Conservation's richest innovation in decades has been the conservation easement and, by most accounts, it is still growing in both prevalence and scale. Private actors have used this device to innovate around the gridlock of the public sphere, achieving broad scales with limited capital. But this turn toward private ordering to protect nature has begun to reveal some of the possibilities it will foreclose over the long term. With the demand for homes and second homes in rural and "exurban" environments soaring, the price of landscape scale conservation keeps rising, even as more of what is owned is already facing grave risks from, among other factors, climate change. Furthermore, because of the scarcity of capital and the internal structure of nonprofits capable of operating at such scales, it is increasingly unlikely that they will continue purchasing in the U.S. when global biodiversity faces the risks it does abroad. My claim is that the necessity of condemning conservation easements from those who would subdivide and develop large ownerships must prevail over the political complications and costs of doing so, at least if local communities hope to preserve the biodiversity in their own backyard.

The forest sets the visual tone of New England. It is difficult to find a place outside of a central city where a woodlot or wooded hillside is not in view. The pine-lined lakeshores and the stone walls rambling through the woods are essential ingredients of New England's scenery and quality of life, which are in turn key attractions for the region's bustling tourist trade.[1]

I. Introduction

Americans are converting their continent into a semi-built landscape of scattered homes, malls, recreational resorts, and the infrastructure that connects them, and doing so at an arresting rate. We face a species loss pandemic globally, but in America habitat degradation is the single worst factor.[2]Sprawl now is as much about explosive exurban growth as suburban growth; a function of socioeconomic and technologic advantages that have altered the nature of work and travel.[3]U.S. Forest Service specialists predict that by 2030, another 21.7 million acres will shift in usage intensity from rural or exurban to urban, and some 22 million more will shift from rural to exurban.[4]An environment hospitable to us, together with a few of our hyper-abundant commensals, is fast becoming the most pervasive landscape in North America.[5]Northern New England and the Adirondacks are exemplary. Investors buying timberlands to break them up have, in about a decade, come to dominate this region's land markets.[6]Of course, no one is for "dumb" growth, but neither are they for radically curtailing the rights of private property and local control producing it.[7]Regions like this "Northern Forest," in short, are in dire need of innovation in the institutions of conservation.

It has been said that "[l]andowners are much more open to listen if it's a suggestion rather than a demand."[8]This country's conservationists have divided sharply over the power of that insight for years now. Command-and-control or market, public or private, and a series of other false choices have consequently dominated a field where virtually no one denies that the type of normative mechanism is critical and virtually everyone concedes that most normative mechanisms have their time and place. This Article uses the Northern Forest to explore this intersection of habitat, land use, and our regulatory state. In two decades, the financing of private conservation has become big business at the same time its practitioners have become ubiquitous.[9]The Uniform Conservation Easement Act (UCEA), a model act proposed in 1981 by the National Conference of Commissioners on Uniform State Laws,[10]is beginning to dominate the conservation landscape nationally and in this region.[11]By 2003, an average of about 825,000 acres per year was encumbered by some form of conservation easement nationwide,[12]making it far and away the most pervasive conservation mechanism in America today.[13]Indeed, if our land ethic ever finds Leopold's path,[14]it will likely be with this vehicle.

A privatized conservationism that raises capital to buy from willing sellers is showing itself to be the structural development of a generation. But this strategy is beginning to reveal its limitations, in part because its agents are in a bidding war, raising their costs at the same time they depress the conservation value of their own bargains. This Article offers a targeted response, sketching three arguments for taking title or fractions of title to land in order to protect and/or restore habitat connectivity, which are referred to as landscape permeability. Protecting landscape permeability by transferring interests in land to nonprofits is a legitimate use of sovereign power, and enabling statutes ought to clarify this authority wherever necessary. Also, there are ways of taking interests in such lands that may not even amount to "takings" in the constitutional sense. In conclusion, though, I assume condemning conservation restrictions can, in some circumstances, amount to a taking. But, liability in that event can be minimized or even, in some cases, eliminated. Before coming to these arguments, though, this Article frames the discussion in its larger context: the protection and restoration of intact landscapes and species assemblages.

II. What Does Bioregionalism Mean?

Bioregionalism, though simple in concept, has thus far proven operationally intractable. "A key to making bioregionalism work is a close examination of boundaries and what they mean."[15]Most of our political boundaries are completely unrelated to the earth's "ecoregions"[16]or "bioregions"-regions defined by their biota. But a close examination of legal boundaries often reveals that, though unrelated to biophysical realities, they are fixed and powerful nevertheless.[17]Working to keep landscapes[18]intact, in short, requires confronting our legal system's fragmenting and commodifying tendencies and improvising the mechanisms to bridge its divides. Doing such work at a "bioregional" scale entails understanding the ecological relationships binding organisms and their environments together and promoting collective self-governance motivated by that understanding. Part II unpacks this ideal.

A. Scale and Scope: The Challenges for Integrative Conservation

Late in the 1980s, the 1.8 million residents of northern New York, Vermont, northern New Hampshire, and inland Maine coalesced for a short time and came to the brink of forming a politically cohesive bioregional identity.[19]That is, they came to view their socioeconomic fortunes as intertwined with the region's ecology. The catalyst was a perceived threat to "traditional patterns of land ownership and use"[20]in the sweeping 26 million acre (mostly montane) region comprising the "Northern Forest."[21]Yet, as quickly became evident, the content of these traditions is contentious. The threat provoked a pair of blue ribbon study groups, public agitation, and a multitude of proposals for legal reform. It even built momentum to create a massive national park in the region that still ripples to this day.[22]In the end, though, what it produced were recriminations on why nothing concrete was actually accomplished. No public structure of any kind collectivizes the region or its ecosystems in any way today.[23]The same localism New England unleashed on the nation[24]-a faith in local control that has dulled and blunted a long procession of tools for protecting nature in ways detailed elsewhere[25]-shorted out the Northern Forest agenda. Consequently, whatever threats the region's citizens perceived then, remain perceptible today. By the end of the 1990s, the region's "Northern Forest Initiative" had cratered, which is precisely what every ecosystem-wide management initiative to date has done.[26]

