Exercising the ‘Ultimate’ Property Right
Ahab, Perpetuities, Debt, Conservation Easements and Coveting the Future
One of the arguments regularly made by advocates of perpetual conservation easements often leaves opponents confused and silent. The argument is generally along these lines:
“We, too, are strong supporters of private property rights. Conservation easements are one of the most important rights in the landowner’s ‘bundle of rights’, strengthening and expanding the rights of property owners by adding another option. To deny a property owner the right to enter into a perpetual conservation easement is a serious violation of individual freedom. Placing a conservation easement on land is exercising the ultimate private property right: protecting land forever, for the benefit of future generations. Why would a believer in private property rights want to restrict the individual’s right to protect private land?”
Land trusts, much of the legal profession and government officialdom contend a basic tenet of private property is a landowner’s freedom to do what he wants with his property. Mark Rey, Undersecretary of Agriculture for Natural Resources and the Environment, stated, “That should include the right to sell his property or enter into a conservation easement.” The argument may seem logical to the uninformed property owner, but a thoughtful examination exposes it as sophistry.
The Original Deed of Conveyance
An act (n.) is a voluntary exercise of power. In a deed of conveyance of land, the grant is acknowledged to be an “act” and “deed”. The terms are synonymous. It is prompted by intention and will, and “of such a nature that certain legal consequences attach to it.” 1
In the original Act of Creation and Deed of Conveyance, recorded in the Five Books of Moses, certain rights were granted, including man’s right to exercise dominion over the earth. The Deed contains Restrictive Covenants such as the Sabbath rest for man, his land and animals. In addition, the Deed contains Covenants of Warranty such as those found in Deuteronomy 8: “And thou shalt keep the commandments of the Lord thy God…For the Lord thy God bringeth thee into a good land…in order that he might fulfill his covenant which he hath sworn unto thy fathers…” The Deed and its Covenants, embodied in our Constitutional and Common Law, have not been nullified by the Grantor nor, despite all attempts to do so, does man have the power.
From a Biblical viewpoint, the argument is not supportable. Man has never had “the ultimate private property right” to do as he pleases with Creation. Common Law, Anglo-American property law, and Constitutional prohibitions on the acts of man and government are firmly based in Biblical Law, and are designed to protect Creation by deterring man’s self-destructive acts. Failure to recognize and to be governed by Nature’s Law has always led to calamity, despotism and the decline of civilizations.
To believe man can ignore Nature’s Law with impunity is ignorance, arrogance, or both. The belief is held by those who reject Law, and by those who believe the world can be neatly divided into spiritual and material realms, where man’s relationship to physical things is subject to a separate set of rules.
Until the early 1900s, Blackstone’s Commentaries were widely recognized as the authority on Law: “Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being…And, consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker’s will…called the law of nature. These laws laid down by God are the eternal immutable laws of good and evil…superior in obligation to any other…binding over all the globe, in all countries, and at all times: no human laws are of any validity if contrary to this…” (emphasis added)
While man may rule the physical world, he is subject to Laws which place limits on political and social whim. Rejecting this truth and adhering to the delusion of man’s supremacy, of man as god, is the essence of failed philosophies of materialism and humanism. The deluded, in Richard M. Weaver’s words, “have imbibed consciously or unconsciously so much of scientific materialism and psychologism that they really believe man is ‘only an atom in the vast system of derived existence.’” 2 Frédéric Bastiat wrote, “They think only of subjecting mankind to the philanthropic tyranny of their own social inventions. Like Rousseau, they desire to force mankind docilely to bear this yoke of the public welfare that they have dreamed up in their own imaginations.” 3
The terms law, ordinance, statute and regulation are commonly misunderstood. In ancient times, the judgments of kings were considered Divinely inspired. Kings and legislators enact laws, statutes, and ordinances, and make judgments; governments have powers to enforce them; they are popularly considered ‘legal’, or ‘the law’; but they may not be Lawful.
Law also implies the science (knowledge) and system of rules of human behavior. Bastiat, Blackstone and men such as Jefferson recognized the tendencies of men to pervert the laws into instruments of “legal plunder.” Our Republic rests on the Rule of Law, not on the rule of ‘legality’.
A “New Right”
Property, in the strict sense of the Law, is the rights to have control and dominion over things, both physical and incorporeal (intellectual). Property is ownership, not the physical things. Man does not own things, but owns only temporal rights subject to restrictions. In common usage, however, property denotes everything which has value and is subject of ownership.
The perpetual conservation easement is a statutory construction. It has no validity in Law, is not a true easement, and has nothing to do with conservation. It is a relatively recent legal fiction, specifically designed to transfer private property (rights) to government. Due to the very nature of enabling statutes, the grantee is the state or its surrogate creatures. It is a fraudulent device representing the antithesis of centuries of development of man’s understanding of and progress toward free markets, private ownership and liberty.
The statutory language in a ‘Deed of Conservation Easement’ explicitly states it is a “non-possessory interest” in property. On its face, such language is fraud, a “deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury.” 1 Rights (property) not specifically retained by a grantor are, in fact, transferred to and possessed by the grantee. Rights must vest. Rights ‘retained’ by a grantor can be compromised and thus devalued, making transfer to and possession by the grantee, at a discount, almost inevitable. Conservation easements are ‘pre-acquisition’ agreements.
