MUMFORD5

CONSERVANCY

by
Manly W. Mumford

Deivered to The Chicago Literary Club
January 10, 2000

In case you wondered why Europe as a whole paid little attention to Leif Ericson's discovery (to Europeans) of North America around 1000 AD, or why Columbus insisted to strongly that he had sailed to Asia, consider this: until a few hundred years ago discovery of new lands was not worth the effort unless there was something peculiar about those lands, like gold, to raise people's interest. There were plenty of new lands. Indeed, the principal sea voyages of exploration were for the purpose of getting around unknown lands, not to them Unsettled land was worthless, except to nomadic hunters and the herdsmen into which they evolved. And they had little sense of permanent ownership or even sovereignty. Their love of unsettled land was mostly expressed by hatred of settlers. This hatred was enhanced by the discovery that settled, farmed land can support many more people than land that is used for hunting and herding, and thus, in any given area, the settlers so outnumbered the hunters and herdsmen that the latter generally lost most of their conflicts. One major exception occurred on the Steppes of Asia, the home of one of the world's greatest military geniuses. From there came a vast army of tribal hunter/herdsmen that thoroughly unsettled a significant part of that continent. The leader was called Genghis Kahn.

The existence of human beings in an area does not necessarily despoil the landscape, nor change it much from what it would be without them. For example, the Indians in our Great Plains had far less effect on the landscape than did the buffalo on which they preyed, much as wolves have far less effect on the forest than do deer. The same may be true of the Maoris of New Zealand, the Aborigines of Australia, and the Eskimos whom we now call Inuit. But like the desert locusts that spend many generations blindly cooperating in the maintenance of the ecosystem, and then suddenly multiply beyond all restraint and ravage the countryside, civilized people have, in the last few centuries, settled the world so ubiquitously that too little of the land area is left unscarred. Wilderness, that used to occupy most of the land and was a place of danger for people, has become rare and precious, like the perilous jungle that we now call the fragile rain forest. Many people now, for various and often conflicting reasons, seek to slow this process and sometimes reverse it. Thus the people who love wild animals for their own sake find themselves in league with hunters of those animals in striving to maintain or enlarge the environments in which they can survive and multiply. Indeed, one of the oldest, largest, and most effective conservation organizations is Ducks Unlimited, whose stated mission is to fulfill the annual life cycle needs of North American waterfowl by protecting, enhancing, restoring and managing important wetlands and associated uplands. Since the 1930's it has protected large areas in Canada and the United States where hatch and grow the ducks and geese that its members want to shoot. Other conservation organizations, such as the Audubon Society, the Sierra Club, and the Nature Conservancy, attract members and donations by appealing to somewhat different motives.

In England one Major H.G. Eley retired from the Army in 1920 and joined his family firm of Eley Brothers, manufacturers of cartridges since around 1820. In considering why cartridges were being produced, he concluded that too much effort was going into research and experiments on cartridges while nothing was being done to ensure the survival of the game on which the cartridges were used. According to Major Eley:

"This aspect of the cartridge trade was strongly borne in upon me by the noticeable changes taking place in land ownership and usage, and particularly in farming methods. The wealthy leisured classes were slowly disappearing, fewer keepers were employed. The effect of these and similar factors was a general diminution in stocks of both wild and reared game, which culminated in 1931/2, when a serious outbreak of partridge disease (strongylosis) affect many countries and lowered home sales of cartridges to the tune of 15 million in two years..."

Thence came the force behind the Game Conservancy Trust in that country.

Now the United Kingdom is crawling with conservation organizations, locally and nationally even internationally, counting Scotland and Wales. A major one is the Royal Society for the Protection of Birds which, among other things, preserves landscapes in a natural enough state to keep the bird population up in some locales. I spent several pleasant hours in one of that organization's blinds watching water birds of various species (even including a swan or two) on the Island of Shapinsay in the Orkneys north of Scotland in July of 1998.

