| Abstract |
In an opinion piece in the Wildlife Society Bulletin, Brown et al. (2023) proposed using affirmative clauses in conservation easements to enhance the wildlife benefits of easements. We agree that conservation easements are foundational tools to achieve wildlife conservation goals on private lands and their use could be improved to increase their impact. Here, we respond to the article to highlight the challenges with affirmative clauses, add nuance to the discussion, and propose an alternative that could achieve the goals proposed by Brown et al. (2023) without the need for affirmative clauses. Conservation easements are intended to, and largely succeed in, permanently preventing the conversion of land to commercial or residential uses by limiting subdivision and development (Pocewicz et al. 2011). The strength of conservation easements lies in permanent restriction of alternative uses of the land base, which maintains existing habitat by limiting landscape fragmentation and conversion to uses incompatible with wildlife habitat. Because of the perpetual nature of conservation easements, the tool typically incorporates flexibility for landowners to manage the encumbered land in accordance with the best practices of the day (Horton et al. 2017). Affirmative clauses permanently obligate landowners to take certain actions to improve wildlife habitat. Requiring permanent management obligations is often not feasible from a landowner or ecological perspective. Landowners need flexibility to manage their land profitably and in line with contemporary best practices as climate continues to change and habitat shifts. Brown et al. (2023) proposed that land trusts should expand their use of affirmative clauses to increase the biodiversity benefits of conservation easements. While affirmative clauses might result in biodiversity benefits, the practical difficulty of including affirmative clauses outweighs the benefits and makes widespread adoption unlikely. We offer 4 primary practical difficulties to affirmative clauses: (1) affirmative clauses cannot be valued; (2) affirmative clauses may require unfunded ongoing management expenses; (3) affirmative clauses are difficult to monitor and enforce; and (4) conservation easement terms are inflexible and difficult to amend. Conservation easements are valued using a before-and-after appraisal method that is typically based on comparable sales of similar encumbered and unencumbered properties. When determining the value of the easement, appraisers cannot consider management practices, habitat, or biodiversity because of a lack of market signals to justify their financial value (McLaughlin 2016). Logically, landowners would not be willing to transfer a conservation easement for which they will not be fully compensated. Affirmative clauses included in the conservation easement do not provide any additional compensation to the landowner yet would increase long-term management expenses. In order to avoid violating the conservation easement, the landowner must continually meet all of the obligations included in the affirmative clauses. Landowners are unlikely to bind themselves to permanent management obligations that they will be expected to pay for out of pocket. Affirmative clauses in conservation easements are difficult to monitor and enforce. The Land Trust Alliance, the national organization representing the land trust industry, offers accreditation for land trusts that meet stringent requirements (Land Trust Alliance 2022). The accreditation standards do not require land trusts to maintain staff trained to monitor and enforce affirmative requirements. A major shift in the way land trusts do business would be required before they can be expected to monitor and enforce affirmative easement terms – further increasing the long-term stewardship obligations and expenses to land trusts that may already be undercapitalized (Rissman and Butsic 2010). Conservation easements, as a result of their permanent nature, are inflexible. Their intent is to permanently prevent a landowner from developing their land, and there is little flexibility in achieving that goal. Their permanence also means that amendments are strongly disfavored and made procedurally difficult, requiring attorney review and rerecording the amended deed in land records. Amending conservation easements may result in legal or tax liability if the easement no longer meets the charitable intent of the original easement (McLaughlin 2006, Schwing 2013). The inclusion of affirmative clauses would result in the need for occasional amendments to the easement, resulting in significant expenses and procedural hurdles for the landowner and the land trust. There are other ways to enhance the biodiversity benefits of private land, while ensuring the land is permanently conserved. Easements can be used in combination with other tools that are better suited to deliver habitat benefits. Deliberately pairing easements with short-term agreements to improve or manage habitat can provide additional financial compensation for landowners while maintaining adaptability to changing conditions, due to the more flexible nature of contracts relative to permanent deed restrictions. A contractual arrangement would also not have the same monitoring and enforcement burden required of easements. A habitat lease is an example of a short-term agreement where landowner compensation is based on the habitat improvements made or maintained. The Property and Environment Research Center (PERC) is developing such a model in Montana's Paradise Valley where they are compensating a landowner for removing livestock from key elk winter habitat by building a fence, which improves the availability of forage for the elk. The lease agreement further requires the landowner to treat invasive cheatgrass, manage encroaching conifers, and participate in controlled burns as appropriate to improve the elk habitat (PERC 2022). Habitat exchange programs, like the Recovery Credit System developed to mitigate impacts to the federally endangered golden-cheeked warbler, provide other examples of term-limited, private land conservation programs for species in regulatory contexts (Wolfe et al. 2012, Davis et al. 2022). These types of agreements are still emerging as viable short-term conservation options but could achieve the goals Brown et al. (2023) sought with affirmative clauses, while providing substantially more room for innovation and flexibility. Brown et al. (2023) have started an important discussion on affirmative clauses in conservation easements. We appreciate their efforts and are pleased to have the opportunity to contribute to the conversation. Though we see affirmative clauses as being infeasible in achieving long-term habitat improvements, maximizing the benefits of easements to wildlife is critical to conservation goals on private lands. Leveraging the strengths of easements in conserving the long-term land base while augmenting their limitations through term agreements provides an alternative solution to achieve the goals that wildlife professionals seek. The authors declare no conflicts of interest. |
, Travis Brammer 
