DNR Prepares to Ramp Up Attack on Private Property

For years now the state Department of Natural Resources has been surreptitiously confiscating private property, and now, fresh on the heels of its impressive (and anti-democratic) gobbling of 56,000 acres in Oneida County, the department is ginning up its land grab plans for the next biennium.

If they get what they want, it will be unprecedented.

It’s all there in the DNR’s recently proposed budget for 2025-27, in which it is seeking to triple its Stewardship Program funding from about $33 million a year to $100 million a year. The proposal would re-authorize the program itself at $100 million for each of the next 10 years.

According to the department, the additional funding would enable it “to continue supporting communities in conserving particularly vulnerable landscapes as well as increase efforts in property development and management of existing public and conserved lands.”

Translated, that’s $1 billion the agency wants in taxpayer dollars over the next decade to sequester ever more private land into public hands. Let them get away with it and we will have effectively surrendered control of Wisconsin and of our lives to big government.

Never forget: He or she who controls the land controls the people. Which is why the people, not the government, should control the land. Which is also why lawmakers need to take a quick and public stand against this proposal—and, indeed, against the Stewardship program altogether.

Sure, many Republicans and even some conservatives become misty-eyed when speaking of their love of Stewardship. Love it might be, but it’s also a toxic relationship they need to wake up and get out of while they can. Environmentalists and bureaucrats may tell everybody they are saving pristine lands and water, but what they are really creating are legal traps that are poisonous to both the American economy and personal liberty.

Origins of the Stewardship Fund

The planned $1 billion heist should not have been unexpected. When the state Supreme Court stripped most oversight of the program from the legislature’s Joint Finance Committee last July, Charles Carlin, director of strategic initiatives for the extremist environmental group Gathering Waters, predicted it: “I think what we’re going to see in the next couple of years going forward is so many conservation organizations really re-engaging with the Stewardship program and just utilizing it to its maximum potential.”

I hate to keep translating but “utilizing it to its maximum potential” is bureaucratese for “using it eradicate private property.” Carlin’s comment was a wink-wink to the DNR to ask for the bank, and now the agency has obliged, as it does over and over again in its hand-in-hand partnership with radical anti-private property rights’ groups.

For starters, the Stewardship Fund is not supposed to exist. When then Gov. Tommy Thompson and his colleagues created it in 1989, they did so responsibly by setting a sunset after 10 years. During that time, the state was supposed to inventory lands that needed to be protected, do so, and then get out of the land-buying business. After that, if on the rare occasion pristine parcels needing protection were discovered, the agency and the state legislature could take them on a case-by-case basis.

In typical big government fashion, though, the sunset provision has itself set, vanished into the night over the horizon, and, as government programs are wont to do, continues to live on in perpetuity. Funny how the agency and environmental groups keep discovering pristine lands and waters that need protecting. One would have thought the keen conservationists populating the agency during the original time grant would have done a thorough job in discovering them. One would have thought that a finite program would find a finite amount of land to protect and declare mission accomplished.

But when a finite program becomes infinite, so do the things it is looking for, otherwise there would be no reason to exist. Now, suddenly, there’s more land and water to be protected than ever before. There always will be.

Look at the damage already done, using the radicals own numbers. According to the Land Trust Alliance, as of 2020 land trusts have protected 796,902 acres of land in the state, or, as they like to boast, “that’s about 603,714 football fields!” That’s actually a conservative number, but even that is more than twice the land that was “protected” in 2010, an increase of 124 percent from the 355,489 acres they had captured then.

The explosive growth of lands under conservation easements is even more startling. In 2010 there were but 78,299 acres under conservation easements; in 2020 that had ballooned by 426 percent to 412,062 acres. And those numbers don’t include conservation easements put in place since 2020, including the 56,000-acre taxpayer scam know as the Pelican River easement purchase.

Given the DNR’s gigantic budget proposal, they are just getting started in their partnerships with land trusts. Well, not started. They’ve been grabbing land in various ways for a long, long time, especially in northern Wisconsin. Let’s consider the evidence.

