White Paper: Options for Managing the Land Protection Component of the PRRIP

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Land Entity White Paper November 30, 1999 d. Constraints on an Entity Owning Land Under Nebraska Law There are a variety of legal entities available to create in Nebraska. Intergovernmental state corporate bodies are discussed above. In addition, there are for - profit corporations, non- profits, partnerships and limited liability partnerships. Of these, only non - profit entities are of any interest to the Program. Article XII, Sec. 8 of the Nebraska Constitution states that no corporation or syndicate shall acquire an interest in any title to real estate used for farming or ranching. Non - profit corporations are an exception to this prohibition. The term "syndicate" is defined very broadly with the intention to exclude anyone other than farmers living on the land and their families. As a practical matter, if the Land Entity wants to hold land, it needs to be a non - profit. Nebraska non - profit law generally treats all non - profits very similarly, no matter which sub- section of the tax code justifies their non - profit status. There is broad flexibility in drafting by -laws, designating boards of directors and voting rights, providing for future revisions of by- laws, and other matters of practical interest in setting up an operating a non - profit. Non - profits are expected to act within their by -laws or charter. 3. State of Wyoming a. Constraints on Financial Participation The Wyoming Constitution, Article 3, Sec. 36, provides that "[n]o appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state ...." This clause of the Constitution has generally been interpreted as prohibiting outright gifts, or state support of religious institutions. Provided some government purpose is served, appropriations may be made to entities not under the direct control of the State of Wyoming. E.g., State v. Bd. of County Comm'rs, 55 P. 451 (1898) (funding the state penitentiary which was then run by a charitable institution). With respect to the proposed Program, Wyoming expects to satisfy the ESA obligations of its water users through the Program. This furthers the purposes assigned to the Wyoming Water Development Commission to manage and develop Wyoming's water resources. b. Constraints on Intergovernmental Efforts The authority of Wyoming agencies to act cooperatively with federal agencies is set forth in the Intergovernmental Cooperation Act, Wyoming Stat. Ann., Sec. 16 -1 -101. This statute is very similar to the Nebraska Interlocal Cooperation Act, except that it does not explicitly authorize interstate agreements -- only intrastate or state /federal cooperation. As in Nebraska, joint agreements to cooperate can lead to creation of a legal entity (here a public corporation) or an administrative board. Participating agencies must be represented on any board. Sec. 16 -1- 105. Funds transferred to any legal or administrative entity created under the Act can be up to A- 8