Stewardship Reform Must Protect Private Property Rights

The train, she’s a-coming round the bend

You can always tell when the state Legislature is about to attempt something nefarious or otherwise injurious to the state’s residents by the pace of their activity.

Simply put, when they kick into high gear, watch out.

Usually the state Legislature—any legislature, really, it’s the nature of the beast—lumbers along, taking its own sweet time, and that’s not always a bad thing. Generally speaking, except when undoing the worst of progressive impulses, the less government does, the better. Not to mention, measured deliberation gives the public a chance to weigh in on important matters.

That’s the way the process was designed to work, but already this year we have been treated to two whirlwind proposals, both of them bad, as whirlwind proposals are wont to be.

The first was the so-called Right of First Refusal (ROFR) bill, which was fast-tracked to give incumbent utilities in the state a monopoly on utility projects. A re-packaged “reform” bill that was introduced after the aforementioned ROFR was smoked out was just as bad, though special interests tried to take the stink off the pig with a flowery new name and a few “sweeteners” to the lure the children into the car.

Now comes two lawmakers, along with a bevy of Democratic and Republican cosponsors, who want to hurry up a Stewardship bill that continues what has been a years-long assault on property rights, albeit in less egregious fashion than the Stewardship proposal put forth by Gov. Tony Evers.

In this bill by state Rep. Tony Kurtz (R-Wonewoc) and Sen. Patrick Testin (R-Steven Point), the Stewardship program would be re-authorized for four years with a spending allocation of $28.25 million—total annual bonding of $13.25 million and $15 million more annually from the segregated forestry account (the latter a separate budget measure).

More specifically, the bill would create a new Major Land Acquisition Program for DNR land acquisitions or stewardship grant awards exceeding $1 million. These major land acquisitions would have to be enumerated by legislation, and each year by January 15 the DNR would be required to submit to the Joint Committee on Finance and to the appropriate standing committees a list of all proposed major land acquisitions.

The DNR could still acquire land under the $l million limit within its subprograms.

Additionally, the bill would expand the Nature Conservation Program to include a habitat restoration program and it would likewise eliminate a requirement that not more than one-third of monies set aside for DNR land acquisition and county forest Stewardship grants could be obligated for DNR fee simple land purchases. In other words, it would get rid of the current requirement that two-thirds of those dollars must be spent on conservation easements, a much more pernicious form of government ownership of land.

Now I’m not going to say there’s nothing good in this bill. It’s not nearly as bad as Evers’s proposal, and it also tries to incorporate a couple of much-needed principles when it comes to state purchases of land, the most important of which is legislative approval. I’ll get to this in a bit, but suffice it to say there are some items here to work off of in building an acceptable alternative.

Ultimately, though, this bill fails because its policies remain anchored in two false ideological precepts, namely, that land conservation must be inherently defined as government control of that land, and that all conservation is good all the time. When those two strands of thought intersect, private property rights collapse.

Because it continues to fund at high levels ever more land acquisition, the bill would feed the state’s already aggressive pursuit of an ever larger portfolio of government-controlled land.

And while there are indeed some important kernels to build upon in the legislation, those are generally stated and lack any substantiation with actual reforms that would secure private property rights alongside the pursuit of conservation. It’s important to remember as we sift through this bill that a train wreck at 50 miles per hour rather than at 100 miles per hour is still a train wreck.

Process is also a concern here. All of a sudden, apparently after months of behind-the scenes work, a bill was introduced on June 9, and, just two days later, on June 11, with the ink not even dry on the draft, a hearing was held. That gave those who might oppose the bill virtually no time to prepare a case against it to present at the public hearing.

Interestingly, environmental groups and other supporters were all set to go at the hearing. Hmmmm. Wonder how they knew to have their ducks in a row while those opposing the legislation were caught flat-footed?

And what is the rush anyway? While the measure does have budget implications, a lot of the bill—in fact the most important parts of the legislation—embody policy prescriptions that can and should be pursued on their own merits.

