I am very happy to be here. I am going to try to keep this reasonably brief, and, though I realize that some of you here are lawyers, reasonably non-technical. I want very much to hear what you all have to say about your experiences with these instruments.

I want to emphasize one thing before I start speaking, which is that I can’t predict the future either. This is one of the most important points I think that I try to make in my paper and have tried to make since. So I certainly don’t want to imply that there is never any place for any conservation easement. Nevertheless, I think that there are significant difficulties, which, as yet, have not received the full hearing that they need to receive. And I would like to explain in a little bit more detail what I see as the most likely problems and how these problems of conservation easements are or are not shared by other efforts to preserve land.

Over the past several decades, as you all know, there have been a lot of programs dedicated to the preservation of land. The idea of preservation is, to me, an extraordinarily problematic one, for reasons that I will go into in more detail. But I just want to open up by noting that the notion that a significant percentage of land ought to be preserved perhaps even, as Kathy points out, half of the continental United States, is one that is being taken extremely seriously. Land preservation has become now a multi-billion dollar enterprise, and it is fueled in large part by direct payments to private landowners from governmental organizations as well as by the availability of special federal tax and local benefits, tax benefits.

Many acts of land preservation involve acquisitions of fee simple absolute interest. Our national parks were pretty much built that way with land being acquired either by purchase from private owners or from the use of eminent domain. I live in Charlottesville, Virginia, at the foot of the Shenandoah National Park which, as you know, was acquired in large part through special uses of the eminent domain powers. But in the last few years there has been another preservation method that as emerged, that of conservation servitudes. And conservation servitudes, also known as conservation easements, have now been used to protect literally millions of acres of land.

Now these instruments work as follows: They, in effect, depart from traditional rules about the extent to which land can be burdened by servitudes and, in effect, divide up the fee simple estate. The fee simple estate is divided and a partial interest in the land is transferred to a governmental organization or to a non-profit entity such as the Trust for Public Land or, more often, I’d say, a local land trust.

What do the holders of these partial interests receive? They get the right to, in effect, prevent or limit or oversee certain specified but, and this point is absolutely crucial, by no means uniform uses of the land. In addition, they have, at times, the right to force land owners to engage in particular actions on their land. Most conservation servitudes are in effect negative easements. They give the holder the right to prevent certain land uses. But some conservation servitudes, it is important to note, involve positive rights. That is, they involve the right to, in effect, compel the landowner to engage in certain conduct.

What happens to the landowner? The landowner is still technically the holder of a fee simple interest, but now it is a fee simple interest that is burdened by a servitude.

Is the fact that someone holds a fee simple interest that is burdened by a servitude in and of itself reason for great worry? Not necessarily. As you know, many, many, many lands are burdened by servitudes. Anyone who lives in a planned community has signed on to a number of limitations in the way that he or she can use her land. But one thing that is very striking about conservation servitudes is that they are designed to be difficult to undo.

Think back to your typical servitude. Imagine, for example, that your neighbor has an easement to cross your property to use to get to his property. Is this the kind of deal that you might make with your neighbor? Absolutely. But, say that he wants to cross your property to get access to his property, and so what might you do? You might sell him an easement, the right to cross your property. But you always know, even as you have in effect divided up your land interest to convey a partial interest in your land to your neighbor, that when the time comes when this no longer seems to be a good land use arrangement, you can terminate it through private negotiation. Now I’m not saying that every private deal that ought to be made is invariably made. There are times when, for example, someone might transfer an easement to a neighbor. The day comes when it would be a good idea to, in effect, get rid of it and that deal may not be made necessarily simply because it is hard to do and bargaining costs and so forth. But I think it is important to note that we think that usually deals like that between private parties will be made.

But look at conservation servitudes. What is interesting about these instruments from my perspective as a legal scholar is that they are engineered to be hard to undo. They are meant to be perpetual. There are, in effect, provisions in numerous conservation servitudes that forbid the transferring of the conservation servitude back to the owner of the burdened fee simple. In other words, when conservation servitudes are placed on property, the objective is to prevent the reunification of all the property interests in a private property owner.

So far conservation servitudes have attracted little but praise. When I was doing research for the paper on conservation servitudes, Carol LaGrasse and James Burling were two of the only people who had even raised questions about whether or not things were going to turn out happily. In fact, one of the things that drew me to the project was that I saw instruments that could cause a lot of difficulty in the future and that were receiving praise from people all across the political spectrum.

