A farmer plants corn near Dwight, Illinois, on April 23, 2020. (Photo by Scott Olson/Getty Images)
The ability to acquire inexpensive, fertile land shaped much of American history. Ordinary people – many of whom are recent immigrants – could obtain land on which to support their families with little more than tough work. Land in America is generally owned by “Fee basic“That means the owner owns every aspect of the property and every possible use. But recent efforts by the extractive industry and its legislative allies across the country are threatening this historic way of owning land. We saw it here in West Virginia during the 2024 legislative session and may see it again in the coming session.”
Fee basic ownership allows the landowner to retain the property while transferring part of his ownership rights to another, for example by leasing the property or selling the right to develop minerals. An owner cannot sell the right either to develop the property through a land protection agreement. This way he can ensure that the property will remain farmland or naturally lovely land forever. Big lumber, coal and gas companies hate this because land conservation agreements take land off the market that they could exploit for huge profits.
There are two types of land conservation agreements, sometimes called “conservation easements.” Both are private contracts that the landowner concludes voluntarily. Some type of agreement is made between the landowner and a government-supported entity such as the Nicholas County Farmland Protection Board. In this type, the landowner retains the property but sells the right to employ or develop it for non-agricultural purposes. The owner receives an income, while the Farmland Protection Board – which buys the development rights – ensures that the land remains farmland or agricultural land forever.
In a second type of land protection agreement, the government is not involved. This type is contracted between a private landowner and a non-profit group like the Land Trust of the Eastern Panhandle To preserve the natural character of valuable scenic or historic areas by prohibiting development, including commercial mining and logging. In this type, the owner donates the development rights and receives a tax deduction for the value of the gift.
Both types of land conservation agreements are voluntary decisions by the landowner and both generate income for the landowner while preserving the character of the property for future generations.
But in 2024, an attempt was made in the West Virginia Legislature to restrict landowners’ ability to protect land and generate income in the process. The irony in this is palpable. Our legislature is controlled by Republicans who claim to be the political party most interested in limiting government intrusion into private affairs.
The vehicle for this effort was Senate Bill 822which remained in place until the last day of the legislative session and was then removed from the Senate calendar. That bill declared that it was the policy of the state to promote land and soil development and timber harvesting “for the economic benefit of the citizens.” In addition, it was declared that any land protection agreement that affects mineral development and timber harvesting is invalid if its term exceeds 20 years.
Had it passed, SB 822 would have repealed the historic right of landowners to determine how they employ – or do not employ – their land. It would also have eliminated land protection agreements, which are used by land trusts as a tool to protect land in the future. This is because there would be a federal tax deduction not be available for the donation of a monument conservation easement that is not constant. And a land protection agreement that becomes invalid after 20 years would certainly not be valid in the long term. Without tax deductions, these land protection agreements would simply no longer be attractive to landowners.
The West Virginia effort coincided with the introduction of H.R. 2773 – the “Landowner Easement Rights Act” – in the US House of Representatives. This bill would have prohibited the Secretary of the Interior from entering into employ agreements with private landowners for more than 30 years and would have allowed existing easements to be renegotiated for a longer term. This can happen, for example, if an oil company makes an offer to the future owner of the protected land that they cannot refuse. The faint justification The HR 2773 property offered by its sponsor was a concern for future owners who might want to do something different with the land.
I hope the reader will excuse me for not believing this reasoning. When did vast extractive industries become motivated primarily by the land ownership rights of others, particularly those who have not yet even acquired property? To understand this, you have to follow the money. The attempt to undermine land conservation agreements – and freedom of land ownership – is driven solely by the profit motive of these industries, and they cloak this unattractive motivation in the cloak of concern for the future landowner.
The American Legislative Exchange Council (ALEC), a right-wing think tank that creates model legislation available to state legislatures, recently considered model legislation that limits conservation easements to 20 years. The argument put forward was that landowners were somehow being tricked by the government, land trusts and “radical environmentalists” into giving up their development rights forever, thereby tying up future generations and freezing land employ “according to current practices and societal goals.”
To its credit, ALEC recognized a false policy idea when it saw it and refused to adopt the model legislation. Reference to this has been completely removed from the ALEC website.
The West Virginia Legislature is often referred to as a “machine for bad ideas.” Interfering with a landowner’s property rights and destroying the land conservation agreement in the process is a completely bad idea. Let’s hope lawmakers resist the temptation to involve the government in private land ownership just to please large business.