With friends like these …

All that a conservative and property-rights advocate has to do to know this bill is bad news in its current form is to look at who its supporters are, and it was a veritable Who’s Who of environmentalists who traipsed to the public hearing to sing their praises of it.

To be sure, the Department of Natural Resources didn’t have much good to say about it, but they had to carry water for the governor’s more radical proposal, which would boost Stewardship spending to $100 million a year, with $25 million of that for land acquisitions in a state that already has too much land.

The environmental groups themselves expressed some concerns and made some suggestions for tweaks and “improvements,” but mostly they were supportive.

Take Gathering Waters, for instance. It’s a perpetual annoyance in the Northwoods, easily one of the most radical environmental groups in the state, and it was heavily involved in the 56,000-acre land heist knows as the Pelican River Forest easement.

So what did Gathering Waters think of the bill?

Mostly they thought it was pretty good. Charles Carlin, the director of strategic initiatives for Gathering Waters, opened his testimony by saying his group was neutral but quickly stated that the bill “provides a strong foundation for Wisconsin’s conservation future.”

“This bill charts a path for core elements of the program to thrive, and we appreciate the opportunity to comment on ways to strengthen this important legislation,” Carlin testified.

In particular, Carlin loved that the bill would provide stable funding for many Stewardship subprograms, which he said would allow land trusts to move forward with projects they have been planning and developing for years.

This might be a good place to point out that they have indeed been planning such projects for years, with the goal to ensnare virtually all of northern Wisconsin in a web of conservation easements that would effectively shut off any development—and prosperity—forever. Such projects, the quintessential example of which is the Pelican River Forest easement, are what conservatives and property rights advocates have been trying to stop for years. This bill assures their forward progress.

Carlin also said a four-year authorization would provide certainty and predictability for complex conservation projects that often require years of relationship building and piecing together multiple funding sources.

In other words, it buys them time before a Republican governor and legislature can change things and stop the locomotive land grab.

The Nature Conservancy went beyond neutrality to actually support the bill, saying it holds “great promise.” TNC also liked the ongoing funding for grants to conservation groups for easement acquisition in particular.

Even one of the tentacles of the state’s bureaucratic colossus, the Wisconsin Counties Association (WCA), chimed in with its support, saying the proposed compromise was a promising way forward.

“I can’t speak for anyone else in this room, but I’m fairly confident that the reason most of us showed up today is to find a path forward that reauthorizes the Stewardship Program with a solution that everyone is comfortable with,” Collin Driscoll, the WCA’s government affairs associate, testified.

Let’s compromise by surrendering

Beyond judging a bill by who is providing its cover, the bill is ideologically flawed.

For starters, as Gathering Waters and TNC pointed out, it ratifies—nay, sanctifies—the concept that the state will forever continue to grow the amount of land it effectively owns, either through outright ownership or control through conservation easements. On the other side of the coin, there is not one explicit protection for private property rights mentioned.

That is about as far from the original concept of the Stewardship program as you can get. That original intent was to take a decade to inventory and protect those lands needing protection and then get out of the land-buying business, understanding that conditions change and future purchases might be necessary on a case-by-case basis through enumerated legislation.

But there was no permanent land-buying program envisioned because the authors of the legislation understood that perpetual budgeting for land purchases would mean just that—the state would continue to buy land forever, way beyond what was needed.

That is exactly what happened, and that is exactly what this bill continues to embrace. If you build a baseball field, they will come, so the movie says, and if you give the DNR $9 million a year to acquire land, it will acquire $9 million of land per year, so history says.

In this iteration, the DNR would be allocated $2 million a year from the forestry accounts for land acquisition (another $1 million in bonding would be allowed for the Ice Age Trail), while grants to nonprofits for easements would be funded at $7 million more, $2 million through bonding and $5 million from the forestry accounts. The nonprofit allocation is exactly the same as currently exists, as TNC pointed out.

All totaled, that’s $9 million a year to effectively confiscate property, primarily in northern Wisconsin. If Wisconsin were a highway, we would be far along the road to serfdom, as F. A. Hayek would say.

To be sure, the bill does take a good step forward with a requirement that any purchase of land valued at $1 million or more must be enumerated in legislation, but that becomes largely toothless because of the aforementioned sum-certain land acquisition amounts.