Proclaiming a perpetual conservation easement is a new, “ultimate right” implies the existence of a mysterious, heretofore unknown right, apparently only ‘discovered’ during the past century by legal alchemists. In fact, there has never been any such right, but throughout history there have been men who raise their voices and hands in rebellion against Law. Conservation easements are simply a repackaging of old, failed schemes, one of the latest codified manifestations of deception.
The real push for use of conservation easements as a land control mechanism began thirty years ago with the publication of a paper by the International Union for Conservation of Nature and Natural Resources (IUCN), an arm of the United Nations. In Chapter Two, “The Need for Conservation Easements in The United States”, land control was specifically addressed: “Broadly speaking, the need for an approach like that permitted by conservation easements is occasioned by limited objectives of land use control…This need arises for government agencies when the objectives are beyond their power to impose sufficient restrictions on property without compensation and in all cases for private organizations having no regulatory authority…In the United States it is the governmental need that is particularly acute because traditionally a choice must be made between a limited regulation, which may not be sufficient to the purpose, and acquisition of full title to land, which may not be necessary. The United States federal and state constitutions require ‘just compensation’ to be paid to a land owner whose property has been expropriated or condemned for public purposes…but full acquisition may clearly not be needed to accomplish the governmental objective…The cost to the government for paying the full value of land (particularly in areas most critically in need of preserving for scenic purposes, namely, agricultural or undeveloped land located in prime areas for development) can be prohibitive; and, in addition to the high cost of acquiring full title, full acquisition may clearly not be needed to accomplish the governmental objective of preserving the land in its present state. On the other hand, if land is so situated as to be at once both ripe for development and in need of preservation for scenic or conservation purposes, the government may well be precluded from simply enacting a law to prohibit changing its natural state. This too, is because the courts have held that the general rule is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. This rule perhaps reflects the strong disposition of American law toward development and economic exploitation of land.” 4
The official land control policy of the United Nations was stated in the UN Conference on Human Settlements: “Land…cannot be treated as an ordinary asset, controlled by individuals and subject to the pressures and inefficiencies of the market. Private land ownership is also a principle instrument of accumulation and concentration of wealth and therefore contributes to social injustice; if unchecked, it may become a major obstacle in the planning and implementation of development schemes. Public control of land use is therefore indispensable…such control may be exercised through…acquisition of development rights…” 5
Conservation easements are a UN sanctioned method to control people and their private property by stealth, to transfer property to government without being recognized by land owners or by the courts as a ‘taking’ for which the landowner must be compensated. Members of the IUCN include the US Department of Agriculture Forest Service, US Department of the Interior Fish and Wildlife Service, US Department of the Interior National Park Service, US Environmental Protection Agency, the Sierra Club, The Nature Conservancy, Natural Resources Defense Council, National Wildlife Federation, National Audubon Society, and hundreds of other federal, state and non-governmental organizations (NGOs) and land trusts.
Both the Clean Water Act of 1972 (CWA), and the Endangered Species Act of 1973 (ESA) resulted from policies designed to conform American statutes to the requirements of UN treaties. In 1998, Henry Lamb detailed how the goal of environmental organizations and land trusts is to “implement the policies of the United Nations as published in the Convention on Biological Diversity, the Global Biodiversity Assessment, Agenda 21, and other treaties and documents. The objective is so bizarre, so foreign to the ideas of Jefferson and Madison, the ideas on which America was founded, that free market property rights advocates have discounted their ideas as the lunatic fringe of the environmental movement.” 6
Lamb also outlined the Carter administration’s role in implementation of both the CWA and the ESA as effective federal land use control devices. “The President’s Council on Environmental Quality sponsored a ‘Forum on Preservation of Farmland,’ which determined that: ‘The greatest need is to create a federal policy. This can be done by various tax and regulatory schemes. Another way is for the community to become part-owner in the land. A third way, well tested in Europe, is for the community to intervene in the actual market of land buying and selling.’” Conservation easements combine these policy schemes very effectively.
Conservation easement advocates argue opposition to use of conservation easements is an attempt to restrict or take a vital right from those who would exercise ‘ultimate’ control over land. This allegation is nonsensical. There is no evidence in Law of a right to place a conservation easement on land, nor is there any evidence a conservation easement protects land forever. To the contrary, not only does the Law prohibit conservation easements, but overwhelming evidence clearly indicates the encumbrance leads to misuse and abuse of land. Those who oppose the use of conservation easements are, in fact, seeking to protect private property by preventing its transfer to the state where land use policy is increasingly being determined by globalist organizations, land trusts, corporations and government agencies linked to the United Nations.
At the heart of the ‘newly discovered right’ is the question, “Does man have the right to control property past his allotted time on earth, in perpetuity?” The answer is found in Leviticus 25: “And the land shall not be sold in perpetuity; for the land is Mine; for ye are strangers and settlers (sojourners) with Me. And in all the land of your possession ye shall grant a redemption for the land.”