Exhibit A: During the administration of Democrat Gov. Jim Doyle, the agency employed “magicrats”: bureaucrats who by fantasy and magic created new rules and law on a whim and with a wave of their administrative wands transformed privately owned wetlands into state-owned lakebeds. By simple decree, the agency converted thousands of acres of lands to state ownership, often making adjacent private property nonconforming. Often enough these transformations were made despite earlier written guarantees by the DNR that the wetlands were, well, wetlands.

Friendly Dane County courts backed up the agency repeatedly.

Then, too, during the early years of the Stewardship fund, the emphasis was on land purchases, generally the use of general obligation bonds to borrow money for the purchases. By 2002, the DNR was spending up to $50 million a year to buy land outright, most of it in northern Wisconsin.

There were unintended consequences, though. Over time, the interest on that debt started to pile up, threatening to devour the agency’s budget. Public opinion was beginning to turn as well; reasonable people started to ask when the state might have as much land as it needed, maybe too much. Bureaucrats countered that declining expenditures in land purchases showed that the state wasn’t actually overspending on land and that in fact it needed to spend more if poor climate-ravaged Wisconsin was to survive.

In reality, the declining expenditures represented two things. First, the belt was indeed tightened after Gov. Scott Walker and the Republicans began to control state government in 2010 precisely because the state had been overspending. But the real truth hidden in the numbers is that the DNR was spending less on land purchases but not necessarily less on other Stewardship programs, including conservation easement purchases.

Since 2018, DNR land purchases have fallen to historic lows, much lower than the early and mid-2000s, but through 2020 spending for easements and other Stewardship spending remained at levels similar to that of the early 2000s. Because conservation easements cost less than outright land purchases—the cost of maintaining the underlying land remains with the landowner—the spending decline doesn’t mean the agency is capturing any less land, it means it changed its strategy about how it was going to steal Wisconsin, by buying conservation easments in league with de facto DNR agents, otherwise known as land trusts.

The agency realized that, while people didn’t like government buying land, they seemingly got all warm and fuzzy over conservation easements, which were voluntary and allowed owners to retain title to the land while protecting it forever. And it was funded with something called Stewardship dollars. Stewardship is a warm and fuzzy word.

The Problem with Conservation Easements

So hey, what’s wrong with conservation easements anyway? What’s wrong with entering into a voluntary contract in which the land is saved and a tax benefit is usually conferred to boot? What’s wrong with blocking forever such sordid anti-environmentalist things as, you know, economic development, good jobs, and sustainable timber management and harvests?

After all, prosperity has become so passé. Plus, rich folks can protect the land they love not only for themselves but for future generations. It’s the ultimate property right.

Well, turns out there’s a lot wrong with conservation easements, first of all the lie that they let the easement sellers retain ownership of the land. Never mind that easement advocates consider it a property right to deprive future owners of the right to use the property the way they want to. Never mind that the vision of future generations might be different from those who concocted the easement.

The only right future landowners really have is the right to follow the easement holder’s commands, and the same goes for the current title owners. The retention of property ownership is a fiction fed to the public to gain support. A piece of paper known as a title or deed might be retained, ostensibly for tax purposes, but the only property right is with the easement holder who controls the land use and thus is the real owner—a government or a land trust, and usually government in the end.

In some cases, not even the private landowners who sell the easement realize what they are getting into until it’s too late, though mostly rich environmentalists and environmental nonprofits buy up land and then coordinate with progressive bureaucracies for funding—either to purchase the easement or to route the money to third-party land trusts—knowing the end game is to effectively transform private land into government-controlled land.

The retention of ownership is one con played on an unsuspecting public, but so are many of the other purported easements benefits, and the lack of transparency in crafting the real conditions of the easements is startling.

Take the Pelican River easement, to cite just one example. Impacted local governments were not properly notified, and, when several of them expressed opposition with formal resolutions urging the state Natural Resources Board to oppose the easement, agency magicrats never conveyed that opposition to the board before it approved the easement purchase.

