Public access a rare bird

By Burt Hubbard, Rocky Mountain News (Contact), Jerd Smith, Rocky Mountain News

Monday, February 11, 2008

Ken Papaleo © The Rocky

Sunrise turns the sky and Spanish Peaks pink Wednesday morning in Huerfano County. Land in the foreground is part of the conservation easement formed by area ranchers. Statewide, less than 3 percent of the 1.13 million acres preserved by conservation easements is open to the public.

Colorado has saved more open-space lands using conservation easements than any other state in the nation except Maine.

But virtually none of those 1.13 million acres is open to Coloradans.

Just 2.7 percent of properties, 30,863 acres, provide public access, according to an analysis by the Rocky Mountain News of a new state database of nearly 3,000 easements.

In contrast, more than 50 percent of Maine's easement lands offer public access. And California, the other leading state, provides roughly 30 percent public access, according to surveys.

"That level is not something we should be happy with," said U.S. Sen. Ken Salazar, who helped craft many of Colorado's early land-saving mechanisms. "We need to look at the program that we have and see how we can improve it," he said. "Public access is something we should put a premium on."

Tens of thousands of acres of easement lands, such as the 20,000-acre-plus Greenland Ranch south of Castle Rock along Interstate 25, prohibit public access.

Douglas County has offset the issue somewhat by providing public open space on the other side of the interstate from the ranch. Further, despite the lack of access, the easement, funded in part by Great Outdoors Colorado, provides an open-space buffer between the metro area and Colorado Springs.

Conservation easements are legal tools that allow private landowners to place their lands under a protective umbrella that prevents future development while allowing them to retain ownership.

The use of easements is skyrocketing in Colorado and across the nation because they help communities protect land from development at roughly half the price that outright purchases would require.

And unlike purchases, easements don't require state and county governments to pick up the tab for maintaining the land. Instead, easements typically are managed by nonprofit land trusts.

All told, Colorado has protected about 2 million acres, according to the Colorado Conservation Trust. About 70 percent of these lands have been set aside using easements. The remainder has been purchased outright by local governments using open-space tax money and lottery proceeds from Great Outdoors Colorado.

Lands purchased outright typically do provide more access because they're owned by local governments, not private citizens.

Other benefits weighed

Providing access on private lands often is difficult because of trespass and liability issues, conservation experts said.

"If you want land for public access, the best thing to do is buy it and make it a state park or a county park," said Rand Wentworth, executive director of the Washington, D.C.-based Land Trust Alliance, which represents 1,600 land trusts nationwide.

"Just because there isn't public access doesn't mean there isn't public benefit," he added. "Easements protect watersheds so there is clean water for riparian corridors, and fly-over areas for migrating birds.

"There are cases where people allow trails or fishing corridors, but generally it's used to keep development off private land."

Dave Theobald, an easement expert at the Warner College of Natural Resources at Colorado State University, said the public- access debate needs to occur as the use of easements grows.

"Protected lands no longer automatically means public access," said Theobald, who has built one of the first databases in the country that tracks and maps conservation easements.

"The only value is not just whether we can recreate on it or not," he said. "I personally am OK as a private citizen paying for these levels of protection, even though I can't access the land."

Still, most states attempt to ensure the public gets at least some access consideration when easements are proposed and public dollars are used.

Tim Glidden, director of Land for Maine's Future Program, said Maine takes pains to ensure the public can gain entry to the lands it has helped protect, including working timber forests and farms. But it's not easy to balance private property rights and liability questions with an open-door policy.

"All of it has to have public access," Glidden said. "The minimum we're looking for is pedestrian access, but we also look for drive-in. The baseline right is to walk in and to hunt and fish."

Elsewhere, access is key

In Vermont, another national leader in land preservation, public access is considered in every easement, even when the private properties are working farms, as many in that region are.

As a result, at least 30 percent of Vermont's easements offer some form of public access, according to Gil Livingston, president of the Vermont Land Trust.

"We look intentionally for public access in every transaction we do," Livingston said, "But the majority of transactions we do are working farms and working forests."

Livingston said Vermont, like other states, is under growing public pressure to consider allowing taxpayers more access to lands protected in this way because the use of easements has become so widespread.

"We spend a lot of time trying to work with private landowners to conserve land and provide public access," he said.

California, too, is looking at public access questions, according to Darla Guenzler, executive director of the California Council of Land Trusts, though it doesn't use access as a criterion for public funding.

"For a lot of us, it's hard to appreciate what these lands are providing to us. Public access is the best way to appreciate them," Guenzler said. "But for better or worse, I don't think we could have had the same level of protection if public access were absolutely required."

Protecting land by using easements, though cheaper than outright purchase, still is costly.

Colorado has spent more than Maine or California to conserve land using this tool. Since 2000, when it implemented an aggressive set of tax incentives, the state has spent $347 million to protect land, including more than $274 million provided in tax credits.

Another $73 million has been spent by Great Outdoors Colorado to help fund easements. GOCO was created by voters in 1992 to protect open spaces using proceeds from the sale of lottery tickets.

Colorado's expenditures dwarf the $72 million spent by Maine and the $100 million California is doling out. Neither of the coastal states offers tax credits, choosing instead to fund conservation easements with funds from state coffers.

Little public oversight

In addition, compared with those states, Colorado provides comparatively little public oversight of the easement-granting process.

No state agency looks at easement deals before they're put together, and only the IRS and the Colorado Department of Revenue have access to the tax returns that contain the confidential appraisals and the tax credits being claimed.

Great Outdoors Colorado does review easements it helps create before they're completed, but the agency does only a small number of these transactions. Private, nonprofit land trusts do most of Colorado's easement transactions.

But in Maine and California, all easement deals using public dollars must be publicly reviewed before they are approved, helping ensure appraisals are sound, that proper lands are being protected and that public access is provided where possible.

Such reviews, however, are time and labor intensive. Colorado land trusts long have battled this kind of oversight because they believe state involvement will delay transactions, making them too cumbersome and expensive for landowners to pursue.

Salazar is also cautious about imposing too many restrictions.

"It is time for us to take a good look at lessons learned and at what we can do better," Salazar said. "In 1990, we had 3 million people in this state.

"And then we had 4 million. So we had to create GOCO. Soon we're going to be looking at 7 million people. That means we have to redouble our efforts on conservation.

"Yes, the programs that we have might not be perfect. (But) the worse thing we could do is decide that because of the current controversies we're going to abandon our conservation effort."

smithj@RockyMountainNews.com or 303-954-5474

By comparison

How Colorado's conservation easement program stacks up against those in other states.

Lands under easement

* Maine 1.7 million acres

* Colo. 1.2 million acres

* Calif. 1.1 million acres

Public access

* Maine 40 percent

* Colorado 2.7 percent

* Calif. Up to 30 percent*

* Vermont 30 percent

Public dollars used to protect lands via conservation easements

* Colorado$347 million**

* California $100 million

* Maine $72 million

Prescreening of easements by state when public dollars or tax credits are involved?

* Colorado No***

* Maine Yes

* California Yes