Winning on All Fronts: A Case Study of the Army’s Compatible Use Buffer Program at Fort Riley, Kansas

II.  The Army’s Compatible Use Buffer (ACUB) Program

A.     Land: An Essential Asset

The physical placement of forces is a key consideration in any conflict, and the land often guides that placement.²¹ Consequently, the military mind devotes considerable efforts to understanding the battlefield’s topography.²² The military planner, however, is not just concerned about the land that forces will occupy during a conflict. He or she is also concerned about the location of training areas, because training shapes troops’ performance in conflict.²³

From the beginning, the Founding Fathers provided for the military’s need for a physical home.²⁴ The Constitution specifically empowered the federal government to hold land for military purposes: “for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”²⁵ Unlike other federal agencies that control land, the military has a specific mission from the Constitution concerning the use of its lands.²⁶ In essence, that mission is a “requirement to conduct armed conduct as directed by the President,” which is unique among federal landholders.²⁷

This right to land has allowed the military to adequately adapt to changing circumstances. As new threats and technologies evolve, the military must continuously provide appropriate training, directly impacting military land use and land use in general.²⁸ Early on, the placement of military installations was key in securing routes for both commerce and travel routes and in managing the conflicts taking place on American soil.²⁹ While military land use once focused on engaging in campaigns in the United States, more recently that focus has shifted to training for campaigns waged in foreign territory.³⁰ In the last century, the military tailored its training demands and land use to the threats and technologies of the Cold War.³¹ Military planners prepared for the imminent invasion of Western Europe by Russia, which would have involved conventional warfare tactics.³² The twenty-first century introduced different enemies and new technologies, engaging the military in expansive spaces like Afghanistan.³³ After over a decade of focusing on counterinsurgency training, military planners are now trying to reorient training toward the entire spectrum of military operations, including large-scale conventional operations in the future.³⁴

The military’s need for physical training space expanded in recent times because (1) an ongoing conflict demanded life-saving training realism and (2) the space needed to effectively train with weapons increased. The quality of training is crucial to a soldier’s survival on the battlefield.³⁵ The soldier’s training should reflect the actual circumstances of combat as closely as possible.³⁶ Habits built during training are the basis for actions carried out in combat.³⁷ This reality is so fundamental that a common maxim in the military community is “Train like you fight.”³⁸ Although simulation technology has advanced, “there is no substitute for live-fire and maneuver training” on real terrain in order to be proficient and combat ready.³⁹ Recognizing this reality, units compete for a finite number of maneuver or training areas on each installation.⁴⁰ Considering deployments as a certainty, commanders long for “unfettered access to ranges” because classrooms cannot adequately prepare soldiers for combat.⁴¹

The second reason that the military demands more usable training space is because the training footprint has grown.⁴² Technology now used on the battlefield demands more and more space for live-fire and maneuver training,⁴³ and there is no indication that the growth of the training footprint will slow.⁴⁴ “A Civil War battalion required 200 acres of land for training maneuvers. In contrast, today’s mechanized battalion requires over 80,000 acres for effective combat training.”⁴⁵ Before the 20th century, field artillery batteries fired at visible targets and measured their ranges in distances of meters or yards.⁴⁶ Technological advances like communications, which allow batteries to communicate with forward observers, and advances in gunnery computations widened those ranges to miles and kilometers.⁴⁷ Now, combining GPS-guided munitions with artillery pieces, the range of a weapon may be up to 31 miles (50 kilometers), resulting in a need for more land to effectively conduct live-fire exercises.⁴⁸

Although the pace of deployments has slowed, realistic training is still critical, and, in a time of defense cuts, the military wants to pre- serve the training assets it retains.⁴⁹ In recent times, the military lost considerable land to the Base Realignment and Closure Process (BRAC).⁵⁰ This process consolidated military installations in an attempt to cut costs and to use land efficiently.⁵¹ Many installations closed, and the DoD conveyed much of that land to others.⁵² In addition to this bureaucratic process, issues such as encroachment and environmental compliance represent major challenges facing military land use.⁵³ These issues were key in inspiring the development of the ACUB Program.⁵⁴

Encroachment quietly emerged as a threat to military lands and training.⁵⁵ Encroachment usually describes an infringement on another’s rights or property.⁵⁶ The Army defines encroachment as “[a]ll external influences threatening or constraining testing and training activities required for force readiness and weapons acquisition.”⁵⁷ The chief sources of encroachment are civilian development around military reservations, noise pollution, airspace interference, unexploded munitions, and habitat and natural resource preservation relating to endangered species.⁵⁸ Of these threats, civilian development around military installations represents the largest threat to military lands.⁵⁹ While many installations were established in isolated or rural areas, surrounding populations and urban development have increased.⁶⁰ Now, houses, restaurants, and mini-malls stand where open tracts of land used to exist.⁶¹ “These land uses are not compatible with military live-fire training and testing exercises, and they [have begun] to inhibit and intrude on the Army’s ability to train and test our warfighting capabilities.”⁶²

While encroachment refers to the development of land outside of military installations, it also directly impacts the condition of land on the installation.⁶³ DoD lands consist of great tracts of unspoiled wilderness and represent nearly all the ecosystems present in the United States, which is fitting since the military must be ready to serve in all environments.⁶⁴ This phenomenon earns installations the description of “islands of biodiversity.”⁶⁵ As civilian development around military installations reduces the size and quality of habitats, endangered species take up residence on military lands.⁶⁶ At least 173 threatened and endangered species reside on Army reservations, no small consideration when planning live weapons training.⁶⁷

B.  Developing the ACUB Program to Address Environmental Concerns

Compliance with environmental legislation came to the forefront during the 1990s, when the military came under severe scrutiny for its environmental practices.⁶⁸ While compliance preserves the environment, application of environmental regulation to military installations has the additional effect of hampering training capabilities.⁶⁹ “Regulations designed to protect air and water quality, manage noise, and protect cultural resources also restrict the timing and frequency of training, reduce the space available for maneuvers and tactical use, and limit the number of live-fire exercises.”⁷⁰ These limitations result in less training realism and may mean that service members will be less prepared on the battlefield.⁷¹

In this confusing backdrop of encroachment and environmental legislation, the Army began looking for solutions that would diffuse these environmental pressures while allowing the Army to maintain realistic training.⁷² In spite of training restrictions, units maintained readiness thanks to creative and flexible personnel, but the methods that they had to use to comply with environmental restrictions “reduce[d] realism, increase[d] costs, and shorten[ed] usable equipment life.”⁷³ Installations began to explore partnerships with state and private organizations to counteract the effects of urbanization.⁷⁴ One result of this process was the development of the Army’s Compatible Use Buffer (ACUB) program.

Beginning in the 1990s, increased environmental scrutiny and encroachment forced the Army to address these issues in innovative ways while still preserving the necessary training occurring on its land.⁷⁵ Fort Bragg, North Carolina, home to many of the Army’s premier combat units, was also home to the red-cockaded woodpecker.⁷⁶ In 1970, the Department of the Interior listed the bird as endangered, and the mandates of the Endangered Species Act meant that the installation had an obligation to protect the species.⁷⁷ This status meant little to Fort Bragg’s commanders for most of the first two decades of the bird’s listing, but changing conditions pushed the installation toward major conflict with the Fish and Wildlife Service by 1989.⁷⁸ The installation was in an area that was previously rural, but, due to the installation’s growth, a population boom and considerable civilian development occurred around the borders of the installation’s holdings.⁷⁹ At the same time, the population of the woodpecker fell.⁸⁰ The bird’s remaining population favored the undeveloped stretches of the installation’s training areas as habitat and nesting grounds.⁸¹ When the Fish and Wildlife Service intervened to enforce the Endangered Species Act on the installation, training nearly halted.⁸² A campaign began to mark nesting sites and limit activities around those areas.⁸³ As a result of restricted training space, soldiers stationed at Fort Bragg were sometimes forced to travel to installations in other states to train, and officials at Fort Bragg feared the installation’s closure.⁸⁴

Faced with its uncertain future, by the mid-nineties the installation initiated a plan to preserve surrounding habitat and thus reduce the birds’ dependence on installation training areas.⁸⁵ In an effort that became known as the Private Lands Initiative, Fort Bragg partnered with a private organization, The Nature Conservancy.⁸⁶ With financial help from the installation, The Nature Conservancy identified and purchased property and development rights on tracts of land bordering the military holdings, preserving off-post habitats for the woodpecker.⁸⁷ This strategy proved successful.⁸⁸ The red-cockaded woodpecker population at Fort Bragg reached population goals set by scientists five years ahead of time.⁸⁹ From 238 family groups in 1992,⁹⁰ the population grew to approximately 483 family groups by 2014, and the installation and training restrictions that once hampered operations ceased.⁹¹ Even more impressive is the fact that the population of the bird located on and around Fort Bragg, North Carolina, is the only population of the bird to be classified as “recovered.”⁹² This success has had a cascade affect, helping other struggling species recover and helping improve the quality of the training area.⁹³ Importantly to the Army, Fort Bragg, North Carolina, continued to be the “Army’s power projection platform,” meaning that it was responsible for deploying a massive volume of crucial units to the battlefront.⁹⁴ Without the Private Lands Initiative, the story could have been much different for the woodpecker and the installation.

C.  The Use of Public-Private Partnerships

The public-private partnership at Fort Bragg clearly worked to save the woodpecker, but the military did not have specific authority to spend money on the conservation easements.⁹⁵ Although the installation temporarily justified the funding of the program through the Sikes Act (legislation that oversaw military environmental activities), the Army did not have specific authority to purchase, with operational funds, land to which the Army would not have clear title.⁹⁶ Congress, therefore, explicitly addressed these concerns in the National Defense Authorization Act for Fiscal Year 2003 (FY 2003 NDAA).⁹⁷ As part of a program to create a comprehensive environmental land management strategy on DoD lands, the FY 2003 NDAA addressed cooperative agreements between military organizations and private entities.⁹⁸ Now codified and amended several times, the statute expressly permits agreements between military and non-military entities where the military would provide funding for the purchase of rights to property but the non-military entity would hold those rights.⁹⁹

The statute defines an eligible entity as a state or local government entity or a “private entity that has as its stated principal organizational purpose or goal the conservation, restoration, or preservation of land and natural resources, or a similar purpose or goal, as determined by the Secretary concerned.”¹⁰⁰ The statute sets forth the authority to acquire real property interests and the authority to spend operational funds on those interests.¹⁰¹ It also allows property interests to be held by the non-DoD partner, and requires that property interests only be acquired from willing sellers.¹⁰² Typically, the Army has contingency rights which will vest only if the land trust does not enforce the terms of the conservation easement.¹⁰³ If the land trust does not enforce the terms of the conservation easement, the Army could convey the easement to a different entity or enforce the terms of the easement itself.¹⁰⁴ To date, however, the Army has not had to exercise its contingency rights in order to enforce the terms of any conservation easement created by the ACUB program.¹⁰⁵

With the statute in place, the DoD issued guidance requiring the military branches to “plan, program, and budget for requirements to protect current and future use and access to the live training and test domain, including planning and budgeting for actions pursuant to Section 2684a of [Title 10 of the United State Code].”¹⁰⁶ In accordance with this guidance, each branch implemented a program to prevent encroachment and environmental issues from impeding the use of military lands. The Army’s version of this program is the ACUB program.¹⁰⁷

D.  Implementation of the ACUB Program

The ACUB program is a partnership between an installation and a non-DoD organization.¹⁰⁸ The program allows the non-DoD partner organization to encumber non-military land, creating a buffer between military training and civilian development and protecting habitats without placing more land solely in the hands of the DoD.¹⁰⁹ Although “reviewed, approved, and funded centrally,” the ACUB program starts at the local level.¹¹⁰ This means that the program is not imposed on local commanders, but rather commanders choose to utilize the program as one of the conservation tools available.¹¹¹ In some cases, encroachment had already restricted training before the installation implemented a buffer zone.¹¹² Fort Bragg developed the program be- cause it was already facing encroachment due to development around its borders.¹¹³ In other cases, installations were able to initiate the program before degradation of the training mission had taken place.¹¹⁴ In Fort Riley, Kansas, for example, acreage was acquired before severe interference with the training mission had taken place.¹¹⁵

