Image provided by: University of Oregon Libraries; Eugene, OR
About Capital press. (Salem, OR) 19??-current | View Entire Issue (Aug. 19, 2016)
12 CapitalPress.com August 19, 2016 Easement acres by holder ... Easements (More than 24 million U.S. acres have been placed in easements.) CONTINUED from Page 1 Unknown holder: 551,061 or 2.2% A microcosm Jointly held: 1 million or 4.1% Other*: 191,491 or 0.8% Local government: 1.1 million or 4.4% Non-governmental organization: 10.3 million or 42% Federal: 5.3 million or 21.5% (As of July) *Includes regional agency, private holder and Native American. State: 6.1 million or 24.9% “A lot of their stuff, I didn’t like the way it was worded,” Gunderman said. For example, he wouldn’t be allowed to continue operat- ing a wood stove business on the property, as it was consid- ered a commercial use. Instead, Gunderman struck a deal with the Yamhill Soil & Water Conservation District under which the easement prohibits subdivisions and most construction while set- ting limits for logging on the forested portion of the prop- erty. ‘Perfect fi t’ “With the district, it was a perfect fi t,” he said. Larry Ojua, the district’s manager, said not all proper- ties match the district’s goals. He has turned down four easement proposals. One major consideration is whether the district has the resources to defend the ease- ment. Gunderman, for exam- ple, provided the district with $8,000 for its future adminis- tration. “We look at it selectively,” said Ojua. “We’re not really prospecting for properties.” Another factor is the pros- pect of forever ensuring the terms are being met, which must occur on a regular basis, said Tom Salzer, manager of the Clackamas Soil & Water Conservation District, which is looking at the possibility of holding perpetual easements. “For us, it’s the overhead of staff time to do the annual monitoring and reporting,” he said. “That’s staff time we’re not spending serving our core customer base.” ‘Not for everybody’ Woody Wolfe, a farmer and rancher near Wallowa in northeastern Oregon, shared the same trepidations as Edi- ger and Gunderman but is now satisfi ed with his deci- sion to sell an easement to a land trust. “I can guarantee it’s not for everybody,” he said. “There has to be a fundamental de- sire within the person to agree with conservation.” In 2011, Wolfe sold an easement on roughly 200 acres to the Wallowa Land Trust for $200,000 that al- lows him to conduct common farming practices on most of the property, though he can’t subdivide it, use it for com- mercial purposes, or build new roads without permis- sion. About 36 acres of the property are reserved for ri- parian habitat, which means he can’t graze cattle or travel in a motorized vehicle on the land unless it serves an eco- logical purpose. Wolfe is all right with the arrangement because a team of specialists overseen by the land trust monitors the 36- acre parcel and conducts con- servation projects on it, which are paid for with grants. “I’m not responsible for implementing them,” he said. “All I have to do is let them manage it.” Conservation work is a key aspect of the Wallowa Land Trust’s mission that qualifi es it as a charitable organization, said Kathleen Ackley, its ex- ecutive director. “There has to be some lev- el of conservation for us to be able to work with a landown- er,” she said. Entities that pay for ease- ments — such as USDA’s Natural Resources Conser- vation Service — must also ensure their money is helping the environment, which is why land management plans are often tied to the funding, Ackley said. “Most easements are go- ing to reference some sort of management plan,” she said. Mutually benefi cial In return, landowners get the benefi t of an income tax deduction for the portion of the easement’s value they donate, Ackley said. “It’s a mutually benefi cial strings at- tached.” The Oregon Watershed Enhancement Board, a gov- ernment agency funded with state lottery dollars, is con- stitutionally mandated to use those funds for projects that conserve wildlife habitat and water quality, said Meta Loftsgaarden, its executive director. “We have an obligation to meet that bar,” she said. For the same reason, the agency must perform its own Services & Supplies 34-4/#4X 2016 Special Section October 7th, 2016 ... And by category Other*: 342,216 or 1.4% Mateusz Perkowski/Capital Press Lucien Gunderman, a farmer near McMinnville, Ore., speaks about the decision to place a conservation easement on his family’s property. While such easements preserve the landscape and reduce inheritance tax burdens, some farmers worry about being saddled with environmental requirements in perpetuity. 34-4/#17 Ediger’s situation is a microcosm of the anxiety surrounding conservation easements in the agricultural community. Some farmers want to ex- tinguish development rights to protect the landscape while reducing property values to reduce inheritance taxes, but they’re worried about some- one forever looking over their shoulder. “I have no desire to be mi- cro-managed. I have no desire at all,” said Ediger, who hopes that Grant Soil & Water Con- servation District will agree to hold his easement. Meanwhile, organizations that are familiar to farmers, such as local soil and water conservation districts, are hesitant to hold conservation easements precisely because they may someday be forced to litigate against future land- owners who violate the terms. “If someone comes around with the right amount of mon- ey, they can keep you tied up in court