House Agriculture and Natural Resources passed House Bill 1087 yesterday. This bill is Rep. Betty Olson's (R-28/Prairie City) latest attempt to kill conservation easements in South Dakota.
Ostensibly, the bill only eliminates perpetual conservation easements by setting a thirty-year limit on such agreements. However, as one rancher and participant in conservation easements testified yesterday, such a restriction puts federal agencies like the U.S. Fish and Wildlife Service out of the business of acquiring conservation easements in South Dakota, since federal tax incentives for conservation easements require perpetual terms. Most non-profits require perpetual terms as well, as noted in this 2004 review of conservation easements by the Legislative Research Council. And keeping the federal government and non-profit environmental groups from getting their hands on South Dakota land is exactly what Rep. Betty Olson is after.
Rep. Olson clearly understands her primary hypocrisy here: she's letting her loathing for the feds and greens trump her conservative respect for property rights. HB 1087 takes away the fundamental right of property owners to transfer their property rights as they see fit. To counter such criticism, Rep. Olson opened her Tuesday testimony by saying that HB 1087 is all about protecting property rights... of future property owners. How can we let Grandpa tie the hands of the grandkids?
Rep. Olson thus brings up an interesting political question: do people who don't exist have rights?
The immediate Constitutional answer appears to be no. Rights belong to those who are here to exercise them. Hypothetical constructs have no standing in court. They can't vote. The Constitution mentions "Our Posterity" in the Preamble, but everything else on that parchment applies to the here and now.
Accepting Rep. Olson's future-rights argument has enormous legal ramifications. If property owners cannot enter permanent conservation easements, then how can they confine their money in a permanent trust fund? Don't future generations have a right to use that principal for something other than generating interest?
Or what about wills? We recognize that, even after death, people have some right to dictate the disposition of their wealth. Can future generations now declare that their desires trump any conditions set by the deceased in their wills?
If Rep. Olson really can justify her restriction of current property rights as protection of future property rights, she needs to square with us then why she is not prohibiting other sorts of easements to thirty-year terms, like the 99-year easements TransCanada gets for its pipelines. Those easements prevent three or four generations from using their land as they see fit. And unlike conservation easements, TransCanada's pipeline easements are not voluntary: TransCanada can force that easement through eminent domain.
Commercial development of land restricts future use just as conservation easements do. Rep. Olson apparently has no problem with a farmer tearing up virgin prairie and denying future owners the enjoyment of such native habitat. She has no problem with TransCanada laying huge, toxic pipes under the ground that can impose enormous expense on future owners.
The contradictions in Rep. Olson's bill and her testimony make clear that HB 1087 isn't about protecting property rights; it's about sticking it to conservation groups, the federal government, and any property owner who thinks land is more than a resource to exploit.
Worth noting: Rep. Charlie Hoffman (R-23/Eureka) got HB 1087 right and voted against it. Rep. Frank Kloucek (D-19/Scotland) got it wrong and voted for this anti-environmental legislation.
Well if Ms. Olson want to keep that up, perhaps there is another way to skin the cat. Maybe landowners can still set up a conservatory by working something out with the Tribes. As a Tribe, I would think that they could then set up the perpetual "as long as the grass grows and the river flows" type of wording that would get the favorable tax benefits and be able to keep the land in an as is position. I think that it could be done with the right amount of work and efforts. It would be much better than she has it right now of disregarding the wishes of landowners for her beloved ALEC.
Turnabout=fair play:
"A proposed “personhood†bill in Oklahoma would define human life as beginning at the moment of conception. In response, Oklahoma State Sen. Constance Johnson tried to amend the legislation to make it illegal for men to spill their seed outside a woman’s vagina."
When I spoke with USFWS staff in South Dakota last fall, they said that at least 600 families were on a waiting list to have their land become grassland or wetlands conservation easements. If that's accurate, I think it's fair to say this program has some popularity with some landowners. In addition, the USFWS easements are not absolutely perpetual. USFWS is willing to relinquish pieces of them for certain things like wind turbines and (yep) pipelines. It relinquished some grassland easement land in order for the South Dakota Prairie Winds Project to be built.
My comment about accuracy isn't a dig at USFWS staff, just acknowledging that it's always possible I misunderstood them.
In good news, the House nixed Rep. Olson's bill yesterday on a 22–45 vote. Worth noting: Democrat Jim Sigdestad from Pierpont said that succeeding generations get "nothing" from conservation easements. Hmmm... natural watershed protection thanks to wetlands, natural beauty, wildlife habitat, better hunting, green space... that doesn't sound like nothing to me.
Not to mention that funds from a conservation easement now may help a family ranch or farm survive so it can be passed to future generations instead of all being sold off.
The ALEC legislators are targeting wildlife corridors, critical habitat and especially the compromise negotiated by the USFWS that created the Dakota Grassland Conservation Area.
The earth haters will stop at nothing to capitalize public holdings.