Conservation Easements in the Northern Forest
Principles and Recommendations for the Development of Large-Scale
Conservation Easements in the Northern Forest
Northern Forest Alliance
A conservation easement is a legal agreement by which a landowner voluntarily restricts the use of his or her property for the purposes of conserving specific natural-resource values. Ownership of land involves a bundle of rights, such as the right to subdivide or develop the property, to restrict access, or to harvest timber. Under a conservation easement, the landowner sells or donates some of these rights to a qualifying organization such as a public agency or a land trust. Any rights not conveyed by the easement are retained by the landowner. Easements are most often established in perpetuity, and apply to present and all future owners of the protected property.
Every easement is unique and tailored to the particular property and the interests of the landowner, the easement holder, and the programs or organizations providing funding for the easement's purchase. The unique character of individual easements has resulted in a wide variety of easement types. Some easements are as limited as simple development restrictions, while others are broad enough to restrict nearly all uses of a property, sometimes called a 'forever wild' easement. The variability of individual easements raises important questions about the minimum acceptable level of public benefits that should be expected from an easement funded in whole or in part with public funds.
The use of easements as a conservation tool in the Northeast began in earnest in the 1970s. Until the mid-1990s, most easements in the region were relatively small (median size <200 acres), donated by landowners, and held by private land trusts or local governments. However, in recent years two developments have significantly changed the potential for easements to affect the future of the region.
The first development is the size of properties covered by easements. At least nine easements greater than 10,000 acres are now in place in the Northern Forest, and proposals for easements covering hundreds of thousands of acres are being negotiated. The second development is the large amounts of public money being used to fund these projects. Most of the existing large easements have been funded in whole or in part with public funds from sources such as the federal Forest Legacy Program and various state land-protection programs. Future projects will continue to rely heavily on these and other public sources of funding.
The Northern Forest Alliance (NFA) has long supported conservation easements as one component of an overall conservation strategy for the Northern Forest. As long as easements were relatively small and privately negotiated and funded, there was little need to develop a more detailed and specific position. However, with the current potential for large publicly-funded easements, there is a compelling need to define standards and principles that will guide the development of effective easements. This need is all the more critical because the first wave of large-scale easement projects will set important precedents for future projects.
The current situation presents the NFA with a significant opportunity and a significant challenge. The opportunityis to help shape the use of easements as a conservation tool, and to enact effective land conservation across large areas. The challenge is to develop a consistent and well-articulated position that is strong enough to promote significant public benefits, but which recognizes the very real limitations of easements, and which builds on the experience of land trusts and other organizations that have experience in this area.
As articulated above, every easement is unique and must be crafted to meet the goals of the landowner, the easement holder, and the programs or organizations providing funding. Further, easements must be tailored to the characteristics of the property and the particular public values that the easement is intended to protect. Easements on small properties may focus on the protection of a relatively narrow set of values or resources. The principles set forth in this document, however, are intended to apply to large forest easements encompassing a wide range of public values. The principles are also intended to apply to easements funded in whole or in part with public money, though they may also be used to guide the NFA's response to large privately-funded easements.
II. THE BENEFITS AND LIMITATIONS OF EASEMENTS
Land protection in the Northern Forest has been achieved through several conservation strategies, including public and private acquisition, state and local land-use regulations, and conservation easements. While each method has its own particular strengths and limitations, easements have several unique characteristics.
Easements entail the purchase of only partial interest in a property and thus can be a cost-effective method of conservation. With the growing rate and scale of land sales in the Northern Forest, and the limited availability of conservation funds, easements can stretch the per-dollar value of land conservation. In their protection of large undeveloped forestlands, easements can maintain a wide range of open-space valuesincluding future options for increased protectionthat might otherwise be lost if the land were converted to non-forest uses.
Land protected under a conservation easement remains in private ownership while simultaneously protecting certain public benefits. In the Northern Forest, where 85% of the total land area is privately owned, easements can maintain the economic and cultural value of private lands, and provide an effective method of conservation across large areas. Moreover, easements may lessen a landowners tax burden while keeping conserved lands on local tax roles.
