National Park Service, Cultural Resources, Heritage Preservation Services
Strategies for Protecting Archeological Sites on Private Lands

LAND OWNERSHIP STRATEGIES FOR PROTECTING ARCHEOLOGICAL SITES ON PRIVATE LANDS

LAND OWNERSHIP

The strongest and surest way to protect an archeological site is outright ownership by a public or private organization, or even by an individual, with protection goals and site management capabilities. Possessing full title to the land and all the rights associated with it offers the landowner virtually total control, limited only by laws that regulate that control, over the land and permanent protection for the archeological site. A landowner can have a site vandal or looter arrested for trespass and property damage. An easement holder may need a court order to stop the landowner or an intruder from damaging a site. An individual or group with no legal right in the land, however, usually has no right to dictate what happens there, even if an archeological site is being destroyed.

Whether a site is owned outright or protected by an easement, the landowner or easement holder has a major responsibility to guarantee site protection through effective property management or easement monitoring programs.

TYPES OF OWNERSHIP
STRATEGY BENEFITS PAY SPECIAL ATTENTION TO
Fee Simple. Ownership of full title and all legal rights associated with a parcel of land and everything it contains, including minerals and archeological resources.
See Case Study 1
Full ownership is the strongest way to protect archeological sites, since the owner has complete control over the land (within certain limits), and resource protection is easier to manage. The owner can invoke laws of trespass and property damage. Owner must be able to assume liability and responsibility for long-term management and site stewardship.
Easement. Partial interest or some specified legal right in a parcel of land that is less than the full, fee simple interest. A conservation, historic preservation, open space, or scenic easement is designed to protect sensitive natural, historic, and/or cultural resources. Uses that are incompatible with protecting these sensitive resources are typically restricted. Easements can be acquired by a nonprofit or government agency through purchase, donation, gift, exchange, will, or eminent domain. An easement may be for a specified period of time or in perpetuity, and runs with the land, despite changes in ownership. Easements can also be called deed restrictions.
See Case Study 2Case Study 3Appendix 1.
Also see Bibliography for more information.
Can be an effective way to protect archeological sites if fee simple ownership is not feasible. Easement provisions can be tailored to landowner goals and site needs. Only those rights or interests needed to protect the site are transferred in the easement, leaving all other rights with the landowner, who retains ownership and use of the land. There is potential for property, income, and estate tax benefits for the donation or less-than-fair-market-value sale of an easement. Reduces costs for site protection when easements are acquired at less than fair market value for the protected area. Thorough survey is needed to identify the nature of archeological sites present. Less control over site protection than in fee simple ownership. Easement purchase can be costly, and requires careful negotiation. Easement terms must be carefully and clearly outlined, and they must be carefully monitored and enforced; landowners may need frequent attention. Easement holder must possess sufficient expertise and be financially able to monitor and enforce the easement. Property resale opportunities may be limited due to easement restrictions. Tax benefits depend on landowner's financial status and may not be sufficient motivation for landowner to donate or sell the easement.
Lease. Renting the land in order to protect and manage a sensitive resource. Low cost approach to site protection. Rent is paid to the landowner, who retains control of property. Short-term protection strategy since lease does not offer full control of property.
Undivided Interest. A number of parties share ownership in a parcel of land, with each owner's interest extending over the entire parcel. Changes in or to the property cannot be made unless all owners agree. Property management can be complicated, especially related to payment of taxes.