The National Trust for England, Wales and Northern Ireland is the second largest landowner in the British Isles, after the Crown. Widely known for its preservation of stately houses, it also controls and protects large parts of the coastline. The book Countryside in Trust by Janet C. Dwyer and Ian D. Hodge (1996, John Wiley & Sons Ltd, Chichester) from which comes most of my information about the UK, starts out with a list of abbreviations comprising the initials of oft-used terms of which 26 refer to specific conservation organizations. They range from BBONT for Berks, Bucks and Oxon Naturalists' Trust to WWET for Welsh Water Elan Trust. CART stands for Conservation, Amenity and Recreation Trust a term that applies to over a hundred organizations, mostly local, established to hold land or interests in land for conservaton purposes of one sort or another.

A significant problem with conservation efforts stands at the dismal confluence of the two certainties of life: death and taxes. If a person has land that he treasures in its natural state, he is likely to want to provide for keeping it that way. But at his death his heirs may not feel the same way, and it will probably be the duty of his executor to sell the land at the best price available. Estate taxes will be assessed according to the market value of the land, which reflects this best available price. The economic pressure can be strong to sell a tract of beautiful land to loggers or to developers who would take advantage of the beauty to build houses or resorts or restaurants or shopping malls there. The phrase, "highest and best use" that is often employed in the tax area generally means the use for which the most money will be paid.

In both the U.K. and the United States one widely used technique for maintaining both historical structures and places and also areas of land that should be preserved from the most immediately profitable use is commonly called a land trust or a conservation or conservancy trust. According to my dictionary "conservation" can apply to a wide variety of things to be preserved while "conservancy" applies to natural resources. A trust to preserve a historic building would be a conservation rather than conservancy trust. In this connection remember that in conservation-speak the term "land trust" refers to this sort of organization, not to the prarctice that used to be common in Illinois of transferring the title to one's land to a bank or trust company to be held in a trust identified only by number so that a person could not find out who owned it by looking at the public records.

In the United States, the combination of Section 170(h) of the Internal Revenue Code and, on the State level, the Uniform Conservation Easement Act provides a good climate for local conservation efforts. Under the uniform law, which has been adopted by most States, a conservation easement can be granted to a qualified holder. "Conservation easement" means a holder's nonpossessory interest in real property for protecting natural, scenic or open space values of real property, assuring the availability of real property for agricultural, forest, recreational or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological or cultural aspects of real property. A "qualified holder" is a governmental body or a charitable organization of which the purposes or powers include such protection.

In a departure from the Common Law, which pertains in the U.K. and in most of the States, this statute provides that a conservation easement is valid even though any of the following apply:

(a) It is not appurtenant to an interest in real property.
(b) It can be or is assigned to another holder.
(c) It is not of a character recognized traditionally at common law.
(d) It imposes a negative burden.
(e) It imposes affirmative obligations upon the owner of any interest in the burdened property or upon the holder.
(f) The benefit does not touch or concern real property.
(g) There is not privity of estate or of contract.

" the ....Chapter is not organized to accept gifts of development rights. I believe you will probably need to deal with a land trust.' Please contact the following for information on a land trust near you. Gathering Waters is a clearinghouse for land trusts in Wisconsin. Vicki Elkin, 303 S Paterson #6, Madison WI 53704; (608) 251-9131"

I called Vicki Elkin at Gathering Waters who suggested that I contact Dr. Joe Freeman of Wausau, the Chairman of the North Central Conservancy Trust. She mentioned that Dr. Freeman is a retired cardiologist and loves to use his new fax machine.

On April 23 I sent Dr. Freeman a fax describing the four forty-acre parcels that we own and saying,

"The Eau Claire River runs through the land, including a very beautiful stretch known locally as the Three Rolls. Trees are mixed northern hardwoods and conifers. In the last 35 years I have seen deer, beaver, mink, otter, foxes, raccoons, skunks, porcupines, groundhogs, ruffed grouse, great blue herons, bald eagles and, recently, sandhill cranes. Also tracks of a black bear. There is one house with well and sewage holding tank on the property. We are not connected to the electric power grid, but rely on a solar panel for electricity, and use bottled gas for cooking, refrigeration, and hot water.

In a prompt response by telephone Dr. Freeman advised me that North Central Conservancy Trust would be interested in accepting a conservancy easement as a gift. In response to my questions, he said that the organization is recently formed, has no paid staff nor office, has easements on a modest amount of land, and has a determination letter from the Internal Revenue Service. This letter provides that the Trust will be considered a public charity with a 50% deductibility limitation until December, 2000. At that time the Service will look again to see if the Trust has obtained enough community support to be treated as a permanent charity.

This made me think that it might be wise to take advantage of the provision of the Uniform Conservation Easement Act that permits granting a right of enforcement to a third party so that if North Central should cease to function some time between now and the expiration of a perpetual easement, another organization could take over.

I wondered about the phrase "governmental body" that defines one class of qualified holders of conservation easements. Specifically, I wondered if it included an Indian tribe. A few years ago my wife and I attended the rededication of a grave in the local cemetery at Hogarty, the nearest settlement to our land. The re-dedication was of the grave of the founder of the community, John Hogarty, and his two Chippewa wives (seriatim, not simultaneous) performed in part by members of the nearest outpost of the Veterans of Foreign Wars because he was a veteran of the Civil War, and in part by members of the Mole Lake Band of the Chippewas because there was no record that the wives had been buried in accordance with their practices. I was impressed by the respect for and sensitivity to nature shown by the latter ceremony, and wondered if such a band would be considered a governmental body under the uniform law. A search of the Internet brought me two results, one a reference to the web site of the Great Lakes Intertribal Council that led me to the Sokaogon Chippewa Tribe (Mole Lake) that gives the following information:

The Sokaogon Ojibwe are also known as the Lost Tribe because the legal title to the 12 mile square reservation from the treaty of 1854 was lost in a shipwreck on Lake Superior. The band, under the leadership of Chief Willard Ackley, finally and after a long struggle, received federal recognition and reservation status in 1937. The Sokaogon (Mole Lake) Band enjoys three beautiful lakes either on or adjacent to the small reservation: Mole Lake, Bishop Lake, and Rice Lake which lies at the headwaters of the Wolf River.

The Mole Lake Casinos and Bingo are located seven miles south of Crandon on Highway 55, 30 miles east of Rhinelander, and offer live entertainment and dancing, full service bars, a cafe, an ATM machine, check cashing booth, 12 blackjack tables, and over 500 slot machines. The Casinos are open every day from 10 a.m. until 3 a.m. The Mole Lake Smokeshop offers cigarettes, gas, diesel, groceries, wild rice and Indian crafts.

The other site is devoted to the two casinos, and advertises 24 blackjack tables and over 500 slot machines plus live entertainment weekly.

Also on the Internet is a copy of the Treaty With the Chippewa, 1854, on which appear the names of various other bands of Chippewas as signers, so I suppose that a Chippewa band is a governmental body. Nevertheless, I decided that I did not want the enforcement our easement to be competing with blackjack tables and slot machines for the attention of the Mole Lake Band. Further, my wife informs me, our land is covered by a treaty with the Menominees.

I consulted with my son-in-law's sister in Connecticut, who is professionally engaged in the land trust business. Her good advice included the fact that it is a real pain for a trust to have to enforce hunting restrictions, the wisdom of limiting the buildings that can be placed on the land to those replacing the existing one and, if desired, one other, and the language to use in restricting logging to "best management practice" as defined by the American Forestry Association or a like group from time to time.

I sent a long message to each of our children about our intention to grant a conservancy easement, including reference to give the third party right of enforcement to a local Indian band. My son's reply included the following:

- The county, state, and Supreme court probably wouldn't take too kindly to the creation of a new reservation just for the hell of it.
- The neighbors probably wouldn't like the idea, either.
- It's unlikely a tribe or nation would want it.
- If they did, they'd probably screw it up.

And

I recall asking as a child if I could have Hogarty when y'all died. I think that was in exchange for Shaw getting the couch in the living room, but I could be mistaken. I have since mentioned to Dad that since I'm pretty much established down here, [northern Virginia] having property in Wisconsin wouldn't do me a lick of good. I will always miss it, but Sandi thinks there are too many mosquitoes to be enjoyable, except in February when it's too cold to be enjoyable. It will always be a place I hold dear, even if I can not be there.

Dr. Freeman put me in touch with Thomas Mallery, the lawyer for the North Central Conservancy Trust, who is also president of the Lakeland Conservancy that holds conservation easements on fifty or so pieces of property around and near Lake Tomahawk about fifty miles north of Wausau. He believed that Lakeland would accept a third-party right of enforcement, but it did not have a permanent staff or office. Then I heard that Gathering Waters, which has a full time staff and an office, was considering taking on third-party rights of enforcement, so I talked with them about it. Vicki Elkin came up from Madison and, with Joe Freeman, went on a tour of our land, and expressed quite a favorable reaction to its beauty, especially the part along the river where it flows gently among boulders and then faster in some small rapids. However, Gathering Waters would accept only an equal footing with North Central, and would want a significantly larger monetary contribution than the latter. It is customary among conservancy trusts to ask landowners to grant money as well as the development rights because it costs the trusts money to monitor and enforce the easements in the future. The expenses, in Gathering Waters's case, would amount to an annual six hours of driving from Madison and back for an hour's inspection, and endowing this effort was not what I had in mind. So I went back to considering Lakeland as the backup.

In the meantime, to comply with the IRS regulations for taking a deduction from Federal income taxes, I obtained an aerial photograph of the land, and engaged an appraiser and a naturalist. It was not necessary to hire a pilot, plane and photographer; all, or nearly all, of Wisconsin has been aerially surveyed recently and it was possible to obtain a print of the desired photograph by mail for $65 from HAS Images. When the print came I scanned the part pertaining to our land onto my computer, and, on the computer, inserted green coloring to display our land clearly. Three 40-acre squares run from north to south and the fourth adjoins the center of these to the west.

The appraiser, Ed Steigerwaldt of Steigerwaldt Land Services in Tomahawk, was familiar with the sort of appraisal that the Government wants for such matters, and in time produced an appraisal that startled me. The land is now worth about 50 times what we paid for it in 1964. This amounts to a twenty per cent annual return compounded annually. I had always believed that our investment in the property was a very good one because for thirty-five years it provided wonderful recreation and important natural experience for our children and ourselves free except for property taxes. I believed that the land would grow more valuable over time, but this was almost a shock. In addition, the amount allocated to the value of a conservation easement of the type we have in mind was about forty percent of the current value of the land. The appraiser reached his conclusions by taking the prices per acre of the most nearly similar tracts that had been recently sold in the vicinity, first for real estate development, and second for other purposes, and applying those prices to achieve before-easement and an after-easement values, all as the IRS regulations provide. Our son, who has recently bought a house and lot in that part of northern Virginia that constitutes suburban Washington, seemed shocked that the price was so low; but the population pressures around Wausau are not like those around Washington.

The naturalist, Ken Gradall, of MSA Services in Baraboo, is providing a natural resources survey to act as baseline documentation, showing in naturalists' jargon what it is that we have on the land. He drove up on a nice day at the end of September with a pair of waders and a camera, binoculars, and other paraphernalia. I had inflated a rubber boat so that he could cross the river, but he didn't need it as the water was low enough that the waders kept him dry as he walked across to the other side.

Before deciding finally on having Lakeland Conservancy act as a backup, I decided to see whether the State of Wisconsin would be interested. I checked up on the State Department of Natural Resources website and found that they have a Burerau of Endangered Resources that sometimes buys or accepts as gifts land that has particularly valuable plant communities or other resources that need to be protected. I talked with Tom Meyer, a natural areas specialist of the Natural Areas Project of that bureau. He drove up from Madison the day after Ms Elkin and Dr Freeman saw the place, and conducted his own survey viewing. He seemed interested in parts of our land and asked of there were wild flowers on it in the spring. I assured him that there were by the millions. He said that the greatest threat Wisconsin now has to the diversity of species is deer. There are so many of them that the available ordinary browse is not enough, and they eat almost anything green, destroying much of the forest diversity. For example, they eat the tops of young hemlock and cedar trees.

He also said that might be possible for Luigi and me to give the east 120 acres to the State and put a conservation easement on the remaining 40 acres where the house is. Later I talked with him on the telephone. He said that he had consulted with his colleagues and that the State would not be interested in our land. I suspect that they concluded that if we were going to protect it anyway with a conservancy easement, the State didn't have to get involved and could use its resources elsewhere. Also, the land would stay on the tax rolls, albeit at a reduced value.

Since then I have been working on drafts of conservation easement supplied by Mr. Mallery, the lawyer for North Central Conservancy Trust. We have decided to grant two separate easements, one on the western forty-acre plot where the house is and the other on the remaining 120 acres. Building, mining, dumping, and logging will be prohibited on the entire 160 acres, but on the 40 acre parcel the owner will be able to take fallen trees for firewood, to maintain and replace the existing house, to remove trees that shade or will shade a solar panel on the house, and to dump compostible garbage originating from the house. The reason for this last item is that I have always tossed eggshells, coffee grounds and chicken bones in the woods, and want to continue to do so. We do not intend to restrict hunting, partly because to do so would be futile or expensive or both, but also because I have seen more than I care to of the bits of fur and bone that are all that is left in the springtime of the deer that have starved to death on our land during the winter. The only tool the State has to control the deer population is the hunting regulations; in some areas, including ours, the over-population is so great that a person can get permits to take as many as three additional deer beyond the one buck permitted State-wide. And not all of those permits have been applied for. On some of the lands in the Menominee Indian Reservation deer have been kept at modest levels by year-round subsistence hunting so that the populations of eastern hemlock and other threatened plants are thriving.

We decided to prohibit all logging rather than to permit traditional forest management that sometimes allows clear cutting in patches so that there are always patches of new growth, or even selective logging that takes only mature trees carefully chosen. This decision amounts to preferring "old growth" to "mature forest" in forestry jargon. Thus, mature trees will die of old age and fall and decompose; new trees will be of varieties that initially grow in the shade (such as the magnificent Eastern White Pine that was the prize of the first round of loggers); and diverse plants will grow in the clearings that result when large old trees die and fall. The young trees and undergrowth that support deer, ruffed grouse and some other forest life will be replaced by forest containing lichen-covered trees hundreds of years old, standing dead trees and dead treetops, and large quantities of dead and rotting logs on the forest floor that provide nourishment and shelter for a more diverse group of mammals, birds, insects, plants, and trees of varying sizes. If blocks of old growth forest are large enough, pine marten, bear, and moose will return. (9) Although our 160 acres of old growth alone will not bring back any moose, it will provide a landscape where can survive a diversity of plants, insects, birds including songbirds, small mammals, and maybe even a temporary bear. It may seed other lands nearby that sometime may revert to old growth. In the meantime, others will, I suspect, devote their conservation easements to the more prevalent, profitable and game-rich mature forests. There should be diversity in forest management practices, too.

FOOTNOTES

(1) "Using conservation easements as an estate planning tool." by Kenton D. Swift, Taxes, Commerce Clearing House, Chicago, Jan 1999, Volume 77, Issue 1, page 64.

(2) "Catamount ski area dead Developers will scale back, now plan lodge, 40 homes" {Rockies Edition] Denver Post, Denver, Colo. Jan 8, 1999.

(3) "Easement policy bears watching" by Joanne Dittmer [Rockies Edition] Denver Post, Denver, Colo., Aug 22, 1999.

(4) "Plan would help preserve vast forest. Deal eyes ruling out development of huge chunk of Maine land" by Meadow Rue Merrill, [City Edition] Boston Globe Boston, Mass. Mar 4, 1999.

(5) "Owens Outlines Plan to Save County's Farmland," by Jefferson Morley, [FINAL Edition] The Washington Post Washington Apr 29, 1999.

(6) "'Green' consumerism starts to benefit some forests" by Sheila Polson, The Christian Science Monitor, Boston, Mass., Mar 31, 1999.

(7) "The greening of American cities; Urban parks attract investment; suburban open space preserve character." by Will Rogers and Jim Chaffin [All Edition] Journal Star, Peoria, Jul 11, 1999

(8) "Easement keeps land in family. Rancher Ritter saves 'million- dollar view'" by Kit Miniclier, [Rockies Edition] Denver Post Denver, Colo. Jun 4, 1999.

(9) "In Wisconsin, a Debate Over Ways to Manage National Forest Growth." New York Times, Tuesday, October 18, 1998, P.22,

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