By JOE RANKIN
Forests for Maine’s Future Writer
On the west side of the island of Vinalhaven is a tidal inlet of great beauty, called, simply, The Basin.
A reversing falls guards the mouth of The Basin, which is home to eagles and osprey, seals and the occasional porpoise, and is a popular place for year-round and summer residents to kayak, hike, relax on the rocks, watch birds.
Conservation efforts began here in 1986, when the Maine Coast Heritage Trust and the Vinalhaven Land Trust bought nearly 70 acres. They’ve continued for more than 20 years. To date they’ve protected more than 1,000 acres around The Basin and most of its shoreline, spending more than $1.5 million.
Not all of the land was purchased outright. Some is protected under conservation easements that ensure it won’t be developed or subdivided. “It was kind of a piece by piece thing,” said Warren Whitney, the Land Trust Program manager for the Maine Coast Heritage Trust. “If you only had one tool to do conservation, it wouldn’t have worked because we had different landowners with different objectives. But because we had a couple of different options we were able to do it.”
The Basin project was all about protecting shoreline, wildlife, recreation and water quality. But in Maine conservation easements also have been used to conserve or preserve public access, trails, open space, mountaintops, farmland, coastal islands, wildlife habitat, deer wintering areas, water access, working waterfront, wetlands, rivers and streams, forest reserves and huge swathes of working forestland.
Over the past 30 plus years conservation easements have become a standard, go-to tool in the land protection-conservation toolbox.
They appeal to conservation organizations and land trusts because they stretch scarce dollars. They appeal to some landowners who want to do something for conservation, but want to retain ownership of their land and to others who want to protect their land, but need or want to get some money out of it. They appeal to towns and cities because the conserved land stays on the property tax rolls.
“Conservation easements eclipse all other land-conservation tools in America today. Founded upon enabling laws in virtually all of the states, underwritten by tax subsidies and public-financing programs, and promoted by the nation’s thousands of land trusts and government holders, conservation easements have exploded onto the landscape,” wrote Jeff Pidot, a former head of the Maine Attorney General’s Office’s Natural Resources Division and a recognized expert on conservation easemets in a 2011 article article published on the Duke University Law School’s legal scholarship site. “For better and for worse, conservation easements have displaced both public land acquisition and government regulation as the darling of the land-conservation movement.”
And when it comes to conservation easements, Maine lives up to its Latin mottor — Dirigo — I lead.
— It has the largest amount of land under easement of any state.
— It has the largest easement in size, three quarter of a million acres.
— It pioneered the concept of large forestland easements.
— It has the best conservation easement law in the country, thanks to a 2007 statute.
There are several reasons why Maine is out front on the issue. One is simply the fact that much of the state is undeveloped land. Another might be the fact that some of the most striking and ecologically sensitive lands are those most endangered by development.
The state has never had a lot of federally protected land, and there’s still a widespread hostility to federal land ownership — witness the opposition to a national park activists are promoting in the North Woods of Maine. Then, there is always the scarcity of funds for conservation and the need to make what there is go as far as possible.
Pinning down easement numbers isn’t easy
The Maine Conservation Easement Registry counts 2,009 easements covering 2,444,000 acres, said R. Collin Therrien, who answers queries about the Registry in her job as a senior planner with the Land for Maine’s Future Program. Most easements are fairly small, said Therrien. Ninety percent of registered easements are under 200 acres and 80 percent of those are under 50 acres, she said.
According to the National Conservation Easement Database, an ambitious, ongoing and far-from-complete effort to catalog every conservation easement in the country, Maine has 2,371,009 acres under easement and 1,919 easements.
The first conservation easements in the country date to the late 1960s. In the mid-1980s the state pioneered the large-scale working forest easement on 20,000 acres around Attean Pond, a remnant of timber baron Abner Coburn’s once-huge holdings. That easement, crafted by the Society for the Protection of New Hampshire Forests, gave rise to the Forest Society of Maine, which for 30 years has continued to pursue a mission of helping landowners protect large scale forest landscapes from development and fragmentation and has almost reached one million acres under easement.
Among the Forest Society of Maine’s achievements: the 360,000-acre Moosehead Forest easement around Moosehead Lake and a 282,000-acre conservation easement that is part of a larger project protecting the West, North and South Branches of the Penobscot River, Baker Lake, and some of the river’s headwater ponds.
Big as those are, the biggest, in Maine and the country as a whole, was the 2001 Pingree easement negotiated by the New England Forestry Foundation for $28 million.
At 762,192 acres, the Pingree easement is larger than the state of Rhode Island. It conserves a slew of big lakes and portions of 10 major rivers, protects 72,000 acres of wetlands and some of the state’s best peregrine falcon nesting sites, and at least 67 rare and endangered plant sites.
Maine’s success at large-scale forestland easements is “really a reflection of the fact that we have lots of forest to begin with and the fact that the forests in the east are largely in private hands and the fact that easements have grown as a tool. In the west so much of the land is in federal hands, but in the Great Lakes states they’ve put them to good use as well,” said Alan Hutchinson, the executive director of the Forest Society of Maine.
The National Conservation Easement database’s year-by-year breakdown of easement acquisition in Maine shows easement activity through the 1980s and 1990s kind of puttering along at a fairly steady clip. The Pingree easement in 2001 led to a huge spike. Other spikes occurred in 2003 and 2005 and 2012.
The collapse of the sub-prime mortgage bubble in 2008 not only led to the so-called Great Recession, but it put a damper on the conservation easement movement. Prices were depressed and owners didn’t want to sell development rights in that kind of market.
“Things really tapered off” during those years, said Hutchinson. “But we’re starting to see increased interest, as we expected we would when the economy turned around. In the early 2000s we had easements in the hundreds of thousands of acres. Now the interest is in the 5,000 to 20,000-acre range.”
