Montana is a special place. What makes it special to each of us varies, but I would bet that many of you moved here to enjoy the wildlife, clean water and scenic views. Land trusts throughout Montana help preserve these unique regional qualities through their work on voluntary conservation easements, and have been successful in doing so, protecting over 2.5 million acres of open space in Montana. However, with the U.S. losing more than an acre of farmland every minute, and Montana losing 1,500 acres of open space to development each month, this is important work and there is more of it to be done.
Montana Land Reliance is one of a handful of organizations in the area that partners with private landowners to permanently protect agricultural lands, fish and wildlife habitat, and open space.
To date, MLR has conserved over 990,000 acres in Montana, 290,000 in the Greater Yellowstone Ecosystem and 1,659 miles of riverfront. In Gallatin County alone, MLR has worked with 50 landowners to protect over 35,750 acres, 65.6 miles of streamfront, and over 15,580 acres of elk habitat. In Madison County, MLR has worked with 110 landowners to protect over 129,700 acres of private lands, 224 miles of streamfront, and nearly 75,000 acres of elk habitat.
Conservation easement basics:
A conservation easement is a voluntary legal agreement between a landowner and land trust that protects a property’s conservation values in perpetuity. They protect properties from inappropriate development, for example, and are the legal glue that binds a property owner’s good intentions to the land. Donors of conservation easements retain title to their property, and the conservation easement runs with the title to the property regardless of changes in future ownership. They do not automatically grant public access, but do not preclude it.
In addition to protecting a treasured piece of property, granting an easement may yield tax savings for landowners. Think of land ownership as holding a bundle of rights that may include the right to subdivide, construct buildings, irrigate, harvest timber or restrict access. A landowner may sell or donate the whole bundle of rights or just one or two of those rights. If any of those rights, the protection of which would yield conservation benefits, is donated to a non-profit land trust, it may qualify as a charitable contribution under IRS tax code and could thereby reduce income, estate and gift taxes. The June 9 Back 40 article will go into potential tax implications in greater detail.
A conservation easement spells out the uses that are consistent and inconsistent with the conservation values desired by the landowner. The land trust holding the easement is required by law to monitor the property annually to ensure compliance with the easement. No two conservation easements are alike. Each is tailored to the unique character of the land and the conservation desires of its owner(s).
Some general examples of the types of uses that can be allowed by a conservation easement are:
- Continued agricultural and silvicultural use
- Construction of buildings, fences, water improvements, etc., necessary for agriculture and compatible with conservation objectives
- Sale, devise, gifting or other method of transferring parcels, subject to terms of the easement
- Landowner control of access
- Additional family and employee residences compatible with conservation objectives
- Wildlife and fisheries protection, restoration and enhancement projects
- Any and all uses not specifically prohibited
Uses that are generally restricted by a conservation easement include:
- Subdivision for residential or commercial activities
- Construction of non-agricultural buildings
- Non-agricultural commercial activities
- Dumping of non-compostable or toxic waste
- Surface mining
The terms of the easement do not in any way negate or modify state or federal law. Specifically, a conservation easement cannot prevent condemnation, and does not alter property taxes or the state’s tax base.
Montana law also requires that county planning authorities review the easement and give non-binding advice about the easement’s effect on the county’s comprehensive plan, if one exists. After review by the county, the deed of conservation easement is duly recorded.
In the June 9 issue of EBS, I’ll outline steps involved to set up an easement and explore how conservation easements impact income, estate and gift taxes.