An additional benefit of easements is that they allow conservation to take place on a site-specific basis. By tailoring easements to their particular context, a combination of commodity and non-commodity values can be protected. As such, easements are well-suited for conserving defined public values (such as ecologically fragile sites or recreational opportunities) in a broader landscape of publicly and privately owned lands.
Easements can serve an important role in protecting open space against encroaching development, as well as buffering lands with stronger degrees of protection, such as parks, wilderness and ecological preserves. Furthermore, effectively designed easements allow for management flexibility in response to new scientific knowledge and unforeseen events such as large natural disturbances.
Despite their many benefits, easements cant protect every value associated with the regions forests. They have many limitations and are not the right solution to every conservation opportunity. Easements are generally most appropriate where continued private ownership and sustainable extractive use is compatible with conservation of the lands public values. With the possible exception of "forever wild" easements, they are not well-suited for situations where significant limitations or control over landowner actions are necessary to protect particular public benefits, or where continued commercial use seriously compromises those benefits. Where greater degrees of protection are needed, fee acquisition or some combination of easements and fee purchase may be appropriate.
III. STEWARDSHIP AND MONITORING
The permanent nature of easements makes them a powerful conservation tool. However, this permanence creates significant responsibilities for the easement holder in the area of monitoring and enforcement. Proper stewardship of easements requires that the easement holder have the technical and financial capacity to ensure that easement terms are being honored in perpetuity.
Stewardship must be addressed while the easement is being developed. Easement terms must be clear, and compliance (or lack thereof) relatively easy to determine. High levels of complexity, such as requirements associated with many land management guidelines, require considerable monitoring expertise and capacity. Vague wording or conflicting priorities may result in easements that are not only difficult to monitor but for which enforcement may be compromised. The need for easement provisions to be clear and monitorable limits what may realistically be included in easements.
Predicting future public use patterns and their associated impacts is difficult. Perpetual assurances of access to privately-owned lands requires anticipating and dealing with the conflicts that may arise between landowner interests, habitat protection, and recreational interests. A prioritization of values should be included in the easement, as well as an ability to restrict public access when other values are being negatively impacted. Should the parties not agree on the impacts and the steps needed to resolve the situation, a method for dispute resolution should also be stipulated in the easement. It may be beneficial for access interests to be held and monitored by a public agency and/or a non-profit organization whose primary mission is the management of recreational use.
Securing funding for long-term stewardship must be a priority during easement development. A well-crafted easement will have little value if the ability and will to monitor and enforce it do not exist. A secure funding source should be identified before the closing of easement negotiations, assuring the public that the intent of the easement will be honored and, if necessary, enforced in the future.
IV. PRINCIPLES AND RECOMMENDATIONS
The debate over the future of the Northern Forest centers on the question of how the regions forestlands can provide both public and private benefits over the long term. Conservation easements provide an opportunity to strike this balance by allowing forests to remain privately owned and in commodity production, while simultaneously protecting ecological, scenic and recreational values. Easements require us to identify the public values that are present on private land and how best to conserve them. As a method of conservation that is designed to last in perpetuity, easements challenge us to consider how our actions now will affect the land and society in the future. NFA recognizes these opportunities and responsibilities, and has designed the following principles and recommendations with them in mind.
Two overarching concepts must be considered with these, or any, principles regarding conservation easements. First, easements will differ based on the values and objectives of the landowner, the easement holder, the funders, and the public at large. Public interests are particularly important where public funds are involved or where a public agency will be the easement holder. Second, every easement will be tailored to the unique characteristics of the land it covers its size, bio-physical character, and geographical context and must be based on a comprehensive resources analysis of the property. There is no such thing as an ideal "one-size-fits-all" easement.