Biodiversity professionals have come to this (painful) realization in efforts to achieve integrated, bioregional responses to environmental degradation in places as diverse as Greater Yellowstone,[27]the Northern Cascades,[28]the Great Lakes,[29]the interior Columbia River basin,[30]the Chesapeake Bay,[31]and elsewhere. In the abstract, it is rational to focus finite management resources on whole species assemblages, whole watersheds-whole natural systems. Conservation biology speaks of "representation," of saving some of everything.[32]Such insight has thus far been a chimera.[33]Bounding any landscape or natural system and learning enough about it to "manage" it rationally is: 1) practically impossible given the laws of ecology,[34]and 2) politically naïve given the geography of popular sovereignty under our Constitution.[35]The changing land use patterns in the Northern Forest are often summed up in a word-sprawl-but as to prescribing alternatives, public action usually stalls.[36]

Deforestation has been a constant of human history[37]and the struggle to define "sustainability" involves those far beyond the borders of even the largest forested regions.[38]Moreover, this region is not facing deforestation per se. It is facing something much more incipient: exurban sprawl and all of its consequent biological disturbances. Indeed, the steady pace at which this region is being carved into the semi-built landscape of exurban America-a landscape of roads, trails, transmission lines, cell towers, scattered homes and retail, ski slopes, golf courses, etc.-is rivaled by only one other influence in its potency: climate change.[39]With the vast majority of the land privately owned and regional property values rising steadily as affluent Americans seek out their place "away from it all," the region's future as a land market is threatening to undo what it has become over the last century: one of the greatest expanses of continuous habitat east of the Mississippi.[40]

The states and federal government seem paralyzed, leaving the Northern Forest to suffer what Michael Heller has called a tragedy of the anticommons. If the commons is the opposite of private property, i.e., private property is the division and distribution of what are otherwise rights to use or exclude that are held in common,[41]then it is possible to have too many owners whose properties are too small and/or too divided to manage their interrelated resources efficiently, making it likely they will fail to bargain into optimal arrangements.[42]There are perhaps several hundred thousand landowners in this region.[43]Additionally, as of 1990, more than 70 million people lived within a day's drive of the region.[44]Even those whose land is not for sale generally have little inclination to support laws flatly prohibiting the profitable subdivision and sale of land.[45]A long tradition of property rights and localism stalls virtually all such approaches.[46]A more bottom-up and iterative strategy is something else altogether, though, and buying from "willing sellers" ad hoc seems to be that strategy.

Thus, while the "traditional patterns of land ownership and uses" may be changing,[47]the public is unsure it can or will do anything about it. Ecosystem-level approaches, here as elsewhere, have been too weighed down by their own mass. The immensity, technicality, and cost of describing-of understanding-large natural systems put almost beyond reach any regulatory structure that is "ecoregional" or "bioregional" in scale and scope. Working at such scales requires "[a]n approach to maintaining or restoring the composition, structure, and function of natural and modified ecosystems for the goal of long-term ecological and human sustainability."[48]And even the courts now seem to recognize that that demands "adaptive management" wherein "policy choices are made incrementally. As each choice is made, data on the effects of these choices are collected and analyzed in order to assess whether to retain, reverse, or otherwise alter the policy choice."[49]Because means and ends are, thus, reciprocally shaped, protection of the natural and human systems' resilience-their capacity to absorb disturbances without changing in fundamental ways-is about the only incorrigible goal.[50]Not surprisingly, the record of attempts to build such models (assuming they are even legal) is a record of institutional failure.[51]So the dilemma is this: what is the alternative?

 

The Northern Forest epitomizes bioregionalism's dilemma. Few species inhabit the whole region and, of those that do, none are managed federally. There are almost a dozen major watersheds.[52]Combined, the four states possess twice as much land as the federal government.[53]Yet, all combined, public lands are still less than a sixth of the region and are dispersed.[54]Forest types and species mixes are highly diverse, as are the kinds of ownership and the predominant local land uses. Lastly, there are very few fragments of "natural" forest remaining,[55]whether to serve as anchors of conservation reserves or as reference landscapes. The result has been regionally fractious and often incoherent public policies. And, despite the obvious linkages between these failures in governance and the trappings of private property and local autonomy,[56]few seem to share Thoreau's deep suspicions of owning discrete pieces of nature.[57]

B. The Unnatural History of the Northern Forest

Upland Maine and New Hampshire, northern Vermont, and parts of western Massachusetts comprise a discrete "bioregion." Along with the Adirondacks, these lands constitute the southern edge of an immense boreal forest that sweeps the northern half of North America.[58]Most of this Northern Forest is, indeed, an ecotone-a natural boundary-that remains quite "rural" compared to what lies to the south and west.[59]Even as Thoreau retreated into this forest to escape the dehumanizing urbanity of 1840s Concord and become the Puritan congregation of one in Walden, a portrayal of it as "wild" was ironic at most.[60]And yet his communion with it was transcendental. It was still a medium for punctuating his "disdain for the common life."[61]Indeed, Thoreau's poetry about his unnatural forest fueled a century of American romance with nature and efforts to commune with it in some pre-modern, sylvan state.[62]

Of all North America's biomes, the forests in this region have probably been disturbed by the modern economy as much or more than any other. From a massive trade and export of fish and wildlife,[63]to extensive logging and forest conversion,[64]to the release and spread of countless invasive species,[65]what there is in this region today that should be "preserved" is a mystery to citizen and ecologist alike. But consider what has been wasted. The first official bounty on predators here was early in the seventeenth century.[66]The beaver, a species of extraordinary ecological impact, was trapped throughout the region to extirpation, in parts as early as the eighteenth century.[67]With the elimination of beaver and most ungulates (caribou, deer, and moose), the principal prey of the gray wolf was gone, hastening its extirpation[68]along with most other predators.[69]By 1650, sawmills were common,[70]the average home was being heated with 30-40 cords of wood a year,[71]and a march toward deforestation (by the turn of twentieth century) was under way.[72]By 1850, farms were everywhere and creating all those stone walls Irland mentions in the epigraph.[73]

This region, like others, evolved under human economic and cultural pressures, focusing on a few readily extractuable resources, such as pelts and saw logs in the seventeenth century,[74]rural farming by pioneer communities in the eighteenth and nineteenth centuries,[75]and pulp and paper mills in the late nineteenth and early twentieth centuries.[76]Even now, the vacationing, recreating user-residents of the twenty-first century extract their recreation, seeking their piece of the "wild."[77]The latest threats of "liquidation" timber harvesting and subdivision sales of house lots are more evolution than revolution.[78]With each of these economic shifts, the forest changed in ways long-term ecological research is only beginning to document and understand.[79]In every dimension, but especially in its species composition, the region is what ecologists call a "disturbed environment."[80]Of course, human disturbance is not necessarily degradation in the strictest sense. For example, the region is apparently being enhanced as habitat for at least some species like the coyote.[81]The concept of human disturbance, thus, either must accommodate some dissonance or be subordinated within some larger, normative vision of "nature" and humanity's relationship to it. Part II.C. describes and situates this socio-ecological nexus and where that vision is pointing.

