Seeking Immortality, or Seeing the Future

“I think having land and not ruining it is the most beautiful art that anybody could ever want.” – Andy Warhol (1928-1987)

Our land will go on after we pass. But who will care for it the way we do? Sooner or later this is a nagging question we’ll all face. There are several tools to consider in order to protect what you have loved and improved.

One such tool is to establish a Conservation Easement. A Conservation Easement is a legal agreement in which a Landowner conveys some of the rights associated with ownership of property to an “Easement Holder.” The Easement Holder may be a governmental unit or a qualified nonprofit organization.

A Conservation Easement is a custom-designed permanent encumbrance attached to the title and is not affected by ownership. It must be carefully considered and drafted so it does what you want it to do. But it’s easier said than done, and to pile on, the Devil is in the details. Too little detail is as bad as too much.

You must also consider who will “hold” the easement and be responsible for its administration. Ecologically oriented non-profits and land trusts hold many easements. (For example, in our area The Prairie Enthusiasts, and the Driftless Area Land Conservancy hold easements for many individual landowners.)

But no matter who holds it, by itself a Conservation Easement has limited powers. It can only prescribe limits on what can be done with the land (e.g., no further building, no more roads, etc.). It cannot demand direct actions be taken (e.g., maintenance, management, etc.).

As a practical matter, then, a Conservation Easement, while a good first step to land protection, by itself can only assure the most basic protection: that the land is unmolested, without further development, and without catastrophic or nearly irreversible change. A Conservation Easement can be tailored to your personal view of conservation and “protection from development” however you might define it. For example, there are Conservation Easements drafted for agriculture, including forestry, that usually seek to keep land in sustainable farming, often in deference to a long family history with the property.

Because it cannot require specific action, a Conservation Easement by itself cannot address the three essential pillars of eco-land-restoration and enhancement of species diversity: robust native seed sowing, prescribed burns, and annual control of invasive species.

A second tool to protect your land and provide for its future care is a formal Land Management Plan prepared by a professional ecologist, a land manager, or a contractor. Even though a Land Management Plan does not legally bind anyone to carry out your wishes, at least others will have a description of how to continue to care for the land. And so will you when you reach the point of designing an estate plan that seeks to guide, or even require, the management actions set forth in the Land Management Plan.

With your Conservation Easement and Land Management Plan in place, you will next need to consider how the work of preservation, management, and maintenance of your land will be done when you can no longer do it. Can you depend on the next owner of the property? With luck that might work for a generation or even more, but how well, and then what? How can you assure that succeeding owners are reliable? Donation of the property or selective sale to a chosen owner may provide some assurance of reliability. However, some owners may be unable to afford an outright donation of the property or a selective sale to a chosen owner that can reduce the value received. Often landowners wish to leave their property to their family. Even if the landowner cannot select succeeding owners, a Conservation Easement is still useful in sheltering the land from egregious and harmful damage or change, and that protection will very likely still benefit many species, including our own.

Nevertheless, the ideal option is to ensure who owns the land by selling or donating it to one of the many ecologically oriented non-profits. However, you may discover that many entities are reluctant to accept donations, much less purchase property, since any real estate brings with it unavoidable responsibilities, hidden costs, liabilities, and numerous obligations which not every entity welcomes. That means if you want to fully ensure specified care and management of your land after you can no longer do it, you’ll have to find a method of ensuring an income stream from the land itself, or, more likely, from an outside private endowment created to finance the work of active land management.

One option for ensuring an income stream is to create a non-profit agency that can receive tax advantaged gifts and which would be administered long term by a Board of Directors designed so it would “refresh” over the decades. Another income stream option might already be at hand if the land has a history, and perhaps also a present, of agricultural use and the Conservation Easement you draft allows for that to continue. Forestry production, sometimes augmented by available State assistance, is yet another long-term option for income.

If an income stream is not possible, or is too complex to establish, then consider a cash endowment. Any cash endowment held for income generation for management needs is best held by an entity separate from the Conservation Easement holder. For example, the Wisconsin Natural Resources Foundation is ideally equipped and experienced in the administration of private endowments established for perpetual care of land.

A three-part division of responsibilities is much more likely to ensure that your wishes are carried out without error, neglect, waste, or misunderstanding. Consider that the owner of the land, e.g., a non-profit persuaded to accept a donation of land, might be a good third entity separate from both the endowment holder and the Conservation Easement holder.

As you’ve probably realized by now, competent and experienced legal help will be essential. If you are serious about land protection and/or restoration and long term stability, and recognize the value of all the work you have done on your land to date, then the peace of mind you’ll harvest from careful planning for the future will be worth the effort.

HINT: start the process now. It will require more time and energy than you expect and it’s not something you will want to manage if under any kind of duress or deadline. You will be experiencing a long learning curve, and you’ll need to find a good financial planner and /or CPA for tax issues. Some potential tax liability savings may surface.

Beyond the formal means to protect your land, there is an intangible protection that accrues to land that is obviously beloved, beautiful, and that speaks for itself, especially when capped by a few sentences of explanation and education concerning diversity of species, habitat, and interacting environmental systems. In our haste for perfection and control of the future we must not discount human response to beauty and wonder, even when it may superficially conflict with the pursuit of dollars.

Your reward for all this effort? Future humans and all the other species who cannot speak for themselves will silently thank you for your far-sighted advocacy protecting their home long after you are no longer living there with them.

--Chuck Bauer www.ctbauer.com April 14, 2023 www.rareearthfarm.org