Margolis: Conservation groups backtrack in the wake of public outcry

Editor’s note: Jon Margolis is VTDigger’s political columnist.

They are all honorable men.

Not with that wise-guy sarcasm Marc Anthony used describing Brutus and the boys, either. These are real honorable men, and though they have all but accused each other of being dishonorable in the last couple of weeks, they are basically allies.

Because, among other things, they are all liberal men. Liberal in their politics, especially when it comes to protecting the natural world. They are environmentalists.

Two of them – the two major antagonists – might even be called legends in the vital (if slightly arcane) field of conservation law. In Vermont, no one is more closely identified with land preservation than Darby Bradley, the highly regarded former head of the Vermont Land Trust. Before moving to Vermont and Vermont Law School in 2009, John Echeverria was executive director of Georgetown University’s Environmental Law & Policy Institute and general counsel for the National Audubon Society. In the world of environmental law, those are impressive credentials.

In their separate realms, the two men were pursuing the same goals – saving ecologically valuable fields and forests from being paved over. On most matters, they agree.

Not on S.119, “An Act Relating to Amending Perpetual Conservation Easements,” which easily passed the Senate last year and seemed likely to be approved by the House this year, in no small part because Bradley and the VLT, now headed by Gil Livingston, were squarely behind it. In Vermont, their support is akin to a political Good Housekeeping Seal of Approval.

Or was until Echeverria and his allies entered the fray. In columns and news coverage on this website and in a story on Vermont Public Radio, they argued that even if land were donated under easement terms guaranteeing that it be preserved “in perpetuity,” S.119 “would allow a land trust and a future owner … to lift the restrictions…and sell the property.” The “conserved” land, they said, would then “be open to development,” even where the whole purpose of the conservation easement was to protect the land from development.

This being essentially a family feud (and – worse – between lawyers) the back and forth got both testy and convoluted, with each side accusing the other of trying to mislead and misinform and rarefied disagreements about the precise meaning of this phrase, or the relevance of similar laws in other states.

Until Friday, when Livingston and Bradley surrendered.

“The current bill is too broad, so we are working on changes that would greatly reduce its scope,” Livingston said. On Monday he said it was too early to decide whether the Land Trust and its allies would try to get a revised version of the bill passed this year. He said the several organizations who supported the bill would make that decision “in another week or two.”

Livingston never fully explained why VLT was withdrawing its support, but he didn’t have to. The Land Trust seems to have been blindsided by something new in American politics: website comments.

It’s by way of being the new town square, as scores or sometimes hundreds of readers first respond to news or opinion articles on the website, and then respond to each other – sometimes agreeing, sometimes debating (and, it should be added, sometimes knowing what they are talking about, and sometimes not).

In this case, several commenters declared that if the bill passed they would not donate easements on their land to Vermont Land Trust.

How many of them intended to donate land to begin with, or how much land they had to donate, remained unclear. The message to the Land Trust was not.

Amid the tumult, it was discovered that more than a year ago the Vermont Housing and Conservation Board adopted an interim policy claiming for itself much the same authority that S.119 would give to private land trusts – to approve “major amendments” to easements after a public hearing process and if the amendment “serves the public conservation interest,” or if denying it would “result in significant financial burdens to the easement holder or landowner and result in minimal conservation benefit to the public.”

That’s quite a broad standard. But Gus Seelig, the executive director of the board, said almost all its easements have been purchased, not donated, and any amendment would require the approval of the land-owner as well as the easement holder. If an easement was not donated, amending it would not fall afoul of the Internal Revenue Service’s rule that the value of a donation is not deductible unless the easement is “in perpetuity.”

Like the board’s interim policy, S.119 would require a public comment process and allow major amendments to easements only if those amendments were in the public interest.

That’s exactly what alarms some critics. They point out that the advantage of the present system is precisely that it is controlled by private choices, not the public interest. Conservation is mostly a government project; government at some level either buys land (sometimes using eminent domain) or passes laws restricting how the land may be used.

This works, but it also arouses opposition to “the heavy hand of government.” In conservation easements, though, individual landowners make their own private decisions to preserve their land, usually donating or selling development rights to a private land trust. Law (meaning government) enables this and sets some broad parameters on the process, but neither requires it nor interferes with how it works. The public interest is served –easements have preserved hundreds of thousands of acres in Vermont – using the light hand of government.