C. Four Centuries to the Dawn of Restoration Ecology

Our culture has accelerated the process Thoreau chronicled. For example, spruce, fir, hemlock, and northern hardwoods like maple, birch, oak, and beech species structure and delineate the Northern Forest today.[82]But that may not last long. That tree species mix is in flux for a variety of reasons, as it was even before English settlement.[83]A menu of exotic insects and diseases has been released into this forest.[84]The most recent example, the hemlock woolly adelgid (HWA), an aphid-like insect inadvertently introduced via nursery stock, is eliminating a dominant tree species from the southern edges of the forest.[85]Before HWA, the spruce budworm attacked the region's spruce; those that remained were logged in "salvage" projects.[86]

Of course, what climate change will do to this forest is an even bigger question. HWA, for example, may spread substantially with warmer temperatures.[87]But it is anyone's guess what else may result. As the mix of tree species changes, the forest structure changes, food supplies change, and significant, unpredictable alterations of the whole environment-cascading effects throughout the whole trophic web-can result. Such abrupt shifts almost always reduce the resilience of the system.[88]Researchers have just begun to document such biotic responses to global warming, but the evidence gathered to date suggests major phenological adaptations like range shifts poleward and upward.[89]Lacking any potential for such adaptations-lacking the necessary connectivity between their extant habitat patches-some species are destined for extinction.[90]

Our culture and economy, in short, have defined the Northern Forest in virtually every way.[91]Its unnatural history of disturbance runs deeper than a record of overexploitation or unleashed pests and disease: it defines a totally uncertain-perhaps grim, perhaps hopeful-future. For the upshot of the region's collapsing timber and other commodity markets has been its enhancement as a "wilderness" destination.[92]The waves of bungalow-blight flooding the forests of northern New England and the Adirondacks, indeed, were at least partly the cause of the Northern Forest initiatives and reform proposals mentioned.[93]Thus, the point of this history is that after all the clearing, cutting, and killing had receded, the region's value as a forest began regenerating.[94]By the end of the twentieth century, trees were as abundant as they had been in the seventeenth century.[95]Years of genetic research had opened up the possibility of restoring one of the iconic tree species long lost to an introduced disease.[96]Wildlife restoration had become a mainstream pastime,[97]and wildlife viewing and other forms of wildlife-dependent recreation had become an economic engine.[98]

Of course, trees alone do not make a forest. Ecological restoration is a long-term prospect at best,[99]and its challenges in this disturbed environment only begin with vegetation.[100]To recover what has been wasted, a regionally coordinated approach is necessary. The American dream of a home "away from it all" driving the region's land markets (and thus, to a significant degree, its governance[101]) is also potentially the most powerful catalyst for that approach. For with this manifestation of wealth causing the development and fragmentation of nature comes the provocation of conservative reactions, and it is the dialectic between those two that this study's proposals aim to shape.[102]The people of the region are accustomed to a rural lifestyle, not condos and ski resorts on every slope.[103]And the people buying the condos are buying them to be away from civilization. So while there is little doubt that more fragmentation, more crosshatching of landscapes with roads and other infrastructure, greater spread of invasive species and impervious surfaces, and the consequent homogenization and disturbance of habitats regionally, are all on the horizon, there is enormous capital being generated in this re-valuation of nature, too.[104]Because preserving regional biodiversity requires achieving and maintaining landscape "permeability," and because that will require a robust, proactive response,[105]liquidating this capital and investing it in practicable restorative measures is arguably the lost agenda of the Northern Forest.[106]

Habitat disturbance of the kind witnessed in this forest's last four centuries represents a broad and deep alteration of its very ecology so complete in its regional implications that the very concept of nature has become indeterminate. That said, citizens and ecologists alike appreciate the interconnections in most of the biomes they inhabit or study today better than ever. Many view restoration ecology as the contemporary ethic of land management.[107]In trying to restore places like the Northern Forest, people are learning to compensate for their novel or "outside" influences so that nature can continue to behave or can resume behaving as if those influences were not present.[108]They are building a vision that integrates the biosciences with a normative center: mitigating the "Anthropocene" to the maximum possible extent.[109]Especially in places like the Northern Forest, this is producing whole new fields of professional study like "road ecology," which is emerging from the intensifying, interdisciplinary study of this most modern of habitat-disturbing land uses (and which has caused marked habitat degradation in the Northern Forest in particular).

Roads and vehicles affect wildlife in several important and interesting ways. Most of the ways are well documented and have been described in the literature for over 50 years. Roads can cause a direct loss of habitat, alter the quality of adjacent habitat, lead to road-kills, and impede animal movements. As roads are upgraded to accommodate greater traffic volume, the rate of successful wildlife crossing decreases significantly. Thus, roads may effectively fragment habitats and otherwise continuous population distributions. Smaller populations typically result, with a greater potential of genetic problems and an increased chance of local extinction.[110]

How well such influences can be excluded or corrected frames any restorative project in places like the Northern Forest. The most common restorative mechanism, though, remains the devotion of more land to habitat. Thus, as large holdings of timberland are subdivided and occupied, the regeneration of this forest could end up being fleeting.[111]For without the biophysical elements necessary to sustaining species diversity over the long term, any discussion of an "ecological integrity" of the region's forests is at best awkward and at worst utterly misplaced.[112]Tragically, as Part III argues, most state and federal legal mechanisms are ineffective as means for protecting such elements in environments like the Northern Forest, leaving local and private actors to lead.

III. The Structure of Habitat Law

Over its long history, wildlife law in America has been anchored in ownership.[113]In theory, the states inherited wildlife from the Crown[114]and they gradually shifted from managing it for maximizing exploitation to managing its scarcity.[115]Only in its very recent past has American wildlife law taken habitat loss seriously at all. And throughout its evolution, the structure of federal (and most state) wildlife law has remained surprisingly constant. First, what focus there has been on habitat has overwhelmingly taken the form of public lands acquisition or retention.[116]Without public land, there has been precious little public attention paid to biodiversity in land use.[117]Second, when habitat has prompted controls on private land, the species protected have overwhelmingly skewed toward what biologists sarcastically call "charismatic megafauna"-not intact species assemblages.[118]Third, the law has done little to curb the introduction or spread of invasive species and it has almost never provided the capital needed for other rehabilitative work at landscape scales.[119]

In its most recent structural turn, though, federal (and most state) wildlife habitat law has commanded its agents to attempt the impossible. It has saddled them with judicially enforceable duties to create comprehensive plans for their parcels of public land in order to protect and restore resident wildlife populations while simultaneously depriving them of the geography, the human capital, and the authority necessary to achieving such objectives.[120]Thus, as I have argued elsewhere and summarize here, federal (and most state) habitat law has evolved into a series of structural dead-ends for bioregional conservation: it is, with extraordinary efforts, keeping a few populations of charismatic species on life support in a few places. For all our systemic and pervasive conservation challenges like those confronting the Northern Forest, though, it is almost entirely beside the point.

A. Imperiled Species and Prohibitive Norms

When it took shape in 1973, the Endangered Species Act (ESA) was envisioned as legislation to address and even perhaps solve the extinction crisis we were just then noticing-at least within the confines of U.S. jurisdiction.[121]Since then, we have learned that that legislation can do no such thing. Today the ESA is the keystone of our "strictly science" federal conservation laws.[122]Yet, paradoxically, it is the very structure showing how ill-adapted our administrative state is to the real problems of species loss and the applied science of conservation biology.[123]The agencies charged with its implementation have always been under-funded and under-staffed.[124]Yet they still may only set land use policy when they can document the presence of a listed species and then only to the extent they can justify use restrictions with the "best available scientific or commercial data."[125]These agencies face constant legal challenges by aggrieved stakeholders alleging they have ignored the law.[126]No matter how careful government biologists are in their assessments of an ecosystem or any of its components (which is not to say they are always careful), the very structure of their authority-the Act's moral stakes, procedural rigidity, and atomistic focus on particular organisms-embeds them in legal conflict, deterring the very kinds of deliberation and collaboration they must sustain to succeed.[127]

Of course, without listed species around, habitat degradation is marginalized and, along with it, so is bioregional thinking.[128]In fact, even when a species is listed, habitat protection is usually partial at best. Section 9 of the ESA prohibits anyone within the jurisdiction of the United States from killing or even bringing "harm" to listed species.[129]The agencies' administrative definition of "harm," though, limits it to action, "including habitat modification, which actually kills or injures wildlife."[130]Thus, draining a pond in which a listed turtle lives, depriving that turtle of its habitat, may-depending on that turtle's reaction-be a prohibited act if, for example, the turtle then meets its demise on an adjacent road searching out other habitat.[131]Of course, having to prove that the action-and let us stipulate that it is a proximate cause of the turtle's actions[132]-was the legal cause of the "harm" deters most governmental responses.[133]There is a broader point here about prohibitive norms and habitat: the scarcity of public resources prevents them from being, certainly at the federal level, "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."[134]

ESA § 7 and a few of its state copies specifically prohibit the "adverse modification" of a listed species's designated "critical habitat."[135]But critical habitat designations have themselves become parodies of regulatory politics.[136]The ESA requires that, concurrent with the listing of an imperiled species, the federal government "shall designate critical habitat . . . on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, or specifying any particular area as critical habitat."[137]Yet, if it deems the costs too high to landowners within the "geographical area occupied by the species, at the time it is listed,"[138]the government simply elects not to designate private lands.[139]Additionally, as stakeholders and courts clarify the diversity of ways in which habitat actually suffers "adverse modification" from traditional land uses,[140]the resource-starved agencies have a growing incentive not to designate more.

This was evident recently in the Fish & Wildlife Service's decision to exclude all of Maine from the finalized critical habitat designations for the Canada lynx, a species listed as threatened under court order in 2001.[141]"Many commenters," the agency observed without a hint of irony, "expressed concern that commercial and recreational activities such as logging, mining, snowmobiling, off-road vehicles, and downhill skiing, would be prohibited or severely restricted by a designation of critical habitat."[142]

Conservation groups have purchased conservation easements on hundreds of thousands of acres of forestland. These easements are negotiated with private timber companies to assure protection from development and promote sustainable forestry and wildlife management. Most of these easements have required significant Federal funds, especially from Forest Legacy and the North American Wetlands Conservation Act. Currently, about [2 million acres] of the
[6.4 million acres] in Maine considered for inclusion in lynx critical habitat are under permanent easements, with several hundred thousand acres more under negotiation.[143]

So, in FWS's final rulemaking designating the lynx's "critical habitat," it simply excluded all of Maine-indeed, it excluded virtually everything but the two National Parks within the lynx's range in the contiguous United States.[144]Because the ESA's own habitat acquisition program has long been beside the point,[145]public acquisition and/or regulation of land for the lynx is virtually nonexistent at the federal level.[146]

Restoration of species long extirpated locally is usually out of the question. For example, the agency stated explicitly in its lynx critical habitat rulemaking that no areas were being designated "solely because they provide habitat for dispersing animals."[147]In fact, the agencies have said they will seek to restore historically occupied habitat to the range of a species "only when a designation limited to its present range would be inadequate to ensure the conservation of the species."[148]It is perhaps not surprising, then, to learn that the Northern Forest has no designated critical habitat today.[149]Indeed, its forests lack virtually any listed species, including predators-the lynx being the exception.[150]Of course, most extant predators are listed.[151]Peregrine falcons recovered remarkably (and in unexpected places) when captive breeding and other extraordinary measures were funded and implemented-when it became strictly verboten even to bother them and where extraordinary restorative work was done.[152]

Thus, the "harm" prohibition and the geography of listing both encapsulate a broader structural reality of federal and state habitat protection law: it is only the exceptional constituents of nature that trigger federal (and most state) land use controls. At those junctures, administrative agencies usually view local land use authorities as obstacles to-not as essential elements of-an eventual solution.[153]The statutory authorities that empower administrative agencies to control land uses, especially on private land, thus skew toward the "special"-to the exclusion of the "ordinary."[154]No place is more ordinary in this sense than the northeastern United States.[155]Species on the brink of oblivion and habitats that are provably essential to their survival are ostensibly protected.[156]Everything else-everything more common, familiar, and adapted to disturbance-is mostly ignored.[157]

In places like the Northern Forest, where the thinning of wildlife began generations ago, where fire has been suppressed for centuries, where so much of what remains is adapted to traditional "multiple use," and where real biodiversity planning is habitat dependent, federal wildlife law is a footnote.[158]Conservation in this environment is much more a question of restoration than it is maintaining a status quo. Yet species restoration always entails affirmative biological and physical intervention, not to mention protecting adequate landscape "permeability."[159]For these, federal (and most state)[160]endangered species law is increasingly irrelevant.

B. Public Lands as Islands

To read most analyses of the law of biodiversity, one would think public lands are the answer. The facts are otherwise: the major federal public lands systems and the statutes governing them have been shaped to fit other priorities,[161]and the potential connectivity between public lands as habitat is, as a rule, very low.[162]Indeed, according to analyses of these systems keyed to conservation values, crippling deficiencies are the norm, especially east of the Rockies.[163]No landscapes better exemplify this condition than those of the Northern Forest. The Northern Forest has half a dozen units of the National Wildlife Refuge System, two National Forests, and no significant national parks. Each is managed by different planners with different priorities,[164]is many miles from the others, and is by itself, compared to the 40,000-plus square miles of the Northern Forest, a rounding error.[165]

While state ownership in the region is rising, it is still improbable at best that the "islands" of public lands will ever grow to become a "continent."[166]Many residents fought bitterly to prevent federal or state acquisitions throughout the NFLC process and would do so again today.[167]Linking the public lands together to make more continuous, permeable landscapes, thus, is a task increasingly fit only for private actors. And as the nonprofit sector has scaled up, it has become the driving force for habitat conservation in this region, as in many others.[168]

C. Privatizing Governance: The Arc of Protecting Nature in America

Notwithstanding the American romance with wilderness, in most regions collecting enough land to join existing reserves together into meta-reserves (as conservation biology recommends)[169]will come, if at all, from the private sector.[170]The problem is not that federalism or anything else in the Constitution deprives the federal government of the authority needed to build larger or more integrated systems of public lands.[171]It is not even that innovative structures joining public and private lands into landscape-scale partnerships have not been devised.[172]It is that whatever Americans' regard for biodiversity (and I have argued before that it is wide but shallow), the American land ethic is basically private and divisionary in nature.[173]Thus, barring a seismic shift, the majority of Americans will support conservation by government if and only if it does not entail severe strictures on property rights (real or perceived).[174]

With sprawl so obvious a threat to regional biodiversity and with no reconstitution of our land ethic in sight, there has been a growing urgency to private initiatives. Indeed, one of the NFLC's principal recommendations was the conservation easement,[175]a tool that has (coincidentally) become enormously popular since.[176]But the trend of groups like The Nature Conservancy and its local analogues purchasing fee and easement interests from willing sellers marks a transformation in our conservation politics[177]-one that arguably began in the Northern Forest.[178]Whether by fee simple or through some kind of sub-fee interest to better leverage limited capital, these organizations are the leading edge of conservation today.[179]Fairfax and others link this turn to the neoconservative attack on the regulatory state.[180]Whatever its causes, it is bringing us an unmistakably privatized conservationism. Today, there are more than 1,600 groups nationwide "doing deals" for conservation easements and other interests in land.[181]The largest and most sophisticated of them, of course, are at work in the Northern For est: "[m]uch of [its] vast woods . . . is cheap, unpeopled, essential for restoring wilderness, and for sale."[182]Finding the capital is often viewed as a solution to its regional problems.

This is not just a shift in tactics. It is changing the structure of political power behind conservation. Private property managed to provide a public good like habitat is still private property.[183]Its management need never bear the exacting scrutiny heaped upon the Forest Service (or FWS, for that matter).[184]And, with no improvised mechanisms of accountability, private deals can be of dubious merit, can be used to conceal sham transactions, and can even be contrary to the public interest.[185]Furthermore, concerned citizens who are willing to pay to protect nature paradoxically ensure that the price of doing so is always going up.[186]Thus, as more complex, finer-grained mosaics of public and private ownership emerge,[187]the individuated strategies driving these deals become ever more complicated and contingent.[188]Even the most impressive of such acquisitions are always separated by still more "unprotected" land that is fragmented in ownership, of sinking value as timber (or farmland), and beset by invasive species and other systemic disturbances. This all frames one simple deduction: conservation easements in themselves cannot constitute a complete, regional scale strategy for places like the Northern Forest.[189]Part IV presents the evidence.

IV. The Deal and the Woodlot: Bioregional Conservation in Private

In March 2001, the nonprofit New England Forestry Foundation (NEFF) announced one of the largest conservation easements in U.S. history.[190]NEFF presented a check to the Pingree family for more than $28 million-the purchase price, at $37.10 per acre, for an easement on 762,192 of the family's 900,000-plus acres scattered across the unincorporated areas of Maine.[191]That money had come from dozens of contributing foundations and a two-year, multilateral fundraising campaign that attracted national attention.[192]It represented new hope for assembling and preserving permeable, continuous landscapes over the long term. This Part uses that deal, though, to show how unsustainable the game is under the current rules and the hard choices on the horizon.

By the time the "Pingree Partnership" was announced, it had become totemic to conservation in the Northern Forest. Harvard forest researchers, awed by its scale and its balance between "working forest" uses and prohibitions on subdivision and development, dubbed it "the next level" in private conservation.[193]The scale of the deal was undeniable. Inasmuch as markets dictated its terms, though, some argued the deal was just a continuation of the region's last four centuries. Indeed, as subpart A argues, a general critique of conservation easements developed over the last decade seems to fit this deal-at least the parts of it that are public-all too well. subpart B suggests that its widespread emulation may eventually prove tragic.

A. Working Forests: "Sustainable" For How Long?

From 1998-2006, some 7 million of Maine's 17 million acres of timberlands changed hands.[194]Indications are that this hyperactivity, with much of it aimed at subdivision and development, will continue for the foreseeable future.[195]Maine seems convinced that long-term ownership of timberlands is its own kind of conservation guarantee as evidenced by the fact that it has only reacted in recent years where quick turnaround of timberlands has occurred.[196]But where conservationists will muster the capital needed to encumber all these lands as their development potentials rise remains a mystery.

The Pingree deal came together without any real development pressure and it was done in collaboration with one of the first adopters of the notoriously stringent Forest Stewardship Council (FSC) sustainability protocols.[197]The Pingrees were noted for practicing conscientious forestry and probably did the deal in order to lessen tax burdens and other pressures to sell.[198]Its "success" is now taken for granted. Indeed, in the years since the NFLC Report, many Mainers have migrated from what had been categorical support for private conservation-including fee simple acquisition of large natural areas-to what now seems a clear preference for "working forest" easements.[199]Timber companies traditionally have allowed access to their land for sportsmen, trappers, snowmobilers, and others. While that is very popular with residents[200]-a fact not lost on the conservation community[201]-whether timber planning and open-access recreation can be called "conservation" is contentious at best.[202]That debate was not had prior to the Pingree deal, though.

Monitoring and enforcement of large-scale easements are often problematic, and the Pingree Partnership made a real advance on this front.[203]NEFF's monitoring protocols, carried out with medium resolution satellite imagery, aerial photography, algorithmic analysis of GPS data, and confirmed with periodic "ground-truthing," are state of the art in balancing cost and accuracy.[204]They minimize the need for "boots on the ground" in the actual enforcement of the restrictions. Yet, a potent critique of conservation easements that has matured over the last decade fits this deal all the same.[205]

The problem with the Pingree easement lay not just in its actual content (truly, the will of the "willing seller" drove this deal), but also in the legal durability of the bargain. First, the easement hardly controls forestry practices at all, even though industrial forestry has itself been a significant cause of habitat disturbance regionally.[206]It never even mentions sensitive species or habitat concerns of any kind. From that, it may even be fair to argue that the deal's only "conservative" point was its exclusion of development. Second, the agreement specifically preserved all existing leases, mines, and dumps on the land,[207]while saying nothing about vernal pools[208]or other significant natural elements.[209]Indeed, virtually all usage rights of the property are preserved indefinitely to the Pingrees' discretion. This could mean anything from an insignificant seasonal hunting camp to a built-out, modern resort. Without public access to the baseline conditions documentation, it is hard to say.[210]

Furthermore, while it cost dearly, this instrument may turn out to have been, if not precatory, at least highly fungible on a key element. Notwithstanding its touted value, the $28 million price tag was based on an assumption of the easement's perpetuity-not its guarantee. Perpetuity is, of course, disfavored in property law. Yet most conservation easements are supposedly forever,[211]the one facet of these deals that has garnered nearly universal skepticism.[212]Indeed, very few restrictions on land are ever permanent in any true sense. Twenty-five states (including Maine) adopted the provision of the UCEA allowing wholesale termination of these instruments in equity.[213]Thus, even setting aside doubts that such "easements" may not run with the land at all,[214]the restrictions might just be dissolved one day by court order. Maine law expressly provides for this very contingency.[215]Finally, some of the conservation value in the deal turns on the lands not being condemned for development-a possibility that is, though difficult to quantify, probably more than de minimis.[216]

The agreement contains language addressing some of these questions, but no deal can hide from the equitable power of the courts[217]or from the sovereign authority over land indefinitely.[218]Moreover, for all the goodwill and promotion of sustainable forestry as the means of keeping the region's landscapes intact, this may turn out to be economically impossible-notwithstanding hefty subsidies from organizations like NEFF.[219]In fact, the Pingree easement expressly contemplates subdivision and development under certain circumstances.[220]The current generation of Pingrees may wish to practice conscientious forestry and forego sales and subdivision. But there are no guarantees about the next generation and, should they change course, it is unclear how the law will respond.[221]

Nonetheless, as the next section shows, the price for restrictions on land use in the Northern Forest is going up at the same time their overall conservation value is going down. Forestry can be better and worse for wildlife, depending on a complicated set of trade-offs that turn on how different species' needs are weighed.[222]Some species, such as the lynx, can benefit from fast-rotation forestry and clearcutting if it is limited in scale and combined with other, less intensive uses.[223]Other species, like migratory birds, often depend on the absence of such disturbances.[224]Indeed, very few threats to a whole species assemblage's resilience are recognizable as such. Thus, because recreationists and others are free to use private timberlands in the region,[225]the costs of industrial forestry are easy to discount. This explains Maine's pronounced public support of the timber industry. What will be a sure setback to regional biodiversity, though, is if timberlands, wetlands, and shorelands are fragmented and crosshatched by more development-a possibility that is not foreclosed in deals like the Pingree Partnership.[226]

B. Misgivings: A Game-Theoretic Critique of Privatization

Since the Pingree deal, the flaws in the easement strategy for the Northern Forest have become clearer on another front, too. More land is changing hands more often, creating more volatility and more inflationary pressures on the price of easements. At the outset, let us stipulate that "[t]he value of an easement is the appropriately discounted difference in land value, over the time period that difference is enjoyed, times the probability the development occurs."[227]And, "[s]ince the probability and timing of development are always speculative, easement appraisals should be expected to exhibit a large degree of variability and error."[228]"Speculative" only begins to describe the probability and timing of development where the Pingree lands were concerned.[229]In another deal now pending, though, all of this is moot because the easement and the sprawl come hand-in-hand.

Interspersed with the Pingree lands lay a substantial ownership of timberlands surrounding Moosehead Lake and linking it to the 320 square-mile Baxter State Park. In a deal rivaling the Pingree Partnership's scale, The Nature Conservancy (TNC) and the nation's largest landowner/developer announced a proposal in late 2006 that would take the dealmaking in the Northern Forest to yet another level again. But this one has some in the region voicing serious misgivings about the future of conservation easements. The 920,000-plus acres at issue were being shopped a lot before the Plum Creek Timber Company[230]hatched its plan.[231]

Figure 1: Depicting How the Moosehead Forest Project Fits Into the Northern Maine Landscape.[232]

Plum Creek bought this portfolio in 1998 for almost $180 million-after much of it had been logged.[233]Why pay top dollar for heavily logged timberlands with depressed value as timber and with rising taxes? For the chance to take $35 million from TNC while simultaneously garnering credibility for a proposal about to be laid before the Land Use Regulation Commission (LURC), the state agency that hears such proposals, to build the region's largest resort/condo complex.[234]The details of this deal have not yet been released, but its rudiments are enough as it is.

The parties' "Conservation Framework" would transfer two parcels in fee simple (45,200 acres along the Moose River, and 28,320 acres in the Roach Ponds area), together with a 270,000 acre "Moosehead Legacy" conservation easement, to TNC, the Appalachian Mountain Club, and a local organization.[235]But the land would be transferred in exchange for the $35 million and permission to develop 975 house lots, three RV parks, two mega-resorts, a large golf course, and a 1,000 acre commercial district.[236]The whole deal, that is, rides on LURC's approval of Plum Creek's "Concept Plan," which will require rezoning the land from eleven different kinds of "protection zone" into a zoning category that delegates land use authority to the plan adopted for the area.[237]

Of course, Plum Creek still has enough land in Maine to threaten to develop and eventually sell another one or perhaps two more of these easements-supposing it could find buyers with $70 million to spend there.[238]Perhaps most troublingly, though, this deal is what gives Plum Creek's proposal a real chance with Maine's LURC.[239]LURC requires that plans like Plum Creek's be "at least as protective of the natural environment as those standards which would otherwise be applicable."[240]That requirement could hardly be met absent the so-called "Conservation Framework."[241]The deal is, after all, the outgrowth of a proposal to fragment and disturb the Moosehead region to an unprecedented degree.[242]