The Left praised conservation servitudes because they were, after all, meant to provide environmental protection. Put aside for the moment whether or not trying to keep land in ranching and farming use really counts as environmental protection. The left assumed that it was and even though conservation servitude programs led to the transfer of wealth very often to very well connected and well off individuals, people on the left didn’t raise real concerns. This puzzled me.

I was similarly puzzled not to find, again, with the exceptions I just mentioned, all that much suspicion among people who are adherents to the Republican party. I had expected for them to focus on the fact that here were large amounts of government money going to landowners often in exchange for not doing things on their land which they very likely wouldn’t necessarily want to do anyway, which seemed to me to have “boondoggle” written all over it. Why was it that Republicans praised these instruments?

One obvious answer is that conservation servitudes work their magic, as those espouse them often refer to it as, through the transfers of property rights, and certainly there are powerful reasons for preferring to achieve these objectives through property rights transfers than through command and control regulation.

With command and control regulation, as you all are very aware, property owners generally receive no compensation, absent very unusual circumstances, and through conservation servitudes property owners who are willing to surrender their rights, say, to build strip malls, subdivisions and so on, do get some compensation. They get a direct payments or they get tax benefits, and so that in many situations would be, I think, more palatable than if the same objectives want to be achieved through command and control regulation.

So again, I am not arguing that conservation servitudes have zero benefits at any time. But I do think that conservation servitudes deserve enormous scrutiny and this is, in effect, why.

In my view, support for conservation servitudes has been based on two widely held, emotionally appealing, but fundamentally flawed, notions. The first notion is that today’s land owners, together with non-profit institutions such as The Nature Conservancy and at times governments—governments, like the local county government or at times, of course, the federal government—have the competence to make long-term land-use decisions, and we don’t just mean a year or two. I mean, we all understand that when zoning was first brought into being at the beginning of the 20th century when zoning became widespread, the idea in concept was, wow, this is great. We’ll write a zoning code, and, sure, it will need a little tweaking from time to time, but pretty much that’s it. This is going to work. Well, we know what happened. We know it didn’t work. We know that zoning codes need constant, constant, constant amendment, and this constant amendment gets very messy.

But, suddenly, here we are with conservation servitudes, and I see statement after statement about how, oh, let’s figure out what land needs to be preserved forever. Let’s put restrictions on it that are designed deliberately to be expensive and burdensome to undo and this will all work out happily. I think it is important to note that there is all available evidence to suggest that our ability to, in effect, pinpoint certain pieces of land as meritorious of perpetual protection is at best likely not to work out so well. But the idea that the present generation has the right and maybe even the duty to try to do this for future generations is again very much embedded in support for conservation servitudes, and I think it is very crucial not to underestimate the enormous emotional impact that this has had.

Why is it that I think that our competence doesn’t extend that far? Simply put, nature is always changing. We are in the middle of a shift, we really have had a great paradigm shift. A lot of environmental statutes and a lot of planned preservation frameworks were developed against the backdrop of the notion that nature is stable, that nature, in effect, will remain as she is. So if the place is a good habitat for a species that people like, well, then it is going to remain so. We don’t even think about the fact that the climate will change and the species may migrate and maybe the land that we have set aside as a habitat won’t be habitat for that animal anymore, as it has moved on. Maybe we won’t want it. And, of course, our scientific knowledge is in its infancy.

One thing that is most interesting about the language and the writings on land preservation, not just conservation servitudes, but all land preservation, is that people will say, we don’t know very much yet. We are really just learning and, oh yeah, we can figure out which land we want to preserve forever, what we want to do on them and not do on them forever and lock them up as much as we can and that is a good idea. It seems to me that is a huge contradiction.

Finally, there is the issue of cultural values. We know that what a lot of land preservation tries to do is to, in effect, fix land uses as they are because we like that particular human culture. We like rural landscapes. We like ranching landscapes. There is nothing wrong with this preference. There is nothing wrong with people thinking, I like to have rural landscapes, and I think it looks better than the strip mall. But there is a difficulty, I think, when we begin to say, we like these landscapes and therefore we are absolutely sure that those who follow us will like them, too, or, a slight variation, ought to like them.