These principles will guide NFA decisions regarding support of and advocacy for specific conservation easement projects, especially large-scale projects involving significant public funding. They are not intended to be a hard-and-fast "litmus test". We recognize that each project involves a unique combination of landowner goals, the interests of the funders and easement holders, land characteristics and associated public values, and societal expectations. Individual easement projects will be evaluated not only for their compliance with these principles, but also their overall public benefit, the precedent they set for future projects, and their relationship to other conservation opportunities.
1. The primary purpose of forest conservation easements should be to provide permanent protection to public benefits associated with undeveloped forest areas, while allowing other uses compatible with the purposes of the easement. These benefits include maintenance of healthy ecosystems, clean air and water, recreational access, conservation of biodiversity, scenic values, and productive forest resources.
Conservation easements are first and foremost a tool to conserve land and the natural-resource-based values it provides to the public. They are particularly valuable for protecting values that are not adequately conserved by market forces. Most programs that provide funding for easements put the primary (though not necessarily exclusive) emphasis on the conservation of non-market values. For example, the enabling legislation for the Forest Legacy Program states that it is established for the purpose of:
" ascertaining and protecting environmentally important forest areas that are threatened by conversion to nonforest uses and, through the use of conservation easements and other mechanisms, for promoting forest land protection and other conservation opportunities. Such purposes shall also include the protection of important scenic, cultural, fish, wildlife, and recreational resources, riparian areas, and other ecological values."
2. Easements should be used as part of an overall landscape-level conservation strategy that includes stronger protection for some areas, including fee purchase by public agencies or non-profit organizations.
Easements are a valuable land conservation tool, but they are not suitable for protecting all public values associated with the regions forests. Many individuals and groups (including scientists, land trusts, grassroots groups and public agencies) share the NFAs goal of providing stronger protection to areas of especially high public value, through mechanisms such as fee purchase by public entities or non-profit conservation groups. When conservation easements are used, they should advance an overall conservation strategy that includes the full range of conservation options and levels of protection.
3. Funding for easements should include a dedicated source of revenue to support long-term monitoring and enforcement of easement provisions by the easement holder.
The long-term value of easements is tied to the ability of easement holders to monitor and enforce easement provisions. This is particularly important as easement lands change hands, involving new owners who were not party to the original negotiations. Monitoring and enforcement creates significant financial obligations for easement holders. Ensuring that land trusts, state agencies and other easement holders have the financial resources to allow appropriate monitoring must be an integral part of any easement project.
4. Easements must be strong enough to provide permanent protection for the identified public values but flexible enough to allow adjustment based on future knowledge, conditions and opportunities. In particular, easements must not preclude the opportunity for additional conservation in the future, and should specifically note this in the text of the easement. As provided for by applicable law and the stipulations of the easement, additional restrictions must be compatible with the interests of the landowner, easement holder, and general public.
The long-term trend of human history is to move land from less intensive to more intensive uses. Easements are an important tool for preventing the loss or degradation of natural resource values caused by this movement. However, land conservation should be a "one-way ratchet" - it should halt the future movement of land into more intensive uses but should not preclude future opportunities to reverse this overall trend and move land toward less intensive uses. Easement funding programs (and the easements developed under their guidelines) should be flexible enough to incorporate additional conservation when it is compatible, as provided for by applicable law and the stipulations of the easement, with the interests of the easement holder, landowner and the general public.
5. Conservation easements may help provide a variety of public benefits (including employment, tax revenues, and supplying raw materials to local businesses) via commodity production on undeveloped forestland. However, where extractive uses (such as harvesting timber, tapping maple sugar trees, collecting mushrooms, or stripping bark) are allowed by the easement, decisions to undertake such uses should remain with the landowner and not be mandated by the easement.
The opportunity to harvest timber and other commodities is an important benefit of maintaining forest land in an undeveloped condition, and some land conservation programs specifically include economic benefits among their goals.   Retaining managed timberland as part of the landscape (both for its economic benefits and as part of the region's cultural identity) is a goal of some land trusts and public agencies involved in easement projects.