Bradley acknowledged that S.119 would tilt the balance from the private to the public realms. Under the bill, when all the public hearings and comments are done, the politically appointed Vermont Natural Resources Board (or sometimes a court) would make the final decision.

But he said, “given the fact that the public has spent millions of dollars conserving land through direct appropriations … and tax deductions, there is an advantage to giving the public an opportunity to comment on significant amendments.”

Yes, a public body would have the ultimate authority, but in Vermont, he said, this authority has never been “misused.”

It has not. But politics is cyclical. Right now, the authorities – Gov. Peter Shumlin, Attorney General Bill Sorrell, the legislative leaders – are all pro-environmental Democrats. That may not always be the case. Unlikely as it may seem for the foreseeable future, it is not impossible that in another decade or two Vermont could be governed by people with quite a different point of view.

In that case, selling a thousand acres of “protected” forest land to a developer – the proceeds, of course, to be used to purchase other, comparably valuable open land because the transaction had been deemed (by the not-so-environmentalist new majority) to be in “the public interest” – could become routine.

Even if long-dead landowners had donated the easement thinking they were preserving their land “in perpetuity.”

Bradley said that can happen now. It can. Nothing is really “in perpetuity.” But it can happen now only with the approval of a court, and judges tend to base their decisions on statute. Absent a statute permitting such amendments, courts are likely to approve them very rarely. Not never. Nothing is ever never. But close to it.

In supporting S.119, the Land Trust and the Nature Conservancy are clearly supporting a measure which would make their organizations more powerful. It would give them more leeway.

A naked power grab? Probably not. These are, remember, honorable men. Enlightened men (and a few women), too. They are not in it for the money. They are convinced that they would use their enhanced power responsibly, and there is no reason to doubt their sincerity.

But history shows that giving more power to honorable and enlightened men (and a few women) can be a step on the road to disaster.

Jon Margolis

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  • It is hard to follow all that is thrown at us these days. I have to admit that I am confused and rather dismayed by S. 119 and by the old friends who had first advocated for it and then backed away. For now I am glad S. 119 went up in smoke. I have a hunch that “web site comments” were not S. 119’s undoing. I suspect that informed commoners were.

  • Rachel Hexter Fried

    I am flabbergasted. Both at my ignorance re the existence of S 119 and VLT’s support for S119. I recently met with a VLT rep. with the purpose of donating an easement of my property. The “in perpetuity” is very important to me. I know, Jon, nothing is forever, but for VLT to push the “in perpetuity” theme, which they do, both in their literature and orally, while concurrently supporting legislation allowing for the undoing of those same “in perpetuity” easements is both galling and indefensible. I am glad that Livingston finally acknowledged that support for S 119 was incompatible with the stated mission of VLT.

    • Paul Lorenzini

      Why should your decision grant perpetuity? Is there a great pyramid on your property?

  • It’s good this all came out. I had considered putting my property into “Land Trust” but now I don’t trust it, not now nor ever after this proposal.

    I have many 100+ year old trees on my property, wildlife is abundant, the natural native fauna is delicate and all of nature is ticking along with the backdrop of birds in chorus. I can no longer trust in “perpetuity”.

  • walter moses

    Trust lost is trust gone. We must remain watchful of S 119 because I don’t believe it has “gone up in smoke”. Why this bill was introduced by Sen. Hartwell is the big question. The fact that the VNRB is politically appointed may have something to do with it. It almost looks like the fox was caught with the key to the henhouse. Is there a money trail?

  • Kim Fried

    When it comes to the exiting Legistature and Governor it would be very prudent to follow S 119 until it is truly dead. Development pressure was certainly part of what was going on and when it comes to preserving our Vermont we need to in this day we live in to be very carful of the people and organizations that we use to “TRUST”.

  • Darryl Smith

    “Gov. Peter Shumlin and legislative leaders – are all pro-environmental Democrats” is quite questionable given their strong support of leveling Vermont’s mountains for industrial wind power.

    • Kai Mikkel Forlie

      Quite questionable indeed, also given their strong support for subverting property rights and looking the other way when it comes to the very real threats – immediately to our life and limb and in the long run to our continued existence on this planet – posed by allowing a foreign corporation to build [and operate] a…you guessed it…natural gas pipeline through our state and under our prized lake. “Pro-money and perks” is more like it.

