South Dakota bill changing conservation easements

[Big Fin]

Not sure what the gig is in South Dakota. Just got this in my news feed. A bill to allow landowners to change the terms of perpetual conservation easements. Says nothing about any other sort of easement, so trying to sort out why conservation easements (CEs) are the target. Folks in SD have a problem with CEs?

Any South Dakota guys want to weigh in and give more background and insight? Not sure if I understand this correctly. With other states hammering CEs lately, I'm looking for insight and discussion.

Introduced by McCleerey - https://sdlegislature.gov/Legislato...il.aspx?Session=2020&Member=1657&Cleaned=True


Bill link - http://sdlegislature.gov/Legislativ...0n3wNlGh0BXmCnIl38DHICz559FdvTHThnhTlGwnPSsHI

 

[BuzzH]

Kind of defeats the purpose of a perpetual CE if someone can unilaterally modify the terms doesn't it?

 

[Paisano]

Kind of defeats the purpose of a perpetual CE if someone can unilaterally modify the terms doesn't it?

I would agree with that....I'm not sure I can fully decipher all the language in the bill but.... when it comes to terminating a perpetual easement from someone like NRCS, what about the taxpayer money the landowner was paid so the easement could be purchased in the first place? and the taxpayer money that probably went into restoration? Seems like, at a minimum, the funds would have to be paid back.... I don't understand how this could happen if the conservation easement is held by the federal government.

 

[Hunting Wife]

Oh boy. Easements are literally the biggest issue in Washington DC for USFWS right now. It goes well beyond just one state.

Folks in North and South Dakota have a problem with USFWS CE’s specifically. Historically easements have always been highly contentious in certain parts of ND and SD but in recent years the politicians have really latched onto it. Particularly with the Bakken oil boom, and now all the wind energy, they are inconvenient for people who want to cash in. Most of the easements we have are wetland easements (at least in the counties I work in) but there is quite a bit of grass being acquired more recently.

I’m more familiar with ND. Senators Hoeven and Cramer have been driving most of the rhetoric against perpetual easements and pro-private property rights here, and it is spreading to South Dakota, and Minnesota somewhat. There have been county caps in place for years on the number of acres per county that could be protected by easements in ND. ND also passed a law that banned perpetual easements and tried to force USFWS to renegotiate all easements to 50 year terms a few years ago. These are easements paid for by your Duck Stamp dollars, folks. The feds told them to pound sand on that one, but politicians are simply looking at other ways to circumvent perpetual easements. The latest rumblings we’ve heard is that Cramer wants a mechanism by which landowners can buy out of perpetual easements. Not sure where that is going.

There is also some concern that some language in recent legislation regarding appraisals of conservation easements and requirements for how specifically those are completed may hurt not only USFWS but DU and other organization’s ability to acquire easements. Have only started hearing about this in the last week or so...they are calling it the FAIR Act. Still fuzzy on the details - heard that DU was really pissed about this one because it might significantly impact NAWCA funds. But it’s being kept kinda quiet for fear of drawing attention to other programs. I’ve been trying to dig up info on this but I haven’t found much. I’m sure you have some channels that could get you better info.

I won’t deny there are some legitimate gripes with the way the easement program has been administered. However, a lot of the rhetoric about people being thrown in jail, farmers being treated like criminals, armed federal agents coming to people’s houses is pure fiction

At this point we hear rumors of several bills and administrative changes in the works that would effectively gut the entire USFWS easement program, and also would impact easement programs like DU’s in the Dakotas and elsewhere. A lot of these seem to be getting quite a bit of help from Bernhardt. DOI and directorate of USFWS are not putting up much of a fight.

Sorry it’s light on specifics, but might give you a little more background.

 

[Big Fin]

These arguments against CEs are sour grapes to me. A CE comes about when a landowner enters into the agreement, either donated or purchased. When doing so, they are selling or donating a property right. They get compensated by one of three means; A) Cash, B) large income and estate tax benefits for their donation, C) combination of both when doing a bargain sale of an easement.

A lot of this comes across as "Let me sell/give you a property right in a willing buyer-willing seller transaction. Because you are a non-profit or a government agency, I think you should give it back to me when I spent all the money or used up all the tax benefits."

Imagine if that was between two private parties. Ex. - I buy the surface grazing rights in perpetuity. I pay fair market value to the current owner of that part of the property right bundle. I decide I want to keep it grazed at a low level, possibly none at all. The former owner now makes a claim that he should get that property right back, regardless of the benefits he received when parting with such property right, just because.

That example is the same as what this kind of legislation wants to do, just that the legislators and their backers find it easy to do this when non-profit and government agencies are the ones on the short end of the stick. If I'm reading this right and it is an expression of what @Hunting Wife mentions above, I call bullshit. You sell or donate something in exchange for benefits and you enter into such agreement in perpetuity, you better be ready to ride that out. If you don't like it, or your heirs don't like it, tough chit. Nobody held you hostage and forced that transaction upon you.

This kind of stuff would have far-reaching implications to conservation.

And finally, pardon me if I laugh when folks bring this forth under the context of property rights. Property rights are to be respected, no matter who holds that right; a private owner, a non-profit entity, or a governmental agency holding such right on behalf of collective individuals. Do these folks not see the hypocrisy of flying the property rights flag and do so in an effort to take property rights from other entities? They probably do see, but hope that nobody calls out their BS.