until you holler un- cle,” Ediger said. Soil and water conserva- tion districts have a long his- tory of working with growers, so they’ve established a level of trust that outside organiza- tions often haven’t, said Jim Johnson, land use specialist with the Oregon Department of Agriculture. “They’re a local govern- ment with an elected board, so they’re accountable to a local constituency,” he said. Lucien Gunderman, a farmer near McMinnville, Ore., also wanted to preserve his family’s 720-acre prop- erty but felt that land trusts — which commonly hold easements — had an environ- mental agenda in their ease- ment proposals. Ranch: 795,813 or 3.2% Other open space: 1.4 million or 5.8% Farm: 1.7 million or 6.8% Environmental system: 10.1 million or 41.2% Forest: 2.1 million or 8.6% *Includes recreation, education and historical preservation. Unknown: 8.1 million or 32.9% NOTE: Sums may not equal 100 due to rounding. Source: National Conservation Easement Database periodic monitoring of con- servation easements — in addition to the easement hold- er’s monitoring — and advise landowners when they fall short of complying with its terms. Loftsgaarden said this dual monitoring may cause land- owners to ask, “Why are you coming back here?” Before 2012, when OWEB overhauled its regulations to make the easement program more transparent and ac- countable, the answer to that question often wasn’t com- municated clearly enough, she said. “It’s a permanent invest- ment of public dollars, so the agency has to continue to track them,” she said. OWEB is also devising an “Oregon Agricultural Her- itage Program” that would emphasize protecting actively farmed properties. The program would not be funded with OWEB’s lottery dollars, so it wouldn’t have to focus on habitat and water quality issues, Loftsgaarden said. It’s possible the Oregon Legislature will be asked to fund the program separately to prioritize agriculture. “It can’t come into the door unless it’s a working land,” she said. A big advantage of hav- ing a conservation easement funded by OWEB is that the agency can rely on attorneys from the Oregon Department of Justice to enforce its terms. So far, the agency hasn’t had to take legal action, but the potential for such cases causes a lot of consternation among easement holders, even though they’re relatively rare. “When it does occur, it can take up a lot of your resourc- es,” said Johnson of ODA. Oregon law restricts land- owners from partitioning property within “exclusive farm use” zones into parcels smaller than 80 acres for farmland and 160 acres for ranchland. However, even such rela- tively large parcels can under- mine a region’s agricultural Alan Kenaga/Capital Press character if they’re not active- ly farmed, Johnson said. “They may be marginally farming but it’s really just a large rural estate,” he said. ‘Money battles’ The fear is that someone with lots of money — a brash and litigious billionaire, per- haps — will be willing to out- spend an easement holder in court to violate an easement. “I’ve got more money than you, so what are you going to do?” said Fritz Paulus, an at- torney specializing in conser- vation easements. “It some- times turns into these money battles.” Easements must be written to have “teeth” by requiring landowners to pay the hold- er’s attorney fees if they lose a case, Paulus said. However, winning a judgment in court isn’t the same thing as cash. “Can you collect on that? It’s a whole other issue,” he said. To deal with the problem of looming litigation, the Land Trust Alliance, which represents land trusts, found- ed the Terrafi rma risk reten- tion group. Land trusts pay premiums into the program, pooling their money for the eventual- ity a lawsuit must be fi led to defend an easement. Terrafi rma handled 79 claims in 2015, up from 57 claims in 2014 and 38 claims in 2013, when the program was created. “It usually involves a change in ownership, and someone who has not bought into the concept of a conser- vation easement,” said Russ Shay, public policy director for the Land Trust Alliance. Having such insurance can help discourage landowners from violating easements, since they know it will entail a legal battle, he said. As government entities, soil and water conservation districts can’t take part in Ter- rafi rma, but Shay advises they set aside money for litigation for the same reason. “Being prepared is half the battle,” he said. NOW SCHEDULING FOR Doing Business with the Ag Community? Capital Press Ag Weekly readers will find labor and money saving tips in the 2016 Winter Services & Supplies Special Section. Place an ad in this Special Section and reach Capital Press readers online and in the newspaper with YOUR services and supplies! WATER WELL DRILLING & EXPLORATION SAGE Fact #132 Specializing in 10” diameter and above water wells. The Columbia River Basin supports the best onion yields of any growing area on earth. The region offers ideal conditions with rich low-bacteria soil, water for irrigation, and long sunny days with cool nights. • Deepening • Reaming • Commercial • Irrigation 34-2/#14 Content will include: Online Agribusiness, Equipment, Maintenance, New Products, Consulting & Planning Services and much more! Contact us by Sept. 9th to advertise your product or service! (503) 364-4798 of (800) 882-6789 FAX (503) 364-2692 or (503) 370-4383 P.O. Box 2048 • Salem, OR 97308 www.CapitalPress.com www.rjdrillcompany.com 509-981-6675 • ryan@rjdrillcompany.com Licensed • Insured • Bonded • Odessa, WA ROP-34-3-4/#13 34-2/#6