Once an installation decides to implement the ACUB program, the installation — not a higher authority — must choose a partner.¹¹⁶ Generally, the local commanders select a local or national land trust as the ACUB partner.¹¹⁷ This land trust has the job of cultivating relationships with local landowners, so the ties between the partner and the community are critical.¹¹⁸ The installation must consider the history of the organization and the overlap between the installation’s mission and the partner’s goals.¹¹⁹ Additionally, the installation may review the organization’s portfolio to see how the organization manages land under its ownership and whether the organization has a good track record in maintaining and overseeing other conservation easements.¹²⁰

The local installation personnel also have the task of crafting the ACUB proposal.¹²¹ The installation analyzes how training could be positively impacted by a conservation easement on surrounding land and must draw from the expertise of a wide variety of local personnel including “public affairs officers, range operators and trainers, installation master planners, environmental and natural resources professionals, and the Staff Judge Advocate.”¹²² The proposal establishes the need for the buffer zone by describing the operations taking place on a particular installation and the challenges limiting those specific operations.¹²³ It also includes the goals that the installation wishes to achieve through conservation and alternative courses of action that might meet those goals.¹²⁴ The proposal includes timelines, strategies to foster community involvement, and maps of the targeted areas where conservation easements would be most beneficial to the installation.¹²⁵ Although no formal agreement exists between the military and the land trust at this stage of the process, the two parties may work together to identify zones surrounding the installation where conservation might have the most impact.¹²⁶ The Army and the land trust target places where “establishing buffer areas around Army installations limits the effects of encroachment and maximizes land inside the installation that can be used to support the installation’s mission.”¹²⁷ Once completed, military authorities above the installation-level must review and approve the proposal.¹²⁸ Upon approval, the installation and the land trust negotiate the Statement of Work (SOW) agreement that legally defines and makes official their partnership.¹²⁹

Once the ACUB proposal is approved and the SOW is completed, the Army and the organization announce the program to the local community. After publicizing the approved zones, the installation provides funds so that the land trust can purchase the real property interests in approved areas.¹³⁰ The land trust negotiates with willing landowners and ensures that easements comply with the guidance set forth in the ACUB proposal.¹³¹ The land trust, not the Army, receives the deeded property interest and provides for the easement’s long-term monitoring and management.¹³²

The ACUB is largely implemented through conservation easements, and those easements are an increasingly popular preservation tool.¹³³ These easements are quite attractive: “perpetual, private rather than governmental, efficient, consensual and representing the free choice of the parties, and serving the public interest in conservation.”¹³⁴ These qualities render conservation easements less controversial than other conservation tools.¹³⁵ The easement, facilitated and held by a non-governmental organization, lacks some worrisome aspects of governmental interference.¹³⁶ Compulsory environmental regulation that could be implemented through zoning affects a large swath of land owners who have not directly consented.¹³⁷ Even the outright purchase of land solely from willing sellers may be strongly opposed by the local community.¹³⁸ Additionally, since the easement is a creature of contract, the installation, the land trust, and grantor of the conservation easement may tailor the agreement to local needs, allowing the terms of the easement to accommodate the needs of all parties involved.¹³⁹ Due to the nature of this public-private partnership and the mandates of the statutory regulations, the Army has largely escaped criticism despite the fact that the ACUB program could be seen as a covert form of eminent domain or a federal land grab.¹⁴⁰

III.  The Land Trust

The ACUB program’s partner is generally a land trust.¹⁴¹ The first land trust was created in 1891.¹⁴² Only about forty land trusts existed by the middle of the last century.¹⁴³ However, many land trusts appeared in the 1990s.¹⁴⁴

The land trust movement shares a common desire to preserve the natural state of land.¹⁴⁵ The land trust movement carries out conservation-centered activities largely without any government help or interference.¹⁴⁶ The land trust is generally a nonprofit organization.¹⁴⁷ Land trusts do not have a set form, and there are as many different types of lands trusts as there are places of land preservation.¹⁴⁸ Land trusts come in a variety of sizes — international, national, and local.¹⁴⁹ The land trust “achieves its goals primarily through private, voluntary land transactions.”¹⁵⁰ Although land trusts use a variety of tools to conserve land, the conservation easement is the most popular conservation tool.¹⁵¹

Those who operate the land trust must understand and apply both state and federal law.¹⁵² Land trusts must navigate the federal laws that define tax exempt, nonprofit charitable organizations and the tax benefits associated with those organizations.¹⁵³ As noted above,¹⁵⁴ land trusts typically fit within the requirements of the Internal Revenue Code for charitable organizations and can apply for 501(c)(3) status.¹⁵⁵ The enabling statute for the ACUB program does not, however, require the partner to be a nonprofit organization recognized by the Internal Revenue Service.¹⁵⁶

Once a land trust is established, the organization has two main activities: securing an interest in land and monitoring that interest.¹⁵⁷ Although state law guides the creation of conservation easements, in most cases, federal tax law relevant to conservation easements preceded and influenced the drafting of the state statutes.¹⁵⁸ Federal law allows the donation of conservation easements to qualify as a charitable contribution.¹⁵⁹ These “qualified conservation contributions” have three components.¹⁶⁰ First, a qualifying contribution must be of an appropriate interest in property, which can include “a restriction (granted in perpetuity) on the use which may be made of the real property.”¹⁶¹ Second, the property interest must be given to a qualified organization, which includes 501(c)(3) organizations.¹⁶² Lastly, property interests must be given “exclusively for conservation purposes.”¹⁶³

Although state laws vary, the drafting of the Uniform Conservation Easement Act (UCEA) in 1981 achieved some standardization.¹⁶⁴ Many states, including Kansas, have adopted the UCEA.¹⁶⁵ The drafters of the UCEA wanted to eliminate common law barriers that would have defeated conservation easements.¹⁶⁶ The drafters also wanted to ensure that conservation easements would continue to serve the public interest.¹⁶⁷ The drafters saw compliance with federal tax law as a tool to encourage the public interest aspect of conservation easements because the Internal Revenue Service heavily scrutinizes 501(c)(3) organizations.¹⁶⁸ Consequently, federal tax law shaped parts of the UCEA.¹⁶⁹

The UCEA defines the conservation easement as:

[a] nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open-space values of real property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property.¹⁷⁰

Additionally, under the UCEA, the conservation easement can be created in the same way in which other easements can be created.¹⁷¹ The default duration of the easement is perpetual.¹⁷² The creation of the easement does not extinguish other interests in real property that exist at the time that the easement is created.¹⁷³

Land trusts have broad discretion to create unlimited types of arrangements based on terms negotiated with landowners.¹⁷⁴ Conservation easements utilize contract law as much as property law because the land trusts negotiate a limited intrusion on the fee simple owner’s property rights, allowing the fee simple owner to continue many beneficial uses of the land.¹⁷⁵ Consequently, the conservation easements created and held by land trusts enjoy advantages over other environmental conservation tools.¹⁷⁶ Conservation easements are more site-specific than other forms of public regulation.¹⁷⁷ They allow landowners to have some control over the easement’s terms.¹⁷⁸ And, they allow landowners to retain a valuable, functional parcel while benefitting from favorable tax treatment.¹⁷⁹

Conservation easements face scrutiny from the Internal Revenue Service and other organizations that examine whether the easement appraisal is done properly and whether the easement genuinely furthers a conservation purpose.¹⁸⁰ However, the rigorous ACUB program approval process and a land trust accreditation program helps to avoid abuses in the creation of conservation easements.¹⁸¹

Maintaining the conservation easement is the land trust’s second major task.¹⁸² The land trust is granted a conservation easement in the easement document and any restrictions created in the easement document will “run with the land” — binding future owners, potentially perpetually.¹⁸³ As a holder of the conservation easement, the land trust can bring “actions to enforce, modify, or terminate conservation easements.”¹⁸⁴ The perpetual duration of most conservation easements makes enforcement of the easement a daunting task.¹⁸⁵ This challenge highlights the need for land trusts to be financially stable and have strong legal advice.¹⁸⁶ It is likely that land trusts will begin exploring the perpetual enforcement of conservation easements in earnest as the existing easements age, but little information is available concerning the ongoing conservation easement enforcement.¹⁸⁷

IV.  The ACUB Program at Fort Riley, Kansas

A.  Fort Riley’s History

Fort Riley exists at the junction of two competing interests: the unique needs of training a mobile fighting force and the distinctive natural environment of the Flint Hills. Although the mission of the post has changed from time to time, the tension between the military training mission and civilian encroachment has recurred throughout Fort Riley’s history. Established in 1853, the original mission of the installation was protecting commerce and immigration along the Oregon and Santa Fe Trails.¹⁸⁸ During the western expansion, the presence of the military installation always signaled “infusions of government money into local economies,” which often led to civilian development in close proximity.¹⁸⁹ For the first thirty years of Fort Riley’s existence, the future of its vast acreage was uncertain:

At one time or another, local residents sought to rearrange the boundary of the reservation in the interest of a town-promotion scheme; to cut off a portion of the reservation in order to benefit a private company; and finally, to reduce the reservation’s acreage drastically and open most of the land to settlement.¹⁹⁰

However, the installation was an important presence in a turbulent state in the times leading up to and during the Civil War.¹⁹¹ After the Civil War, its location became important in protecting the new rail lines transecting the continent.¹⁹²

As western settlement came to an end, the Army looked for a new mission to justify the large land holdings at Fort Riley.¹⁹³ Having survived civilian attempts to reduce its acreage, the installation was threatened by Army downsizing in the late 1800s.¹⁹⁴ While the military closed other frontier outposts, Fort Riley was spared when General Philip Sheridan persuaded Congress in 1884 to retain the installation as the “Cavalry Headquarters of the Army.”¹⁹⁵ Legendary military leaders — including General William Sherman, General Philip Sheridan, and General John Scholfield — were intimately familiar with the training needs of their field artillery and cavalry units.¹⁹⁶ These commanders were acutely aware that the expansive holdings would support the training requirements of their mission — preparing the most mobile forces of the United States Army for war.¹⁹⁷ The land offered potential feed for their horses and the wide-open spaces lent themselves to artillery training, a skill that required room for error.¹⁹⁸ “Where better than Fort Riley’s twenty thousand acres to instruct four or five batteries at a time in the new weaponry?”¹⁹⁹ The fort’s training mission was firmly established with the successive openings of the School of Cavalry and Light Artillery in 1892, and of the Mounted Service School in 1907.²⁰⁰

While railroad access,²⁰¹ accessible sources of hay,²⁰² and new training missions²⁰³ saved the installation from closure, the installation still coped with civilian encroachment struggles between the Civil War and World War I.²⁰⁴ As early as 1866, military leaders identified civilian encroachment on installation resources.²⁰⁵ General William Sherman observed that the military was identified as an easy way to make a profit.²⁰⁶ Farmers and merchants profited from the contracts with the military, and when contracts were not forthcoming, “local residents used the land and resources — grass, wood, and minerals — of military or Indian reservations as though they were public lands open to settlement.”²⁰⁷ Bothersome civilian livestock regularly invaded the fort’s boundaries impeding the ongoing training.²⁰⁸ This resulted in suits against the military for damaging civilian livestock and against civilians for trespassing on military property.²⁰⁹ Contractors who legitimately harvested hay on the post began to allow civilians with no connection to the military to cut hay as well.²¹⁰ Fort Riley literally lost land as civilians seeking raw materials for concrete manufacturing removed sand from the installation.²¹¹ Civilians also dumped trash onto the fort’s land.²¹² Perhaps the most insulting encroachment, though, was the theft of fence posts meant to hold the encroachers at bay.²¹³ Commanders had to resort to criminal remedies to rid the installation of trespassers.²¹⁴