When King Ahab coveted Naboth’s vineyard, in 1 Kings 21, Naboth answered, “Far be it from me before the Lord, that I should give the inheritance of my fathers unto thee.” Ahab, reminded by Naboth of God’s Law, acted as a spoiled child sulking in his palace bedroom. Through Jezebel’s conspiracy and Ahab’s complicity, Naboth was murdered and the king possessed Naboth’s inheritance. The story of Naboth, a simple tiller of the land, and Ahab and Jezebel, the ‘state’, illustrates how greed and concentration of wealth and power in the hands the state, or its powerful and favored classes, violates the Law. Ahab’s and Jezebel’s punishments fit their crimes. Consequences in Law attached to their deeds.
The Rule Against Perpetuities
In Europe during the Middle Ages, the church and nobility acquired enormous holdings of land and other property. The struggle over control of material wealth resulted in conflicts between church and state, and the individual. Land held by monasteries and religious corporations under mortmain (from Latin, mortua manus; literally, the Dead Hand; tenure or alienation of land to a perpetual corporation which today can include ownership by charitable and business corporations) was generally exempt from taxation and payment of feudal dues. Control of property became perpetually inherent in a ‘Dead Hand reaching forth from the grave’ which greatly increased the burdens on remaining property.
By the late 19th century, Statutes of Mortmain had restricted Dead Hand ownership to absolutely necessary holdings. Ecclesiastic mortmain was never a serious problem in America, but in recent years, land trusts and so-called charitable organizations have become the equivalent of the feudal nobility and the church (ecclesiastic corporation). Ironically, in present-day America there is virtually no conflict between ‘church’ (the land trust movement) and state. Indeed, the ‘church’ is now an arm of the state. ‘Land preservation’ worship is a state established religion. Americans are taxed to support it.
The question of the Dead Hand was addressed by John Chipman Gray 7 in his famous Rule Against Perpetuities. The Rule resulted from several hundred years of legal conflict in England between the advocates of free markets and individual freedom, and the landed classes and nobility who were not only acquiring property, and a monopoly on wealth and power represented by property, but were attempting to prevent future generations from benefiting from it by splitting title to land and tying it up within a series of future estates. What is happening today in America, through the use of conservation easements, is virtually identical in method and effect.
Gray’s deceptively simple rule clearly expresses the Law’s abhorrence of uncertainty. “No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.” The Rule limits the duration of legal and statutory devices which split title and attempt to control future disposition of property. It reinforces the Common Law principle: property should be fully owned by one person. The Common Law does allow contingent interests for a certain time, but no longer than 21 years after the death of a person alive (including those not born but conceived). Legal ‘time-bombs’, such as conservation easements, which parasitically attach to land titles and which tie up the future use of land, are contrary to Gray’s Rule. The Rule fosters alienation of land, that is, it encourages transfer in fee simple absolute (the entire ‘bundle of rights’).
In seventeenth century England, faced by the threat to free markets posed by Dead Hand landownership, the courts correctly held if the current generation could tie up assets with a string of future estates, it would prevent the free-market decisions of future generations, distort the operation of land markets and lead to dynastic control. The amount of land available for sale and for productive use would decrease as more and more of it was concentrated in the Dead Hand of a few.
The basic idea of Gray’s Rule was property could be put in trust for the duration of a class of lives, such as all children and grandchildren living at the time of ones death, plus 21 years, which set limits on how long property could be insulated from free-market forces.
Lewis Simes, a renowned twentieth century scholar, cited two reasons for the Rule:
“First, the Rule Against Perpetuities strikes a fair balance between the desires of members of the present generation, and similar desires of succeeding generations, to do what they wish with the property…As Kohler says in his treatise on the Philosophy of Law: ‘The far-reaching hand of a testator who would force his will on distant future generations destroys the liberty of other individuals, and presumes to make rules for distant times.’” (emphasis added)
“But in my opinion, a second and even more important reason for the Rule is this. It is socially desirable that the wealth of the world be controlled by its living members and not by the dead. I know of no better statement of that doctrine than the language of Thomas Jefferson, contained in a letter to James Madison, when he said: ‘The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please during their usufruct.’” 8 Jefferson’s views, in conformity with Scriptural Law, played an important role in guiding a new nation to unequalled prosperity and freedom.
Two leading contemporary perpetuities scholars, Jesse Dukeminier and Lawrence W. Waggoner, reinforce the need for the Rule: “[R]eformers should keep clearly in view the primary purpose of the Rule: curtailing the dead hand…the Rule Against Perpetuities still serves a socially useful function of limiting dead hand control, and should not be abolished.” 9
A. James Casner, in The Restatement (Second) of Property, addressed similar concerns: “[I]t is fair to conclude that the social interest in preserving property from excessive interference…rests partly upon the necessities of maintaining a going society controlled primarily by its living members, partly upon the social desirability of facilitating the utilization of wealth, and partly on the social desirability of keeping property responsive to the current exigencies of its current beneficial owners.” 10
There is a growing movement to repeal the Rule Against Perpetuities, either in whole or in part, which, not surprisingly, closely corresponds to the growing use of conservation easements to “protect land.” At least eleven states have done so and others are considering it. In 2000, Neil Harl 11 expressed the opinion “…it would be a disaster, long-term, to repeal the Rule.” In addition to the reasons stated by the above authorities, Harl adds additional reasons: “…economic growth is maximized if resources are subject to the forces and pressures of the market. Prices emanating from free, open and competitive markets are the best way to allocate resources and to distribute income if economic growth (and per capita incomes) are to be maximized. Without question, repeal of the Rule would tend to insulate assets from the market. Over time, this…would almost certainly slow economic growth…where would the venture capital industry be today if the bulk of the wealth had been put in perpetual trusts in the year 1,000?”