For one thing, it’s unclear whether the major acquisitions of $1 million or more under the new program would be funded separately from the $9 million in the DNR and NCO land acquisition amounts—it seems that they would be—and, if so, that’s even worse because the state could conceivably spend a lot more than $9 million a year.

Either way, the enumeration provision in the major acquisition program would be ripe for abuse. Just as occurred with the REINS Act, which subjects regulations to legislative scrutiny when compliance costs costs hit $10 million over two years, which in turn led to the rampant manipulations of fiscal impact statements, so we can be sure the same manipulation will occur over land appraisals and purchases.

Allowing the state to spend or grant $9 million a year for land acquisition is akin to letting a child loose in the candy store. Then there is is the four-year authorization, which would allow groups such as TNC and Gathering Waters to accelerate the pace of their conversion of unencumbered private property to eternally encumbered conservation easements.

In sum, the funding cuts are minimal and not sufficient and might not even end up being a funding cut, and the four-year re-authorization will cause untold damage to private property rights, especially in northern Wisconsin.

Not least, the incomprehensible irresponsible bonding for Stewardship programs is simply unacceptable. While the program’s spending wings were clipped by Gov. Scott Walker and the GOP legislature, the debt is enormous. Between 2015 and 2025, interest alone on the Stewardship debt has totaled about $230 million. As of January, the LFB reports, $414.7 million in principal on stewardship-related debt is outstanding.

Finally, there’s not one whiff of easement reform—a crucial protection for private property owners—even mentioned in the legislation, likely because that would have sent the environmentalists howling. While easement proponents say multiple uses of land are preserved in these easement deals, and that easements are the ultimate property right, the primary reason for the easement—conservation—take precedence over any of those uses. That means the easement holder can modify those uses if needed in their view to enhance conservation, and, when that means limiting other permitted uses, such as agriculture, conservation wins.

Easements ignore changing environmental, scientific, and demographic conditions down the road, deprive communities of vital tax bases, and government itself can change the use or take the land through eminent domain, while the land owners supposedly exercising their “ultimate property right’ finds themselves with their hands tied behind their back.

It’s a double knot for future owners.

Bottom line, conservations easements are like a Halloween candy sprinkled with sugar and handed out in pretty wrappers, only for the property owners to find a razor blade in the center when they take a bite.

A timely demise

The way we first got into a mess in this state and in this country was by compromising, at least by compromising the way conservatives have traditionally compromised—by giving progressives half the loaf this year and the second half the next year.

This bill is supposed to be the grand compromise that saves Stewardship from untimely demise, but, as I have written before here at MacIver, its demise would be timely, not untimely, for many, many reasons.

Not least, the Supreme Court’s ruling stripping the legislature of any effective oversight, and the fact that no meaningful oversight will be signed by the governor, means that this or any other enacted legislation “saving” the program would simply give the environmentalists what they want—a lifeline on their assault on private property.

The program needs to be killed and a new program protecting property rights AND conservation should be created. Here’s how:

First, recognize that Stewardship must transform into a program limited to management and maintenance of existing property infrastructure. This is one of the good things in the Kurtz/Testin bill—it requires the DNR to prioritize funding projects for property development over land acquisition in all subprograms. Evers has also made it a point this year of saying he is pivoting Stewardship away from land acquisition toward infrastructure development and improvement.

So how about we not let them decide what prioritizing property development means—as would happen in both the Kurtz-Testin bill and in Evers’s rhetoric—but pass legislation forcing it. As such, the legislature should end the current Stewardship Fund completely, and create an entirely new Stewardship Infrastructure Fund, whose purpose would be to maintain and improve infrastructure on existing state properties and to fund and oversee allocations for the local assistance program.

Under this idea, all funding would be cut from land acquisitions—an exception could be made for the Ice Age Trail—currently at $15 million a year (minus the Ice Age Trail). Property development and assistance for recreational boating facilities and local units of government development would continue at current levels, a total of $17.25 million.