While leaders had recognized that the vast spaces of Fort Riley were useful for equestrian training, the technological developments of World War I would directly impact the training mission and land use of the installation.²¹⁵ Although Fort Riley trained horse-mounted soldiers well into the twentieth century, World War I signaled the beginning of mechanized warfare.²¹⁶ This new mission would demand the expansion of the post’s acreage to support the training mission of World War II.²¹⁷ In the years after World War II, the installation housed both Basic Combat Training and Officer Candidate Schools.²¹⁸ Again in 1966, the Army determined that the land it possessed was not sufficient to support its training mission, and the installation was expanded by 50,000 acres.²¹⁹ This expansion was not well-received by locals who lost family lands, and these feelings resurrected when the Army advocated for another expansion in the late 1980s.²²⁰ As late as 1989, commanders were concerned that the fort did not have the training areas necessary to properly train their units.²²¹ Local residents and environmental groups rallied against the proposed expansion of the installation, and it ultimately failed during the post-Cold War budget cuts.²²²

B.  Today’s Fort Riley

Large tracts of land support the unique training mission at Fort Riley.²²³ Fort Riley has over 100,000 acres, including over 92,000 acres of training land with over 72,000 of those acres able to accommodate heavy maneuver training.²²⁴ This availability of open land for maneuver training is unique among military installations.²²⁵ Fort Riley’s Range Safety personnel are proud that “Fort Riley’s maneuver area and impact area aren’t the biggest in the Army, but the difference between us and other posts is we have areas you can maneuver in.”²²⁶ An estimated 19,400 active-duty service members train daily on Fort Riley, and these personnel conduct a broad array of missions, including armor, infantry, aviation, and combat support, missions that require space.²²⁷ The space also allows the installation to provide training assistance to other components.²²⁸ If a National Guard, Reserve, or other sister-service unit trains in Kansas, they likely utilize the ranges of Fort Riley.²²⁹ Access to training areas is especially important for National Guard or Reserve units since they have limited opportunities to train — one weekend per month with a longer training event (about 2 weeks) annually.²³⁰

Not only does Fort Riley serve unique training needs, the installation preserves stretches of tallgrass prairie — an ecosystem that has slowly disappeared from the American landscape.²³¹ Scientists estimate that only 4% of the native tallgrass prairie remains.²³² Originally tallgrass prairie almost entirely covered the eastern third of the state, but now “[m]ore than 90% of the Kansas landscape is used for agricultural purposes.”²³³ While farmers destroyed much of the original tall grass prairie in other regions of the state, the rocky soil of the Flint Hills made farming impossible.²³⁴ Ranchers used much of the rocky region for cattle-grazing, preserving stretches of the native grasses.²³⁵ The Flint Hills, where Fort Riley is located, “represent North America’s only remaining landscape-scale expression of tallgrass prairie.”²³⁶ Unfortunately, this region faces various forms of development threatening the remaining tallgrass prairie.²³⁷ Wind energy, coaled methane, and residential development encroach on the remaining native prairie, and environmentalists emphasize the importance of “conserv[ing] the largest, highest quality, feasible representation of this ecosystem.”²³⁸

C.  Drafting an ACUB Proposal to Address Environmental Concerns at Fort Riley

Fort Riley and surrounding communities were concerned about the environmental impact of development in the area when they began a land use study in 2004.²³⁹ Those concerns were justified when the 2005 Base Closure and Realignment Commission recommended the return of a massive unit to Fort Riley.²⁴⁰ The First Infantry Division, formerly headquartered in Germany, was moving back to Kansas.²⁴¹ The Division’s return in 2006 further stretched the installation’s land resources, bringing thousands of personnel and dependents to the largely rural area.²⁴² Development both on and off the installation increased dramatically.²⁴³ Grassland became more and more isolated.²⁴⁴ As the volume of training grew, the noise from the gunnery ranges increased as well.²⁴⁵

Fortunately, installation personnel had the foresight to begin drafting an ACUB proposal in 2004.²⁴⁶ The proposal gained approval on June 14, 2006.²⁴⁷ The proposal identified some of the problems that were likely to threaten training capabilities.²⁴⁸ Large amounts of smoke and noise would be generated as a result of artillery and tank live-fire training and demolitions.²⁴⁹ Additionally, a high volume of rotary-winged aircraft operations would conflict with the local civilian airport operations.²⁵⁰ Anticipating heavy civilian development around the installation, the proposal also addressed the potential impact of certain species on training areas.²⁵¹ Several vulnerable species lived on and around the installation, and further civilian development off- post would drive those species onto the undeveloped tracts of land on the installation.²⁵²

The proposal specifically identified one endangered species — the Topeka Shiner, a small fish.²⁵³ However, the sensitive species listed on the proposal were as much of a threat to training as the federally-listed, endangered species — the Topeka Shiner.²⁵⁴ Unlike the fish, the sensitive species were birds and butterflies that could migrate to undeveloped tracts of land.²⁵⁵ With the possibility that sensitive species would become federally-listed as endangered species, the installation was concerned that “[p]otential restrictions on training could result from these species seeking primary refuge on the installation when adjacent lands are incompatibly developed.”²⁵⁶ The sensitive species listed on the ACUB proposal were the greater prairie chicken, the regal fritillary (a butterfly), and the Henslow’s Sparrow.²⁵⁷

The first and perhaps most notorious of these sensitive species is the greater prairie chicken (Tympanuchus cupido).²⁵⁸ In the tallgrass prairie ecosystem, the greater prairie chicken serves as a key indicator species.²⁵⁹ An indicator species is a species whose existence may reflect the overall health of an ecosystem.²⁶⁰ While the theory behind the concept of indicator species has flaws, the theory may still be helpful in establishing whether an ecosystem is experiencing some degradation.²⁶¹ If the indicator species theory is correct, the greater prairie chicken population indicated a struggling ecosystem.²⁶² The population had declined over the past thirty years, and habitat fragmentation was exacerbating the problem.²⁶³ According to a recent study involving three different populations of greater prairie chickens (two of which were in the Flint Hills), the population was “not viable with current rates of low re- productive output.”²⁶⁴ If the trend continued, the greater prairie chicken was likely to be listed as an endangered species.²⁶⁵

Despite the threats, encroachment had not yet impacted the training mission.²⁶⁶ The goal of the ACUB program at Fort Riley was “to eliminate or significantly reduce the potential for training restrictions.”²⁶⁷ The program specifically wanted to protect large contiguous tracts of land, connecting the installation land with civilian-owned land.²⁶⁸ The large open spaces around the installation, used chiefly for grazing, would make this goal achievable.²⁶⁹

D.  Finding a Partner

In order to implement the ACUB program, Fort Riley partnered with the Kansas Land Trust (KLT).²⁷⁰ Inspired by the urbanization taking place around Lawrence, Kansas, a small group of people founded the organization in the late 1980s.²⁷¹ The destruction of Elkins Prairie became the rallying cry for the land trust.²⁷² In 1990, the Elkins Prairie was eighty acres of virgin tallgrass prairie.²⁷³ The land was also in close proximity to new development, but The Nature Conservancy had been negotiating with the land’s owner to buy the property and preserve the pristine stretch of prairie ecosystem.²⁷⁴ Conservationists were devastated when the landowner began plowing the property in the middle of the night.²⁷⁵ The founders of the KLT adopted the lone elm of Elkins Prairie as the symbol of their organization.²⁷⁶ Although Elkins Prairie was lost, the KLT has now preserved more than 24,000 acres of land.²⁷⁷

The KLT was a natural partner for the installation. Headquartered in Lawrence, Kansas, the land trust was less than two hours away from the installation, close enough for personnel to frequently travel between potential easement sites and meetings.²⁷⁸ The mission of the KLT was compatible with the statutory requirements of the ACUB program.²⁷⁹ Kansas Land Trust (KLT) is a non-profit organization that “protect[s] . . . precious resources by conserving lands of ecological, agricultural, scenic, historic, and cultural significance in Kansas.”²⁸⁰ The land trust had an established record. The KLT had fought aggressively for the passage of the Kansas Uniform Conservation Easement Act, influencing the state law that the ACUB program would later utilize.²⁸¹ Additionally, the KLT had already facilitated numerous easements and had strong respect for the ranching heritage in the local area.²⁸² The organization only accepts perpetual conservation easements.²⁸³ The KLT also insists on protecting the prairie surface, prohibiting any sort of wind-powered development that is destructive to tallgrass prairie land.²⁸⁴ With a solid legal background, the organization’s focus was not only on making deals but also on maintaining the deals.²⁸⁵ In addition to the KLT’s other accomplishments, the organization was accredited by the Land Trust Alliance’s Land Trust Accreditation Commission.²⁸⁶ The land trust was also open to working with non-traditional partners so long as the KLT could further its conservation mission.²⁸⁷

E.  Implementing the ACUB Plan

By January of 2006, Fort Riley had found a partner in the KLT and had completed the ACUB proposal.²⁸⁸ The next step was to attract landowners willing to grant conservation easements to the KLT.²⁸⁹ With the local media present, the installation announced the program at an official ceremony.²⁹⁰ The installation made special efforts to educate the community about the voluntary aspect of the program, emphasizing the fact that the landowner would retain the property.²⁹¹ The installation was sensitive to the fact that local families still resented the installation’s expansion in 1966.²⁹² The ceremony included the publication of a map showing the exact areas where the installation was seeking to place the conservation easements.²⁹³ Interested land owners were told to directly contact the Kansas Land Trust.²⁹⁴ Despite the education campaign, local families were initially cautious.²⁹⁵

Once potential grantors contacted the KLT, a tedious inspection process began. Under Fort Riley’s ACUB program, the program manager inspects parcels and ensures that the parcels meet the Army’s standards.²⁹⁶ The KLT must also evaluate the land to ensure that it meets the land trust’s standards for emplacing a conservation easement.²⁹⁷ In selecting the best property on which to place a conservation easement, the installation and the KLT had to avoid some common problems.²⁹⁸ The property size may determine whether a conservation easement will be appropriate.²⁹⁹ A single, larger conservation easement is preferred over multiple smaller easements.³⁰⁰ It is simply more efficient to approve one larger parcel than multiple smaller parcels, because the process of identifying and approving a conservation easement consumes large amounts of resources.³⁰¹ Additionally, contiguous acreage is desirable for species conservation.³⁰² Securing larger easements, however, is more difficult because inheritances and conveyances occurring over the last 150 years fragmented land ownership.³⁰³ The valuation of the conservation easement may also deter landowners from completing the transaction.³⁰⁴ Land owners often overvalue the worth of their property and often do not believe the appraised value of the conservation easement on the property.³⁰⁵

F. The Moyer Family Easement

The first conservation easement was completed in November, 2006.³⁰⁶ Since that first easement many more have followed.³⁰⁷ Perhaps the most publicized conservation easement involved property owned by a rancher named Rod Moyer.³⁰⁸ The Moyer property was located five miles south of the installation.³⁰⁹ The southern edge of the installation was also home to the Marshall Army Airfield, which had just recently updated its radar system.³¹⁰

