by Heather Engelman
Dr. Sally Fairfax discussed “The Erosion of Public Space: Acquiring and Allocating Conservation Lands,” on April 7, as the keynote address at the 23rd Annual C. Eugene Farnsworth Memorial Lecture and Fellowship Ceremony and part of the Women in Scientific and Environmental Professions Speaker Series.
According to Dr. Fairfax, public space can be considered either as land or as room for effective public discourse and decision making. “Both are diminishing in my assessment, and that is not good,” said Dr. Fairfax. “Land conservation programs play a significant role in this erosion of public space.”
“To establish the National Forests, the government asserted that it could manage the land better than private stewards could…and asserted authority over users of federal forests throughout the west.” In addition, the federal government began buying formerly private land in the eastern United States. “The government bought land—basically cut over beat out, about to be abandoned land-- that private owners wanted to cash out rather walk away from.” And, she noted “The terms were, ENRON era survivors will not be surprised to learn, very generous to the sellers.”
Fairfax discussed Land Trusts and Conservation Easements. “The Mount Vernon Ladies Association (circa 1850) meets today’s definition of a land trust: private action to protect land and related resources. The MVLA was public spirited—holding the land and managing it for the good of the public—and for a visitors’ small fee that supplemented private contributions, maintained the property specifically as an educational resource for the community.”
“In the present context of creating public spaces, there is a quid pro quo—private organization can protect but there has to be a clear public benefit in terms of access,”
“A conservation easement is a voluntary agreement that allows a landowner to limit the type or amount of development on their property while retaining private ownership of the land. The easement is signed by the easement donor and the Conservancy, who is the party receiving the easement. The Conservancy accepts the easement with understanding that it must enforce the terms of the easement in perpetuity. After the easement is signed, it is recorded with the County Register of Deeds and applies to all future owners of the land.”
She noted that “Early takings law did not compensate, for example, even for every physical invasion.” She used the example of a government taking 10 acres from a private landowner for a public road, which decreased the owner’s total acreage, but tripled the value of the remaining holding. No compensation would be due to either party. “Land trusts and conservation easements take a very different approach,” she continued. “Easements in effect give the land owner a tool with which to extract compensation for foregoing activities which either were not contemplated or were not permitted or both. It is... much easier for regulators to buy a wetlands easement than it is to defend and enforce a regulation that curtails your right to drain wetlands.” As a result, “compensatory conservation schemes like conservation easements [create] the misimpression that rights exist where none have been seen before and [erode] public understanding of its own rights in public property.”
Fairfax contends that conservation easements are profoundly publicly funded, by the creation of tax-exempt foundations and/or payment with tax reductions, with little public access in return. She also is concerned that they have eroded the public’s ability to comment, or participate in decision making. Thus, “Conservationists should be wary of compensatory easements.”
Professor Fairfax has taught natural resource law and policy at the University of California, Berkeley, College of Natural Resources for over 20 years. She specializes in land conservation and management and has published extensively on legal aspects of administration and related federalism issues. She is co-author of Forest and Range Policy, The Federal Lands, State Trust Lands, Conservation Trusts and Buying Nature: The Limits to Land Acquisition As A Conservation Tool From 1780 To 2002.
This lecture was sponsored by the Faculty of Forest and Natural Resources Management with assistance from the ESF Women’s Caucus and Graduate Student Association. For more information about the Women in Scientific and Environmental Professions speaker series, please visit http://www.esf.edu/womenscaucus