Stealing Land in the Atchafalaya and Immokalee - Conservation Easements Used In Colossal Government Land Grab 

by J. Zane Walley

7/1/02 - Conservation Easement definitions: A non-possessory interest of a holder in real property that imposes limitations or affirmative obligations. ~ American Farm Bureau Federation

Right of use over the property of another. ~ Black's Law Dictionary 

Fragmentation of land title to deny future generations a full range of productive land use options. ~ David Guernsey, Alliance for America

Mobile, AL (PFNS)  An American citizen who has land condemned by a federal agency or by any governmental entity, especially those receiving federal monies, has significant rights under Fifth and Fourteenth Amendments of the U.S. Constitution and Public Law 91-646, (The Uniform Relocation Assistance and Real Property Acquisition Policies of 1970.) Further, important statutes contained in the Code of Federal Regulations and the United States Code protect citizens' property rights. These laws contain literally hundreds of safeguards that keep condemning agencies on a stringent, expensive and
protracted path.

The U.S. Army Corps of Engineers (USACE), in a and highly questionable action, has moved to usurp traditional private protections in Louisiana's Atchafalaya Basin. Citing Congressional authority, (but unable to produce substantiating documents) and the threat of lawsuits from the environmental community, the USACE has forced conservation easements on the properties of an untold number of homeowners, farmers, timber producers and sportsmen in a 338,000 acre area.

Tom Dowell Esq., a USACE contract land appraisal agent stood at the International Right of Way Association (IRWA) podium on June 19 in Mobile, Alabama explaining the method his team used to arrive at a "fair market value' for the involuntary conservation easements. Dowell did not refer to them as conservation easements but rather "Flowage Development Control and Environmental Protection Easements" (FLOWAGE).

Dowell's math was interesting and certainly a delight to the USACE. Instead of the USACE having to pay the full price for land taken by outright commendation, they were able to control the encumbered land by paying a fraction of the land value. As an illustration, Dowell used land and resources worth $1,000 an acre. By applying a complex formula based on before and after values, he pointed out the Corps would only have to pay landowners $125 an acre for the easement.

Dowell's definition of "fair market value" rapidly crumbled when a member of the audience showed that his formula did not take into account the diminished loan value of the property. It is noteworthy that Internal Revenue Service (IRS) regulations prohibit lending institutions from lending money on property encumbered by an easement unless the lender will take a second position to the agency or organization that owns the easement. Dowell was also unfamiliar with other IRS regulations affecting easement-encumbered property. He did admit that these moves were "robbing" future generations of the ability to use the land as loan collateral.

According to the USACE handouts provided at the IRWA meeting, FLOWAGE easements prohibit the construction of new structures and prohibit conversion or development of land from existing uses. The easements restrict timber harvest by imposing unworkable regulations subject to activities that "promotes fish and wildlife preservation." Further, the restricted timber removal by the property owner is subject to prior approval by the USACE. The property owners retain oil, gas, and mineral rights. However, the extraction of those natural resources, along with the necessary accompanying construction, is subject to obtaining permits from the USACE.

The apparent advantage to the USACE is absolute control of the encumbered private property for pennies on the dollar. However, the major financial and administrative benefits to the Corps or any governmental agency taking property by easement are not obvious. The Fifth Amendment is absolutely circumvented and the landowners stripped of civil rights and protections provided under public law.

By utilizing easements as a tool for taking private property, agencies can and do contend that they have not employed their powers of condemnation. Thus, they avoid complying with the far-reaching laws that protect property owners and relocated persons. They are not required to provide a costly array of services required under these laws such as relocation assistance payments, mandatory negotiation, advisory services, litigation, moving and related expenses, replacement housing and many others. In short, condemnation by easement is cheap and fast. Alarming, other agencies empowered with condemnation powers have been watching and learning.

Recently, Commissioners in Collier County, Florida (again under the pressure of the environmentalist lobby and threat of lawsuits) vastly diminished the ability of property owners in the 22,600-acre Immokalee area to develop their property and expand agriculture by placing mandatory conservation easements on their land. The owners did not receive any compensation for the drastically reduced value of their land.

Unless the practice of condemnation by conservation easement is checked, it has the potential to destroy property rights nationwide. It will render mute the solemn words of the Fifth Amendment: ".nor shall private property be taken for public use without just compensation."

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