Such a deal, even (or perhaps especially)[243]involving a repeat player like TNC, raises the hard questions. Did TNC play as powerful a role as local reporting suggests in FWS's decision to exclude the region from an endangered species' critical habitat designation?[244]More basically, why is the price point on TNC's easement the same as that paid in the Pingree Partnership? One easement was far in advance of the landscape's disturbance and fragmentation while the other accompanies it. Indeed, if anything, the probability of development on the lands to be encumbered in the Plum Creek deal is greater than that of the comparatively remote Pingree lands.[245]Supposing the Moosehead region is developed as proposed, the land within the Conservation Framework seems much more prone to conversions of various kinds than any of the Pingree lands were.[246]Of course, if organizations like TNC now raise their capital in conjunction with fear, then this particular deal may be a benchmark.[247]But that proves too much about the extortionate future such organizations face and the ethical dilemmas they are framing for all of us.[248]

Hobbled by staff and budget cuts,[249]and unable to do even its routine permitting work,[250]LURC is at a big disadvantage in this episode, wondering aloud whether it even has the resources to consider the merits of so gigantic a proposal.[251]Understandably, the state is given pause when confronted with the chance to delegate real oversight responsibility to the world's largest, most sophisticated conservation organization.[252]Doing so on these terms, though, would draw into question the very sovereignty of the state-not to mention that of the United States if the critical habitat rulemaking really was as heavily influenced by timber interests as seems evident.[253]

At broad scales, easements are a powerful tool for a critical public problem-a so-called tragedy of the anticommons where habitat is undervalued because private ordering predictably fails to produce optimal development.[254]And while most public structures atrophy over time because they are polycentric and inherently rigid,[255]the easement strategy is adaptive and problem-oriented by nature. Yet, at a bioregional scale, the strategy can generate a kind of moral hazard where opportunists can threaten landscape permeability, only to exact their price from conservationists-who are at the mercy of any "willing seller" should they harbor ambitions of achieving broad scale habitat objectives.[256]Indeed, because third-party reactions to conservation restrictions in a region can reduce the habitat values of encumbered land, conservationists may actually be incentivizing the very economic behavior they are trying to overcome. After all, people seeking their access to "nature" pay premiums to be near it, i.e., "away from civilization."[257]Thus, in a sense, a perverse flaw of the easement strategy in places like the Northern Forest is that the legal interests buyers are acquiring with their easements can actually be devalued by strategic actors who simply shift their plans to other, adjacent owners.[258]Part V argues that exacting appropriate restrictions from those with the means to convert landscapes and jeopardize regional biodiversity may be the only way to neutralize this increasingly corrosive variable in conservation work.

V. Exactions: Taking Habitat for Bioregional Goals

Professor Cheever and some others have already chronicled the crumbling wall separating "public" from "private" conservation land acquisition.[259]But this Part diagrams the constitutional issues raised by a specific vehicle for those efforts: the exaction of land and interests in land from those who would convert a landscape by developing it. Again, the Northern Forest (and Maine in particular) is exemplary-with one exception. In most locales, it is a municipal structure of some kind possessed of the authority to regulate land use, not a state agency like LURC. This simplifies the analysis here but, in my view, does not alter it fundamentally. Part V argues that exacting landscape scale conservation easements from parties like Plum Creek is legal and increasingly necessary.

A. Zoning Discretion Into Existence: The Takings Issues

Zoning favored land uses into mapped districts based on prospective plans instead of findings of harm per se began as an urban extension of police power.[260]In about a century, these zoning preferences have become a ubiquitous element of title to real property, even in places as rural as the Northern Forest.[261]Being as broadly and deeply regulated a commodity as land is has meant that regulatory takings challenges are virtually formless until an adjudicative process of some kind applies local law to a given parcel of land and articulates the precise restrictions thereon.[262]And, with comprehensively zoned entitlements set and a right to seek adjustments, it quickly became routine to condition the grant of further use rights on an exchange of considerations.[263]The Supreme Court has said that such "exactions" must be germane to the policy underlying the general use restriction(s) and bear a "rough proportionality" to the externalities the proposed use(s) could generate.[264]Several state high courts had arrived at about this doctrinal point well in advance of the Supreme Court.[265]

Importantly, though, it seems as if only those exactions involving coerced dedications of possessory interests in real property need meet the Court's nexus and proportionality tests.[266]In Nollan, the California Coastal Commission proposed to Fred Nollan that he dedicate a lateral right of way to beachgoers in exchange for permission to dramatically expand his beach home-a permission California's Coastal Act required in all cases.[267]The Court distinguished the proposed exchange as one justifying searching judicial scrutiny. "[W]here government action results in '[a] permanent physical occupation' of the property, by the government itself or by others,"[268]the taking occurs irrespective of the size of the owner's loss or of the public purposes served.[269]Indeed, the coercion and the physicality of the interest at issue seemed of signal importance to the narrow Dolan majority.[270]But if the "greater power" (denying permission altogether) does not necessarily include the "lesser" (imposing conditions the applicant is free to reject), neither does the constitutional protection of property require that "nexus" or "proportionality" be proven with much precision.[271]Even if covered by Nollan/Dolan, that is, there is significant room for municipalities to avoid Takings Clause liability for exactions. The Court has shown time and again that its ad hoc analyses in regulatory takings cases are easily resolved in the government's favor,[272]and the Nollan/Dolan tests are no exception.

There are three questions. First, would the exaction of a conservation easement trigger Nollan/Dolan? Second, if so, what could establish the requisite nexus and proportionality? Finally, supposing the two thresholds are crossed-that the tests are applicable and that an exaction lacks an essential nexus or proportionality-what would just compensation entail?[273]This last prong of the analysis is appropriate following Lingle v. Chevron,[274]where the Court recently and unanimously (albeit in dicta) affirmed that Nollan and Dolan are takings precedents.[275]Violating the nexus/proportionality norm is not grounds for undoing the exaction, but rather only for requiring payment of just compensation for the taking.[276]While neither of the opinions in Nollan or Dolan explicitly specified that just compensation could fix the constitutional violation, neither case presented the question of a land use authority seeking to bargain further for a dedication.[277]The logical extension of the Court's takings doctrine, as clarified in subsequent cases including Lingle, is just so.[278]

Developers, of course, expect to pay a price for their approvals and it is usually more a matter of setting that price.[279]Furthermore, while the police power easily embraces the protection of habitat and other natural resources,[280]the political and institutional complexities of regulating for something so intricate, dynamic, and critical as habitat protection/restoration are enormous and growing.[281]Large nonprofits like TNC, NEFF, and others offer a unique vehicle to state and local governments that are usually lacking in scale, scope, or both. When facing the challenges that confront regions like the Northern Forest, these firms can face developers as peer-to-peer land advocates, continuously improving their monitoring and enforcement methods while helping to structure deals to make them eventually workable for local oversight.[282]Indeed, these organizations have both the incentive and capacity to appreciate human disturbance in multiple spatial and temporal scales-and to counteract it.[283]Section B argues that condemning easements into their hands may prove to be a significant innovation.