The NFA shares the goal of keeping well-managed timberlands as part of the regional landscape. We believe it is appropriate for easements to maintain the opportunity for timber harvesting and other economic uses (though without precluding additional conservation as described in Principle 4). It should be up to the landowner, however, to decide whether they will utilize that opportunity. Easements are best suited to restricting and allowing landowner actions, rather than imposing affirmative obligations for specific actions.
6. Easement goals must be clearly and carefully stated, and structured to avoid interpretations that may conflict with the easement's original intent. The easement's statement of purposes should be prioritized and inclusive of all values that the easement is intended to protect.
Over time, difficulties may arise in determining an easement's original intent. In such cases, future partiesincluding the landowner, easement holder, and potentially the courtsmay interpret the easement based on its stated purposes and objectives. The more clearly the goals are stated, the easier it will be to avoid conflicts between easement holders and future landowners. In addition, this will allow funders and the general public to more easily assess the overall benefits of the easement, and how well the specific easement provisions address the stated goals.
7. Subject to the objectives of the landowner, easement holder, funding source, and general public, and a comprehensive resource analysis ofthe property, the following issues should be considered during easement development:
The NFA recognizes that some easements (especially those on smaller properties) will be focused on the conservation of a limited number of specific values. However, larger properties (those covering many thousands of acres) are likely to encompass a relatively broad and consistent set of publicly important values and resources. While not all of these values will be addressed by every easement (due to such things as landowner goals, the practicality of crafting easement provisions, and the willingness of funders to pay for restrictions), all of them should at least be considered during the development and evaluation of large-scale easement projects.
8. On properties where timber management and other extractive uses are allowed, easements should include provisions that ensure that such management is ecologically sustainable over the long term.
Most if not all large-scale easements will cover properties on which timberland management is an important goal of the landowner. On these properties, forest management will be a major factor in determining how well the propertys public values are protected. Easements should address all uses that may affect the long-term conservation of the public values the easement is designed to protect.
9. To the extent practicable, parties establishing large-scale easements should seek input from a range of parties with an interest in the land. Interested parties may include public agencies, local citizens and officials, scientists, and conservation and recreation organizations.
The NFA recognizes the need for confidentiality during easement negotiations, and that requirements for involvement by outside parties may affect the willingness of landowners to enter into negotiations. However, attempts by parties negotiating easements to involve outside parties in a less formal way are to be encouraged. Input from interested parties will help those developing the easement gain a more complete understanding of the important public values encompassed by the land, allow identification of areas that may be better conserved by other means, and build support for the project early in the process.
10. The expenditure of public funds should be commensurate with the public benefit derived from the easement.
Developing a conservation easement often involves finding a balance between a landowners willingness to accept restrictions on their use of a property and the publics (or other funders) willingness to pay for those restrictions. Specific projects will find this balance at different levels; more restrictive easements will generally require higher levels of funding. The NFAs support of specific projects will be based on our assessment of the overall public benefit versus the expenditure of public funds, considering both the project itself and alternative uses of the funds.
11. It is appropriate for private non-profit organizations such as land trusts to partner with public agencies in developing, holding and monitoring publicly-funded easements. In some cases, there will be benefits to having qualified private organizations hold publicly-funded easements. However, such partnerships must maintain an acceptable level of public accountability to reflect the public investment in the property.
Many land trusts have considerable experience in the development and stewardship of easements, and may have greater expertise and resources available for monitoring. However, assigning easements to private organizations does not absolve public agencies of their ultimate responsibility to represent the public interest in both the development and long-term stewardship of publicly-funded easements. Mechanisms for ensuring public accountability could include such things as co-holding easements or specific provisions addressing the agency's role in future decisions.
V. SPECIFIC PROVISIONS
Every easement is unique, and will address different issues based on the physical characteristics of the land and the objectives of the landowner, the funders and the easement holder. However, most if not all large-scale easements are likely to address in some way the core issues of subdivision, development, public access, and land and timber management. The following provisions are not intended to imply that every easement must address these issues. Rather they are meant to apply only to those easements that do address them.
