government legislate away the very reason for the easement.
For those landowners whose main goal is to preserve the land and for whom farming and hunting are not as important, I see little downside to easement donation.
Landowners for whom farming and hunting are very important should be careful when entering into a deal in which they know what they are giving up, but do not know what they are keeping.