With the recent upgrade in radar technology, implementing the ACUB program actually presented an opportunity for an immediate positive effect on the installation’s mission readiness.³¹¹ Protection of the radar’s function was a priority for the personnel on Fort Riley.³¹² Certain development of land within the range of the system could degrade the function of the radar.³¹³ The radar system serves to locate aircraft in the area and identify weather conditions.³¹⁴ In order to accomplish these functions, the radar can differentiate between mobile aircraft and “stationary clutter.”³¹⁵ Unfortunately, any development of large, industrial wind turbines severely disrupts the radar.³¹⁶ If such turbines were to be constructed within eight miles of the radar, those turbines would create a blind spot starting at the location of the turbine and “extending in a triangular wedge” behind the turbine.³¹⁷ Where these blind spots would occur, air traffic would have to be totally restricted.³¹⁸ Where one of the most profitable uses of the Kansas prairie is constructing wind farms, the ACUB program could have a clear and immediate impact on mission readiness if it were able to prevent the construction of a wind farm in close proximity to the installation.³¹⁹

This easement south of the installation was from the Moyer family. The Moyer family had operated their farm since the early 1900s.³²⁰ Like many other landowners in Kansas, the Moyer family had begun exploring new non-agricultural uses for their property.³²¹ One of the potential uses of the property was a wind farm.³²² The expansive, seemingly empty stretches of Kansan land seems to lend itself to the wind energy industry.³²³ Studies indicate that Kansas is one of the best states in the nation for wind energy production.³²⁴ In many rural communities where the farm economy was languishing, residents applauded the new development: “Local farmers [were] getting additional income by leasing easements for the wind generators, while still farming the land around the towers.”³²⁵ Conservationists, though, do not always have such a positive view of wind energy.³²⁶ In order to build wind farms, companies must disturb the surface of the land, which leads to a loss of tallgrass prairie and further fragmentation of the prairie chicken habitat.³²⁷ Not only does wind energy impact the environment, but its development also poses a threat to the installation’s mission due to its effect on radar equipment.³²⁸

Fortunately for both the ecosystem and the training mission, the ACUB program proved to be a worthwhile option for the Moyer family.³²⁹ The conservation easement for the Moyer farm was celebrated on July 22, 2010.³³⁰ Proud of forging a lasting accomplishment, the parties commemorated the event with an official signing ceremony at the Moyer Ranch.³³¹ The event featured top installation officials alongside state officials, conservationists, and the ranch’s foreman who closed the event with a special recitation of cowboy poetry.³³² The conservation easement protected 3,790 acres of native tallgrass prairie.³³³ The Moyer family would eventually grant four additional conservation easements.³³⁴ The easements permanently protect the land from new development, such as wind farms or housing projects.³³⁵ The easements represent large, continuous tracts of land that provide prime habitat for the struggling prairie and preserve diverse, native prairie species.³³⁶ The Moyer easements represent one more battle won for both the ecosystem and the Fort Riley training mission.

V.  Conclusion

The Army Compatible Use Buffer Program is a crucial tool protecting both the installation’s unique training capabilities and the region’s distinctive ecosystem. As of September 30, 2014, the ACUB program at Fort Riley has enabled eighteen easement transactions.³³⁷ The program has preserved 11,607 acres, many of which are contiguous — serving as prime habitat for prairie wildlife.³³⁸ According to recent assessments, Fort Riley ranges are not impacted by the presence of any threatened or endangered species.³³⁹ Other than the close proximity of a civilian airport, no civilian development threatens the mission capability.³⁴⁰ In short, despite heavy population growth in the last decade, no environmental or encroachment problems impact the installation’s training mission.³⁴¹ The installation credits the ACUB program for helping to achieve this outcome.³⁴²

The ACUB program has succeeded at Fort Riley, but the work must continue.³⁴³ While the conservation easements have preserved the training mission, the future of the tallgrass prairie and the greater prairie chicken is not secure.³⁴⁴ The military will also consider another round of installation closures in the near future, and the quantity and quality of training areas will influence closure decisions.³⁴⁵ The Army should continue to utilize the ACUB program to protect both the training mission and the environment. The ACUB program is winning on all fronts — benefitting landowners, installations, and the environment.