Most types of development will significantly impair a forests ability to provide a full range of public and private values. Development restrictions form the fundamental basis of most conservation easements. Where development restrictions are applied, limited exceptions may be acceptable as long as they do not compromise the easements purposes and goals.
Easements involving significant expenditure of public funds should guarantee traditional non-motorized recreational access on appropriate portions of the property, subject to limitations consistent with the goals of the easement and the objectives of the landowner. Provisions governing motorized access (including designation of non-motorized recreational areas) may also be included on a case-by-case basis. In certain cases, unrestricted public use may threaten public values such as fragile ecological zones or habitats of sensitive species. Designation of no-access zones should also be considered on a case-by-case basis.
In addition, easements must be flexible enough to address concerns arising from increased levels of public use in the future. Development of a periodically-revised recreation management plan (that specifies responsibility for monitoring and managing public recreational use and allows for adjustment in response to changing use patterns) is one tool to address these concerns.
On large easement properties in the Northern Forest, the way in which forests are managed will significantly affect the protection of public benefits. Consequently, NFA finds that sustainable forestry provisions are a critical component of easements where timber management is a major goal of the landowner. Timber management provisions are one of the most difficult aspects of easement development. It is a subject that the conservation community is devoting considerable attention to, and it is likely that how the issue is handled in easements will continue to evolve over time.
Easement provisions governing timber management need to be specific enough to ensure that management is ecologically sustainable, but flexible enough to recognize the dynamic nature of both forest ecosystems and knowledge regarding appropriate management. The NFA supports the use of management plans (with varying levels of involvement, review or approval by the easement holder) to guide management, with only the most critical prescriptive elements included in the actual easement document.
Where an easement addresses timber management and other extractive uses, the following issues should be addressed. Specific provisions may be included in the easement document itself or in a periodically updated management plan developed according to goals and guidelines described in the easement.
Many of these elements create difficult issues of monitoring and enforcement. It is likely that ensuring the sustainable management of lands covered by easements will require an on-going dialogue and some level of trust between landowner and easement holder. However, the difficulty of these issues should not deter landowners, easement holders, and other interested parties from continuing to seek the most appropriate ways to address them.
Depending on the particular project, subdivision can have either negative or positive implications for an easement-protected property. Landscape-level planning and management is often more difficult on several small parcels owned by multiple parties, as opposed to large singly-owned properties. Further, multiple owners increase the potential of easement violations and can stretch the stewardship resources of easement holders beyond effective levels. Conversely, subdivision could enable part of a protected property to be given a greater degree of protection the river corridor of an easement-protected property, for example, could be acquired in fee as more funding became available. Subdivision allowances are also sometimes required by landowners as part of the negotiation process, and on very large properties may not significantly degrade the overall integrity of the protected property. Given these considerations, subdivision should be limited yet with careful attention paid to its potential future benefits (such as fee acquisition of high-value areas by public agencies or non-profit organizations).
 Throughout this document, the terms "conservation easement" and "easement" are used interchangeably, though easements may address other purposes besides conservation. For example, an easement may give a power company the right to maintain a transmission line across a property.
 The public agency or land trust to which an easement is donated or sold is the 'easement holder' or 'grantee'. The landowner who donates or sells the easement is the 'grantor'.
 New Hampshire Conservation Institute, Concord, NH. 1995. Forests Forever: A Comprehensive Evaluation of Conservation Easements on Working Forests in Maine, New Hampshire and Vermont.
 The "Northern Forest" refers to the roughly 26 million acre expanse of lightly developed and populated forest stretching from the Tug Hill and Adirondack Park areas of New York through northern Vermont and New Hampshire to northern and eastern Maine. About 85% of this area is privately owned, with over half of this in large commercial forest management ownerships (timber and paper corporations, investment groups, and families).
 All four Northern Forest states have state-level programs that fund forestland conservation. They are the New York Environmental Protection Fund, the Vermont Housing and Conservation Fund, the Land for Maine's Future Program, and the newly-established New Hampshire Land and Community Heritage Investment Program.