  • chris lang

    When I conserved my Vermont land several years ago, I intentionally went with a smaller land trust because large organizations can’t resist trying to sway public policy, one way or the other. This is no exception. The VLT has conserved over 500,000 acres or about 8.5% of the total land mass in Vermont. If such an organization can then change the law so as to introduce a system of credits and trades, the economic clout that comes with that is significant which makes me wonder, what is really going on here; why is there such a push for it and who benefits? I for one believe in “perpetuity” and a land trust’s recorded promise to do the same.

  • Sally Shaw

    “But history shows that giving more power to honorable and enlightened men (and a few women–SIC) can be a step on the road to disaster.”
    Hear, hear. The Greek tragedies say the same.
    VLT and TNC’s hoped-for wiggle room is pragmatic for them, given the way things have changed in the past decade and where their funding comes from. But giving an (politically) appointed board the authority to hold the balance between some dead landowner and a well-heeled private interest, with or without pressure from the reigning political party is a recipe for distrust & division in the conservation ranks at best, and a potential disaster for private land conservation and the working landscape in the long run. It is redolent of the Kelo vs. City of New London Supreme Court decision, in which private property (a woman’s home, in which she actually lived) was taken by a municipality via eminent domain, to benefit a private corporation. In that case, the corporation decided not to expand as originally planned, and Susan Kelo’s home and former residential neighborhood was left abandoned, blighted, and sad while the SC precedent remains: private property is not so private anymore, if it is coveted by powerful private interests, working with a willing government. Individuals in conservation organizations can be honorable, however neither governments nor organizations relying on government grants or private donations can be assumed to lack self interest in these matters, especially when their boards and benefactors are populated by those who have most benefited from the economic policies most of us have been harmed by. If the survival and efficacy of Land Conservancies and Land Trusts is at stake, perhaps we should look at the underpinnings of that, at how the economic choices of the past few decades has changed their (and our) world, and as a society try to correct the root causes…NOT throw the baby out with the bathwater.

  • Kathy Leonard

    Here’s a timely news item from Maryland’s legislature concerning energy projects on preserved farmland. Pressures will always be with us, but will farmland?

  • timothy price

    Good comments. And to that, don’t forget UN Agenda 21 which is the basis for reorganizing the placement of people and habitats through regional planning. Suggest that anyone who has warm and fuzzy feelings about “sustainability” should read, Behind the Green Mask”. We are being push toward a One World Government by NGOs.

    • The masses are crippled by their profound naivete

      • Paul Lorenzini

        Aye Aye!

  • Duncan Kilmartin

    Whoever penned the headline about Public Outrage needs their head examined.

    There is no public outrage…just a sandbox fight among a bunch of environmental elitist Kings and Princes who control Vermont’s land and economy.

    If the public really knew the pernicious effects of these Kings’ and Princes’ policies on our economy, the ability to retain our children and grandchildren in Vermont, the destruction of our middle class in favor of these self-appointed and self-anointed Kings and Princes of the “over-class” who lord it over the unwashed and unenlightened “under-class”, the “common folks” of the “under-class” would throw the bums out.

    Vermont is rapidly becoming a two class society:

    The Over-class led by: Kings (Darby); Princes (Gustav, Gil); Black Knights seeking the Trust Throne (Echeverria, who comes fresh from the big “Holy Land Wars in D.C.” to assert control over a green emerald fiefdom and displace King Darby); governors, legislators, and attorney generals who genuflect and prostitute themselves before the Kings, Princes, and Black Knights. Yeah, I meant just what I said…they prostitute themselves. Jon’s article proves it, as does the commentary found above.

    The underclass, the serfs and fiefs who toil on the preserved lands of Vermont’s nobility, are truly pre-Magna Carta peasants.

    In the interests of “honor and honesty”, I must confess the fitting concept of pre-Magna Carta Vermont did not originate with me.

    In the late 90’s, on a subway platform in London, I was jousting with a peerage member of the House of Lords about England’s loss of sovereignty to the EU.