What’s driving that? “As forestland becomes increasingly desirable and prices creep up per acre it becomes harder for a landowner to justify owning land and justify owning it for forestry,” Hutchinson. So, they’re willing to sell some of the development rights to offset those costs.
But, at the same time, the increasing real estate prices also mean higher prices for easements, which puts more pressure on organizations and foundations fronting the cash.
Hutchinson said the Forest Society of Maine is seeing more interest in conservation easements from larger investment funds that own lands, and from some local families that are piecing together ownerships. The Society is working with the Carrier family on an easement on 14,000 acres in the Gulf Hagas-Whitecap Mountain area southwest of Baxter State park, he said.
And The Conservation Fund is working to raise money to cover the cost of an easement on the East Grand Woodlands in Downeast Maine in the towns of Orient and Weston.
Numbers of completed easement deals undoubtedly would be higher, but for a lack of money. The Land for Maine’s Future Program, founded in 1987, was for years a key source of funding for land conservation. Voters approved nearly $100 million for the program through the first decade of the new millennium. But it ran out of money and languished. In 2012 voters approved another $5 million, Earlier this month, the LMF Board agreed to allocate $9.1 million to help fund 30 projects covering 50,000 acres in 37 communities and 13 counties.
Hutchinson said he’s hopeful that “with it coming back on line that it re-establishes itself as a good, solid state program playing a leadership role with regular funding. That’s absolutely critical.”
The work just doesn’t stop when the ink dries on a conservation easement. In fact, it’s only beginning. Easement holders must monitor the easement to ensure that it’s provisions are observed. That’s no small task, and is an expense.
Pidot points out in his Duke Law article that conservation easements “are not an asset of the holder so much as a permanent liability, due to their everlasting costs of monitoring and enforcement.”
Conservation easements are designed to exist permanently. But organizations change. They go out of business. Landowners sell property. All of which raises the possibility of a conservation easement — and the values it was meant to preserve — falling by the wayside, being forgotten. That’s a big issue, Pidot notes in the article on the Duke Law website. And it’s one that few state Legislatures have taken steps to address.
Maine is an exception.
In 2005 the Lincoln Institute of Land Policy, where Pidot was a visiting fellow, published his seminal paper Reinventing Conservation Easements: A Critical Examination and Ideas for Reform. Two years later Maine lawmakers approved a conservation easement reform package. It requires annual registration of conservation easements, monitoring at least every three years, and designates the Maine attorney general as backup enforcer of easements if the original holder is defunct, disappears or simply fails to do the job. The reform law also stipulates how easements are terminated and ensures that easements will continue if the easement holder ends up owning the property or if the owner loses the title in a tax foreclosure action.
The law is not perfect, Pidot notes in the 2011 paper. He recommends strengthening it by requiring penalties for late registration of easements, provisions for appointment of a backup easement holder in case the original holder is out of the picture, improvements to the easement registry website, some public participation in the easement process, and language designed to make easement language more uniform.
Despite drawbacks, however, he said “other states should take advantage of the learning experience that Maine’s law provides, both as a model and as an opportunity to make improvements. Those who say that reform is too risky and burdensome must consider the inevitable risk and burden of continuing to amass conservation easements without the legal structures necessary to assure that their promise is fulfilled.”
Maine was a national leader in conservation easements, even before the passage of the reform act, said Kevin Case, the northeast director for the Land Trust Alliance, a national organization specializing in land conservation and assistance to local land trusts. But the reform law really “put Maine on the map,” he said.
Maine has also led the way in stewardship of easements. MCHT’s Land Trust Excellence Program has assisted almost 30 land trusts working towards national accreditation, a program of the Land Trust Alliance. One component of that certification ensures that land trusts are observing best management practices with regards to the easements they steward.
“That has transformed the (land trust) community in terms of the priority it gives to stewardship and the thinking that land trusts put into acquiring easements, including how they’re going to pay for them in the long term,” notes Case. “A lot of groups are making sure that they are increasing stewardship reserves” or signing up with Terrafirma, an insurance pool set up by the Land Trust Alliance to defend conservation easements in cases of violations or legal challenge.
The Forest Society of Maine’s Alan Hutchinson acknowledges that it’s a challenge to adequately monitor easements. For that reason his organization is changing the way the easements themselves are written to involve the land owner in the monitoring process. They typically require the landowner to constantly share information, including how they’re going to be doing forestry operations in sensitive areas, or include the Society staffers in meetings on issues.
The provisions are designed to get “the landowner and the easement holder working together to avoid problems and achieve compliance as opposed to the old way of checking once a year, then slapping the landowner on the wrist for a violation after the fact,” Hutchinson said.
Whitney, of Maine Coast Heritage Trust, says some land trusts don’t want to pursue easements, fearing the monitoring and enforcement issues, while others have no problem working with landowners and say the easements allow them to accomplish more with less money.
Those trusts that take on multiple easements will inevitably get better wielding this conservation tool, knowing where the problems lie and how to avoid them, how easements should be structured, and how to make the monitoring work better, he said.
That being said, Whitney doesn’t predict an explosion in easement activity. He says the number of easements negotiated and the number of acres newly covered will increase at a steady rate in Maine, excluding any giant forestland easement deals.
“My guess would be that it would be more of a steady hum than the spike we saw before. I think it was a new tool, there was a lot of opportunity to conserve land at a time when people were very concerned about that. It was fairly quick to do,” he said.
But this tool isn’t going to get lost in the toolbox. It’s easy to use, cheap, versatile and meets the needs of a lot of people.
Joe Rankin writes on forestry issues. He lives in New Sharon.