1. Shandi Dix, Agreement Protects Land from Development, 1ST INFANTRY DIVISION/FORT RILEY NEWS, Aug. 5, 2010, http://www.riley.army.mil/News/ArticleDisplay/tabid/98/Article/469752/agreement-protects-land-from-development.aspx (quoting Moyer Ranch foreman and award-winning cowboy poet Trey Allen).
2. See generally Where We Do Initial Military Training, U.S. ARMY CTR. FOR INITIAL MILITARY TRAINING, http://www.tradoc.army.mil/USACIMT/Organization.htm (last visited Nov. 23, 2015) (identifying where the Army conducts Basic Combat Training instruction). The majority of new soldiers must attend a Basic Combat Training course at one of four locations: Fort Jackson, South Carolina; Fort Benning, Georgia; Fort Leonard Wood, Missouri; or Fort Sill, Oklahoma. Id. Of these four installations, three have implemented the Army Compatible Use Buffer (ACUB) program. Army Compatible Use Buffer (ACUB) Fact Sheets, U.S. ARMY ENVTL. COMMAND, http://aec.army.mil/Services/Conserve/ArmyCompatibleUseBufferProgram/FactSheets.aspx (last visited Nov. 23, 2015).
3. Although enlisted initial entry trainees typically enter the Army with a rank as high as Specialist (E-4), the Drill Sergeants who conduct Basic Combat Training commonly refer to the trainees generically as “privates.”
4. See generally Ranger Grave, A WARGAMING BLOG, http://rangergrave.blogspot.com/2013/03/ranger-grave.html (Mar. 27, 2013, 11:40 AM). “Ranger” refers to the elite infantry personnel that complete a grueling school and that are considered to be some of the most effective soldiers in the battle space. U.S. Army Rangers, U.S. ARMY, http://www.army.mil/ranger/ (last visited Nov. 23, 2015). “Ranger Grave” is a term personnel often use referring to a shallow trench dug into the ground to protect individual Soldiers. Ranger Grave, supra. The Army’s technical term for the trench is a “fighting position.” U.S. DEP’T OF ARMY, FIELD MANUAL 3-21.8, THE INFANTRY RIFLE PLATOON & SQUAD para. 8-144 (28 Mar. 2007), available at http://armypubs.army.mil/doctrine/DR_pubs/dr_a/pdf/fm3_21x8.pdf.
5. U.S. DEP’T OF THE ARMY, REG. 200-1, ENVIRONMENTAL PROTECTION AND ENHANCEMENT 2-1(a) (Dec. 13, 2007) [hereinafter AR 200-1], available at http://www.apd.army.mil/pdffiles/r200_1.pdf.
6. Id.
7. Joseph L. Knott & Nancy Natoli, Compatible Use Buffers: A New Weapon to Battle Encroachment, 2004 ENGINEER 12, 12 (2004), available at http://www.wood.army.mil/ENGRMAG/PDFs%20for%20Oct-Dec%2004/Knott-Natoli2.pdf.
8. ROSS W. GORTE ET AL., CONG. RES. SERV. R42346, FEDERAL LAND OWNERSHIP: OVERVIEW AND DATA 3 (2012).
9. Id. at 1.
10. U.S. DEP’T OF DEF., 2014 BASE STRUCTURE REP. FY 2014 BASELINE DoD-1, DoD-14 (2014).
11. 1ST INFANTRY DIVISION AND FORT RILEY GUIDE AND DIRECTORY 2014–2015 15 (2014) [hereinafter GUIDE AND DIRECTORY], available at http://www.mybaseguide.com/Military-Relocation-Guide/627/Fort%20Riley.
12. See id. at 15–19 (detailing the history and changing mission of the installation).
13. Maria Childs, Buffer Zones Complementing Training, Ranchers, Environment, 1ST INFANTRY DIVISION POST, June 22, 2015, http://www.riley.army.mil/News/ ArticleDisplay/tabid/98/Article/601367/buffer-zones-complement-training-ranchersenvironment.aspx.
14. Id.
15. Id.
16. Id.
17. See infra notes 21–139 and accompanying text.
18. See infra notes 140–188 and accompanying text.
19. See infra notes 189–269 and accompanying text.
20. See infra notes 270–328 and accompanying text.
21. U.S. DEP’T OF ARMY, FIELD MANUAL 3-21.10, THE INFANTRY RIFLE COMPANY para. 2-34 ( July 27, 2006), available at http://armypubs.army.mil/doctrine/DR_pubs/dr_a/pdf/fm3_21x10.pdf. In the analysis of the terrain, military leaders must designate key terrain that will give a “marked advantage to either combatant.” Id. at para. 2-68.
22. Id. at para. 2-47.
23. See U.S. DEP’T OF ARMY, FIELD MANUAL 7-0, TRAINING UNITS AND DEVELOPING LEADERS FOR FULL SPECTRUM OPERATIONS para. 2-1 (Feb 23, 2011) [hereinafter FM 7-0], available at http://usacac.army.mil/cac2/Repository/FM70/FM_7-0_Final(WEB).pdf.
24. U.S. CONST. art. 1, § 8, cl. 17.
25. Id.
26. Thomas N. Ledvina, Defending America—A Question of Balance: the Department of Defense’s Range and Readiness Preservation Initiative, SJ023 ALI-ABA 163, 165–66 (2003).
27. Id.
28. FM 7-0, supra note 23, at para. 3-24.
29. DAVID W. HOGAN, JR., CENTURIES OF SERVICE: THE U.S. ARMY 1775–2005, at 9–10 (2005), available at http://www.history.army.mil/html/books/070/70-71-1/cmhPub_70-71-1.pdf.
30. Id. at 17.
31. Id. at 27.
32. Id. at 34–35.
33. Id. at 40–41.
34. Jon Harper, Army’s Return to Full-Spectrum Training Hampered by Budget Cut, STARS AND STRIPES, Nov. 29, 2014, http://www.stripes.com/news/army-s-return-to-full-spectrum-training-hampered-by-budget-cuts-1.316568; Rick Montgomery, Army Begins Training for Next War, Which May be Much Different Bigger, KANSAS CITY STAR, May 27, 2015, http://www.military.com/daily-news/2015/05/27/army-begins-training-for-next-war-which-may-be-different-bigger.html. Army doctrine envisions a force capable of operations across a full spectrum of conflict, from peace-time missions to insurgencies to general war. U.S. DEP’T OF ARMY, FIELD MANUAL 3-0, OPERATIONS fig. 2-1 (Feb 27, 2008), available at http://usacac.army.mil/cac2/Repository/Materials/FM3-0(FEB%202008).pdf. Where a conflict falls on the Army’s spectrum of operations drives the training mission and land use of forces not yet deployed to the conflict. Id. at para. 2-15. Counterinsurgency focused on smaller unit operations in restricted environments characterized by “irregular forces and terrorist tactics.” Id. at para. 2-6. Conventional warfare, or “general war” under Army doctrine anticipates larger and better organized forces. Id. at para. 2-7. “These conflicts are dominated by large-scale conventional operations but often include guerilla and unconventional warfare.” Id. “The Army’s training challenge is to optimize and support training . . . to produce forces and leaders capable of responding across the range of military operations.” U.S. DEP’T OF ARMY, REG. 350-1, ARMY TRAINING AND LEADER DEVELOPMENT para. 1-8 (Aug. 19, 2014), available at http://www.apd.army.mil/pdffiles/r350_1.pdf.
35.  U.S. DEP’T OF ARMY, NATIONAL DEFENSE AUTHORIZATION ACT SECTION 2831(A) REPORT ON THE PIN˜ ON CANYON MANEUVER SITE, COLORADO 1 (2008) [hereinafter PIN˜ ON CANYON]. Facing a severe shortage of maneuver training space, Fort Carson wanted to purchase large tracts of land to overcome its training restrictions. Id. The proposed expansion resulted in strong opposition from the local community. Dan Elliott, Army Takes Step Back from Colorado Expansion, DENVER POST, Nov. 25, 2015, http://www.denverpost.com/news/ci_24595613/pinon-canyon-expansion-fight-nearing-end. Eventually, the pressure from citizens resulted in Congressional denial of funding which discouraged the Army from pursuing the project. Id. This story illustrates how sensitive Army land acquisition is. Id.
36. U.S. DEP’T OF ARMY, TRAINING CIRCULAR 25-1, TRAINING LAND para. 2-2 (Mar. 15, 2004) [hereinafter TC 25-1], available at https://rdl.train.army.mil/catalog-ws/view/100.ATSC/7B5CE6BB-F52E-4147-AA00-97903F72FBF0-1274424734404/25-1/tc25-1.htm#chap1-1.
37. FM 7-0, supra note 23, at para. 2-10.
38. Id. at Table 2-1. In a recent ambush in Iraq, a unit came under attack from grenades, improvised explosive devices (IEDs), mortars, and small arms in downtown Baghdad when crossing under an overpass. “It’s a surreal feeling; everything is [in slow motion]. You really don’t think; you just react like you’ve been trained to during a contact,” a Stryker vehicle gunner said. As the soldier in Iraq alluded, we must train as we fight.” Knott & Natoli, supra note 7, at 12.
39. Knott & Natoli, supra note 7, at 12; see also TC 25-1, supra note 36, at para. 2-2(b). “Realistic training is the essential element that assures unit combat readiness. Many unit mission essential tasks can be trained to standard only during live training. For example, tasks such as ‘[occupying] a platoon battle position,’ or ‘[creating] a crater obstacle with explosives,’ are difficult to evaluate in virtual or constructive training.” Id. at para. 3-9; Montgomery, supra note 34 (detailing the crucial role of Fort Riley’s terrain for realistic training required to prepare for full-spectrum operations).
40. See, e.g., PIN˜ ON CANYON, supra note 35, at 13. Maneuver or training areas are “those designated for impact and detonation of all ordnance or those areas required for land-intensive training at the installation.” TC 25-1, supra note 36, at para. 1-9. The Army further designates the largest type of unit that can effectively train on the space and whether the space may contain unexploded ordinance that would prevent maneuver training. Id. This Comment uses the terms maneuver area, training area, and range interchangeably.
41. Knott & Natoli, supra note 7, at 12.
42. DAVID RUBENSON ET AL., DOES THE ARMY HAVE A NATIONAL LAND USE STRATEGY? 12 (1999), available at http://www.rand.org/content/dam/rand/pubs/monograph_reports/2007/MR1064.pdf. The Army systematically makes calculations to determine how much space a unit needs to effectively train on a particular task. TC 25-1, supra note 36, at App. A & App. B.
43. While some live-fire ranges allow forces to remain stationary (for example rifle marksmanship ranges), maneuver training involves the movement of forces. DEP’T OF DEFENSE, JOINT PUBLICATION 3-0, JOINT OPERATIONS GL-12 (Aug. 11, 2011), available at http://www.dtic.mil/doctrine/new_pubs/jp3_0.pdf.
44. Knott & Natoli, supra note 7, at 12; see also RUBENSON ET AL., supra note 42, at 9–10. The concern over the growing training footprint was evidenced by a report in 1999 that many TRADOC installations (installations responsible for large training programs such as Basic Combat Training) did not have the training space needed to accommodate new technologies. Id. at 65.
45. Sharon E. Riley, The Wolf at the Door: Competing Land Use Values on Military Installations, 153 MIL. L. REV. 95, 121 (1996).
46. See JOHN J. MCGRATH, FIRE FOR EFFECT: FIELD ARTILLERY AND CLOSE AIR SUPPORT IN THE US ARMY 14 (2010).
47. JANICE E. MCKENNEY, THE ORGANIZATIONAL HISTORY OF FIELD ARTILLERY 1775–2003, at 95–124 (2007), available at http://www.history.army.mil/html/books/oh_of_fa/cmh_60-16-1.pdf.
48. Press Release, Picatinny Arsenal, Raytheon’s Excalibur Ib Compatible with M198 Howitzer (Aug. 21, 2015, 8:00 AM), http://www.reuters.com/article/2015/08/21/raytheon-excalibur-ib-idUSnPn4wbMMH+87+PRN20150821.
49. Harper, supra note 34; see also Matthew Cox, Army Protects Training Funds from Sequester Cuts, MILITARY.COM, Sep. 10, 2013, http://www.military.com/dailynews/2013/09/10/army-protects-training-funds-from-sequester-cuts.html; C. Todd Lopez, McHugh: Budget Cuts Would Mean ‘Dark and Dangerous’ Future, ARMY. MIL, Mar. 17, 2015, http://www.army.mil/article/144726/McHugh__Budget_cuts_would_mean__dark_and_dangerous__future/.
50. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-11-520T, FEDERAL REAL PROPERTY: PROGRESS MADE ON PLANNING AND DATE, BUT UNNEEDED OWNED AND LEASED FACILITIES REMAIN 3 (2011), available at http://www.gao.gov/assets/130/125936.pdf.
51. Id.
52. U.S. DEP’T OF ARMY, LEGACY BASE REALIGNMENT AND CLOSURE CONVEYANCE PROGRESS REPORT 2 (2015), available at http://www.hqda.army.mil/ACSIMWEB/brac/sites/Legacy%20BRAC%20Consolidated%20Installation%20Report%20-%201%20April%202015%20(4%20Jun%2015).pdf. Note that these numbers do not even reflect the latest round of BRAC that occurred in 2005. Id. Another round of BRAC seems to be eminent as manpower shrinks on remaining installations. Jared Serbu, With or Without BRAC, DoD’s Footprint is Shrinking, FED. NEWS RADIO, Apr. 8, 2015, http://federalnewsradio.com/on-dod/2015/04/with-or-without-bracdods-footprint-is-shrinking/.
53. TC 25-1, supra note 36, at para. 3-8.
54. See infra notes 55–93 and accompanying text.
55. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-02-614, MILITARY TRAINING: DOD LACKS A COMPREHENSIVE PLAN TO MANAGE ENCROACHMENT ON TRAINING RANGES 5 (2011), available at http://www.gao.gov/new.items/d02614.pdf.
56. BLACK’S LAW DICTIONARY (10th ed. 2014).
57. AR 200-1, supra note 5, sec. 1 at 102.
58. Id. Eight different issues contributed to encroachment on military training areas: endangered species habitat, unexploded ordnance, radio frequency spectrum crowding, marine resources, crowding of airspace, air pollution, noise pollution, and civilian development around military installations. U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 55, at 5–9.
59. U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 55, at 3.
60. Knott & Natoli, supra note 7, at 12.
61. See id.
62. Id.
63. See id. at 13.
64. Teresa K. Hollingsworth, The Sikes Act Improvement Act of 1997: Examining the Changes for the Department of Defense, 46 A.F. L. REV. 109, 111 (1999).
65. Knott & Natoli, supra note 7, at 13 (quoting Major General R. L. Van Antwerp, Assistant Chief of Staff for Installation Management).
66. DEP’T OF DEF., THREATENED AND ENDANGERED SPECIES ON DEPARTMENT OF DEFENSE LANDS 1 (2005), available at https://www.dodlegacy.org/Legacy/Intro/factsheets/progrelated/TESpeciesonDoDLandsApril2005.pdf.
67. Id.
68. Aaron M. Riggio, Whale Watching from 200 Feet Below: A New Approach to Resolving Operational Encroachment Issues, 33 SEATTLE U. L. REV. 229, 237 (2009); see, e.g., Pyramid Lake Paiute Tribe of Indians v. U.S. Dep’t of Navy, 898 F.2d 1410 (9th Cir. 1990) (alleging that the Navy had violated the Endangered Species Act); Strahan v. Linnon, 966 F. Supp. 111 (D. Mass. 1997) (alleging that several parties, chief amongst them the Coast Guard, had violated environmental laws including the Endangered Species Act, the National Environmental Policy Act, and the Marine Mammal Protection Act).
69. See TC 25-1, supra note 36, at para. 3-8. When determining what land may be considered for training exercise, the TC directs soldiers to “subtract restricted and unusable land” from the total amount of land available. Id. As Table 3-2 points out, environmental restrictions and encroachment are both factors that may lead to land becoming unusable for training purposes. Id. at Table 3-2. The TC further lists “Legal and Regulatory Compliance Requirements” that must be considered when establishing a maneuver area. Id. at para. 3-10. The list includes the National Environmental Policy Act (NEPA), the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), National Historic Preservation Act (NHPA), the Endangered Species Act (ESA), the Noise Control Act (NCA), the Clean Air Act (CAA), the Sikes Act, and the Sikes Act Improvement Act (SAIA). See generally 42 U.S.C. §§ 4321 et seq.; 42 U.S.C. §§ 6901 et seq.; 33 U.S.C. §§ 1251 et seq.; 16 U.S.C. §§ 470 et seq.; 16 U.S.C. §§ 1531 et seq.; 42 U.S.C. §§ 4904 et seq.; 42 U.S.C. §§ 7401 et seq.; 16 U.S.C. §§ 670 et seq.
70. Knott & Natoli, supra note 7, at 13.
71. See TC 25-1, supra note 36, at para. 3-9.
72. U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 55, at 43.
73. Knott & Natoli, supra note 7, at 13. “ ‘Workarounds’ are modifications to the timing, tempo, location, or equipment used for test and training. These deviations from doctrinal test and training standards may include: reducing training days or time; segmenting an exercise into discrete steps; or changing flight patterns, limiting live-fire, and using simulations.” U.S. DEP’T OF DEF., THE DEPARTMENT OF DEFENSE’S READINESS AND ENVIRONMENTAL PROTECTION INTEGRATION (REPI) PROGRAM BUFFER PARTNERSHIPS 1 (2013) [hereinafter REPI PROGRAM BUFFER PARTNERSHIPS], available at http://www.repi.mil/Portals/44/Documents/Primers/Primer_REPIBufferPartnerships.pdf.
74. See Ryan Santicola, Encroachment: Where National Security, Land Use, and the Environment Collide, ARMY LAW. 1, 5 (2006).
75. Knott & Natoli, supra note 7, at 13.
76. See Red-cockaded Woodpecker Recovery, U.S. FISH & WILDLIFE SERV., http://www.fws.gov/rcwrecovery/rcw.html# (last updated Nov. 17, 2015) (explaining the traditional range of the woodpecker that stretched over much of the southeast United States); see also Fort Bragg History, FORT BRAGG, http://www.bragg.army.mil/Pages/History.aspx (last visited Nov. 23, 2015).
77. T. BEATY ET AL., U.S. FISH AND WILDLIFE SERV., RECOVERY PLAN FOR THE REDCOCKADED WOODPECKER (PICOIDES BOREALIS): SECOND REVISION IX (2003); United States List of Endangered Native Fish and Wildlife, 35 Fed. Reg. 16,047 (Oct. 13, 1970) (to be codified at 50 C.F.R. 17.11). Congress passed the Endangered Species Act (ESA) in 1973 to counter the ongoing extinction of many species of animals and plants. 16 U.S.C. §§ 1531-1541 (2015). The ESA implemented procedures that would identify species that were endangered or threatened. Id. at § 1533. Once the species has been identified as endangered or threatened, it is referred to as a listed species, and federal agencies have an affirmative duty to protect the species. Id. at § 1536.
78. Rich Browne, Fort Bragg Endangering Woodpecker, FAYETTEVILLE OBSERVER, Dec. 8, 1989, http://www.fayobserver.com/news/local/article_27c02461-029c-5adeb23d-d92e505843d4.html; see also David N. Diner, The Army and the Endangered Species Act: Who’s Endangering Whom?, 143 MIL. L REV. 161, 206–08 (1994) (detailing the growing tension between the installation and the U.S. Fish and Wildlife Service, summing up the high point of the conflict where “Fort Bragg officials had maneuvered themselves into the worst of all positions: severe training restrictions, high-profile litigation with adverse publicity, potential criminal liability, and abysmal relations with the FWS.”); Jason C. Wells, Note, National Security and the Endangered Species Act, WM. & MARY ENVTL. L. & POL’Y REV. 255, 274 (2006) (acknowledging that much of the conflict between the Army and the Fish and Wildlife Service stemmed from the installations commanders’ attitudes towards environmental conservation).
79. Knott & Natoli, supra note 7, at 12.
80. Browne, supra note 78.
81. Drew Brooks, Fort Bragg and Red-cockaded Woodpecker Co-exist Comfortably after Shift in Conservation Attitudes, FAYETTEVILLE OBSERVER, Aug. 19, 2014, http://www.fayobserver.com/news/local/fort-bragg-and-red-cockaded-woodpecker-co-exist-comfortably-after/article_0c570329-0049-5543-a074-f8ec55604454.html.
82. Id.
83. Id.
84. Id.
85. U.S. ARMY ENVTL. COMMAND, ARMY COMPATIBLE USE BUFFER PROGRAM YEAR END SUMMARY FY12, at 4 (2012).
86. Id.
87. Id.; see also Christopher Joyce, Fort Bragg’s Woodpeckers, NPR (May 9, 2002), http://www.npr.org/templates/story/story.php?storyId=1143060 (describing the partnership between the installation and The Nature Conservancy and detailing how The Nature Conservancy helped to maintain the bird’s population on and around Fort Bragg).
88. See Press Release, U.S. Fish & Wildlife Service, Fort Bragg Reaches Recovery Milestone for the Endangered Red-cockaded Woodpecker Five Years Earlier than Expected: First Recovery of a Population Segment for the Species ( June 7, 2006), http://www.fws.gov/southeast/news/2006/r06-035.html. Not only does this press release directly credit the public/private partnership between the military installation and non-governmental organizations with helping the bird to recover, but it also points out that this population recovery was the first for the species as a whole. Id.
89. Id.; see also U.S. FISH&WILDLIFE SERV., RED-COCKADED WOODPECKER 2 (2008), http://www.fws.gov/rcwrecovery/files/rcwoodpecker.pdf (according to the Fact Sheet provided by the Fish and Wildlife Service, the species has recovered over 50% thanks in large part to efforts throughout six DoD installations. Of the six DoD installations, four are Army installations, and all of them have implemented the ACUB program).
90. Press Release, U.S. Fish & Wildlife Service, supra note 88.
91. Brooks, supra note 81.
92. Id.
93. Id.
94. See Army Compatible Use Buffer (ACUB) Fact Sheets, Fort Bragg, North Carolina, U.S. ARMY ENVTL. COMMAND, http://aec.army.mil/Portals/3/acub/NC-Bragg.pdf (last visited Nov. 23, 2015).
95. See U.S. ARMY ENVTL. COMMAND, ARMY COMPATIBLE USE BUFFER PROGRAM YEAR END SUMMARY FY09 4 (2009), available at http://aec.army.mil/Portals/3/acub/eoysfy09.pdf.
96. Id.
97. Bob Stump National Defense Authorization Act for Fiscal Year 2003, Pub. L. No. 107–314, 116 Stat. 2458 (2002).
98. Id. at § 2811.
99. 10 U.S.C. § 2684a (2014); see also U.S. ARMY ENVTL. COMMAND, supra note 85, at 6–9 (describing some the amendments to the statute from its inception through the preparation of the ACUB’s fiscal year 2012 report).
100. 10 U.S.C. § 2684a(b) (2014).
101. Id. at § 2684a(d).
102. Id.
103. U.S. DEP’T OF DEF., 2007 REPORT TO CONGRESS ON THE READINESS AND ENVIRONMENTAL PROTECTION INITIATIVE 1, 52 (2007) [hereinafter REPI REP. FY 2007], available at http://www.repi.mil/Portals/44/Documents/Reports_to_Congress/REPI2007RTC.pdf.
104. Id.
105. Telephone Interview with Susan James, Army Compatible Use Buffer (ACUB) Team Member, Envtl. Solutions Div., Conservation Branch, U.S. Army Envtl. Command, Fort Sam Houston, Tex., U.S. Army (Mar. 11, 2015).
106. U.S. DEP’T OF DEF., DIRECTIVE 3200.15, SUSTAINING ACCESS TO THE LIVE TRAINING AND TEST DOMAIN 6 (2013).
107. Service Programs, READINESS AND ENVTL. PROT. INTEGRATION, http://www.repi.mil/BufferProjects/ServicePrograms.aspx (last visited Nov. 23, 2015).
108. Id.
109. Army Compatible Use Buffer (ACUB) Program, U.S. ARMY ENVTL. COMMAND [hereinafter Program], http://aec.army.mil/Services/Conserve/ArmyCompatibleUseBufferProgram.aspx (last visited Nov. 23, 2015).
110. Army Compatible Use Buffer (ACUB) Proposal Process, U.S. ARMY ENVTL. COMMAND [hereinafter Proposal Process], http://aec.army.mil/Services/Conserve/ArmyCompatibleUseBufferProgram/ProposalProcess.aspx (last visited Nov. 23, 2015).
111. Service Programs, supra note 107.
112. See, e.g., Brooks, supra note 81 (detailing the training restrictions that were already in place before Fort Bragg began developing the Private Land Initiative which would become the model for the ACUB program).
113. Id.
114. See, e.g., Army Compatible Use Buffer (ACUB) Fact Sheets, Fort Riley, Kansas, U.S. ARMY ENVTL. COMMAND [hereinafter USAEC Fact Sheets, Fort Riley, Kansas], http://aec.army.mil/Portals/3/acub/KS-Riley.pdf (last visited Nov. 23, 2015) (setting the goals for the ACUB as “eliminat[ing] or significantly reduc[ing] the potential for training restrictions by avoiding land use conflicts and degradation of natural resources.”).
115. Telephone Interview with Jeff Keating, ACUB Program Manager, Directorate of Pub. Works, Envtl. Div., Fort Riley, Kan., U.S. Army (March 24, 2015).
116. REPI PROGRAM BUFFER PARTNERSHIPS, supra note 73, at 14.
117. See Army Compatible Use Buffer (ACUB) Cooperative Agreement Partners, U.S. ARMY ENVTL. COMMAND, [hereinafter Agreement Partners], http://aec.army.mil/Services/Conserve/ArmyCompatibleUseBufferProgram/Partners.aspx (last visited Nov. 23, 2015); see also LAND TRUST ALLIANCE, WORKING WITH LAND TRUSTS: A GUIDE FOR MILITARY INSTALLATIONS 17 (2010), available at http://www.denix.osd.mil/sri/upload/PrimerLTA2010.pdf (informing military personnel of the advantages and disadvantages of working with different types of land trusts). Although the partner does not have to be a land trust, this Article will use the term “land trust” as the default term to describe the Army’s partner in the ACUB program.
118. LAND TRUST ALLIANCE, supra note 117, at 16.
119. Id. at 19.
120. Id.
121. REPI REP. FY 2007, supra note 103, at 52.
122. Id.
123. Id.
124. Id.
125. Id.
126. REPI PROGRAM BUFFER PARTNERSHIPS, supra note 73, at 8.
     