 The Northern Forest Alliance is a coalition of conservation, recreation and forestry organizations united in their commitment to protect the Northern Forest region. The NFAs goals include conservation of wildlands, encouraging well-managed forests, and building strong diverse local economies. See appendix 1 for a list of NFA Members.
 Northern Forest Alliance. 1997. Wildlands: A Conservation Strategy for the Northern Forest.
 Clearly prohibition on development is a significant limitation on landowner actions as used here it means limitations above and beyond those commonly included in easements (such as development restrictions or forest management guidelines).
 Throughout this document "development" implies permanent structures (such as residential or commercial buildings, communications towers, or paved roads) that adversely impact the public benefits the easement is designed to protect. It does not include roads, trails or minor structures associated with resource management or traditional recreational use of the property, which are generally dealt with in sections on forest or recreation management and public access. Some types of facilities (such as boat launches, campgrounds, or remote logging or hunting camps) are harder to categorize and should be dealt with on a case-by-case basis.
 Economic benefits are usually associated with the production of marketable commodities such as wood products. However, it must be recognized that benefits associated with wild forests also have economic value, though these are not as easily defined or measured.
 For example, the specific Forest Legacy implementation guidelines for certain states and New Hampshire's Land and Community Heritage Investment Program.
 Throughout this document the terms "timberland" and "managed timberland" are used to refer to lands on which the production of wood products is one of the primary goals of the landowner.
 These principles are intended to apply to forestland easements. We recognize that active management provisions have been incorporated into farmland easements and may be necessary to maintain certain benefits (such as scenic quality or wildlife habitat) associated with these lands.
 As used here, development refers to buildings, roads, utility lines, billboards, and other significant human-built structures.
 NFAs views and positions on sustainable forestry are found in the document, Forestry for the Future, published by NFA in 1999 (See Appendix 1).
Northern Forest Alliance Member Organizations
Adirondack Mountain Club
American hiking Society
Appalachian Mountain Club
Appalachian Trail Conference
Association for the Protection of the Adirondacks
Catamount Trail Association
Certified Forest Products Council
Citizens Campaign for the Environment
Conservation Law Foundation
Defenders of Wildlife
Garden Club of America
Gorham Trails, Inc.
Green Mountain Club
John McKeith Location Photography & EarthImagery Galley
Maine Audubon Society
Massachusetts Audubon Society
National Audubon Society
National Parks Conservation Association
National Wildlife Federation
Natural Resources Council of Maine
Natural Resources Defense Council
New England Environmental Voters
New England Forestry Foundation
New York League of Conservation Voters
New York Rivers United
New Hampshire Rivers Council
Residents Committee to Protect the Adirondacks
Student Environmental Action Coalition
The Wilderness Society
Trout Unlimited Basil Woods Jr. Chapter
Trust for Public Land
Vermont Alliance of Conservation Voters
Vermont Land Trust
Vermont Natural Resources Council
Vermont Public Interest Research Group
World Wildlife Fund
Northern Forest Alliance Principles of Sustainable Forest Management
Ensuring a sustainable future for the region will require a coordinated effort among the region's citizens, landowners, public agencies and organized groups. While the viewpoints of these groups may differ, we believe all share a common goal of passing on to future generations a forest that is ecologically healthy and economically productive. We believe that the principles outlined below can help us achieve that vision.
The Alliance believes that sustainable forest management is built on the following five principles, which should be implemented to the degree practicable for the size of each ownership:
1. Sustainable forest management places the highest priority on maintaining the long-term integrity of the forest ecosystem. Specifically, sustainable forest management should:
2. Sustainable forest management uses the structure, function and dynamics of the natural forest as a model when planning and carrying out management activities. Specifically, sustainable forest management should:
3. Sustainable forest management is conducted according to a management plan that takes a long-term perspective at all levels. Specifically, sustainable forest management should:
4. Sustainable forest management should maintain important cultural values of the forest. Specifically, sustainable forest management should:
5. Sustainable forest management recognizes the responsibilities of land ownership as well as the rights. Specifically, sustainable forest management should: