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Development - this word seems to be central to human activity. People are obsessed with how to develop the natural world - to pave it over, to put buildings on it, to tame and transform it into an artificial human environment. There is enormous pressure from countless real estate companies, builders, businesses and a multitude of other interests eager to develop all places, including the Buffalo River watershed. It seems we had better get used to this.
In many instances, this eagerness for development is directly at odds with the overall ecological health of an area. One only has to take a look at the first four or five miles of the James River near Springfield, Missouri to witness the devastation that the human drive for growth and development can inflict upon an ecosystem. The river is littered with old cars, refrigerators, and trash of every imaginable type. The fish caught from this part of the river are not healthy to eat. Traditional governmental regulations have either broken down or are absent on the upper James River, and many other places. They have failed to both accommodate the seemingly inevitable and unstoppable forces of human development and retain some of the natural health and character of the upper James River and many other areas.
But this doesn't have to happen. Growth and ecological health can coexist if people become aware of and concerned with effective stewardship of the land. One important tool that can be used in protecting the natural character of an area, as an alternative to governmental regulation, is called "land trusts." While the BRSF is not a land trust per se, we apply some of the mechanisms and methodology traditionally used by land trusts to assist land owners in being effective stewards of the land.
The basic model of a land trust is a nonprofit organization that acquires and manages land in the public interest. The land trust assumes a tax exempt or charitable form to allow its contributors charitable tax deductions for their property contributions. Land trusts can serve many purposes. They may acquire land for any specific purpose, such as the development of low income housing. In this article, we will focus on land trusts that have conservation and preservation as their main goal.
The Nature Conservancy is the biggest and best known of the many land trusts in the United States. The Conservancy was organized in 1951 and has acquired interest in 3.5 million acres of land. The Trust for Public Land is another major trust. It acquires land from private landowners at less than the established fair market value of the property, then holds it while preserving it in its natural state until a particular government agency, such as the United States Forest Service, is prepared to purchase the property. One of the oldest land trusts is the Trustees of Reservations, operating since the mid-1800s. It is a Massachusetts organization dedicated to preserving places of natural beauty and historic interest within that Commonwealth. Locally, the Ozark Regional Land Trust (ORLT), based in Carthage, Missouri, was formed in 1984 as a nonprofit conservation organization dedicated to maintaining the unique natural character of the Ozarks. The ORLT has more than 1,200 acres of successfully completed land projects in more than a dozen locations.
Land Trusts employ numerous legal tools in order to obtain interests in land from contributors. The Buffalo River Stewardship Foundation (BRSF) focuses on conservation easements because this method adheres to our principle of respecting private property rights of landowners. However, our foremost objective is to accommodate the individual needs and desires of each particular landowner. Consequently, we do not hesitate to use other legal forms that a landowner may prefer. Here is a short list of the legal possibilities:
1. Fee Simple Absolute - the landowner has the option of an unrestricted transfer of land to the BRSF. Here, the landowner would give up his entire interest in the estate. This is not a viable option for most.
2. Defeasible Fee Simple Estate - an estate is created by an instrument sufficient to create a fee simple absolute, followed by a provision for defeasance (over-ride) when a specified state of affairs ceases or a specified event occurs. For example, "grantor to grantee, its successors and assigns, so long as the property shall be used as a wildlife habitat." If the property is not so used, then it reverts or is transferred to another party.
3. Covenants - a promise to do or refrain from doing something. The "covenantee" may enforce the promise against the "covenantor". For example, a covenant regarding 100 acres of land surrounding Bear Creek might requires the covenantor to maintain the habitat in its natural state and limit visitors to thirty people per day. Certain legal requirements must be met in order for a covenant to "run with the land", i.e., to be transferable with the land's title deed.
4. Conservation Easements - this legal interest, explained in detail on p. 3, is what the BRSF normally employs. Landowners are entitled, as part of the rights of holding title to their land, to build fences or structures, plant, harvest, graze cattle, and so on. The legal name for this interest is a "negative easement in gross." By granting an easement, the landowner forgoes one or more rights with respect to the property while continuing to hold title to the land. For example, the landowner could forego the right to graze cattle or other livestock during certain times of the year on a 50-100 foot wide corridor surrounding the river or stream.
BUFFALO RIVER STEWARDSHIP FOUNDATION
While the BRSF uses some of the legal means typically associated with land trusts, our approach is unique and sets the BRSF apart from other seemingly similar organizations. As our name implies, the BRSF is concerned with river and stream stewardship. This focus stems from the fact that many of the people associated with the BRSF are avid canoeists and kayakers (as well as some farmers). Our goal is not to acquire rights to as much land as possible and rule over a little kingdom, but rather to preserve the aesthetic and ecological character of the tributaries of the Buffalo River. Above all, our goal is to allow landowners to retain almost total control over their land while making a little money.
Again, our purpose is to allow the landowner to retain rights of use and enjoyment of the land. There are so many possibilities for an organization such as the BRSF. Imagine a landowner selling a conservation easement to a 50-100 foot corridor surrounding a stream at a fair price, agreed upon by both parties. The BRSF, with the help of members and volunteers, could fence off the corridor, in order to exclude domestic animals, and plant an apple orchard which will help stabilize the soil, prevent run-off, and provide a lasting source of enjoyment for a landowner - all at no cost to the landowner. Imagine a similar corridor of dogwoods. Imagine another corridor of economically desirable trees such as pines or oaks, which would be planted by the BRSF and could be harvested by the landowner for economic profit, only limited by the voluntary stewardship agreement between the BRSF and the landowner. The possibilities are limitless.
The BRSF knows that the march toward progress and growth is unstoppable. At this time, unlike other times in history, the pressures of human population are converging. Luckily, the Buffalo River watershed is still a very pristine and beautiful natural area; but growth will occur, inevitably. The question is, will we allow the rivers and streams in the Buffalo River watershed to become dumping grounds like the upper James River in Missouri, or will we assure an adequate balance between the human and natural environment.
Tim O'Reilly is a graduate of the University of Missouri Law School at Kansas City. He concentrated his studies in environmental law.