Billings Gazette: Critics of easements take issue with permanence

Conrad farmer/rancher Llew Jones has a one-word objection to conservation easements -- perpetuity.

"A lot of people are beginning to worry about 'forever,' " he said.

Conservation easements come with that word attached, and Jones, a Republican representative in the Legislature, says it burdens future generations and communities with restrictions that may run counter to their best interests.

"Only God has the vision to see what will happen in the future," he said. "It takes a lot of arrogance to sit here and say we have a plan that will be good forever."

Jones loves the open spaces on his property on the Rocky Mountain Front and would like to see it preserved. He sympathizes with the people and organizations who want the same thing. But conservation easements should not be forever, he contends.

"I would not visit that upon our children," he said. "What if the second generation decides they need a new barn or a new road, but the conservation easement says they can't do it? Their rights have been signed away forever."

Conservation easements should have a finite horizon so future owners can make their own decisions, Jones said. Perpetual restrictions could affect more than just the individual property owner, he said. What if sometime in the future, the community decides an easement property would be better used as a hospital or school?

"Who knows what will happen in 500 or 1,000 years?" he asked.

Growing alarm about the easements' potential to thwart development and, as a result, prevent growth of the local tax base, prompted state Sen. Aubryn Curtiss, R-Fortine, to introduce a resolution in the 2005 session seeking an audit of possible revenue impacts.

Senate Joint Resolution 20, which passed into law, asks the Legislative Audit Committee to examine the effect easements may have on the market value of easement property and that of adjacent properties.

The legislators asked that the committee present its findings, recommendations and proposed legislation to the 2007 Legislature.

Rep. Rick Maedje, R-Fortine, has been trying since 2003 to put some constraints on conservation easements and private land trusts -- so far, without success.

He proposed legislation in 2003 that would put serious obstacles in the way of future conservation easements. His bill would have prohibited easements that prevent development of natural resources and would have made easements subject to approval of the local governing body. The bill died in committee.

In 2005, Maedje introduced other legislation that would have required licensing of private individuals and organizations that facilitate or purchase conservation easements. He also introduced a bill that would have altered fundamentally the way courts view disputes between landowners and easement trustees. Under existing rules, courts must interpret agreements in the light most favorable to the trustee. Maedje proposed a change that would instruct courts to interpret agreements in the light most favorable to the property owner.

Maedje's bills were introduced late in the 2005 session, and House leadership said there was not enough time to study their implications. He agreed with their suggestion to postpone action until the 2007 session.