PUBLIC & PRIVATE OWNERSHIP
STRATEGY BENEFITS PAY SPECIAL ATTENTION TO
Private Ownership & Management. Land owned and managed by private individuals or by national, regional, or local nonprofit organization such as land trusts or nature or archeological conservancies.
See Case Study 1; Case Study 4; Case Study 5
Offers strongest legal control for site protection when land is kept in undeveloped condition. Ownership by local nonprofit keeps control within community, where there is greater likelihood of responsible management and stewardship. Individual owner or small nonprofit may not be prepared for long-term management responsibilities and costs. Protection needs of property may not be consistent with the mission of the nonprofit.
Nonprofit Acquisition & Conveyance to Public Agency. Nonprofit buys a parcel of land and resells it to a public agency.
See Case Study 4; Case Study 5; Case Study 6
Nonprofits can often participate in the real estate market more easily than government agencies, and can hold land until the public agency is able to buy it. If property was purchased at less than fair market value, public agency acquires land at reduced cost. Public agency must be willing and able to purchase land, and to assume management responsibilities.
Government Ownership. Federal, state, and local government parks, conservation, natural resource, or historic preservation agency owns and manages land.
See Case Study 7; Case Study 8; Case Study 9
Federal, and some state, law and regulations require management practices sensitive to resources. Local agencies may (or may not) be required to manage resources sensitively. Agency budgets and acquisition criteria may restrict acquisitions, and acquisition opportunities may be missed due to agency procedures. Agency commitment to sensitive resource management can vary, and site protection and agency mission may come into conflict. May remove land from the tax base, except where federal government owns lands in fee simple and reimburses local governments for loss of tax revenue. May require public visitation, which can conflict with site protection needs.
Intergovernmental Partnership. Federal, state, and local agencies form joint partnerships to own and manage land. Larger and/or more expensive properties can be protected by sharing the responsibilities and costs of acquisition and management. Management approaches need to be agreed upon to reduce potential for conflict.
Public-Private or Private-Private Partnership. The joint venture partnership is a strategy used by public agencies and private organizations to accomplish projects serving mutual goals that neither could carry out alone. Some government funding programs require a private contribution, and some private programs support public agency programs.
See Case Study 5; Case Study 9
The benefits, as well as the responsibilities and costs of acquisition and management of the protected resources are shared among the partners. Coalition of support from several groups increases the possibility of protecting diverse resources. Brings diverse sources of knowledge and expertise to solve resource protection issues. Multiple partners can complicate property management and decision-making.
Acquisition & Saleback or Leaseback. Private organization or public agency acquires land, places protective restrictions or covenants on the land, and resells or leases land. Proceeds from the sale or lease reimburse the costs of acquisition, reducing protection costs. Land may be more attractive to buyer due to lower sale price resulting from restrictions. New tenant or owner assumes management responsibilities. Complicated procedures. In a leaseback, owner retains responsibility for the land but may have reduced control over the property. Not all protected land may be suitable for leasing.

ACQUISITION OPTIONS
STRATEGY BENEFITS PAY SPECIAL ATTENTION TO
Fair Market Value Sale. Buying land at fair market value, the full price a parcel of land would bring on the open market, requires a willing buyer and a willing seller negotiating an agreeable price, which is usually related to the land's appraised value based on highest and best use. Acquisition process is fairly uncomplicated. Provides substantial income to the seller. Makes resource protection more costly, and can result in high capital gains for the seller. Appraisers can be unfamiliar with valuing lands with sensitive resources, especially archeological sites.
Bargain Sale. Land is purchased at less than fair market value. The difference between the bargain sale price and the land's fair market value is a gift to the buyer. Reduced costs for acquisition of resource lands. There may be smaller capital gains taxes for the seller, who may also earn tax benefits for a charitable donation. Seller may not be willing to accept a bargain sale price, which may still be costly.
Donation. Landowner donates all or partial interest in a parcel of land to a nonprofit or government agency. In By Devise, the donation of the land is through a bequest in the landowner's will. In a Reserved Life Estate, the landowner donates the land, but retains the right to use the property for the remainder of his or her lifetime (the reserved estate).
See Case Study 1; Case Study 4; Case Study 5; Case Study 7
Simpler and less costly than other land acquisition strategies. Donations may qualify the donor to receive income and/or estate tax benefits. Donations without management endowments can strain budgets of nonprofits and public agencies. Recipient must be able and willing to manage the donated property. Some landowners may not be able to afford to donate land. Careful estate planning is necessary to make donation by bequest successful.
Land Exchange. One parcel of land is exchanged for another more desirable for resource protection. Low acquisition costs. Scattered properties can be exchanged for a single, larger parcel. Complicated process and not widely known. Subject to IRS regulations. Property owners must be willing to participate, and properties must be of equal value.
Restricted Auction. Government places protective restrictions on surplus government properties prior to auction. Lower acquisition costs since restrictions placed on the property reduce the price. Acquisition costs may be high since auction sales go to the highest bidder. Auction properties may not be suitable for resource protection. Government may be unwilling to reduce its sale income by placing restrictions.
Agency Transfer. Government transfers land not needed by one agency to another that can assume resource protection and management responsibilities. Increased government resource protection and management with little additional expenditures. Excess agency property may not be suitable for resource protection. Government may be more interested in obtaining fair market value for the property.
Eminent Domain. Government has the authority to take private property for public purposes (such as highways, schools, libraries, and parks), and pay the landowner fair market value. If the landowner is unwilling to sell, government has the authority to condemn the land, providing fair market value compensation. Should be used as a last resort, but can be useful if other techniques are not working or in emergency situations. Can alienate the public and owners who are unwilling to sell; can be expensive.


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