127. Program, supra note 109. Note that since funding priorities are based on the information presented in the proposal, the accuracy and detail of the proposal are important. REPI REP. FY 2007, supra note 103, at 27.
128. Proposal Process, supra note 110.
129. Id. After reaching an agreement, it must be submitting to the Army’s contracting agency delegated with the authority to enter into cooperative agreements. Once finalized, the cooperative agreement consists of the standard terms and conditions with a map and the SOW as attachments.
130. Program, supra note 109; see also REPI PROGRAM BUFFER PARTNERSHIPS, supra note 73, at 6 (detailing the sources of the funds that may be used to purchase the conservation easements).
131. REPI REP. FY 2007, supra note 103, at 54.
132. Id. at 53–54.
133. Gerald Korngold, Governmental Conservation Easements: A Means to Advance Efficiency, Freedom from Coercion, Flexibility, and Democracy, 78 BROOK. L. REV. 467, 467 (2013).
134. Id.
135. Id. at 482.
136. Id. at 468.
137. Id. at 482–83.
138. Elliott, supra note 35. Note that in the situation involving the Piñon Canyon Maneuver Site, the Army was interested in acquiring land only from willing sellers. PIÑON CANYON, supra note 35, at 3.
139. Conservation Easements, NATURE CONSERVANCY, http://www.nature.org/aboutus/private-lands-conservation/conservation-easements/all-about-conservationeasements.xml (last visited Nov. 23, 2015).
140. Telephone Interview with Susan James, supra note 105.
141. Agreement Partners, supra note 117.
142. Federico Cheever, Public Good and Private Magic in the Law of Land Trusts and Conservation Easements: A Happy Present and a Troubled Future, 73 DENV. U. L. REV. 1077, 1085 (1996).
143. Id.
144. Id. at 1087.
145. Meagan Roach, Note, Local Land Trusts: A Comparative Analysis in Search of an Improved Template for Land Trusts, 38 WM. & MARY ENVTL. L. & POL’Y REV. 767, 771–72 (2014).
146. Id. at 1078.
147. Frequently Asked Questions, KANSAS LAND TRUST, http://www.klt.org/faq/ (last visited Nov. 23, 2015).
148. LAND TRUST ALLIANCE, supra note 117, at 7.
149. Roach, supra note 145, 770–71.
150. Cheever, supra note 142, at 1078.
151. Roach, supra note 145, at 772.
152. Cheever, supra note 142, at 1083.
153. Id.
154. See Frequently Asked Questions, supra note 147 and accompanying text.
155. See, e.g., id. The Kansas Land Trust states that its mission is “partner[ing] with landowners, communities and other conservation organizations to protect our State’s most precious resources by conserving lands of ecological, agricultural, scenic, historical and cultural significance in Kansas.” Mission, KANSAS LAND TRUST, http://www.klt.org/mission-1/ (last visited Nov. 23, 2015). Under the Internal Revenue Code, organizations may be recognized under § 501(c)(3) as tax exempt, nonprofit entities if they have a purpose falling within that section (a purpose generally aimed at achieving some sort of societal good). 26 U.S.C. § 501 (2014). Consequently, donations to organizations that are qualified under § 501(c)(3) are tax deductible. Id. at § 170. Outside the context of the ACUB program, the tax deduction that landowners receive when they donate property to qualifying organizations is attractive. Roach, supra note 145, at 772. Since the ACUB program works by purchasing the conservation easement from the landowner, no charitable contribution occurs at the initial time of the transaction. 10 U.S.C. § 2684a (2015). Although, under the ACUB program landowners do not benefit from a tax deduction from a charitable donation, they may still incur favorable property tax consequences due to a change in property values after the easement has been placed on the land. Conservation Easements FAQ, KANSAS LAND TRUST, http://www.klt.org/conservation-easements-faq/ (last visited Nov. 23, 2015).
156. 10 U.S.C. § 2684a(b)(2) (2014). The statute merely requires that the private partner be one having “as its stated principal organizational purpose or goal the conservation, restoration, or preservation of land and natural resources, or a similar purpose or goal.” Id.
157. See, e.g., Frequently Asked Questions, supra note 147. In answer to the question of what the Kansas Land Trust does, the website reports that the organization achieves its conservation goals by “crafting a customized agreement for each landowner” and by “work[ing] to ensure that the lands we are protecting stay protected—forever.” Id.
158. Conservation Easements: The Evolution of Conservation Easements, THE NATURE CONSERVANCY, http://www.nature.org/about-us/private-lands-conservation/conservation-easements/evolution-of-conservation-easements.xml (last visited Nov. 23, 2015).
159. 28 U.S.C. § 170(b)(1)(E)(i) (2014).
160. Id. at § 170(h)(1).
161. Id. at § 170(h)(2). The requirement that the conservation easement be perpetual is a topic that will likely be explored and heavily litigated as more and more acres are encumbered; see also Nancy A. McLaughlin, Perpetual Conservation Easements in the 21st Century, 2013 UTAH L. REV. 687 (2013) (exploring the future struggles that the conservation movement will face while trying to enforce perpetual conservation easements).
162. 28 U.S.C. § 170(h)(3).
163. Id. at § 170(h)(4).
164. Legislative Fact Sheet - Conservation Easement Act, UNIF. LAW COMM’N, http://www.uniformlaws.org/LegislativeFactSheet.aspx?title=Conservation Easement Act (last visited Nov. 23, 2015).
165. Id. Twenty-one states plus the District of Colombia and the U.S. Virgin Islands have adopted the uniform act with little or no modification. Id. The adoption of the Act faced strenuous opposition in Kansas and was only adopted after the legislation was written to limit the duration of the easement to the duration of the grantor’s life unless the instrument creating it otherwise provides. Cheever, supra note 142, at 1083 n.45. Although state law allows for conservation easements of limited duration, the Kansas Land Trust will only accept permanent conservation easements. Conservation Easements FAQ, supra note 155.
166. NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS, UNIFORM CONSERVATION EASEMENT ACT, at Prefatory Note (2007), available at http://www.uniformlaws.org/shared/docs/conservation_easement/ucea_final_81%20with%2007amends.pdf.
167. Id.
168. Id. States that have statutes inconsistent with federal tax law may deter conservation easements when the grantors of the easements are not able to take advantage of the charitable deduction. See, e.g., N.D. CENT. CODE § 47-05-02.1 (2015). Because North Dakota law does not permit perpetual conservation easements, tax payers from North Dakota were not eligible for the deduction for “qualified conservation contributions.” Watcher v. Comm’r of Internal Revenue, 142 T.C. 140, 149 (2014).
169. UNIFORM CONSERVATION EASEMENT ACT, supra note 166, at Prefatory Note. The drafters of the Uniform Conservation Easement Act tried to clarify where conservation stood among the established property law concepts. Id. Additionally, “[o]ne of the Act’s basic goals is to remove outmoded common law defenses that would impede the use of easements for conservation or preservation ends.” Id. at § 4 cmt.; see also Mary Ann King & Sally K. Fairfax, Public Accountability and Conservation Easement Act Debates, 46 NAT. RESOURCES J. 65 (2006) (detailing the debate behind the drafting of the Uniform Conservation Easement Act).
170. UNIFORM CONSERVATION EASEMENT ACT, supra note 166, at §1(1). This definition draws vocabulary and ideas from the Internal Revenue Code. 26 U.S.C. § 170(h)(4)(A).
171. UNIFORM CONSERVATION EASEMENT ACT, supra note 166, at § 2.
172. Id.
173. Id. The Kansas statute does not perfectly mirror the Uniform Conservation Easement Act in this section because under Kansas law the default duration of a conservation easement is limited. KAN. STAT. ANN. § 58-3810 (2014).
174. UNIFORM CONSERVATION EASEMENT ACT, supra note 166, at Prefatory Note.
175. Id. “The Act does not itself impose restrictions or affirmative duties. It merely allows the parties to do so within a consensual arrangement freed from common law impediments, if the conditions of the Act are complied with.” Id.; see also Cheever, supra note 142, at 1079–80 (giving examples of different conservation easements that might be crafted by the parties). “By granting a conservation easement, the owner of land splits that bundle of rights, reserving the rights to engage in certain activities (for example: hunting, farming, building a cabin) to the grantor-holder of the underlying possessory interest—and ceding the right to prevent the grantor or anyone else from engaging in another range of activities (for example: building casinos, housing developments, clearcutting timber, or filling swamps) to another party, the grantee.” Id. The range of prohibited activities can stretch from a broad prohibition against disturbing land or it may only prohibit activities that would disrupt a particular natural process such as elk calving.” Id. at 1080.
176. Cheever, supra note 142, at 1084.
177. Id. at 1085–86.
178. Nathan Paulich, Increasing Private Conservation through Incentive Mechanisms, 3 STAN. J. ANIMAL L. & POL’Y 106, 143 (2010).
179. See supra notes 155–163 and accompanying text.
180. Marc Campopiano, The Land Trust Alliance’s New Accreditation Program, 33 ECOLOGY L.Q. 897, 904 (2006); Conservation Easements, INTERNAL REVENUE SERV., http://www.irs.gov/Charities-%26-Non-Profits/Conservation-Easements (last visited Nov. 23, 2015).
181. LAND TRUST ACCREDITATION COMM’N, http://www.landtrustaccreditation.org/index.php (last visited Nov. 23, 2015); see also Campopiano, supra note 180, at 904 (explaining the development of the accreditation program).
182. See Campopiano, supra note 180, at 902.
183. Cheever, supra note 142, at 1088.
184. UNIFORM CONSERVATION EASEMENT ACT, supra note 166, at § 2 cmt.
185. Ann Taylor Schwing, Perpetuity is Forever, Almost Always: Why it is Wrong to Promote Amendment and Termination of Perpetual Conservation Easements, 37 HARV. ENVTL. L. REV. 217, 237–38 (2013).
186. Land trusts may purchase legal insurance to ensure that they have the ability to enforce conservation easements. See generally TERRAFIRMA, http://terrafirma.org/ (last visited Nov. 23, 2015) (offering insurance products to land trusts).
187. Adena R. Rissman & Van Butsic, Land Trust Defense and Enforcement of Conserved Areas, 4 CONSERVATION LETTERS 31, 31 (2011).
188. GUIDE AND DIRECTORY, supra note 11, at 15.
189. WILLIAM A. DOBAK, FORT RILEY AND ITS NEIGHBORS: MILITARY MONEY AND ECONOMIC GROWTH, 1853–1895, at 44 (1998).
190. Id. at 132.
191. GUIDE AND DIRECTORY, supra note 11, at 16.
192. Id.
193. Id.
194. Id.
195. Id.
196. DOBAK, supra note 189, at 157.
197. See id.
198. Id. at 158–159.
199. Id. at 160.
200. See id. at 175-76.
201. Id. at 5.
202. Id. at 127.
203. Id. at 160.
204. Id. at 150.
205. Id. at 6.
206. Id.
207. Id.
     