 

[warmer]

Our legislature seems hell bent on running resident sportsmen and women completely out of the sport of hunting and fishing. They increasingly are supporting and delivering this crap to be debated. Rest assured, somewhere there is a wealthy NR pushing this clown for the bill.

 

[Schism]

Our legislature seems hell bent on running resident sportsmen and women completely out of the sport of hunting and fishing. They increasingly are supporting and delivering this crap to be debated. Rest assured, somewhere there is a wealthy NR pushing this clown for the bill.

I’ve been following anti CE movement in ND and @Hunting Wife summed it up pretty well. The ND Farm Bureau has been vocal in its disdain for CE and has the attention of our US Senators and Rep who seem more than willing to carry their water. There may be some wealthy NR’s but the most vocal opponents in ND seem to be local ag interests.

 

[mtmiller]

Our legislature seems hell bent on running resident sportsmen and women completely out of the sport of hunting and fishing. They increasingly are supporting and delivering this crap to be debated. Rest assured, somewhere there is a wealthy NR pushing this clown for the bill.

Don't forget NRs have taken recent hits as well.

Before you place blame on NRs, take a good look at your Gov.

 

[Big Fin]

It is stuff like that that represents the attacks on conservation with the strategy of "death by 1,000 lashes." I don't know, but I suspect in the case of this bill, there is a legislator who has some political debt to repay and they find this kind of legislation as the path of least resistance.

If it passes, they can go to political creditor and say, "Look what I did for you." Code word for, "My debts are repaid." To which the donor/lobbying group then asks, "How can we do more business?"

 

[warmer]

Don't forget NRs have taken recent hits as well.

Before you place blame on NRs, take a good look at your Gov.

While I have no good things to say about our Gov., she has been adamant about gutting our big game hunting to pander to the pheasant hunting crowd. She might have something to do with this but I'm not sure where she would benefit personally. And that's what she seems to be about.

 

[warmer]

It is stuff like that that represents the attacks on conservation with the strategy of "death by 1,000 lashes." I don't know, but I suspect in the case of this bill, there is a legislator who has some political debt to repay and they find this kind of legislation as the path of least resistance.

If it passes, they can go to political creditor and say, "Look what I did for you." Code word for, "My debts are repaid." To which the donor/lobbying group then asks, "How can we do more business?"

This!!

 

[Hunting Wife]

It is also worth noting that there is still significant support for CE’s among property owners in the Dakotas. We have more people interested in having easement offers than we have funds to spend every year. That fact is routinely being ignored by the politicians and anti-CE groups.

 

[Schaaf]

I don’t think we’re that far away from this in Montana. I listened to multiple state legislators argue that what one person does on their land regarding a conservation easement, has a negative effect on the legislators private property rights. Quite the mental gymnastics but it sheds a light on a large portion of our elected officials mindset.

 

[mtmiller]

While I have no good things to say about our Gov., she has been adamant about gutting our big game hunting to pander to the pheasant hunting crowd. She might have something to do with this but I'm not sure where she would benefit personally. And that's what she seems to be about.

I just wanted to play a similar blame game with you. I don’t believe we should just blame a wealthy nr or the governor with nothing to back it up. Just chumming on my end.

 

[Straight Arrow]

I don’t think we’re that far away from this in Montana. I listened to multiple state legislators argue that what one person does on their land regarding a conservation easement, has a negative effect on the legislators private property rights. Quite the mental gymnastics but it sheds a light on a large portion of our elected officials mindset.

'Not sure of the political party of Rep McCleerey or the legislature majority in SD, but the ideology of the potential political power in Montana's legislature concerns me a great deal. As someone who voted Republican most of my voting life, I find it difficult to find common ground with the ideology and attitudes of such law makers who push this kind of legislative malarkey. The potential in Montana for a strongly Republican legislature, as well as a Republican Governor, State Attorney General, State Auditor, State School Superintendent (all Land Board members), scares the heebie jeebies out of me with respect to the certain adverse impacts on such conservation laws, policies, practices and generally on hunting and wildlife.

 

[Sytes]

I recall a prior discussion regarding PERC's interest in "Perpetual CE's" and not sure if it was here or chatting with another though a bit of history that may be the incentive encouraging legislative interest...

Can “Perpetual” Conservation Easements be Updated to Changing Circumstances? | PERC

Conservation easements are an increasingly important tool for protecting the environment.

www.perc.org

Also - Political positioning - McCleerey (D) Sponsor along with another D and 5 R's Sponsored: Resulted in an 8 Y 5 N <Pass>.

 

[Trial153]

South Dakota is tired of being shown up by its southern neighbor

 

[Jwill]

Shocking that the Farm Bureau is squaring up against hunting and conservation...

 

[COEngineer]

I'm not a lawyer and I have been shocked before, but would legislation of this type stand up in court? I know the States get away with disregarding federal law in some minor issues (ie marijuana), but I can't believe that even if this bill passed into law that it would stand up in court. I mean, property rights/laws are some of the most foundational concepts in our country. Makes me wonder if this is another litmus test bill. It's an election year and there are bills offered up with no hope of passing, but are intended to force some legislators to expose their 'true colors' (ie, "You're not a true <insert political party> because you didn't vote for this or that bill.")

 

[S.Dak Drifter]

McCleerey is a Democrat and from what I have seen on the house floor in the past, the Republican dominated house isn't always quick to be bipartisan.

However, there are quite a few ranchers from out west who are in office that do have pretty big stakes in private land I would imagine- so time will tell with what happens with this legislation.