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House Bill 1195 Conservation Easement Restrictions Hearing Monday, Feb. 7

February 2, 2011

The House Judiciary Committee was scheduled to hear testimony on House Bill 1195 today (Wednesday, Feb. 2). However, other bills took up the committee’s time today, and after taking opposing testimony from Jim Fosdick of Highmore, committee chairman Rep. Roger Hunt indicated Judiciary would probably take up HB 1195 on Monday, February 7.

House Bill 1195 proposes that before a private conservation easement can be made final, it must first be referred to the Board of County Commissioners who are then required to hold a public hearing to determine whether the easement agreement should be allowed. At the public hearing, the Commissioners “shall . . . consider any relevant testimony concerning whether or not the transfer of the conservation easement is in the best interest of the people of the county . . . .” The Bill mandates certain factors for consideration, including “[w]hether the property is to be used for the best and highest purpose,” although the phrase “best and highest purpose” is not defined. The commissioners are also to consider whether the easement “is likely to adversely impact the economy, environment, or tax base.,” and whether the easement is “in the broader public interest.” If the Commissioners find that the easement is “in the public interest” it may approve it. Appeal from a decision of the Commissioners is limited to review by the state legislature.

To read the bill, go to http://legis.state.sd.us/sessions/2011/Bill.aspx?Bill=1195

To contact Judiciary Committee members, go to http://legis.state.sd.us/sessions/2011/CommitteeMembers.aspx?Committee=26 You can click on each member’s name to send an email.

POINTS TO CONSIDER: H.B. 1195 In South Dakota, Agriculture and Conservation on private lands have traditionally been compatible, but H.B. 1195 needlessly drives a wedge between the two.

H.B. 1195 violates the fundamental right of every private property owner to choose when, to whom, and for what purpose he transfers his property. This right to transfer, or “freedom of alienation,” has been identified by the U.S. Supreme Court as the very heart of the constitutionally protected property right, and denial of it is a taking of private property.

H.B. 1195 allows for ad hoc decisions, free of any guiding standard or comprehensive plan. This exposes property rights to the arbitrary whim and caprice of local commissioners, violating fundamental principles of due process and the Rule of Law.

The absence of standards in H.B. 1195 makes it likely that there will be large discrepancies among landowners and among counties; while pitting landowner against landowner, with already overburdened county commissions in the middle.

When private property rights are invaded, property owners are entitled to appeal to the courts. H.B. 1195 denies this right and therefore violates basic principles of due process and the Rule of Law.

Limiting appeals from a county legislature to a state legislature violates the Separation of Powers doctrine.

There are currently between 875-900 private landowners in South Dakota on waiting lists to participate in various conservation projects involving easements. This group is comprised almost entirely of farmers and ranchers. H.B. 1195 will effectively block these projects. The result is not only an unprecedented interference with private property, but the diversion of tens of millions of dollars from the State’s farm and ranch economy.

H.B. 1195 creates an administrative logjam which, as a practical matter, will block a majority of proposed projects. The idea of public scrutiny over private business arrangements is unprecedented, and establishes an unsatisfactory precedent of government intrusion.

A conservation easement is more than a transfer of rights, it is an affirmative tool available to private landowners, enabling a broad range of management objectives, and is often essential to the achievement of economic plans for the farm or ranch.

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