Land Conservation and Acquisition Tools

Conservation Easements

Conservation easements are a valuable tool to protect critical lands within, adjoining, or near public lands in Wyoming. A conservation easement is a legal agreement between a landowner and an eligible easement holder that restricts future activities on the land to protect its conservation values. Easements are especially applicable in situations where the landowner is not interested in selling their land but is willing to place an easement on the property to dedicate the land for a specific purpose. An example of this would be placing an easement on the land that limits future development but allows certain agricultural production practices to continue.

A conservation easement is a partial interest in real property. In granting a conservation easement, the landowner retains ownership of the property and gives up some or all development rights in perpetuity. The party that holds the easement, whether it is a public agency or a non-profit organization, has a long-term responsibility to administer and monitor the easement and to ensure compliance with the terms and conditions of the easement agreement. The types of entities that are eligible to hold easements are usually specified in a state’s conservation easement statute. In Wyoming, these are specified as a federal or state agency or a charitable trust whose purpose is to preserve land. It is also possible for federal programs to make agreements for 99- or 30-year leases, as opposed to a permanent easement agreement. Sometimes in these agreements or permanent conservation easements a government agency will turn administration and monitoring responsibilities over to a land trust or another conservation organization.

The terms of an easement agreement are negotiated between a private landowner and a public agency or non-profit conservation organization. Either party may initiate the conversation about creating a conservation easement. Each conservation easement is tailored to fit a specific situation, landowner, and parcel of land. Typically, the overarching purpose of granting a conservation easement is to protect open space, wildlife habitat, visual quality and aesthetics, and traditional land uses such as agriculture. In Wyoming and many other Western states, usually little or no public recreation is permitted on conservation easement properties, although public access to portions or all of a property can be a part of the easement terms. This is determined on a case-by-case basis by the landowner and the entity holding the easement.

Conservation easements may be acquired by donation or by purchase. Often, donated easements involve a tax incentive for the landowner, but in some situations the landowner may simply want to see the land protected from future development. If a landowner wishes to realize income tax benefits, certain criteria must be met, and the easement must: 1) be donated or sold for less than its actual value; 2) impose certain restrictions to protect the conservation value of the land in perpetuity; 3) be donated or sold to a qualified organization; and 4) meet a certain conservation purpose. Conservation purposes may include the preservation of open space, the protection of habitat or ecosystems, and/or the preservation of land for public recreation, education, or historical significance. Usually, easement purchases are completed on the basis of an appraisal of the value of the development rights of the land to be acquired or donated. A qualified appraiser assesses the difference between the fair market value of the property, often using comparable sales in the area, and the restricted value of the property under the easement. In other words, the appraiser makes two appraisals: one of the property in its current condition and a second as though it were subject to the conservation easement. The easement is legally recorded in the registry of deeds and binds current and future owners of the land to the terms of the recorded easement.

Federal agencies may seek out trust organizations to administer and monitor a conservation easement, and individual landowners also utilize land trusts to negotiate and create conservation easements on their land. Land trusts are generally private, non-profit organizations that may or may not act as an advocacy group. Different land trusts have varying values and missions and choose their projects accordingly. For more information on land trusts and conservation easements, please see the section on “Land Trusts and Conservation Partners,” the Land Trust Alliance Web site (www.landtrustalliance.org) and its online Learning Center, and the Conservation Easement Handbook by Elizabeth Byers and Karin Ponte (2005).

Figure 1 - Land Ownership in Wyoming

Use of Conservation Easements in Wyoming

The use of conservation easements to protect private land from future development seems to be gaining acceptance among landowners in Wyoming. The Wyoming Chapter of The Nature Conservancy, Wyoming Land Trust (formerly Green River Valley Land Trust), Jackson Hole Land Trust, The Conservation Fund, and the Wyoming Stock Growers Agricultural Land Trust have had considerable success in working with private landowners to craft conservation easement agreements on both small and large parcels of land. The USFS has played an active role in referring landowners to the appropriate conservation groups, in supporting the use of easements in Wyoming, and in providing funding for private land conservation. Examples of such conservation easements include:

• Carney Ranch – This ranch adjoins the Bridger-Teton National Forest at the head of the upper Green River in Sublette County, Wyoming, and makes up an important component of the Funnel Bottleneck for the “Path of the Pronghorn.” The USFS designated a protected migration route within the forest boundary, and The Conservation Fund, the Wyoming Game and Fish Department, and several other partners acquired a conservation easement on 2,400 acres of this ranch through a bargain sale purchase (see Appendix 1).

• Feuz Ranch, Hatchet Ranch, Buffalo Valley – Located between Grand Teton National Park and the Bridger-Teton National Forest, the Buffalo Valley is a crucial inholding at the eastern gateway to Jackson Hole. The USFS has a longstanding partnership with the Jackson Hole Land Trust to acquire conservation easements in this valley.

Conservation Easement Criteria
Criteria for considering conservation easements varies among public agency and private organization easement holders, but most easement administrators seek lands that have some kind of value for habitat, wildlife, open space, agriculture, or community. Examples of lands with such value include:

• Wetlands, floodplains, and riparian habitats;
• Productive agricultural and ranching lands;
• Lands inhabited by threatened, endangered, or rare species;
• Lands with important migration corridors or undisturbed ecosystems;
• Lands with historic or community value;
• Land with open space, viewscape, or aesthetic value;
• Large tracts of land;
• Land located in or around national forests or other federally managed lands; and
• Land with access value.

Land trusts in particular consider lands that fit the organization’s mission and may not consider easement proposals for lands that are bordered by unprotected lands, existing development, or planned development that may affect the value of the land under consideration.

Finally, the conservation value must meet the standards outlined in a state’s statute for conservation easements. For Wyoming’s legal standards, see the Uniform Conservation Easement Act W.S. 34-1-201 through 207; available online at: http://legisweb.state.wy.us/statutes/statutes.aspx?file=titles/Title34/T34CH1.htm.

Terms and Restrictions
Conservation easements generally allow for traditional uses of the land to continue while restricting very specific future activities. Allowable uses may include agricultural operations and necessary improvements such as building structures, fencing, and water infrastructure. Depending on the terms of an easement, the landowner may sell the land, gift it, or pass it on to a family member, and build additional residences on the land. The landowner retains personal access, and unless public access is specifically included in the easement, the landowner also retains control of access to the land for recreational uses such as hunting and fishing.

Restricted activities are clearly delineated in conservation easement agreements and generally include dumping, surface mining, subdivision, residential or commercial development, and commercial uses not related to agriculture. The rights of mineral estate owners, which may belong to a party other than the surface landowner, remain under the legally recorded ownership and are not hindered or negated by the placement of an easement unless the owner of the mineral estate is party to the conservation easement.

Creating a Conservation Easement
Although public agencies and private organizations may have different processes for creating and negotiating an easement agreement, the general steps are as follows:

1. The landowner begins by determining his or her plan for the land and discussing goals, needs, and interests with the agency or organization with which he or she intends to work. Agency staff can help the landowner understand his or her role in the process and the terms and restrictions of a conservation easement. The landowner should seek outside financial and legal advice to determine what type of agreement will serve his or her interests and those of the land.
2. Next, the agency or conservation organization visits the property and assesses and gathers information about land value and uses. The potential administrator of an easement may be interested in structures or other human alterations currently on the land; wildlife and habitat; soil, hydrologic, and geologic characteristics; open space and aesthetic values; the current and potential conservation or development state of the surrounding land; and/or any other factors that may affect the conservation value of the land. Mineral rights, title information, and mortgages are carefully researched and resolved. Additionally, if the land has not been formally surveyed, then it may be necessary to contract a surveyor to establish the legal boundaries of the land.
3. The easement is then drafted for the landowner following the initial visit and consultation. Each conservation easement is tailored to the needs of the landowner, the parcel of land, and the mission of the partnering agency or organization. The landowner may consult with his or her legal advisor and work together with the agency or organization to create a preliminary agreement that satisfies all parties.
4. After the easement is drafted, an appraisal is conducted. For more information on appraisals, visit the Colorado Coalition on Land Trust’s Conservation Easement Appraisals Guide at: www.cclt.org/Downloads/education/ ccltappraisalguide.pdf.
5. Lastly, the conservation easement must be finalized and approved by the agency or directors that govern a private conservation organization. The document is signed by the grantor and recorded at the county courthouse. The administrative agency or organization then assumes the responsibility for the long-term monitoring of the easement.

Figure 2 - USFS land and land trust holdings in Wyoming.

The Jackson Hole Land Trust offers a useful conservation easement template on their Web site: http://jhlandtrust.org/pdfs/ConservationEasementTemplate.pdf.

Wyoming Legislation Pertaining to Conservation Easements
In 2005, the Uniform Conservation Easement Act (UCEA; W.S. 34-1-201 through 207) was passed in Wyoming. This Act facilitates the use of conservation easements by land trusts for the protection of open space. This standard set of regulations for the creation, alteration, and termination of conservation easements also allows for easier enforcement. Furthermore, the statute protects the state’s property tax base and the rights of mineral estate owners.

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