“Repeal of the Rule would undoubtedly place increasing amounts of wealth in the hands of trust companies. In 500 years, even in 100 years, the proportion of wealth held and managed by banks and trust companies could well be sharply higher than the sum now held…In 100 years, with the trend in bank consolidation, there could well be no more than a dozen banks worldwide, possibly fewer than that. Is it prudent to set in place rules permitting a huge amount of Iowa wealth to be held and managed in New York? Or Hong Kong? Or Tokyo? Or Beijing?”
“Repeal of the Rule Against Perpetuities has implications far beyond elimination of a musty legal rule…Repeal would remake a significant part of the framework governing property ownership and use in ways that are far removed from what has served us well. Repeal of the Rule would be foolhardiness writ large…This country was not built on dynasties. Indeed, this country was established under principles that eschewed dynasties. It is not in the best interests of this or future generations to allow assets to be committed to a passive regimen which can lead to untold mischief in 500 years, not to mention 5,000.” (emphasis added)
Much of the current debate on repeal of the Rule centers around perpetual dynastic trusts and competition between states in “the blind race to facilitate the exploitation of the [federal Generation Skipping Transfer Tax] exemption by perpetual dynastic trusts.” Exploitation by land trusts is just as real a concern. Ira Mark Bloom explains, “Although states are in a mad dash to repeal the Rule Against Perpetuities so that…perpetual dynastic trusts can be created, no state that has repealed the rule restricts perpetual trusts to those created for GST tax purposes…the negative consequences under GST exempt perpetual trusts could be greatly exacerbated under non-GST exempt perpetual trusts.” 12
Repeal of the Rule by several states has opened a Pandora’s Box. It is a state sanctioned step toward neo-feudalism; perpetual accumulation of wealth by a few powerful families, corporations, banks, trust companies and land trusts; eventual strangulation of the middle class; and serfdom for the vast majority. It is a revival of the nobility and the ecclesiastic corporation of the Middle Ages. Dynastic trusts such as The Nature Conservancy and the Trust for Public Land circumvent the Rule using legal fabrications and usurpations to rob future generations.
Default on Debt, Coveting the Future
Property (rights) can not be destroyed. Ownership may be transferred voluntarily, according to Law, or it may be taken by deception or raw force. It either vests in private hands or in the state. When Naboth spoke of his inheritance, he spoke of a spiritual inheritance and a material inheritance. Both inheritances are property, bound inseparably in the Original Deed. Both are also a ‘debt’ owed by the present generation: “the obligation to pay in the future for consideration received in the present.” 1 It is the obligation to transfer unencumbered property (rights), spiritual and material, to the next generation. This ‘debt’ is a mechanism of Nature’s Law, designed to motivate each “sojourner”, each generation, to use Creation wisely, and to tie man’s well-being, continuity, and his ‘upward reach’ to private ownership of property. A perpetual conservation easement creates a default, the failure to discharge an obligation. Consequences in Law attach to man’s deeds.
A conservation easement is, in one sense, a backward transfer of property, from the future to the present. It is a form of conversion: “the unauthorized assumption and exercise of the right of ownership over [property] belonging to another, to the alteration of their condition or exclusion of the owner’s rights.” 1 It is also trespass, which, in the comprehensive sense, is “any transgression or offense against the law of nature…whether it relates to a man’s person or to his property.” 1 Both acts are unlawful. The grantor and the grantee in a conservation easement are complicit in the offenses. Neither is authorized to interfere with the discharge of the ‘debt’ owed by the present generation; or to transgress against, assume, or exercise rights held in trust by living individuals for the distant unborn.
Conservation easements, land acquisition and government debt appear to be related in a manner which few Americans understand and which most would consider “bizarre.” For virtually every debt, whether it is a private automobile loan or a federal treasury bond, lenders require borrowers to provide collateral, “some security additional to the personal obligation of the borrower.” 1
During the past 100 years, the “official” United States debt has increased from $2.2 billion (1903) to $6.9 trillion (November, 2003). 13 According to the Federal Reserve, the net worth of all U.S. households is currently $41.25 trillion. In March, 2003, economist Dr. Kent Smetters testified before the Subcommittee on the Constitution of House of Representatives: “The government reports that the national debt in 2003 was about $3.8 trillion in the form of government ‘debt held by the public.’ But that number ignores massive imbalances in Medicare and Social Security programs and the government’s other programs. When the liabilities associated with those programs are taken into account, the nation’s fiscal policy is currently off-balance by over $43.4 trillion in present value, a number that is not reported in standard budget documents.”14 The liabilities (federal debt) now exceed the net worth of all U.S. households.