Like magic, the resolutions vanished into the circular file.

Oh, but the state argued, it’s such a good deal anyway. The land will be open to the public and the forests will be managed for sustainable harvests. But as Henry Schienebeck, the executive director of the Great Lakes Timber Professional Association (GLTPA), has pointed out, the language in easements, usually crafted in back rooms, often allows environmental groups to shape the agreements to suit their own ideological agendas, and he has pointed to the Pelican River easement as an example.

“No one could produce a management plan as to what the forest industry could expect in ‘perpetuity’ for volume of wood coming from the Pelican property,” Schienebeck told me in an interview last year. “All they said is that forest management is to be part of the easement as defined in the guidelines under the Forest Legacy Program. But that is vague and subject to interpretation. Exactly what does that mean, one tree or a hundred? If memory serves, this entire property was once part of Consolidated timberland and was well managed and open for multiple use with timber production as a top priority.”

Wanna bet that timber production will no longer be the top priority?

Indeed, in the latest program implementation guidelines, the purpose of the Forest Legacy Program (FLP), which provided the major funding for the Pelican easement, is “to identify and protect environmentally important forest areas that are threatened by conversion to nonforest uses and to promote forestland protection and other conservation opportunities. Desired outcomes include the protection of important scenic, cultural, fish, wildlife, and recreational resources, riparian areas, and other ecological values. Traditional forest uses, including timber management, as well as hunting, fishing, hiking, and similar recreational uses are consistent with purposes of the FLP.”

Look at that language closely. Whereas forest management and timber production were originally listed before such things as aesthetic qualities, historical and cultural resources, and recreational opportunities, the guidelines now promote aesthetics, cultural, recreational, and other ecological values over timber production. Indeed, timber management is actually not listed as a priority at all but simply as an activity that “is consistent” with the purposes of the FLP.

There are other problems with easements. There’s the loss of tax dollars due to the tax benefits conferred and reduced property taxes for local governments. There’s the cost of the easement itself, often essentially laundered through land trusts where public review and cost benefit analysis is impossible.

More important, just what land is being preserved forever? Is it really worth perpetual protection? In its initial form, the Pelican River easement was going to swallow whole the entire town of Monico. After public backlash, the easement was renegotiated to exclude 1,200 acres for thr town to pursue potential future development.

How nice of the environmentalists to allow the town to survive and to show how magnanimous they were. But if those acres could so easily be carved out—and those acres absolutely were more suitable for potential development than for perpetual preservation—how much of the other 54,800 acres could also be developable land that does not warrant perpetual “protection”?

Given the “forever” part of these agreements, that question matters. Those debates should be undertaken and yet in most cases easements are collected like so many shells on the seashore, to be displayed to the public as treasures to be saved forever. Do all these lands really need to be protected forever, or are many lands simply being “protected” because environmentalists can?

What’s more, lands that appear to need permanent restrictions today may not look that way to people in the future, not merely because of changing mindsets. As Dana Joel Gattuso wrote in a 2008 piece for the National Center for Public Policy Research, “Conservation Easements: The Good, The Bad, and the Ugly,” permanence can be problematic because “conservation needs—as well as definitions of scenic, aesthetic and cultural—change over time, and that the easement may eventually lose any ecological benefit or even become a detriment.”

In the end, conservation easements have become a subversive and toxic tool, their use much different than in the early days of land trusts. It’s not that all of them are bad, but in general it’s a poor way to guide land use, if that is the real objective, and more often than not it has evolved into a shell game to disguise the unmitigated transformation of private property into government property.

This is how American Stewards of Liberty (ASL) puts it: “The primary problem with conservation easements is that they willingly convey control of the property to a third party, rendering the fundamental right of ‘private property’ void. Control of the land is the essential element of a property right, but when a landowner signs a conservation easement, they give this away.”