208. Id. at 150.
209. Id.
210. Id. at 151.
211. Id. at 152.
212. Id. at 152–53.
213. Id. at 153.
214. Id. at 152–53.
215. GUIDE AND DIRECTORY, supra note 11, at 16–17.
216. Id. at 17.
217. Id. at 18.
218. Id.
219. Id.
220. See Dennis Farney, Army’s Lust for Land, Including Some Where Custer Once Rode, Creates Farmers’ Last Stand, WALL ST. J., Dec. 28, 1989, http://search.proquest.com.proxy.library.umkc.edu/abicomplete/docview/398230480/fulltext/D276E11EEF3A4EDDPQ/1?accountid=14589.
221. Id.; William Robbins, Fort Riley Journal; Army’s Plan to Expand Draws Neighbors’ Fire, N.Y. TIMES, June 30, 1989, http://www.nytimes.com/1989/06/30/us/fort-riley-journal-army-s-plan-to-expand-draws-neighbors-fire.html.
222. Farney, supra note 220.
223. See PLANS ANALYSIS AND INTEGRATION OFFICE, U.S. ARMY GARRISON, FORT RILEY, KANSAS, FORT RILEY MILITARY VALUE ANALYSIS DATA 6 (2014), available at http://www.riley.army.mil/Portals/0/Docs/Units/Garrison/PAIO/FRMilitaryValueAnalysis.pdf.
224. Id. at 5–6.
225. Andrew J. Cochran, ‘Daggers’ Test Fort Riley’s Training Capacity, 1ST INFANTRY DIVISION/FORT RILEY NEWS, Dec. 17, 2014, http://www.riley.army.mil/News/ArticleDisplay/tabid/98/Article/558342/daggers-test-fort-rileys-training-capacity.aspx. According to this news story, there are many aspects of Fort Riley’s training area that provide unique training opportunities for units: many acres are available for heavy maneuver units, diversity of terrain features, and close access support units who are able to enable desired training scenarios. Id.
226. Id.
227. GUIDE AND DIRECTORY, supra note 11, at 4.
228. Id.
229. USAEC Fact Sheets, Fort Riley, Kansas, supra note 114.

     The installation provides training assistance to Reserve Component Soldiers including the Army National Guard, U.S. Army Reserves, Navy Reserves, Marine Reserves, Reserve Officer Training Corps (ROTC), Air Guard, and those conducting individual training or attending schools. Capabilities of Fort Riley include hosting live-fire exercises, maneuver training for mechanized/armored vehicles, attack helicopter gunnery, small arms firing, artillery and tank firing exercises, as well as engineer obstacles.