What is the collateral for federal debt? Americans are led to believe “the debt doesn’t matter because we owe it to ourselves”, an absurd and massive deception. Or we are told, “it is secured by the full faith and credit of the U.S. government”, which simply means the government promises to repay the principle, plus interest, even if government must tax us and take our property, take everything we own if need be, to secure the holders of the debt. Lenders do not extend credit indefinitely on “faith”, even to the United States. Collateralization is essential in order to be able to continue borrowing.
In 1970, the “official” federal debt stood at $.4 trillion. In 1980, the amount was just under $1 trillion. In 1990 it was $3.2 trillion. Today it is $6.9 trillion. In the 23 years since 1980, the “official” debt has increased seven-fold. Government is now taking almost 50% of America’s production in taxes, spending more than twice what it spent in 1990. With each passing year, increased direct and indirect taxation (including the hidden tax of inflation of currency) makes less and less political or practical sense as the sole means of collateralizing such huge debts. Other, supplemental means are required.
As far back as 1940, the USDA indicated the Marxist bent of government land use policy. “[I]n popular opinion, in custom, and in the attitudes of legislatures and courts, landownership acquired a degree of absolutism which still puts the burden of proof on the public agency that would seek to restrict the employment of the rights of ownership…as our economic and social life have become more and more complex the broad public interest has been found to be increasingly affected by the unrestrained exercise of individual or corporate property rights in land. There is a growing opinion that land is vested with a paramount public interest, that private landownership is granted by society rather than being an inherent individual right, and that when it comes into direct conflict with the general welfare it must be restrained or the land must be converted with due compensation, into public property.” 15
Since 1980, government has increasingly turned to appropriation of wealth represented by private land as a means of debt collateralization. Current federal, state and local government ownership of land is approaching 50 percent of the total U.S. land area. As of 1995, the federal and state components were estimated to be 39.8 percent of the total land area. 16 The estimate is almost certainly on the low side since current, accurate data is simply not available from the various federal and state agencies.
The USDA Natural Resource Conservation Service, using the 1997 National Resources Inventory (NRI), places total federal ownership at 21 percent, or 402 million acres. 17 NRI data indicate a 1982-1992 increase in the federal estate of 3.3 million acres. The National Wilderness Institute’s 1995 State by State Government Land Ownership study places the federal estate at 31.1 percent, or 703 million acres. 15 According to the Congressional Research Service (CRS), the 1997 ownership for the four major federal agencies only, NPS, USFWS, USFS and BLM, is 28.9 percent, or 657 million acres. 18 Note the large difference between CRS and NRI data. Whatever the actual figures are, it is certain government ownership is not decreasing. Federal fee is likely closer to 35 percent.
Accurately determining the total amount of land held by government would be a daunting, nearly impossible task. In 2000, Floy Lilley stated, “Exact ownership figures are difficult to come by…there are over fifty-eight thousand governments in our country. Not all data are maintained, or recorded in the same manner, or made available…best tallies place about forty to forty-four percent of the land area of these United States in the public column. That counts local, state and federal government land. What can be said about the remaining fifty-six to sixty percent that falls in the private column? Jacobs, referencing a 1993 study by Geisler, writes that seventy-five percent of all of that private acreage is in the hands of the top 5% of landowners. Those are ‘people’ like Champion International Paper who counts one million acres of Texas within its total holdings.”
“The stunning figure is that 78% of all landowners hold title to a mere three percent of the private acres. As Jacobs has put it, ‘Despite the perception of widespread landownership among America’s peoples, the 1980 study found private land in the United States in the hands of only 34 million owners. Nothing in the last two decades suggests that this pattern of private landownership is changing for the better. If five percent of thirty-four million people hold title to the bulk of private real property, only 1.7 million people own most of America.” 19 Americans are grossly ignorant of the massive consolidation of wealth which has been taking place over the past 30 years.
Dr. Lilley’s concerns are brought into focus by the recent series of articles in the Washington Post revealing to the general public the multinational corporate ties to and skullduggery by The Nature Conservancy. 20 “Its governing board and advisory council now include executives and directors from one or more oil companies, chemical producers, auto manufacturers, mining concerns, logging operations and coal-burning electric utilities…In the 1980s, the Conservancy's non-confrontational approach paid off. The numbers tell the story. That decade, its revenue grew from $58 million to $222 million, and its staff surged from 77 to 933 employees. In the 1990s, the age of the bubble economy and lavish corporate largess, astonishing growth occurred. Corporate donations mushroomed from $1.8 million in 1993 to $225 million last year…The Conservancy now boasts 1,900 corporate sponsors…” Donors and sponsors include General Motors, American Electric Power Co., Georgia-Pacific Corp., Centex Homes, Southern Co., Dow Chemical Co. (owner of Union Carbide), BP, Exxon Mobil, and Enron.
