Jessica Owley

Public access to spatial data on private-land conservation

Information is critical for environmental governance. The rise of digital mapping has the potential to advance private-land conservation by assisting with conservation planning, monitoring, evaluation, and accountability. However, privacy concerns from private landowners and the capacity of conservation entities can influence efforts to track spatial data. We examine public access to geospatial data on conserved private lands and the reasons data are available or unavailable. We conduct a qualitative comparative case study based on analysis of maps, documents, and interviews. We compare four conservation programs involving different conservation tools: conservation easements (the growing but incomplete National Conservation Easement Database), regulatory mitigation (gaps in tracking U.S. Fish and Wildlife Service’s endangered species habitat mitigation), contract payments (lack of spatial data on U.S. Department of Agriculture’s Conservation Reserve Program due to Farm Bill restrictions), and property-tax incentives (online mapping of Wisconsin’s managed forest tax program). These cases illuminate the capacity and privacy reasons for current incomplete or inaccessible spatial data and the politics of mapping private land. If geospatial data are to contribute fully to planning, evaluation, and accountability, we recommend improving information system capacity, enhancing learning networks, and reducing legal and administrative barriers to information access, while balancing the right to information and the right to privacy.

Keeping Track of Conservation

Throughout the world, governments require land protection in exchange for development permits. Unfortunately, oftentimes scant attention has been paid to these land protection programs after development. Agencies and permit applicants agree on mitigation rules, but there appears to be little follow-up. When we do not know where conservation is occurring and cannot determine the rules of mitigation projects, the likelihood that they will be successful or enforced diminishes. I journeyed to California in search of answers by tracing four mitigation plans associated with the Federal Endangered Species Act. While I anticipated some difficulties, the tale is more alarming than expected. The government entities involved struggled to locate and understand the permits themselves, let alone the details of the compensatory mitigation projects. A common land protection tool in this context is the conservation easement. These exacted conservation easements exchange public goods for private gain. Attempting to locate and understand these mitigation easements revealed pervasive problems with tracking mitigation in the United States. The federal agencies had trouble finding and understanding records. The county offices charged with recording property restrictions often had inadequate records of land use restrictions. These challenges exacerbate the accountability and enforceability concerns already associated with mitigation programs. Such uncertainty calls into question this method of environmental conservation. This Article highlights pressing concerns with our current mitigation paradigm and calls for reform of federal programs through promulgating new regulations and updating agency guidance. Furthermore, this project calls upon citizens and researchers to turn their eyes to mitigation programs generally and to question whether such programs truly compensate for the environmental harms they facilitate.

Tribes as Conservation Easement Holders: Is a Partial Property Interest Better than None?

Conservation easement use is growing rapidly, as is the number of organizations looking to the tool to meet land conservation needs. Until recently, tribes had not been involved in conservation easement transactions. This book chapter examines the most common way tribes have become involved in conservation easement transactions — tribes as conservation easement holders. The chapter examines why tribes decide to hold conservation easements, looking at the choice to use conservation easements generally and then situating the decision in the evolution of property law in the United States both on and off tribal land. Conservation easements are a uniquely American form of property that emerge from Lockean roots and embrace a libertarian notion of property rights. In that light, tribal embrace of the tool may seem surprising as these notions of property have done harm to tribal sovereignty and may be at odds with some traditional tribal practices. The chapter concludes by asking whether tribes should use conservation easements. Wrapped up in this question is an assessment of the conservation easement tool generally as a vehicle for long-term land protection. The strength of the conservation easement tool is that it gives government entities the ability to extend their land conservation and environmental stewardship roles beyond their jurisdictional boundaries. Tribes may not have the power to regulate land use in nearby communities, but they can acquire conservation easements over such land and obtain similar results. Thus, despite some discordance due to the anticommunitarian sentiments at the heart of conservation easements, the conservation easement tool may provide tribes with an avenue for furthering tribal goals of conservation and intergenerational equity. Full book available via Ashgate website.

The Use of Property Law Tools for Soil Protection

Where conservationists are dissatisfied with public measures of soil protection, property law may provide a vehicle for private action to meet soil protection goals. Specifically, this chapter explores how property law concepts could be used to conserve soil. One can always decide as a landowner to engage in soil protection measures, but landownership is a limited soil conservation strategy. Instead, this chapter explores how NGOs or interested parties could use future interests or partial property rights to constrain land use in a way that will be most protective of soils. Using the United States as an example (but detailing a worldwide pattern of developing partial property rights), this chapter shows how traditional servitude law may be able to protect some soils, but its reach is limited. Instead, jurisdictions are building on previous property law concepts to create new structures. The most popular of which is the conservation easement, a nonpossessory right in land with a conservation goal that can be enforced in perpetuity. This chapter explains the strengths and weaknesses of various property rights approaches and ends with a caution to tread carefully when using perpetual tools in a changing world.

Piney Run: The Permits are Not What They Seem

In 2001, the Fourth Circuit addressed the permit shield provision of the Clean Water Act and found it to provide broad-scale protection for polluters. In Piney Run Preservation Association v. County Commissioners of Carroll County, the Fourth Circuit held that facilities with discharge permits are protected from lawsuits even when discharging pollutants not contained within their permits. Under this ruling, permit holders may discharge, without fear of penalty, any disclosed pollutant within the reasonable expectation of the permitting authority. This decision is worrisome because it does not protect the goals of the Clean Water Act and deprives the public of information about pollutants in the environment.