These days left-wing extremists love to deflect from their own radicalism by trashing ASL as a far-right group. Once again, though, adopting such a point of view means labeling the U.S. constitution a far-right fringe document. Which is precisely what the modern left aims to do.

In its work, the group, led by executive director Margaret Byfield and CEO Dan Byfield, has done more than most to pull back the curtain on the Wizards of Conservation Easements to expose the myths of the bureaucratic magic.

To cite just one example, ASL observes on its website, “What the environmental community has labeled as a conservation easement (CE), more accurately meets the definition of “conservation servitude.” CE’s create a ‘negative servitude’ on the land by preventing the landowner from taking action on his property. In contrast, an ‘affirmative easement’ allows the landowner to make active decisions and use of the land.”

The ASL points to a road easement as an example of the latter, in which road access is conveyed but control of the property stays with the owner, while the former is a “negative servitude” application, where the “primary control of the land is to ensure the conservation purpose is met and not harmed by any other actions on the land” and the “landowner’s rights become subservient to the conservation purpose.”

ASL makes another crucial point, among many: Just because an easement in perpetuity is in place doesn’t mean the land will be protected forever. It just means the easement can’t be undone by the nominal landowner. But they can and are undone by the easement holders and by government: “Land with a conservation easement can be condemned for a public purpose, as can any other parcel, such as for new power lines connecting wind farms, or carbon sequestration pipelines.”

Permanent Government Ownership

The con of the conservation easement needs to be called out and called out quickly, and conservative lawmakers need to make the sunset of the Stewardship program and fundamental conservation easement reform a top priority in the next legislative session.

As ASL states: “The idea of placing a conservation easement on your land to protect it from development seems noble, until you realize the only activities restricted or prevented are those of the landowner. The easement holder gains a substantial asset that is recorded on the entities balance sheet. They also gain primary control of the land. Meanwhile, the landowner and future heirs are forever committed to live under the restrictions and oversight of the easement holder.”

Ultimately, the use of perpetual negative servitude easements is an example of entrenched environmentalism. That is, government, in partnership with land trusts and other environmental groups, are using private contracts to sidestep democratic policy-making as a way to entrench their policy prerogatives forever. They seek to accomplish land use goals in much the same way as do zoning ordinances, or comprehensive land-use plans, or outright government purchases of land, but the difference is that all those are democratically enacted and can be democratically repealed, or the land sold.

The holy conservation easement cannot, except in limited circumstances and by the government or easement holder only. It is an unrepealable regulatory treatment of property that imprisons rather than guides land use, and that eradicates the private property rights of those who engage in it.

It binds the hands both of future title holders and policy-makers in much the same way as Gov. Evers’s veto this past year created a 400-year tax increase. Again, though, the tax can be repealed; conservation easements, like diamonds, are forever. And let’s not forget that it is government that propels the surge of conservation easements nationwide. Left to the private market, these schemes would wither and die on the vine.

In her 2008 article on conservation easements, Gattuso argued that, with land trusts, “what used to be a close working relationship with private landowners has been replaced by a closer relationship with government agencies.”

“Increasingly too, the mission has evolved from protecting open lands through private stewardship to aiding government agencies in acquiring private lands,” she wrote. “In these troubling arrangements, land trusts have operated more like government agents, acquiring easements from private landowners, only to turn around and quietly sell them—sometimes for a profit—to state or federal governments. These methods certainly are not practiced by all land trusts, but nor are they isolated cases.”

Gattuso was blunt in her conclusion: “[e]asements, absent reforms, could evolve into the prevailing method for government to shift lands unobtrusively from private to public control under a pretense of private stewardship.”

She was spot on. Unfortunately, the reforms have been absent, and the camouflaged theft of private land for ever more government control has happened.

This coming session, lawmakers need to get over their toxic relationship with the Stewardship Fund and state-sponsored conservation easements and tackle property rights reform. Given the massive Pelican River easement purchase and the DNR’s egregious funding request for Stewardship, it could be now or never.