Conservancy President Steven J. McCormick is quoted as stating, “‘By working with corporations, which control a lot of land, which are very influential, we think we make a big difference.’ By partnering with other NGOs as well as government agencies and corporations, he believes the Conservancy can gain clout over enormous tracts of land…” 21
For instance, staff writer Rick Steelhammer, Charleston Sunday Gazette Mail, reports, “During its 40-year history in West Virginia, The Nature Conservancy has protected more than 100,000 acres, most of which have been turned over to appropriate federal agencies like the U.S. Forest Service and the U.S. Fish and Wildlife Service.” 22
“Trends in the federal ownership of land show dramatic increases in recent decades. For instance the number of acres under control of the National Park System almost tripled between 1970 and 1996, from 29.6 million acres to 83.2 million acres. Land under the National Wildlife Refuge System has seen even more dramatic growth, from 30.7 million acres in 1970 to 92.6 million acres in 1996. Land controlled under the National Wilderness Preservation System grew almost ten-fold, from 10.4 million acres in 1970 to 103.6 million acres in 1996. Forest Land under control of the National Forest Service has remained steady (182.6 million acres in 1970 to 187.3 million acres in 1996). Federal conservation and protection of land has increased at a tremendous rate over the past thirty years…” 23
Diane Alden puts the process into plain language: “At the rate our government and certain special interests are going, those who might someday want to build, own or live on the land will not be able to do so. The reason is that land will have been legislated, set aside and regulated out of existence. Much of it will have been turned over to the command and control of a super-state bureaucracy that will make promises. In the end these promises, like the promises the great white father made to the Indians, will be broken. The land will be offered to the rich, to corporations and to international control in one form or another, or given in tribute to the well-connected or some new green religious group as a bribe to keep them quiet. It is happening now…There is an almost medieval feel to it. The corporate environmentalism sucking off the entire system keeps the faithful happy by validating the new green religion…The system has witches it burns and heretics it eviscerates. The victims are rural America and anyone who dares challenge the environmentalist myths and propaganda…The new feudal barons have lots of money and they have the entertainment industry and the media to tell their side of the story and their side alone – a story that is often lies based on myths.” 24
The CRS study contains some other interesting facts. “In 1976, Congress formally declared that national policy was generally to retain the remaining lands in federal ownership in the Federal Land Policy and Management Act…The shift toward explicit federal policy to retain these lands continued with two laws enacted in 1964. One created the Public Land Law Review Commission (PLLRC) to review existing public land laws and regulations…FLPMA also amended many previous management authorities and public land and resource laws and repealed most land disposal laws. Section 702 repealed the many statutes and sections authorizing homesteading…By 1970, when the PLLRC report was released, the BLM had classified more than 90% of the remaining unreserved public domain lands for retention. This reflected the decline in federal land disposal (to near zero in the 1960s)…”
“Efforts to legislate a reduction in federal land ownership were revived in 1994 with the election of Republican majorities in the House and the Senate, and the vision of shifting federal control toward the states was embodied in the House Republican "Contract With America…To date in the 106th Congress, limited bills to transfer federal lands have been introduced, but no general federal land disposal legislation has been offered…Several bills were circulated or introduced in the 104th Congress for the wholesale transfer of BLM lands or for the transfer of ownership or management of specific federal units…Hearings were held on some of the bills, but none was reported by a committee and none saw any floor action.”
Political and legislative resistance to disposal of government land was solidified during the 1970s, the same time period of the ESA and CWA enactments, and the same time during which Americans saw massive growth in the environmental movement, proliferation of land trusts, increases in ‘preservation’ funding— and debt.
While outright purchase and condemnation are collateralization options exercised by government, they too, have political and practical limitations. Thus, government has used land trust surrogates, the deception of “land protection and preservation incentives”, and specifically, perpetual conservation easements (or variants such as Purchase of Development Rights, PDRs), as a means of adding property to its estate. Government is ‘leveraging’ what it has, using borrowed funds, with the expectation of speculative ‘profit’ for the privileged classes.
Determining the current number of acres in the hidden, secondary level of government ownership, represented by ‘control’ of resources through use of conservation easements, and the true, non-discounted dollar value of the rights (property) being acquired, would be even more difficult than determining the extent of fee ownership. The data from limited studies done to date clearly indicates the acreage is vast.
