Genius must wait/benevolence, wildlife, tax and the public

First, following up on my blog a few days ago (Genius!), the Supremes have decided not to take any of the cases striking down state mini-DOMAs.  This was contrary to what the pundits were thinking would happen, but all the decisions from the Courts of Appeals have all gone the same way – striking the laws down.  Perhaps they are waiting for a conflict.  So we, in turn, will have to wait to see how that turns out, and who will argue the case down the road.  Again, we're rooting for GLAD's MacArthur genius, Mary Bonauto.  Follow this link, then click on "GLAD" to see some nice things Mary said about Pierce Atwood's  work over the years.

Back to a perusal of (fairly) recent decisions of the Maine SJC.  Today we discuss Francis Small Heritage Trust v. Town of Limington, 2014 ME 102.  The fundamental question is when can an environmental preservation organization claim a charitable exemption and pay no tax, versus having its land valued at the tree growth level.  So the statutes in play are 36 M.R.S. § 652(1)(A), (C) (2013) and 36 M.R.S. §§ 11011121 (2013).

The Trust owns some parcels of land.  The Town said you must pay tax, noting that the Trust was engaged in forestry on some of them, and cited two decisions that seem to say wildlife refuges don't get the charitable deduction.  Holbrook Island Sanctuary v. Inhabitants of the Town of Brooksville, 161 Me. 476, 477, 484, 214 A.2d 660 (Me. 1965) and Silverman v. Town of Alton, 451 A.2d 103, 106 (Me. 1982).  (I am simplifying everything, but I'm trying to keep these entries snappy).

Basically, the SJC, noting these older cited decisions had been criticized elsewhere but not saying they were overruled, held that yes, you can get the deduction for wildlife preservation, at least in some instances, and found the deduction available in this instance, where, among other things, the Trust said the forestry activities were to show how sustainable efforts work, and the earnings were being plowed back into its mission, which was “to conserve natural resources and" — pay attention here — "to provide free public access to those natural resources.”  Notably, the Trust’s properties are “used and operated as conserved wildlife habitat,” "open to the public 365 days a year. Local schools use the properties for field trips and environmental education. The Trust’s land is also open for hunting, fishing, hiking, cross-country skiing, and snowmobiling."

I pondered a bit why the SJC didn't just say these old decisions were squirrelly (or, more accurately, impermissibly anti-squirrely) and dead meat (or tofu).  The language the Court uses to distinguish them is pretty weak tea:

"We conclude that both Holbrook and Silverman are distinguishable.  Our holding in Holbrook was based on the absence of any benefit to the public of a game preserve operated in a manner that heavily restricted public access and was contrary to public policy. See Holbrook, 161 Me. at 480-81, 484-88, 214 A.2d 660.  As we discuss further below, neither rationale applies here.  Silverman is also inapposite, as it did not apply the exemption for benevolent and charitable organizations, but rather the exemption for scientific institutions. 451 A.2d at 105-06."

My wholly speculative guess is they didn't toss the earlier precedent in toto because they don't want to wholly discard the notion that if you are rolling in $$$ and keep a little private zoo for your own amusement, that's not going to cut it.  The SJC said:

"We concluded that the organization at issue [in Holbrook] was not 'charitable,' because it was 'nothing in substance more than a game preserve,' the purpose of which was 'plainly to benefit wild animals'; provided 'no benefit to the community or to the public'; and was contrary to public policy favoring state-regulated game management areas."

It seems to me that this "public policy" of state parks distinction is  a head-scratcher, and speaking as a board member of the Animal Welfare Society, that language about benefiting wild animals that the earlier decision bandied about as not being charitable makes my eyebrows furrow (wouldn't that imply that a wild horse sanctuary, for example, is not a charitable endeavor?  Does it make a difference if the kitty being saved at the shelter is domestic or feral?)

So it would have been nice if the SJC had been a little clearer as to what exactly gets the exemption and what doesn't in this area.  Again, my guess is it didn't want to toss the old decisions out entirely because of the access issue, and because the Court, for good reasons, avoids wholesale tossing in general.  Also, I don't think the SJC wanted anyone to think property owners could just post their land, say "no hunting" and get a deduction because they are protecting critters.  As the Goose Rocks case indicates, the Court wants to encourage, not discourage public access to land, and certainly neither in the older decisons nor in this one does the Court want to give any anti-hunting misimpression. 

So the general contours of the law in this area remain blurred and await further development.  But in any event, it seems like a step toward the mainstream to hold here that there are some circumstances in which the charitable exemption is available for furthering the purposes of wilderness and wildlife refuge and preservation.

My takeaway from this decision is that you may have a shot at the exemption at least if you provide lots of public access on your property and can identify the things that you are doing that are people-focused.  The SJC expressly noted that the Trust did things like "sponsoring a Limington Boy Scout Troop, participating in a project with Maine Medical Center to research the risk of exposure to Lyme-disease transmitting deer ticks, and conducting a workshop on invasive plants."

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