Public Access Requirements for Conservation Easements
Recently, opponents of conservation easements in the Wyoming Legislature seized the issue of public access to polarize support as a choice between the devil and the deep blue sea. Former advocates for private property rights suddenly threw in with others who believe that access is a right to be legislated. Various maneuvers were attempted to require “full public access” to the habitat of the very species for which we are trying to stave off an endangered species listing and preserve as an economic driver of tourism.
If such efforts had passed, projects would likely not have moved forward – which, of course, was the intent. No private landowner would agree to “full public access” as a required by-product of a conservation easement.
But, is there value in the grant of public access by private landowners, and is it something that we should justify paying for in the name of the public good? Is full public access to private land an appropriate use of state funding, and, if so, is it appropriate on all lands in which the state invests?
The Wyoming Wildlife and Natural Resource Trust (WWNRT) was signed into law in 2005 in order to maintain, conserve and enhance the Cowboy State’s natural resource heritage, which is defined in statute as “renewable natural resources managed under a balanced stewardship that provides for the optimization of social, economic and cultural benefits for the citizens of Wyoming.”
The law further describes how this can be accomplished, and the WWNRT Board has done an admirable job of selecting and recommending projects to further this vision. Projects funded to date enhance existing terrestrial and aquatic habitat necessary to maintain optimum wildlife and fish populations, preserve open space through the acquisition of development rights, support watershed enhancements and mitigate human and natural impacts detrimental to wildlife.
Some of the projects completed to date also support public access, and it is our belief that this is in fact a good use of state funding if several factors are taken into consideration.
First, each conservation project must be designed and evaluated on individual merits to maintain, conserve or enhance the resource values it provides.
Open lands that provide sage grouse leks, parturition grounds for game animals, winter range and year-round water supplies are important to conserve for these very reasons alone. In fact, seclusion is often a significant aspect of why these lands are critical to the 800 species that make Wyoming their home. Only a fraction of these species are hunted, fished and trapped, and they contribute mightily to our state’s second biggest industry – tourism. However, 180 are described as “Species of Greatest Conservation Need” and, in turn, can be used to disproportionately determine our ability to use other natural resources.
If habitat fragmentation is among the most detrimental factors to the abundance of a species, then maintaining vast areas of intact habitat is critical to getting and keeping such species off the list. Wyoming’s wide-open spaces, productive lowland ranges and riparian corridors provided by private agricultural lands are the very reason we have diversity.
At a minimum, we need to maintain these lands if we are to maintain populations. Full public access is simply not conducive to maintaining habitat for sensitive species.
Next, public access, if appropriate, must be valued separately from the value of a conservation easement.
When private lands are valued by an independent certified appraiser for the purpose of acquiring a conservation easement, the value contemplates only the difference between the property as it exists at the time and its contemporaneous development potential. If we wish to add other sticks to the bundle, we should value them incrementally and provide landowners the ability to recoup their value, either through the sale of those assets or through a tax-deduction gained by way of their donation to a qualified conservation organization.
Additionally, the landowner’s wishes should determine the breadth and depth of the conservation project – including public access.
One of the most positive aspects of the acquisition of conservation easements on private land is that it is completely voluntary.
Also, unlike land acquired for conservation purposes by a government entity, private land under easement remains on the tax rolls, and the cost of its stewardship continues to be borne by the private sector. We all know about private lands with new locks on the gates once newcomers take them over. But we also know of many Wyoming families who, for decades, have allowed folks to access their property either through private understandings or more formal agreements.
A conservation easement does not take away surface ownership and landowners continue to have the right to decide who may access their private property and when.
As another consideration, we already have provided public access in conjunction with voluntary conservation projects. Some conservation projects – several completed by the Wyoming Stock Growers Land Trust in recent years – have, in fact, provided access to the public.
Thanks to the wishes of the Sommers Family Ranch Partnership, the Grindstone Cattle Company in Sublette County and a productive partnership between the Wyoming Game and Fish Department (WGFD) and our Land Trust, the public can access almost five miles of blue-ribbon trout fishing on the Green River.
The same can be said of the Vible Ranch, also in Sublette County, where the Richie family chose to honor access to the New Fork River they have provided to anglers for years.
Just last week, the Stock Growers Land Trust, working in partnership with the Pheasant family, multi-generational sheep ranchers in Johnson County, completed an agricultural easement that preserves a stock rest on Bear Trap Meadows in the Big Horns. This project was supported with donations from the Johnson County Cattlemen’s Association and the Johnson County Wool Growers, as well as the WWNRT and the Natural Resources Conservation Service. Not surprisingly, the family also chose to continue to allow the public access to fishing on Bear Trap Creek through a separate agreement with the WGFD.
The Stock Growers Land Trust is committed to Wyoming’s natural resource heritage and mindful of the art of balancing many choices. We are dedicated to working with many partners to help ensure that this heritage is available to be enjoyed by future generations of the Cowboy State. We hope you will help, too!
For more information on the Wyoming Stock Growers Land Trust, visit wsgalt.org.