The article by Glenn Marx, executive director of the Montana Association of Land Trusts, entitled “Don’t believe everything you read about easements,” is significant due to omissions from what is being presented by land trust sales people.

The sales pitch builds upon two basic human appeals: the desire to preserve forever a way of life loved by the owner, and the financial benefits of a tax write-off possibly with additional economic enticements. The conservation easement (CE) contract brings in a partner, basically splitting the title, and providing the land owner with a supervisor over his operation as stipulated in the contract.

For various reasons numerous landowners now regret assuming these contracts in perpetuity. The larger the piece of property under restricted use, the fewer the prospective buyers. This is of particular concern when it is inherited by a family member who cannot afford ongoing costs of property ownership and is not interested in pursuing the industry requirements of the contract. Ownership may become an ongoing burden for an heir already in debt and financially stressed. Disposing of it may be problematic even to the extent of an attempted donation. If a governmental agency is willing to take it including with its limited use, it is removed from the tax base, and will require maintenance at taxpayer expense. CE restrictions generally eliminate productive oil and gas extraction as well as development.

Land trust activity easily goes unnoticed without change in county tax base. Because of terminology most counties simply record these transactions with traditional easements such as roads and utilities. Therefore the volume of CE sales remain unidentified, uncharted and unmapped throughout the country except as recorded by individual land trusts. In question would be accuracy and completeness of statistics provided by these sources. The door is wide open nationwide for acquisition of cheap land by government, non-tax-paying organizations or Indian reservations, each of which removes land from the tax base.

There is increased intense promotion by land trusts utilizing the well-funded “Open Space” Farm and Ranch Lands Protection program. Promotional pressures are being applied on big landowners throughout the Midwest and especially in the Williston Basin area of Montana. CE restrictions generally eliminate oil and gas extraction while restricting development.

Already 50-90 percent of Western lands are controlled by the government while the Midwest is wide open for take-over. Thousand-acre plus properties are vulnerable. Big land holders are “selling out” to land trusts for whatever financial benefits they can get. The deed-holder remains responsible for all costs of taxes, insurance, maintenance and any environmental demands introduced by federal or environmental agencies. They also assume legal costs of both sides should litigation ensue over terms of the contract. Farming and ranching industries are targeted with increasing intrusion of costly regulations putting operators out of business. Under perpetuity there is no escape as the CE encumbrance travels with the land whether sold or inherited.

In these changing times, unloading of encumbered large properties accommodate federal land grabs. Prospective buyers for large tracts in the thousands of acres are tremendously limited. Meanwhile land trusts holding title to the “land use” management portion of the contract are free to dispose of their portion of the split title. These can be purchased or acquired as an “orphan” by another qualifying non-profit organization such as the Nature Conservancy, the government or the tribes. At this point the “real property” owner unknowingly becomes supervised by the new partner.

Since the time I started reviewing most of the CE contracts on file in the county offices, I have witnessed increased sophistication in language and content obviously tailored to meet certain subtle and unanticipated objectives. Little contemplation is given the nature of “perpetuity” and ultimate impact locally or nationally. The pressures and impact of land trust activities have not been recognized or documented at state and national levels due to inconsistencies in local recording procedures. When looking nationally at the trends in land acquisition by government using conservation easements as the primary tool, we are witnessing the totalitarian take over of private property. With conservations easements, landowners are trying to rule from the grave but the federal government never dies.

Ryan is a resident of Bigfork.