Next, create a Stewardship Infrastructure Commission that would operate much like the state’s building commission. Similar to the building commission, the Stewardship Infrastructure Commission would be directed to develop and oversee the implementation of a long-range infrastructure maintenance and development program on specific state properties, specifically lands acquired under the previous Stewardship Fund, all DNR, BCPL (Board of Commissioners of Public Lands), and other state lands, including but not limited to park facilities, ranger stations, service centers, regional headquarters, fish hatcheries and nurseries, but excluding administrative executive buildings and facilities now under the purview of the building commission.

Because its jurisdiction would encompass multiple agencies, the Stewardship Infrastructure Commission could be structured much like the building commission. Members would include the governor; three state senators and three state representatives—two from the majority party and one from the minority party from each chamber. The chairman of the Natural Resources Board and the Department of Administration secretary would sit as advisory non-voting members.

The commission would annually set priorities and select projects, to be reviewed and approved by the Joint Finance Committee. Funding would be by allocation of GPR tax dollars. Crucially, no land acquisitions could be authorized under the program, and no new bonding could occur.

It is absolutely critical to end all bonding for Stewardship programs. The debt is already egregious and the state already has enough land. If the state has to borrow to keep up with infrastructure maintenance on its existing properties, that’s a sure sign the state has overspent on those properties in the past.

As in the Kurtz-Testin bill, the legislature should create a separate statutory land acquisition program. Any proposed land acquisitions, including donations of land and conservation easements, would have to be reviewed and approved by the Legislature through enumerated legislation. But the Kurtz-Testin threshold for enumerated legislation should be lowered to $500,000 to minimize land-value manipulation, and it should be clarified that a sum-certain GPR allocation includes both major legislative-approved land purchases and agency subprogram purchases.

In other words, the DNR gets a set amount, and when it’s gone, it’s gone.

Most important, though, it’s essential to add another provision to the land acquisition program: The statute must adopt a No Net Gain in State Lands policy, similar to that proposed federally by Wyoming Republican Rep. Harriet Hageman, in which the state cannot acquire any new land by any means and of any value, including conservation easements, without giving up an equal amount of acreage or value of acreage to the state.

It’s time to acknowledge that the state has spent wildly on land purchases and that enough is enough. Lagging maintenance needs only underscore that we have already acquired more than we can manage. The limits of state land ownership and control have been reached, and the state must be compelled to work within those already overstretched limits.

Lastly, any new Stewardship bill needs to address the elephant in the room: conservation easement reform. Under separate legislation, the state must recognize that it is neither good social and environmental policy nor good property rights policy to freeze land use forever, except at the whim of the state easement holders. As Americans Stewards of Liberty has correctly pointed out, geographic conditions change, science changes, yes, climate changes naturally, community needs and desires change—and property owners and communities should not have their hands forever tied, unable to address those changes.

Likewise, allowing current property owners to rule the land from the grave robs future property owners of their own property rights by depriving them of the right to use the property the way they want to.

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 really 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.

As such, all conservation easements should be limited to a term of 15 or perhaps 30 years at most, after which they are either sunset or renewed for a new term. Easements should also include a buyback provision for negatively impacted landowners who hold easements.

The legislature should also prohibit new conservation easements in counties in which 25 percent or more of the county’s land is under public control, either through ownership or conservation easement. The swallowing of entire counties, especially in the North, is a direct threat to the future prosperity of the people who live there.

And, finally, any existing tax incentives for acquiring and holding conservation easements must be ended. In earlier generations, when conservation easements first came into vogue, property owners with huge swaths of land, especially in the South, were motivated by an intense desire to protect their land the way it was. We can debate the merits of that approach, but one thing was clear: They wanted the easement whether there was a tax benefit or not. They were motivated by their desire for conservation.

So should property owners be today. If they want to pursue a limited-term conservation easement, so be it, but their reward should be their own altruistic satisfaction, not tax dollars.

These are merely starting points for a Stewardship discussion. But, conservatives need to make clear, Stewardship legislation that omits any concern about property rights, or that includes no protections for private property rights, must be a nonstarter from the get-go.