    He skewered and “fatally wounded” me, in his wonderful British accent, with the following:

    “Ah, Mr. Kilmartin. If I remember rightly, you are from Vermont. Yes, pre-Magna Carta Vermont, where the serfs and fiefs do not own the land, but merely toil on the lands of the State to which they pay taxes and rent for the privilege of being the “working landscape” for the nobility.”

    The truth hurts, but it is the truth. Guess its time for a Vermont Magna Carta…time to free ourselves from the Kings, Princes and Black Knights…but will we?

    • Ken Hertz

      The Magna Carta (1215) transferred some power from the king to the barons. The serfs did not profit.

      • Duncan Kilmartin

        Yeah Ken, but it was a start. Too bad we cannnot rely on Chapter One, Section One of the Vermont Constitution for our property rights.

        I think Mary Gerdt “gets it”!!!

  • Timothy – I thought I was the only one around here that was onto Agenda 21 – we need to keep talking about it – they nearly destroyed Rosa Koiri for exposing it. Now her book is selling like hot cakes –

  • It takes a lawyer without ethics to manipulate the words ” in perpetuity”. In our town we own a swamp lot and was not invited to the elite funding party. In fact, the town was going to take our swamp lot for taxes to go with the 500 acre 1.2 million property. The beautiful people were invited as usual. They received over market price, still own the property and have a private preserve. They got federal monies to save bats. It is a matter of time before someone with money will want to build a house there and change the easement just a smidgen. Then all the tax breaks, loopholes, praises, intentions, they all go away. Such is this world.

  • Moshe Braner

    So the plan was that if, or when, a “conserved” area comes under “development” pressure it would be replaced by finding an area more out of the way (for the moment) to be declared “of higher conservation value”? Rinse and repeat, as there is no end to “growth”? Until we run out of planet, that is.

    I think that “in perpetuity” should mean what it says. If another area is of high conservation value, it should be protected on its own, without usurping the protection of other areas.

    Thankfully the voters of Essex Town recently soundly rejected a proposal to shift the “conservation” label from the as-yet-undisturbed part of Saxon Hill to the already-used-up-as-a-sandpit part.

  • John Brabant, Calais, VT

    Ah yes, The Nature Conservency or TNC as it is called. My dad and I were both once members of the TNC; that is until they hoodwinked a NJ developer turned conservationist and sold highly develop-able land he conveyed to the TNC to another developer, mere weeks after the completion of the original conveyance. The developer sued TNC and lost as he naively thought that as a conservation group, they would conserve the land and did not get this understanding reduced to writing. The court said that while this was his understanding, there was no contract assuring that his wishes would be carried out. Of course TNC argued to the concerned public and the court that this land was of a lower conservation value and due to its high development value, it made good sense to sell it for development and use the proceeds to conserve higher value land elsewhere. Of course, they did not feel any obligation to inform this developer gone conservationist of their intentions to do to the land what he very easily could have done prior to the conveyence. For shame!

    But the story doesn’t end here. TNC more than a decade ago, acquired for conservation a spectacular property on a coveted low-key summer island retreat of wealthy New Yorkers. The island, known as Shelter Island is located between the North and South forks of the East-end of Long Island. The property, formerly an 18th century hunt club which includes absolutely amazing woodlands and salt marsh wetlands, made up close to a third of the entire island’s real estate. This gem also has incredible views and coveted Peconic Bay beachfront. Just to give a sense of what kind of a property this is, Jimmy Buffett owns a summer place just across the narrow waters to the south of the property where he keeps his sailing yacht and has been known to hang out with Paul McCartney and other notables playing guitar and having a generally good time. As a Parrot-head and Beatles fan and lover of this wonderful part of the world, I would just love to own a little 3 acre beachfront lot right there. But, of course, because the TNC now owned it, no one, not me, not anyone would be getting one of those million dollar lots as they would be conserved in perpetuity right? And this protection would be for the better as if everyone were to be able to build on such a rare property, then such places would cease to exist right? And TNC is there to protect such rare gems for the greater good, right? Well, actually, no. It turns out TNC sold beachfront building lots to none other than their very own board members. Oh but wait, consistent with their reasoning for the sale of that high dollar NJ property, they must have decided that since these properties had such a high market value, that they would sell them for full market price and then use the proceeds to fund other (more) worthwhile conservation projects? Well, unfortunately, again the answer is no. These lots were sold for way under market value in a secret sale to these board members. Hmmmm…. and who would have voted to approve such a transaction? Why, TNC’s board of directors, the very board that these same happy new beachfront land owners served on.

