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When Eminent Domain and Conservation Easements Collide

by Paul Schwennesen

In 1993, more than thirteen thousand cubit feet of water per second raced down the San Pedro Valley, washing away farms, drowning livestock, and destroying bridges. Like most of God’s acts, it set in motion a chain of events that left people scratching their heads many years later. In our particular case, it began a convoluted tale that pits local authority against the Feds, challenges notions about the nature of eminent domain, and raises questions about what legitimately constitutes activity in the “public interest.”

The ’93 flood destroyed a bridge north of our ranch and moved Pinal County to express interest in a ford across the San Pedro River on our property in southern Arizona. An agreement was reached in which a revocable Temporary Highway Easement would turn our driveway into public access until the county could rebuild the bridge. It never did. In 1996 our family sold a conservation easement on 215 acres of riparian forest to the Nature Conservancy. The easement included this low-use roadway. In typical fashion, the Nature Conservancy transferred the easement to the Bureau of Land Management (BLM), which inherited the responsibility of protecting the conservation values on this property. Disturbing as it is to many of us in the ranching world to see private rights transferred to the federal government, in this particular case it saved our bacon. Ahem—beef.

After years of destructive traffic on this roadway, we legally voided the temporary highway easement. What was once conservation land with a previously existing highway easement now reverted to private property encumbered by a conservation easement. To clarify this situation, I moved tractor-loads of boulders across the roadway to keep traffic out. This was good for us since we could now protect our private land from the increasing onslaught of beer parties, drug trafficking, and livestock shooting. It was also good for the BLM since the conservation easement prohibits motorized traffic.

Pinal County, however, had other ideas. After receiving a temporary injunction against us and bulldozing our barrier, a movement developed within the Board of Supervisors to attempt an eminent domain condemnation to create a permanent public road. If it were any other entity holding the conservation easement (say, a local land trust), the issue would have been moot: a conservation easement cannot, as one judge put it, “gut the power of the state” to condemn land under eminent domain and Pinal County’s condemnation would have proceeded without fanfare. However, local governments cannot condemn federal property and a federal “interest” such as the BLM’s is construed by the courts to be federal property. The BLM has stated its intention to uphold its interest through federal litigation if necessary.

After three and a half years of litigation and debilitating attorney’s fees, we settled with Pinal County through court ordered arbitration. Despite our objections, they offered to pay $90,000 for our “rights,” (whatever they may be) on the roadway in question. We ruefully accepted, being sure to clarify that the BLM was likely to close the road to vehicles anyway, putting all of the county’s investment in jeopardy.

Pinal County had blundered in its unfortunate conclusion that this roadway constituted a public interest. This determination stemmed from a single county supervisor who happened to live near the proposed crossing and had a personal desire to keep it open for his own convenience and for the recreational pursuits of local constituents. Since he did not recuse himself from the proceedings (as is generally accepted practice), the rest of the Board rubber-stamped his proposal as being an issue within his district purview. As one editor who covered the fallout from this issue put it, Pinal County is “a Pulitzer waiting to happen.”

The case is still unresolved. If the BLM upholds the terms of the conservation easement and excludes vehicle traffic, Pinal County may challenge it in federal court. If the BLM does not exclude vehicle traffic, we may very well challenge them in court for abrogating their conservation duties. Either way, we hope that this case will establish clear precedent in conservation case law.

At the end of the day, the challenges we face against our conservation easement may be an insignificant twist in the larger narrative of conservation activity. The themes and tensions it exposes, however, are important to bear in mind as this increasingly popular tool gains momentum. Since nearly all conservation easements occur on individually owned private property, it’s worthwhile to broadcast some of the complexities and pitfalls in what might otherwise seem a neat, simple, and socially advantageous legal tool.

Paul Schwennesen is an Enviropreneur Institute alum and runs the Double Check Ranch in Arizona. This article appears in the fall edition of PERC Reports.

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