Developing Consensus on Conservation Easements on Managed Forestlands

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Roughly 75 percent of all timberlands in the United States are privately owned. While some of these may be protected in the coming years as parks and preserves, or by “forever wild” easements prohibiting timber cutting and most other human intervention, the vast majority probably will not. Yet these forests provide a myriad of public benefits in addition to timber: wildlife habitat, watershed protection, recreation, and storing carbon dioxide from the atmosphere to mitigate risks of global warming. Most forests clearly deserve protection from both development and unsustainable timber management practices.

In recognition of this challenge, a number of land trusts specifically focus their work on protecting managed, working forests. In fact, if several projects in New England and the Pacific Northwest are concluded successfully, well over 1.5 million new acres of managed forestland will be protected by conservation easements over the next few years.
As land trusts develop new approaches to issues presented by working forest easements, we find that we share similar experiences and challenges in their negotiation and steward-ship. There is a clear need for a consistent, high-quality approach to such easements, particularly since forest landowners may have properties in several locations and regions—crossing the “territories” of a number of land trusts. Experience has shown that differing interpretations and misunderstandings can arise over conservation easements that refer simply to “best management practices,” “sustained yield forestry,” or protecting and maintaining “healthy” forests, without clearly defining these goals or providing specific limits or guidance on how to achieve them. This experience highlights the value of a proactive approach to setting clear, specific language in easements to avoid future problems that can arise from differing interpretations of such vague terms.
At LTA’s 1998 National Land Trust Rally, several land trusts specializing in conservation easements on managed forest-lands held a workshop to help build a national consensus on managed forest easement standards. Panelists represented the Pacific Forest Trust (CA), Vermont Land Trust, and Tall Timbers Research Station (FL). The Society for the Protection of New Hampshire Forests has participated in previous panels.

Discussions have touched on such relatively straightforward questions as:

  • Do land trusts need to address the impact of timber harvest on forest conservation values as habitat, water quality and biodiversity?
  • Should there be a forest management plan called for in a conservation easement?
  • What information must we collect for the baseline documentation?
  • What are the resources available to land trusts that want to tailor conservation easements for working forests, but don’t have foresters or other resource professionals wildlife, fishery, plant ecologists, etc.) on staff to help develop the easement, review forest management plans, or monitor the easement?

More complex questions have also been discussed, such as:

  • How can we craft a document that allows for forest dynamics and incorporates new forest management knowledge, yet stands the test of time?
  • How strongly can conservation values be protected while still maintaining the economic viability of the forest property?
  • What restrictions or forestry details should go into the conservation easement and what should be required of a management plan?
  • What easement infractions are serious enough to require enforcement actions?

While we don’t have all the answers, participants in last year’s panel agreed on the key principles that should be embodied in easements on managed forestlands, and built on previous discussions [see Spring 1998 Exchange, page 8]. The practitioners drew from the US Department of the Treasury regulations and the contents of the IRS’s private letter ruling LTR 9537018, which gave direction on conservation easements that allow timber harvests.

1. As most forestlands are in and of themselves “relatively natural habitat or ecosystems,” easements must identify and address protection of all forest conservation values of the property. For example, simply extinguishing development/subdivision rights to conserve potential for timber production without considering its impact is insufficient.

2. Easements will need to limit timber harvests to some degree to ensure protection of other site-specific forest conservation values, such as habitat and water quality. This needs to be done in a clear and monitor able fashion, using unambiguous language. Timber harvest—as well as residential development and road building— can damage forest eco-systems if poorly implemented.

3. The land trust must have the right to review and approve any individual timber harvest to ensure protection of other conservation values. This is consistent with usual conservation easement language and practice on the exercise of any landowner’s reserved rights where such exercise could potentially harm the conservation values protected by the easement.

4. Easements should require timber management plans before a timber harvest, and land trusts need to reserve the right of review and approval to ensure that the protection of identified forest conservation values and that specific easement terms are followed. This also allows for simpler, more direct easement language that focuses on performance goals and prohibited management practices. The professionally-prepared management plan then contains details of individual harvests, schedules and prescribed management practices. The management plan an then change with improved knowledge and hanging natural conditions.

5. Baseline documentation must be more comprehensive than for most easements. It should include identification and description of the range f conservation values on the property, specially hose potentially affected by timber harvest. Many and trusts call for inventories of timber as well as biological inventories and characterization of habitats. Waterways, roads and general vegetation types require good mapping.

While the panelists attached varying degrees of detail or importance to each of these principles, and each of us drafts restrictions somewhat differently, we agreed that these principles were the foundation that should guide our work in this field.
The discussion also underscored the importance of avoiding problems before they happen. Two critical values were stressed: clarity in easement drafting to ensure that landowners understand up-front what is expected of them, and ongoing communications— especially with successor landowners— to ensure that understanding endures the test of time.
Another theme of discussion high-lighted the regional differences that may characterize our work over and above these basic principles. These included the differences in regulatory context in which each land trust works; the culture of timber harvest and use of professional foresters; and the familiarity of local populations and governing bodies with the work of land trusts. While our discussions have yielded excellent basic principles of agreement, many questions remain and our experiences continue to grow, so stay tuned for future discussions!

Colleagues in Forest Stewardship
Conservation easements on managed forestlands ensure that the land will be forested forever and establish permanent guidelines for forest management. But land trusts, and landowners, often need more timely guidance on how to ensure that their timber harvests and other management activities support the easement’s long-term goals. Forest certification programs—a new movement in forestry developed to certify ecological, economic and social sustainability of forestry worldwide—can provide resources to help landowners formulate shorter-term plans that meet their long-term goals.
One such independent, third-party forest certification organization, the Washington, DC-based Forest Stewardship Council (FSC), accredits organizations and foresters that can advise landowners and land trusts about ecological approaches to timber harvests. FSC was developed to help recognize and promote “environmentally friendly” wood in the marketplace as a way to reward forest landowners who do a good job of stewarding the multiple resources that forests provide. Other programs, such as the American Forest and Paper Association’s Sustainable Forestry Initiative (SFI), or the American Forest Council’s Tree Farm Program (both based in Washington, DC) also offer advice on forest management, generally with a more limited focus on timber production.

FSC-accredited foresters and licensed organizations—such as the Smartwood affiliates of the Rainforest Alliance SmartWood Program in Richmond, VT, or the Scientific Certification Systems group in Oakland, CA—can help landowners plan and undertake timber harvest and develop forest management plans. They can also advise land trusts about forest management activities on conserved lands.

As organizations with shared goals of perpetuating fully functional forests, land trusts that work with managed forestlands and forest certification entities have much in common. Several groups are currently exploring how their work can be more complementary and effective through working together.

Representatives from both land trusts and FSC certifying entities met in April at a meeting sponsored by the Doris Duke Charitable Foundation and the Rockefeller Brothers Fund to discuss potential collaboration.

There are FSC-accredited organizations in many parts of the country, which you can contact for recommendations of foresters or loggers. To learn more about the FSC, call 1-877-372-5646, or see the Web site at www.fscus.org.