Private land conservation easements benefit national forest wildlife

In 2009, the owner of a golf course in Georgia donated a conservation easement to a non-profit land trust.  The easement included roughly 57 acres of primarily bottomland forests and wetlands along the Savannah River that would not be developed.  That land is directly across the river from the Sumter National Forest, 700 feet away.

To obtain a tax deduction for the conservation easement, it has to be “exclusively for conservation purposes” based on one or more of the criteria in the Internal Revenue Code.  They include:

(ii) the protection of a relatively natural habitat of fish, wildlife, or plants, or similar ecosystem,

(iii) the preservation of open space (including farmland and forest land) where such preservation is–

(I) for the scenic enjoyment of the general public, or

(II) pursuant to a clearly delineated Federal, State, or local governmental conservation policy,

and will yield a significant public benefit,

These issues were recently litigated by the IRS for this easement in the 11th Circuit Court of Appeals, which found the donation to be eligible as both habitat (ii) and scenic open space (iii)(I).  IRS Treasury Regulations elaborate on these requirements with regard to habitat by including “natural areas which are included in, or which contribute to, the ecological viability of a local, state, or national park, nature preserve, wildlife refuge, wilderness area, or other similar conservation area.”  However, the court accepted expert testimony from the IRS that the easement did not support the forest’s ecological viability.

There is no mention of testimony from the Forest Service. The 2012 Planning Rule stresses that, planning for ecological integrity must take into account “conditions in the broader landscape that may influence the sustainability of resources and ecosystems within the plan area” (36 CFR §219.8(a)(1)(iii)).  In addition, where a national forest plan area can not maintain a viable population of a species of conservation concern, “the responsible official shall coordinate to the extent practicable with other Federal, State, Tribal, and private land managers having management authority over lands relevant to that population” (36 CFR §219.9(b)(2)(ii))).

The also court determined, regarding open space (iii)(II), that, “There is no qualifying federal, state, or local government conservation policy that applies to this land…” In fact, the Forest Service Open Space Conservation Strategy includes this vision: “Private and public open spaces will complement each other across the landscape to provide ecosystem services, wildlife habitat, recreation opportunities, and sustainable products.”

In this case, private land adjacent to a national forest was conserved, but there is no evidence that the Forest Service was even paying attention.  The Forest Service needs to be more alert to these opportunities that would benefit national forest resources as well as contribute to greater national conservation needs.  Maybe if the Forest Service promoted its conservation policies better, they would facilitate more donated easements and protect more habitat for wildlife species that also use national forests.

Along somewhat the same lines, conservationists in Florida are striving to conserve the Ocala to Osceola Wildlife Conservation Corridor, which would connect the two national forests of those names across 50 miles of multiple other ownerships (including a military base).  Here is a presentation by the U. S. Natural Resources Conservation Service, which uses funding from the federal Farm Bill Resource Conservation Partnership Program to purchase conservation easements and create wildlife habitat on private lands within the corridor.  (This is the kind of “governmental conservation policy” that should also support federal tax deductions for donated conservation easements.)

The federally endangered red-cockaded woodpecker is an excellent example of a species that the Forest Service needs to coordinate management with others for, and here’s a bit of the success story about that in the O2O Corridor.

A red-cockaded woodpecker (RCW) captured at Camp Blanding in Clay County is evidence that a project led by North Florida Land Trust to preserve land within the Ocala to Osceola (O2O) wildlife corridor is working.  The bird captured at Camp Blanding was the first time this endangered species had moved between one of the national forests and the military installation since they began banding and recording the birds over 25 years ago.

“USDA Forest Service” is listed as a “partner” by NRCS, and the “National Forest Service” by the North Florida Land Trust.  The latter gives me a sense of how deeply the Forest Service has not been involved, and I sure can’t find anything about this effort on either national forest website or using a national search.  It’s too bad the Forest Service isn’t providing more leadership (and getting more of the credit) for conserving its important wildlife resources.

4 thoughts on “Private land conservation easements benefit national forest wildlife”

  1. Jon, that’s a great question. Whose responsibility is it to communicate, with whom?

    Wouldn’t the golf course attorneys have to ask the FS about whether or not there are federal policies? I’m not sure that I’d feel comfortable calling the attorneys to give the info. I guess the judge could only make a decision on the info available, and somehow no one told the golf course attorneys.

    As to FS employees, I think you need permission from someone to testify in court and it has to go through many channels. Possibly including DOJ. So an FS federal employee would be giving evidence against the IRS.. it sounds awkward.

    Perhaps the attorneys on TSW will weigh in on how that should have worked.

    I also think there is a generic lack of horn-tooting on partnerships by the FS. Perhaps it’s a cultural thing to let others take the credit. Perhaps if NRCS does the PR for the joint efforts, it give FS folks more time to deal with inevitable FS controversies. And it is a sister agency at USDA, so …
    It would be good to hear from some FS communication folks on this question.

    • Ideally, the communication happens earlier in the process, and if the Forest Service policies were more widely known, a landowner seeking a tax deduction would be talking to the Forest Service about whether a proposed conservation easement would be good for shared wildlife or “yield a significant public benefit” based on those policies. This would then already be documented, and the IRS might not challenge the deduction.

  2. Slightly off topic but I’d like to see that whole conservation land trust loophole go away. I donate to an org that just gives the land to the Forest Service. As a citizen I don’t value the conservation land that I’ve no access or use for very highly, just about nil to be truthful. As a taxpayer it’s a waste of money. I’m the same about CRP. If we are spending tax dollars, and that’s what it is when you give people millions of dollars of tax breaks, I want every single citizen to own that land. We have great land managers at our federal agencies, let them have at it.

    • I’d rather see conservation land in public ownership, too, but as I’ve read many places, we get a lot more conservation for our tax dollar using easements than spending a lot more to purchase the property. In that sense, conservation easements save tax dollars.

      The Tax Code does recognize the need for public benefits, but it doesn’t define them as narrowly as you (presumably reflecting what the larger public wants). Public benefits are not limited to public access (which can be a sticking point for private landowners). By law, there is public value in the public being able to see undeveloped land in some circumstances, and land can be conserved for wildlife habitat, whether or not the public can get to it at a particular location, because wildlife is a recognized public resource.

      There is a lot of background noise associated with the conservation value of places like golf courses and gated communities, but here there was enough ecologically important undeveloped land to justify the tax deduction. There are also “working forest” conservation easements that allow continuing commercial forestry (as long as the forest would continue to qualify under the criteria above). (There are also a lot of arguments about how big the tax deduction should be, which is based on the reduction in the property value, typically by prohibiting residential development, rather than on the conservation values.)


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