B. Taking Easements and Choosing Partners

In Schattschneider's words, "people are not apt to fight if they are sure to lose,"[284]and taking even nonpossessory property interests (like conservation easements) into the hands of third parties raises political as well as constitutional issues, certainly. The realpolitik of property rights rhetoric alone may confine the practice of taking easements to the special context of threats to develop.[285]This proposal is thus aimed at those situations framed by such a threat.[286]But those situations are increasingly common.[287]

Each exaction, of course, must be weighed on its own terms, but there are a few points to be made generally. The first issue, whether the transference of such a property interest would run afoul of the "public use" requirement and thus be entirely void, seems easily resolved.[288]Except for state constitutional precedents in a handful of states,[289]the public use requirement, restated in Kelo v. City of New London,[290]is highly deferential when property is transferred to a third party for bona fide reasons.[291]Nevertheless, while conservation easements are, strictly speaking, nonpossessory interests,[292]any instrument allowing for monitoring and enforcement-periodic entry still being a necessary element of most easements for now[293]-will almost certainly be a Nollan/Dolan trigger.[294]

The question is basically one of tailoring: is the particular easement to be taken (and are the receiving organization's purposes) germane to the government's underlying policies restricting use, and is the scale of the easement roughly proportionate to the risks the development presents? Consider the Plum Creek easement. Barring intensive study of the region's biogeography, resident species, and imminent threats, a detailed accounting of the easement's proportionality would be impossible. Indeed, notwithstanding a maturing literature on "ecosystem services," attempts to quantify the benefits of continuous, unfragmented landscapes as habitat are probably misguided given our ignorance of how nature is organized and functions.[295]Structuring and justifying any such exaction according to provable "harms," thus, invites several kinds of confusion.

While conservation biologists have established the importance of genetic and structural "permeability" across landscapes,[296]with climate change on the horizon that project is only growing more urgent at the same time it is becoming less certain in execution.[297]Habitat protection is, thus, justifiably identified with the exclusion-or, more likely, the correction-of humanity's urbanizing influences to the greatest extent feasible.[298]Establishing that an easement's terms bear a rough proportionality to the risks a development proposal like Plum Creek's presents, in short, is a question of biogeography.[299]Now, the power to conform land use to the local public will (the power that has made exactions pervasive) is a sovereign power, to be sure. But easements are possibly the best tool for achieving or safeguarding landscape permeability, at least where they are coordinated at broader scales. Piecemeal set-aside requirements by planners boxed into small jurisdictions may, with this tool, be transformed into a vehicle for reaching broader scales, depending on which nonprofit partners are chosen. Thus, habitat and broad scale coordination seem to be the best framework for public officials justifying such easements in the face of litigation.

There are no objective criteria for selecting "focal" species to these ends.[300]But in framing the dialogue that would unfold between developer, planner, and nonprofit, the species of the region facing the most tangible threats-predators and migratory birds in the Northern Forest's case-are perhaps the best starting point as their habitat needs must be key.[301]Such a dialogue could serve, especially if easements were granted on a term basis,[302]as a means of keeping regional land use policies open to continuous integration and improvement. The selection of focal species and identification of their habitat needs could be a politically integrative and transformative exercise because of the learning involved. However, the agency's chief role, if any, is to pool and distribute information.[303]Past broad-scale changes in use have resulted in whole Northern Forest resident populations being extirpated, and others being "released" from the checks that regulated them.[304]To be sure, selection of the right focal species and keying its appropriate use inclusions and exclusions would necessarily be complex and context-dependent. But if LURC were to condition its approval of the Concept Plan on Plum Creek's transfer of the easement it negotiated with TNC-minus the $35 million-as well as make calibrated findings linking the easement to any of several goals articulated in its Plan,[305]the move would fit within a reasonable interpretation of many states' general exactions statutes[306]-including Maine's.[307]

More important are the differences between traditional use restrictions and the entrepreneurial step of condemning or exacting an interest in land into a nonprofit's hands. The connection of large nonprofits and their technical acumen to such processes could be, with the right networking and information pooling,[308]an important mode of accountability for all parties-one that transcends the turgid and ritualistic forms of "public participation" generally endemic to land management planning.[309]Improvised procedures for doing such deals and noticing them to the wider public[310]could be more than just novel public/private partnering: they could be a new mode of integrating science and politics. Distributed design and production, after all, are the only imaginable paths to the kind of adaptive management that will be required for sustaining ecological and social systems' resilience.[311]Perhaps just as important, condemning or exacting these easements instead of expecting cash payments from the nonprofit sector would free up precious capital its agents are always acquiring for other uses, especially for research, capacity building, and further innovation.[312]It would also acknowledge that the public service these organizations provide in enforcing conservation easements is compensation enough for fairness's sake.

VI. Conclusion

Forestry and agriculture in this country are struggling not just in how to define "sustainability" or how to ensure it one landowner at a time. They are struggling with their very nature as land uses worthy of public subsidy. The economics of owning timberlands (or farmland) in America have encouraged subdivision and sale for many years, and no fundamental change in that market condition is likely anytime soon.[313]Yet, while the easement strategy was a subtle, adaptive response to that reality, it is beginning to generate monumental risks for conservation[314]at the same time it is rising in cost and giving developers incentives to undermine its effectiveness.[315]

Of course, "multiple use" is exactly the standard of care by which the vast majority of land in America, including the Northern Forest, is and has always been managed.[316]But easements condemned or exacted and transferred into the hands of third parties like NEFF can allow for "working forests" as easily as they can be made more stringent. Professor Costonis long ago mused that easements could be a middle ground between uncompensated regulatory takings and condemnations with "just compensation."[317]He was more right than he knew, and easement exactions should be considered a vital link in the connectedness of conservation efforts, whether public, private, or something new under the sun.