Threats to Permanence: Why Take Action?
Threats to Permanence
Conservation easements and preserves owned by land trusts are increasingly under attack across America. These attacks are coming from a few landowners who attempt to undermine their conservation easements, utilities looking for new transmission corridors, adjoining landowners, developers and trespassers. Although land trusts have had relatively few legal challenges, research shows that as property values rise, incentives to disrupt or void easements grow as well, and so does trespass on land trust property.
Just because your land trust has never had to fund major litigation in the past does not mean that you will be so lucky in the future. Most land trusts have some conservation easements that are older or not so well-drafted, and even solid easements are vulnerable to trespass violations and frivolous lawsuits. Eventually, every land trust should expect to face some form of major legal challenge.
The stakes are high, as a single adverse decision from one challenge could endanger the permanence of thousands of easements. Without action now, the land trust community risks losing many of the gains made in recent years. Land trusts and their attorneys must be prepared to defend easements in court if all other negotiated resolutions fail. For many land trusts without sufficient reserves for defending easements and property rights, the cost of a single lawsuit could threaten the land trust’s survival. Moreover, if a land trust fails to properly defend an easement, it may result in bad case law that could jeopardize easements held by other organizations across the United States.
A land trust should not have to stand alone against a well-funded adversary, and the united strength of 1,700 land trusts across America would present a formidable defense. In the past, land trusts have been able to raise funds to defend an occasional challenge to an easement, but the expected increase in legal challenges now require a coordinated national strategy.