The use of “land preservation techniques and incentives” has grown dramatically over the last decade. According to the Land Trust Alliance’s National Land Trust Census 25, the number of local and regional land trusts increased 42 percent between 1990 and 2000, from 887 to 1,263. “As of Dec. 31, 2000, 6,225,225 acres of land had been protected by local and regional land trusts, a 226 percent increase over the 1.9 million acres protected as of 1990.” Land “protected” by conservation easements increased 475 percent. Land transferred to government agencies increased 129 percent. Land owned by land trusts increased 186 percent. The American Farmland Trust reports, “The use of farm easements has grown exponentially since the 1970s; today twenty-six states have at least one publicly funded easement program at the state or local level…primarily funded by state and local governments, but federal matching funds are expected to increase sharply due to funding provided in the 2002 Farm Bill.” 26
Defenders of Wildlife concludes, “…15-30% of the land in any state or ecoregion will need to be in some form of conservation status in order for our native biodiversity to be effectively conserved. Fully half of the land identified in these efforts is privately owned. Private landowners therefore have a vital role to play…Buying all the private land needed to round out a national habitat conservation system is not likely the solution in the near term for several reasons. First, the one-time cost of such a scale of habitat acquisition (hundreds of billions of dollars) would potentially be prohibitive…In general, states are offering incentives to landowners at an increasing rate. Where information about length of time in existence was available, only 7.5% of incentives existed before 1970, 17.5% before 1980, and 25% before 1990. Fully half (50%) of the current incentive programs have come into effect since 1990.” 27
In 1999, Bruce Yandel of Clemson University reported, “Some 17 million acres of U.S. land is now controlled by land trusts. That’s a lot of habitat, farmland, and open space, an amount close to the size of South Carolina. Those acres are private in name only. The right of land use choice is forever, in perpetuity, denied to any future owner…The local trusts control some four million acres of land. The 14 larger national land trusts control 13 million acres of U.S. land. Indeed, the Nature Conservancy alone claims to have protected 10.5 million acres since its founding in 1953. Notice the word ‘control.’ Of the 4.7 million acres protected by local and regional trusts, only 17 percent is owned in fee simple. Some 30 percent is controlled by way of conservation easements, and the rest, about 50 percent, is transferred to government or controlled by other means such as through the ownership of mineral rights.”
“The breakdown appears to be different for the large national land trusts. Nine of the 14 national trusts provide land management data. They indicate fee simple ownership of just one percent of the land they ‘control.’ Some 20 percent is transferred to government, and the remainder is managed by way of conservation easements, deed restrictions, and mineral right ownership.” 28
Today, The Nature Conservancy alone claims: “Total acres protected by the Conservancy in the United States: nearly 15 million.” From 10.5 million to nearly 15 million acres in the past five years.
“But [Steven J.] McCormick knows he can’t buy enough land to preserve all the critical species on earth. He realizes that by using innovative legal structures such as conservation easements and by devising unique public-private partnerships, the Conservancy can preserve landscapes far larger than the organization could ever protect through purchase alone…So his strategy now is ‘leverage.’ For every dollar the Conservancy spends, he wants to reap $10 to $100 worth of influence.” 21
In September, 2003, the American Farmland Trust completed a study of agricultural land: “As the first report from the National Assessment of Agricultural Easement Programs, this publication reviews the progress and experiences of 46 leading agricultural conservation easement programs in 15 states. Collectively these local and state programs account for a majority of the 1.8 million agricultural acres put under easement nationwide since this technique was first seriously applied to farmland protection a quarter of a century ago…Since the first agricultural easements were acquired in the late 1970s, more than 1.8 million acres on several thousand farms have been put under easement at an estimated cost of close to $2 billion in public funds…All indications are that the activity in this area is sharply increasing, considering the large expansion in federal funds for this purpose in the 2002 Farm Bill, large continuing state and local expenditures, and the recent adoption of the technique by many new programs.” 29
Land trusts—tax-exempt, taxpayer-funded, government-licensed agents such as The Nature Conservancy—transfer acquired property to government, or ‘hold’ it for various periods of time for pre-acquisition or other strategic reasons, while other ‘arms’ of government, the ‘legal arms’, such as Friends of the Earth, the Sierra Club and the Natural Resources Defense Council, litigate to ‘protect’ more property and to ensure acquired property remains ‘protected.’
Since property must either vest in the individual or the state, for whom, or from whom, is it being ‘protected’? Is there a link between recent, dramatic increases in government debt, collateralization and the mad feeding-frenzy which is devouring America’s resource base; where agricultural, timber, gas, oil, mineral, historic, cultural and, yes, even ‘human resources’ are being ‘protected in perpetuity’? Such a direct link appears increasingly difficult to discount as ‘fringe-group lunacy’ or ‘conspiracy theory.’
Americans ask: “How can government justify owning more land when it doesn’t have funds to wisely manage and maintain what it already owns?” Americans question the ‘sanity’ of policies, regulations and statutes which result in forest resources burning and rotting, agricultural land being doomed to non-productivity, domestic energy and mineral resources being locked up, and national park land infrastructure deteriorating. These policies and their results may be insanity, but there is purpose in the madness. Americans are asking the wrong questions. An oligarchy ‘protects’ or ‘preserves’ natural resources for other than altruistic reasons. It does so because it must collateralize debt in order to maintain power. If we will learn anything from history, Americans must understand why corrupt ruling establishments follow a well-trodden path: robbing the future for present gain. They must collateralize in order to borrow; borrow in order to spend; spend in order to expand power, domestically and internationally.
Is the past 100 years, and in particular, the past 20 years, of consolidation of control of private property by a mongrelized government/land trust/corporate elite the harbinger of a decline into a chaotic Dark Age? Or is it simply a nightmarish pause in man’s spiritual and material progress? Does man adhere to erroneous human statutes? Or does he follow the Law?
“It is impossible to introduce into society a greater change and a greater evil than this: the conversion of the law into an instrument of plunder…Under the pretense of…regulation, protection…the law takes property from one person and gives it to another; the law takes the wealth of all and gives it to a few… But how is this legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime…” 3
The debates surrounding debt, perpetuities and conservation easements are not simply questions of social or political policy. They are primarily spiritual questions. If Americans deny civil institutions are created to secure Rights and to enforce Nature’s Law, we will accept the reign of Ahab and the Dead Hand. As Patrick Henry stated, “It is when people forget God that tyrants forge their chains.”
