Last week, we reported on SB 209, filed In Montana by Senator Tony Tezak (R-Dist 35) limiting the term for conservation easements in his state so that no easement could be taken “in perpetuity.” Section 4 of the bill stated: “Conservation Easements may be granted for a term of not less than 15 years and no more than 40 years.”
Moments after introducing the measure to the Senate Judiciary Committee, chaired by one of the bill’s co-sponsors, Tezak “regrettably decided” to recommend they pause action on the measure, technically killing the bill.
Tezak’s bill was following Republican Gov. Greg Gianforte and the Montana Department of Fish, Wildlife & Parks that adopted a philosophy similar to United Property Owners of Montana. The agency has moved away from purchasing perpetual conservation easements to instead advocate for 30- to 40-year conservation leases, focusing on property owners in Eastern Montana.
But landowners complained and Tezak caved. One landowner named Cooper Hibbard manages the Sieben Livestock Co. between Helena and Great Falls, the fifth generation to run the operation. He gave an impassioned plea to keep perpetual easements available for landowners like his family stating it was “the best estate planning tool at our disposal to mitigate taxes.
President Trump has talked about getting rid of estate taxes and if he succeeds, thousands of landowners are going to regret placing perpetual easements on their land for “tax” purposes.
In addition, Tezak, all the landowners, and land trusts that testified against the bill weren’t willing to admit this bill would not affect any of the conservation easements currently on their land. This bill would have only applied to landowners in the future.
Others who opposed the bill stated that the bill interfered with their private property rights, and claimed they should have the right to do what they will with their land. We agree, but we do not believe they have the right to bind the hands of future generations. Stated differently, a conservation easement takes away the very right from future generations they claim Tezak’s bill was taking away from them.
In law, this principle is known as the “Rule of the Dead Hand.” No one has the right to determine what takes place on a piece of land once we have left this world. Nathan Descheemaeker puts a sharp point on this argument here.
You can also check out the 13 Key Points Landowners Should Know About Conservation Easements here.