    So, like so many have already written on this wonderful VT Digger website, I do not trust either TNC or some future VLT to always to the noble thing with our conservation easements were S.119 to become law. I fully expect that at some point in the future, some big donor would have their way with some of the properties or property easements held by these organizations. What if, say, Green Mountain Power or a back country ski area developer were to buy a conserved mountain land and then dangle big cash in front of these conservation organizations? I can already envision one conserved property that might be at risk to a wind project or ski project or other “public interest” development were this bill to pass; that is the 1500 acre parcel conserved with TNC in Stowe that is presently in ownership of Stowe Mountain Resort. This conservation easement was placed in trade for the State of Vermont conveying the former Stowe Campground property to SMR for their resort expansion back in the 1990s. You have to wonder.

    The prospect of this bill becoming law shakes me to the very core of my being as an owner of a farm property with a conservation easement held by the VLT and a strong supporter of the protection of Vermont’s farms and wildlands. In legal terms, a conservation easement is a prescribed ownership interest in a property. The VLT in actuality is a co-owner of my family’s farm property. My wife and I bought the property with the understanding of the limitations of the easement and limitations of the VLT’s ownership interest. I do worry that through the flexing of the easement language that this bill would allow, that others could decide for us what is in the “public interest” on the conserved property that we thought we owned. As one commenter said, we need to keep an eye out for this bill rising up again or being attached to another “germane” bill, where it might be passed and signed into law without our knowledge. Governor Howard Dean hit the nail on the head and I am extremely grateful for his entering the fray as I fear without his involvement, this bill may have been on its way toward passage in the House.

    In 2003, The Washington Post ran a 3-part series exposing the wheeling and dealing done at TNC with conservation lands such as sales of properties to its board members, selling pollution credits on lands in Latin America to GM while GM’s former chairman sat on TNC board and voted on the transaction, and allowing logging and oil exploration on its conserved lands. Subsequently, in 2005, there was an audit by the IRS and a Congressional inquiry of these practices. So this has apparently been the M-O of TNC for quite some time and now they are attempting to make in-roads into weakening the protections afforded conserved properties in Vermont. One needs to wonder what this is really all about. Below are links to some Washington Post coverage of the TNC’s travails that I hope will never be visited upon Vermont:

  • John Brabant, Calais, VT

    In followup to my last post on TNC, see hotlinks at the webpage with documentation on some of the questionable insider land deals to funders and board members of The Nature Conservancy:

  • We’d better start acting now on climate change or there may soon be no such concept as “in perpetuity.”

  • Chuck Gallagher

    I understand the surprise and anger but, in the grand scheme of things, this feels like a small issue. For all Vermont’s lip service to environmental stewardship, we don’t really plan for growth or resource protection. Just about any parcel can be developed in a “lesser of two evils” fashion under 246 independent/uncoordinated/ municipal/cookie cutter zoning schemes. Absent any meaningful land use planning, Vermont Land Trust and others work to apply conservation easements on farms and forests that, at the time, seem like great places to protect from…well, from the ultimate fulfillment of the town zoning ordinance. I am sure that, over the years, all land trusts have taken easements on lands that later became surrounded and compromised by the development that, finally, does occur. And so, what once seemed like a good parcel for conservation now seems like a good one to swap for a higher value easement elsewhere. It’s not criminal to want to undue a low value easement to get a higher value one. I’m not outraged. However, I agree it undermines the integrity of the easement purchase approach and calls into question the wisdom of land trusts using the words “in perpetuity” on future easement purchases. We should stop using those words. What is concerning to me is that we keep fighting among ourselves over the small stuff. You can’t protect, for future generations, a fraction of all that needs to be protected using a Band Aid approach. Vermont needs thoughtful, coordinated regional land use plans – with sharper teeth and less lip service – that make the hard choices as to where development should be encouraged and where it should be discouraged. Until we find the political will to begin that effort, we might need to get more comfortable with occasionally reassessing where our limited and expensive Band-Aids will do the most good. Or not. Either way, I think we’d be better off agreeing to disagree on this fight and joining forces on an effort that could actually make a difference.

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