     Id.
230. See, e.g., Guard FAQs, NAT’L GUARD, http://www.nationalguard.com/guardfaqs#faq-467 (last visited Nov. 23, 2015).
231. U.S. FISH AND WILDLIFE SERV., ENVIRONMENTAL ASSESSMENT: FLINT HILLS LEGACY CONSERVATION AREA, KANSAS, 2 (2010) [hereinafter ENVIRONMENTAL ASSESSMENT].
232. Id. at 102.
233. Why Conservation Matters, KANSAS LAND TRUST, http://www.klt.org/why-conservation-matters/ (last visited Nov. 23, 2015).
234. ENVIRONMENTAL ASSESSMENT, supra note 231, at 14. Concern over the disappearing ecosystem motivated Congress to authorize a new national park in the Flint Hills that partnered with a private organization to preserve remaining tallgrass prairie. Kansas Tallgrass Prairie National Preserve, NATURE CONSERVANCY, http://www.nature.org/ourinitiatives/regions/northamerica/unitedstates/kansas/placesweprotect/tallgrass-prairie-national-preserve.xml (last visited Nov. 23, 2015). The result of this partnership between the National Park Service and The Nature Conservancy is the almost 11,000 acre Tallgrass Prairie National Preserve. Id. Since the mid-1990s many organizations have advocated for the protection of this disappearing ecosystem, resulting in the creation of the Flint Hills Legacy Conservation Area. Press Release, U.S. Dep’t of Interior, Secretary Salazar Marks Establishment of Flint Hills Legacy Conservation Area (FHLCA) (Nov. 12, 2010), available at https://www.doi.gov/news/pressreleases/Secretary-Salazar-Marks-Establishment-of-Flint-Hills-Legacy-Conservation-Area. In a new strategy to preserve this ecosystem, the federal government established an area where it would apply strategies to both encourage the local economy and conservation, mainly through the means of conservation easements. Id. “The plan to create the FHLCA is part of a landscape-scale, strategic habitat conservation effort to protect a unique, highly diverse, and largely unfragmented area of tallgrass prairie.” U.S. FISH AND WILDLIFE SERV., LAND PROTECTION PLAN: FLINT HILLS LEGACY CONSERVATION AREA, KANSAS, 2 (2010), http://www.fws.gov/mountain-prairie/planning/lpp/ks/flh/documents/flh_lpp_final_ch1introduction.pdf.
235. ENVIRONMENTAL ASSESSMENT, supra note 231, at 2.
236. Id. at 4.
237. Id.
238. Id.
239. Flint Hills Joint Land Use Study, CITY OF MANHATTAN, KANSAS, http://cityofmhk.com/214/Flint-Hills-Joint-Land-Use-Study (last visited Nov. 23, 2015).
240. 1 2005 DEFENSE BASE CLOSURE AND REALIGNMENT COMMISSION REPORT 18 (2005), available at http://www.brac.gov/docs/final/BRACReportcomplete.pdf.
241. Rhea Wessel, Big Red One Returning to Kansas, TOPEKA CAPITAL J., Jul. 7, 2006, http://cjonline.com/stories/070706/kan_bigredone.shtml#.VhqsMzEo5rS.
242. See, e.g., Robert Siegel, Junction City Awaits BRAC Windfall, NAT’L PUB. RADIO, May 11, 2011, available at http://www.npr.org/2011/05/11/136214355/junction-city-awaits-brac-windfall.
243. Id.; MILCON: Fort Riley Getting a Makeover, U.S. ARMY, Mar. 14, 2008, http://www.army.mil/article/7942/.
244. Telephone Interview with Jeff Keating, supra note 115.
245. Id.
246. Alan Hynek, Fort Riley’s Prairie Partnership, 31 ENDANGERED SPECIES BULLETIN 24, 25 (2006), available at http://www.dodpif.org/downloads/articles/ESB_2006_24-25-ftriley.pdf.
247. USAEC Fact Sheets, Fort Riley, Kansas, supra note 114.
248. Id.
249. Id.
250. Id.
251. Id.
252. Id.
253. Id.; Final Rule to List the Topeka Shiner as Endangered, 63 Fed. Reg. 69,008 (Dec. 15, 1998) (to be codified at 50 C.F.R. 17.11). See generally Topeka Shiner, U.S. FISH AND WILDLIFE SERV. ENDANGERED SPECIES, http://www.fws.gov/mountain-prairie/species/fish/shiner/ (last updated May 7, 2010). The U.S. Fish and Wildlife Service has recommended that the fish be downlisted to threatened as new data has shown that the fish has a more secure status than previously thought. Id. At the approval of the ACUB proposal, none of the federally listed endangered species were in positions to affect training. Hynek, supra note 246, at 24.
     The stream habitat of the Topeka Shiner comprised a miniscule amount of the installation’s training areas. Id. Three more endangered birds—the bald eagle, the least tern, and the piping plover—resided in areas with only minor training activity. Id. See generally Topeka Shiner, supra. The U.S. Fish and Wildlife Service has recommended that the fish be downlisted to threatened because new data has shown that the fish has a more secure status than previously thought. Id.
254. USAEC Fact Sheets, Fort Riley, Kansas, supra note 114.
255. Id.
256. Id.
257. Id.; Determination of Threatened Status for the Lesser Prairie-Chicken, 79 Fed. Reg. 19,974 (Apr. 10, 2014) (codified at 50 C.F.R. 17.11); 90-Day Findings on 25 Petitions, 80 Fed. Reg. 56,423 (Sept. 18, 2015) (announcing that further review of the status of the petition of the Regal Fritillary would be required); KAN. ADMIN. REGS. § 115-15-2 (2015).
258. USAEC Fact Sheets, Fort Riley, Kansas, supra note 114.
259. Lance B. McNew et al., Demography of Greater Prairie-Chickens: Regional Variation in Vital Rates, Sensitivity Vales, and Population Dynamic, 76 J. WILDLIFE MGMT. 987, 988 (2012).
260. Jacqueline Lesley Brown, Preserving Species: The Endangered Species Act versus Ecosystem Management Regime, Ecological and Political Considerations, and Recommendations for Reform, 12 J. ENVTL. L. & LITIG. 151, 179 (1997).
261. Id. at 179–80.
262. McNew et al., supra note 259, at 988.
263. Id.
264. Id. at 998.
265. See also Lindsey Wise, Lesser Prairie Chickens Placed on Threatened Species List, WICHITA EAGLE, Mar. 27, 2014, http://www.kansas.com/news/article1138499.html. The federal government listed another type of prairie chicken, the lesser prairie chicken, as threatened under the Endangered Species Act. Id. The lesser prairie chicken’s population has shrunk 50% since 2012, to a mere 17,616. Id. This listing sparked considerable controversy as states are concerned that more regulation will hurt economic growth. Id. See generally The Quiet Crisis: Tallgrass Prairie and the Greater Prairie Chicken, BIRDMAN PRODUCTIONS, LLC, http://lastdanceoftheprairiechicken.com/CP.aspx?pg=31 (last visited Nov. 23, 2015) (advocating for the prairie chicken and the tallgrass prairie).
266. See USAEC Fact Sheets, Fort Riley, Kansas, supra note 114.
267. Id.
268. Id.
269. Id.
270. Id. The installation would also later collaborate with the U.S. Department of Agriculture, the Kansas Department of Natural Resources, and The Nature Conservancy. U.S. DEP’T OF DEF., READINESS AND ENVIRONMENTAL PROTECTION INITIATIVE (REPI) PROJECT FACT SHEET, FORT RILEY, KANSAS (2014) [hereinafter REPI FACT SHEET, FORT RILEY, KANSAS], available at https://denix.osd.mil/sri/upload/FortRiley-2.pdf.
271. Tom King, The Kansas Land Trust, LAWRENCE.COM (Apr. 4, 2006, 3:12 PM), http://www.lawrence.com/weblogs/street_level/2006/apr/04/landtrust/.
272. Id.
273. Ignoring Pleas of Environmentalists, a Kansas Man Plows his Virgin Prairie, N.Y. TIMES, Nov. 23, 1990, http://www.nytimes.com/1990/11/23/us/ignoring-pleas-of-environmentalists-a-kansas-man-plows-his-virgin-prairie.html.
274. Id.
275. Steve Buckner, Owner Takes Plow to Prairie, LAWRENCE J. WORLD, Nov. 19, 1990, http://www2.ljworld.com/news/1990/nov/19/owner_takes_plow_to/.
276. Check out our New Look, KANSAS LAND TRUST, http://www.klt.org/our-newlook/ (last visited Nov. 23, 2015).
277. KANSAS LAND TRUST, http://www.klt.org/ (last visited Nov. 23, 2015).
278. Id.
279. See 10 U.S.C. § 2684a (2014); see also U.S. ARMY ENVTL. COMMAND, supra note 85, at 6–9 (describing some of the amendments to the statute from its inception through the preparation of the ACUB’s fiscal year 2012 report).
280. Mission, supra note 155.
281. See Laurie J. Hamilton, Tallgrass Preservation: the “Grassroots” Effort 24 (Mar. 2014) (unpublished manuscript), available at http://www.kceps.org/downloads/2014_prize/laurie-hamilton.pdf.
282. King, supra note 271.
283. Conservation Easements FAQ, supra note 155.
284. See id.
285. See id. It is clear from the personnel serving on the Board of Directors of the KLT that legal detail is important to the organization. Board of Directors, KANSAS LAND TRUST, http://www.klt.org/board-of-directors/ (last visited Nov. 17, 2015). Of the nine board positions, four are filled by persons with careers in the legal field. Id.
286. Accredited Land Trust, LAND TRUST ACCREDITATION COMMISSION 2 (2015), available at http://www.landtrustaccreditation.org/storage/downloads/AccreditedLandTrusts.pdf.
287. See King, supra note 271.
288. Joel Mathis, Kansas Land Trust to Create Buffer around Fort Riley, LAWRENCE J. WORLD, Jan. 19, 2006, http://www2.ljworld.com/news/2006/jan/19/kansas_land_trust_create_buffer_around_fort_riley/?city_local.
289. Army Compatible Use Buffer Program, 1ST INFANTRY DIVISION/FORT RILEY NEWS, Jan. 27, 2006, http://www.riley.army.mil/News/ArticleDisplay/tabid/98/Article/471660/army-compatible-use-buffer-program.aspx.
290. Telephone Interview with Jeff Keating, supra note 115.
291. Id.
292. Id.
293. Id.
294. Id.
295. Id.
296. Id.
     
297. Interview with Jerry Jost, Executive Director, Kansas Land Trust, in Lawrence, Kan. (May 12, 2015).
298. Telephone Interview with Jeff Keating, supra note 115.
299. Id.
300. Id.
301. Id.
302. Bill Armstrong, Agreement to Protect Land near Fort Riley from Encroachment, U.S. ARMY, Oct. 24, 2008, http://www.army.mil/article/13636/agreement-to-protect-land-near-fort-riley-from-encroachment/.
303. Telephone Interview with Jeff Keating, supra note 115.
304. Id.
305. Id.
306. U.S. Army Envtl. Ctr., Fort Riley Joins Conservation Partnership, 1ST INFANTRY DIVISION/FORT RILEY NEWS, Nov. 14, 2006, http://www.army.mil/article/614/fort-riley-joins-conservation-partnership/.
307. REPI FACT SHEET, FORT RILEY, KANSAS, supra note 270.
308. Dix, supra note 1.
309. Id.
310. Id.
311. E-mail from Jeffrey F. Keating, ACUB Program Manager, to Author (Oct. 23, 2015) (on file with author).
312. Id.
313. Id.
314. Id.
315. Id.
316. Id.
317. Id.
318. Id.
319. Id.
320. Dix, supra note 1.
321. Id.
322. Id.
323. Kansas First Wind Farm Putting Town to Work, LAWRENCE J. WORLD, Dec. 3, 2001, http://www2.ljworld.com/news/2001/dec/03/s_first_wind_farm/.
324. Id.
325. Id.
326. See, e.g., Flint Hills Tallgrass Prairie Heritage Found., Inc. v. Scottish Power, PLC, 2005 WL 427503 (D. Kan. 2005), aff ’d, 147 Fed. App’x 785 (10th Cir. 2005) (opposing wind development in the Flint Hills region, an environmental group asked for an injunction in order to stop the construction of wind turbines in the Flint Hills). In a witty ruling that referenced Don Quixote, the Court declined to grant the injunction. See generally Brian Dietz, Comment, Turbines v. Tallgrass: Law, Policy, and a New Solution to Conflict over Wind Farms in the Kansas Flint Hills, 54 U. KAN. L. REV. 1131 (2006) (describing the conflict brewing between wind energy proponents and conservationists who were concerned about the unique ecosystem of the Flint Hills).
327. Christine Metz, Nature, Energy Interests Clash in Flint Hills Symposium at KU, LAWRENCE J. WORLD, Nov. 6, 2010, http://www2.ljworld.com/news/2010/nov/06/nature-energy-interests-clash-flint-hills-symposiu/; see also The Issues, PROTECT THE FLINT HILLS, http://www.protecttheflinthills.org/issues.htm (last visited Nov. 23, 2015) (detailing reasons why wind energy is not a good option for the Flint Hills region).
328. Dix, supra note 1.
329. Id.
330. Id.
331. Id.
332. Id.; KTWU Productions, Moyer Ranch Conservation Easement—KTWU’s “Sunflower Journeys”, YOUTUBE (Nov. 10, 2010), https://www.youtube.com/watch?v=YGiDt-Xo-PM.
333. Protected Places, Conservation Easements, KANSAS LAND TRUST, http://www.klt.org/conservation-easements/.
334. Id.
335. Id.
336. Id.
337. REPI FACT SHEET, FORT RILEY, KANSAS, supra note 270.
338. Id.
339. DOD ENV’T SAFETY AND OCCUPATIONAL HEALTH NETWORK AND INFORMATION EXCHANGE, 2012 SUSTAINABLE RANGES REPORT 70 (2012), available at https://denix.osd.mil/sri/upload/SRR2012-Chapter3-2-1.pdf.
340. Id.
341. PLANS ANALYSIS AND INTEGRATION OFFICE, U.S. ARMY GARRISON, FORT RILEY, KANSAS, FORT RILEY MILITARY VALUE ANALYSIS DATA 5–6 (2014), available at http://www.riley.army.mil/Portals/0/Docs/Units/Garrison/PAIO/FRMilitaryValueAnalysis.pdf.
342. Id.
343. Maria Childs, Buffer Zones Complementing Training, Ranchers, Environment, 1ST INFANTRY DIVISION POST, June 22, 2015, http://www.riley.army.mil/News/ArticleDisplay/tabid/98/Article/601367/buffer-zones-complement-training-ranchers-environment.aspx.
344. Id.
345. Lisa Ferdinando, Army Seeks Round of Base Closure, Realignment for 2015, U.S. ARMY, Apr. 24, 2013, http://www.army.mil/article/101812/Army_seeks_round_of_base_closure__realignment_for_2015/.