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Monday, April 21, 2008

Oil Company Wrecks Conservation Easement in Wyoming; Could It Happen Here? Legal Advocates Get Ready for Other Attacks

All Things Considered, March 11, 2008 · When people commit to conserving land, the commitment is often meant to last forever. This is true not only of national and state parks, but also of private land.

Private conservation agreements have protected millions of acres across America, but an unanswered question looms. If circumstances change, can "forever" be undone? That question is at the heart of a legal battle in Johnson County, Wyo.

The Land

The land in dispute is a ranch. It spans a thousand acres in a lush valley surrounded by sage and desert. Giant sprinklers irrigate fields of alfalfa and millet amid cottonwood groves.

"We named it Meadowood because we thought it fit the character of the landscape," says Paul Lowham. He and his wife owned the ranch in the early 1990s.

At the time, developers in many parts of Wyoming were buying up scenic ranches and carving them into home sites. The Lowhams wanted to keep their ranch intact — permanently — and they saw a way to do that.

The Promise

"We placed a conservation easement on the property," Lowham explains.

A conservation easement is a legal document that restricts development. It's an increasingly popular tool for protecting land from sprawl.

The Lowhams' easement said that their ranch could never be subdivided and could only be used for agriculture. Forever.

"Forever's a long time," Lowham says, "but certainly that was a commitment that our family made when we placed the easement on it."

They donated the easement to the county, and in return for this charitable gift, the Lowhams received a federal income tax deduction of more than $1 million. That was the estimated value of the development rights they gave away.

New Owners, New Circumstances

In 1999, the Lowhams sold the ranch to Fred and Linda Dowd. The Dowds understood that the land came with permanent restrictions.

"I didn't see that as a problem then," says Fred Dowd. "I do see it as a problem now, because I never thought about unforeseen circumstances coming up and making this a nightmare for us."

That "nightmare" started when an energy company showed up to explore for natural gas on the ranch.

In Wyoming, just because you own a piece of land doesn't mean you own the minerals beneath it, and the person who owned the minerals on the Dowds' ranch had every right to come on the property and drill. The conservation easement couldn't stop it.

So the Dowds watched while drilling rigs came on their land and poked holes in their fields. Workers laid pipelines, cut roads and spread weeds. Fred Dowd feared his land would soon be worthless for agriculture.

"If you nose around, you can find some ranches that have been ruined by mineral development," he says. "And if they had a conservation easement on it that says they can't do anything but farm, and it's ruined for farming, that will destroy them. It would destroy us."

An Agreement Undone

The Dowds approached Johnson County's elected officials.

"The Dowds didn't feel the conservation easement had any value at all if they could just be drilling wherever," says Tracy Rhodes, a county commissioner at the time. "They immediately wanted to know what the commissioners thought about dropping the agreement."

Marilyn Connolly was also a county commissioner. "There were discussions on how, how are we going to handle this, and how can you terminate something that was supposed to be forever?" she recalls. "But the thought of having those wells drilled and the extra roads ... didn't seem like it melded very well with what that easement was supposed to be doing. That's the reason I voted to terminate the easement."

The vote was unanimous. In 2002, just nine years after the land had been set aside forever, forever was rescinded.

Robb Hicks, owner of the local newspaper, the Buffalo Bulletin, was furious when he learned that the easement had been undone.

"With these perpetual easements, the two parties can't just get together and say, 'You know what, we changed our mind,'" he says. "I think forever means forever."

And his anger grew when he learned what happened next. The mineral development didn't ruin the ranch for farming, but now — with the easement removed — the Dowds did exactly what they had agreed never to do. They put part of the ranch up for sale as a new home site for $1.2 million.

"I don't have a problem with people profiting off of buying and selling property," Hicks says. "I do have a problem with people going to the county commission and saying, 'Oh, there's all this development on our property, and my goodness we've been so negatively impacted, and you need to remove all of this, and oh, by the way, afterward, we're going to make a lot of money off of it.' "

So he sued, and the lawsuit had broad implications.

A Dangerous Precedent?

Nationwide, conservation easements protect a vast amount of land — more than four times the area of Yellowstone National Park. This growing network of private conservation lands could be threatened if that word — "forever" — turns out not to have teeth.

"It could have some devastating consequences," says law professor Nancy McLaughlin of the University of Utah. "If the case stands and the easement is terminated, it would encourage speculators across the nation to try their hand at breaking these perpetual easements, because they're going to want to unlock the millions and millions of dollars that are inherent in the otherwise restricted development and use rights."

McLaughlin had hoped that Hicks would prevail in court and that the easement would be restored, but last year the Wyoming Supreme Court dismissed the lawsuit. Now, Wyoming's attorney general plans to take up the case. So the fight continues.

Meanwhile, the Dowds regret that they ever bought the ranch. They say they've spent $50,000 to defend themselves in court, and they've had to defend their reputations in public.

"We did not buy the ranch and say, 'Well, gee, if we can buy this property and get rid of the conservation easement, we can make a quick buck,' " Fred Dowd says. "That was not our intention at all."

In fact, the Dowds never did sell off a piece of the ranch. They've kept it intact, at least for now.

But in the future, this property and thousands of others that have supposedly been protected forever are sure to meet new challenges. Many people will be forced to ask, should a commitment made by others a decade ago — or a century ago — still be honored? And if not, who gets to decide when "forever" ends?

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