Home > Federal Power, South Dakota > Mayfield Hutterite Colony wetlands dispute shows why Olson’s bill to limit conservation easements should have passed

Mayfield Hutterite Colony wetlands dispute shows why Olson’s bill to limit conservation easements should have passed

July 6, 2014
Dry Soil by Petr Kratochvil

Dry Soil by Petr Kratochvil

Yesterday the Argus Leader had an article about a wetlands dispute between the Mayfield Hutterite Colony and the U.S. Fish and Wildlife Service. As time goes on I expect more and more headlines to be made by the short-sighted conservation easements that have been made over the years. This particular story is about a Hutterite Colony, yet the issue impacts many farmers across the state of South Dakota. Rep Olson tried to do something about this situation during the 2014 legislative session, but was unable to get a bill passed through the House.

This particular dispute is about some land that was placed in a perpetual wetlands easement in 1978. At that time the current owners of the land received $6,000 for the perpetual easement. The Colony bought the land in 2005. Perpetual easements stay with the land, no matter how many times it changes hands. The Colony then put drain tiles along portions of the land that falls under the easements. The US Fish and Wildlife Service has since said the tiles must be removed and the land restored to its original state.

The Colony boss Joe Waldner is trying to find an agreement with the Wildlife service that would work for all parties. This from the Argus article:

He said the easement refers to parcels that the colony doesn’t consider wetlands. Waldner offered to transfer the easements to other areas of the property that are wetlands, and said doing so would protect more land than the easements do now, but “they refuse to work with us.”

“I don’t want a lawsuit, but I’ll go to court if I need to,” Waldner said. “We’ve got better wetlands in the same field.”

It shouldn’t be surprising to anyone that bureaucrats at a federal agency are unwilling to work with local farmers.

This situation, which is happening with farmers all over the state, highlights a major problem with perpetual conservation easements. The conservation easement assumes the land will remain in the same state forever after the easement is placed upon the land. That is an expectation which simply isn’t backed up by reality. Wetlands in particular are known to change over time in South Dakota. Part of the change has to do with agriculture activities; but also part of it has to do with natural changes to the environment.

To think that bureaucrats in DC can arbitrarily decide what land will say wetlands forever not only defies common sense, it defies the dynamic nature of the landscape. To think anyone could determine how each piece of land should be forever is short-sighted. Such an approach assumes nature never changes. It also assumes future generations will know less than the current generation.

In the Colony dispute the Wildlife Service isn’t even willing to listen to reasonable counter-offers. The Colony is offering to keep the easement upon lands better suited as wetlands. They aren’t even asking for money to do so. All the colony is asking for is to be allowed to use good farmland to raise crops, and continue to protect wetlands that are actually wetlands. But the Wildlife Service is more worried about its procedures and arbitrary placement of wetlands; and seem less worried about true wetlands conservation.

Back to Rep. Olson’s solution. This legislative session she introduced HB 1083, which would have limited conservation easements to 99 years. The bill was co-sponsored on the House side by Representatives Greenfield, Kaiser, Kopp, May, and Russell; it was co-sponsored on the Senate side by Senators Maher, Begalka, Jensen, and Monroe. The bill did get amended in the Agriculture and Natural Resources Committee so it would only apply to conservation easements. Originally the bill would apply to “conservation purposes or to preserve the historical, architectural, archaeological, or cultural aspects of real property”. I think focusing the bill purely upon conservation easements was a good move. Farmers will be impacted by these conservation easements for generations to come. At least there would be an end in sight with this change.

Unfortunately the House floor failed to pass the bill. It died with a vote of 17-51. The Republican majority in the SD House of Representatives decided to take the side of federal bureaucrats trying to control South Dakota land over the farmers that actually manage the land. That doesn’t seem like a very limited-government move to me.

Maybe in 2015 the legislature can actually pass something. Personally I think even the 99 years proposed by Representative Olson was too long. I would have preferred to see the easement be removed when the property changes legal owners or after 20 years, whichever comes first. It would also be nice to have a provision that the easement can be changed to other parts of the land as the landscape changes. But that may be an unrealistic expectation from a state legislature that is afraid to assert its power on behalf of the residents in this state. Since they won’t pass what I want, I can only hope they will take another look at Olson’s bill and get that passed in 2015.

  1. July 7, 2014 at 1:43 pm

    In 2013 there was a bill that would restrict easements to 50 years: http://legis.sd.gov/Legislative_Session/Bills/Bill.aspx?Bill=1007&SearchString=easement&Session=2013

    in 2012 one for 30 years was defeated on the House floor: http://legis.sd.gov/Legislative_Session/Bills/Bill.aspx?Bill=1087&SearchString=easement&Session=2012

    Politicians claim they are supporting “private property rights” when they allow these forever property rights to be sold to the government. Effectively though, they are taking away private property rights to that ground from future individual private owners and giving it to government, FOREVER. You and I do not have property rights to our own property (fail to pay taxes and the property is sold to pay the taxes), forever; however, government has lobbied politicians to give it these property rights FOREVER and they have done so under the claims they do so in support of private property rights.

    Many of these politicians claim they are “limited government” conservatives even though this expands government control and effectively grows government.

    Someone remind me how our pheasant, deer, and elk populations are doing in SD..

    • July 7, 2014 at 2:33 pm

      Looking at the 2013 version of the bill I see it was actually something that came out of the Agricultural Land Assessment Implementation and Oversight Advisory Task Force. Too bad they couldn’t use that to at least make some progress. I would still consider 50 years to be way too long, but its better than ‘forever’.

      I didn’t realize how bad lobbying from governmental departments was until I hung out in Pierre for a few days this legislative session. Its almost infuriating that bureaucrats are allowed to use taxpayer dollars to lobby politicians. And many times that lobbying is in direct contradiction of what is in the best interest of constituents.

      I have a couple of conservation posts planned coming up. Government agencies have done more to hurt wildlife populations than anything.

      Good to hear from ya Stace!

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