Conserving Biodiversity Under Private Land Law

How do we explain the opposition to conservation easements? After all, isn’t an easement merely the expression of a private landowner’s intent as to how land will be used, no different from a decision to plow a field, dig a mine, build a house, hotel or airfield?

The answer is in the laws and customs that support private land ownership.  These land laws evolved over the last several centuries almost exclusively to encourage transformation of land into a human mold.  As Sax says: “A piece of iron becomes an anvil, a tree becomes lumber, and a forest becomes a farm.”  Traditional property law treats undeveloped land as inert and passive, waiting to be put to use; it considers the natural functions of the land, such as providing habitat for biodiversity, as expendable.  Through recent times, land law has been employed, essentially, to end the existence of natural systems.

Dirt road dissects private land in Stanton County, Nebraska. Image Credit: Jamie Bachmann

When  private landowners expand their intentions of how land should be used to include the ecological concept of protecting biodiversity, they move beyond the common interpretations of land use and law.  The ecological perspective views land as a system that performs valuable functions in its natural state, while the conventional perspective encourages the transformation of nature to achieve the goals of the Industrial Revolution.  Herein lies the source of the tension.

 

In the 21st Century, society requires a system of land laws that are equally attuned to protecting the remains of our biological heritage, restoring degraded waters and landscapes, and renewing forests and grasslands to play a positive role in controlling climate change.

Viewed this way, a conservation easement appears as a small but necessary step in the evolution of private land law. Just as land law evolved to support the Industrial Revolution, it now must evolve to support the new requirements of contemporary society.

JHD

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