Broadcast March 11, 2008, NPR’s All Things Considered
© 2008 David Baron
When environmentalists talk about land conservation, they often use the word “forever.” National parks are supposed to be preserved in perpetuity. The same is also true of a large and growing number of private conservation lands.
Today, we have another in our occasional series of reports about America’s changing landscape. It’s called “Shifting Ground.” Independent producer David Baron has a story about what happens when “forever” comes to an end.
David Baron: In this tale, “forever” begins in 1993, in northern Wyoming, on a ranch. The ranch spans a thousand acres in a lush valley surrounded by sage and desert. Giant sprinklers irrigate fields of alfalfa and millet amid cottonwood groves.
Paul Lowham: “We named it Meadowood because we thought it fit the character of the landscape.”
Baron: Paul Lowham owned Meadowood in the early 1990s. At the time, in many parts of Wyoming, developers were buying up scenic ranches and carving them into home sites. Paul Lowham wanted to keep his ranch intact. Permanently. And he saw a way to do that.
Lowham: “We placed a conservation easement on the property.”
Baron: A conservation easement. That’s a legal document that restricts development. It’s an increasingly popular tool for protecting land from sprawl. Paul Lowham’s easement said that his ranch could never be subdivided, and could only be used for agriculture. Forever.
Lowham: “Forever’s a long time. But certainly that a was a commitment that our family made when we placed the easement on it.”
Baron: He donated the easement to the county, and in return for this charitable gift, Paul Lowham received a federal income tax deduction of more than a million dollars. That was the estimated value of the development rights he gave away. Then, nine years ago, Paul Lowham sold the ranch. The buyers were Fred and Linda Dowd. The Dowds understood that the land came with permanent restrictions.
Linda Dowd: “At the time that we bought the property…”
Fred Dowd: “I didn’t see that as a problem then.”
Linda Dowd: “…we didn’t see that as a problem.”
Fred Dowd: “I do see it as a problem now because I never thought about unforeseen circumstances coming up and making this a nightmare for us.”
Baron: That “nightmare” started when an energy company showed up to explore for natural gas on the ranch. You see, in Wyoming, just because you own a piece of land doesn’t mean you own the minerals beneath it, and the person who owned the minerals on the Dowds’ ranch had every right to come on the property and drill. The conservation easement couldn’t stop it, in the same way an easement can’t prevent the government, say, from taking your land to build a road.
So the Dowds watched while drilling rigs came on their land and poked holes in their fields. Fred Dowd drove to the middle of one of his hay meadows to show me what the drilling did to his land.
Dowd: “They tore it up to do the well. Then they built this little fence around it.”
Baron: Workers laid pipelines, cut roads, spread weeds.
Dowd: “All of this stuff is Canadian thistle.”
Baron: He feared his land would soon be worthless for agriculture.
Dowd: “If you nose around, you can find some ranches that have been ruined by mineral development. And if they had a conservation easement on it that says they can’t do anything but farm, and it’s ruined for farming, that will destroy them. It would destroy us.”
Tracy Rhodes: “The Dowds didn’t feel the conservation easement had any value at all if they could just be drilling wherever. And so they immediately wanted to know what the commissioners thought about dropping the agreement.”
Baron: That’s Tracy Rhodes. He was a commissioner for Johnson County, Wyoming, at the time. Remember, it was the county that had been given the easement and now controlled it. Marilyn Connolly was also a county commissioner.
Marilyn Connolly: “There were discussions on how, how are we gonna handle this? And how can you terminate something that was supposed to be forever? But the thought of having those wells drilled and the extra roads and all that sort of thing going on really didn’t seem like it melted very well with what that easement was supposed to be doing. That’s the reason I voted to terminate the easement.”
Baron: The vote was unanimous. In 2002, just nine years after the land had been set aside “forever,” forever was rescinded.
Robb Hicks: “I think that forever means forever.”
Baron: Robb Hicks wasn’t pleased. He owns the local newspaper, the Buffalo Bulletin, and when he learned that the easement had been undone – with almost no public notice, he says – he was furious.
Hicks: “With these perpetual easements, the two parties can’t just get together and say, ‘Eh, you know what? We changed our mind.’”
Baron: And his anger grew when he learned what happened next. The mineral development didn’t ruin the ranch for farming. But now, with the easement removed, the Dowds did exactly what they had agreed never to do. They put part of the ranch up for sale for a new home site. The asking price: $1.2 million. Again, Robb Hicks.
Hicks: “I don’t have a problem with people profiting off of buying and selling property. I do have a problem with people going to the county commission and saying, ‘Oh, there’s all this development on our property, and my goodness we’ve been so negatively impacted, and you need to remove all of this, and, oh, by the way, afterwards, we’re going to make a lot of money off of it.’”
Baron: So he sued, and the lawsuit had broad implications. Nationwide, conservation easements protect a vast amount of land – more than four times the area of Yellowstone National Park. This growing network of private conservation lands could be threatened if that word, “forever,” turns out not to have teeth.
Nancy McLaughlin: “It could have some devastating consequences.”
Baron: Nancy McLaughlin is a law professor at the University of Utah.
McLaughlin: “If the case stands and the easement is terminated, it would encourage speculators across the nation to try their hand at breaking these perpetual easements, because they’re going to want to unlock the millions and millions of dollars that are inherent in the otherwise restricted development and use rights.”
Baron: She had hoped that Robb Hicks would prevail in court and that the easement would be restored. But last year, the Wyoming Supreme Court dismissed the lawsuit. Now Wyoming’s attorney general plans to take up the case. So the fight continues.
The Dowds, meanwhile, regret that they ever bought the ranch. They say they’ve spent $50,000 to defend themselves in court, and they’ve had to defend their reputations in public.
Dowd: “We did not buy the ranch and say, ‘Well, gee, if we can buy this property and get rid of the conservation easement, we can make a quick buck.’ That was not our intention at all.”
Baron: In fact, they never did sell off a piece of the ranch. They’ve kept it intact, at least for now. But in the future, this property and thousands of others that have supposedly been protected forever are sure to meet new challenges. Many people will be forced to ask, should a commitment made by others a decade ago, or a century ago, still be honored? And if not, who gets to decide when “forever” ends?
For NPR news, I’m David Baron.