“Future generations have no voice, only self-appointed representatives…[who assume] the influence of present generations should extend well beyond their lifetimes…[T]here is reason to suspect that instead of helping us to avoid ‘meriting the curses of our successors,’ the extensive use of conservation servitudes…may create ecological, legal and institutional messes for later generations…” Yet the illusion persists “that they can save nature through calculated efforts to restrict the options of future generations.” 30
Because men fear mortality, they reject and rebel against the Law’s limitations on their greed. In a quest for the ‘ultimate right’, they don the robes of a vampirish priesthood of ‘preservation’, supplicating before a false god. With delusional justification for control, they build Towers of Babel. Believing it will empower them with immortality, they practice deceit, arrogantly sacrificing the rights of others, present and future, on their altar. “And they covet fields, and rob them; and houses, and take them away; so they defraud the master and his house, and the man and his heritage.” (Michah 2)
Instead of truly preserving our spiritual and material heritage, they are coveting the heritage of future generations. Blinded by ignorance, we are allowing the criminal conversion of God-given rights by a collectivist oligarchy. If we continue to do so, consequences in Law will attach to our deeds.
- Black’s Law Dictionary, Third Edition.
- Richard M. Weaver, “On Setting the Clock Right”, In Defense of Tradition: Selected Shorter Writings, Liberty Fund (2000)
- Frédéric Bastiat, The Law (1850), Dean Russell Trans. (Second Edition), (econlib.org/library/Bastiat/basEss0a.html)
- D. D. Gregory, The Easement as a Conservation Technique, Environmental Law Paper #1, chapter two, “The Need For Conservation Easements In The United States”, International Union For Conservation of Nature and Natural Resources (IUCN) Morges, Switzerland (1972).
- Henry Lamb, Federal Land Use Control through Ecosystem Management, (quoting David A. Witts, Theft, La Verne University Press, La Verne, California, 1982, p.15 (eco.freedom.org/reports/fluc.htm), The Environmental Conservation Organization, Inc.
- John Chipman Gray (1839–1915); recognized authority on the law of real property in both England and the United States of America.
- Lewis M. Simes, Public Policy and the Dead Hand, (1955).
- Jesse Dukeminier, Perpetuities: The Measuring Lives, 85 Columbia Law Review (1985); Lawrence W. Waggoner, Perpetuities: A Perspective on Wait- and-See, 85 Columbia Law Review (1985).
- A. James Casner, The Restatement (Second) of Property (Donative Transfers), part I (1983).
- Neil Harl is the Charles F. Curtiss Distinguished Professor in Agriculture and Professor of Economics, Iowa State.
- Ira Mark Bloom, The GST Tax Tail Is Killing the Rule Against Perpetuities, Albany Law School (2000)
- Otto Doering, An Overview of Conservation and Agricultural Policy: Questions From the Past and Observations About the Present, Purdue University, citing Gray, L.C., "Our Major Land Use Problems and Suggested Lines of Action," in Farmers in a Changing World, (aftresearch.org/research/resource/publications/wp/wp98-5.html)
- CRS, RL30126: Federal Land Ownership: Constitutional Authority; the History of Acquisition, Disposal, and Retention; and Current Acquisition and Disposal Authorities, April 7, 1999.
- Floy Lilley, Who Owns America. Dr. Lilley is Program Manager at the Murchison Chair of Free Enterprise at the University of Texas at Austin, and Vice Chair of Sovereignty International. Her article is based upon remarks made to Southern Hardwood Forest Research Group, Feb.17, 2000, Stoneville, MS.
- Nonprofit Land Bank Amasses Billions, The Washington Post, Sunday, May 4, 2003.
- Bill Birchard, Landed Manager, Chief Executive Magazine, December, 2002, Vol. 184.
- Rick Steelhammer, North Woods, W.Va., July 20, 2003, Sunday Gazette Mail.
- Land Use and Land Loss in the United States: The Impact of Land Use Trends on Real Estate Development, National Association of Realtors, 2001.
- Diane Alden, Broken Promise Land Revisited, July 17, 2001(newsmax.com/commentarchive.shtml?a=2001/7/17/133821)
- Press Release, American Farmland Trust, October 2, 2003; (farmland.org/news_2003/100203_natl.htm)
- Conservation in America: State Government Incentives for Habitat Conservation, Defenders of Wildlife, March 2002
- Bruce Yandel, Land Trusts or Land Agents? (See: perc.org/publications/percreports/dec1999/landtrusts.php?s=2), Yandel is Alumni Professor of Economics and Legal Studies at Clemson University and a PERC Senior Associate (Political Economy Research Center).
- A National View of Agricultural Easement Programs: Profiles and Maps — Report 1, September, 2003, The National Assessment of Agricultural Easement Programs, A Joint Project of American Farmland Trust and Agricultural Issues Center
- Julia D. Mahoney, Perpetual Restrictions on Land and the Problem of the Future, December, 2001, Law and Economics Research Papers, University of Virginia School of Law.