2008 Conservation Defense Follow-up Reports
Conservation easements and conserved lands across America are under attack. These attacks came from many sources in 2008 – developers, utilities looking for new transmission corridors, the IRS, neighbors to conserved land and from landowners who purchase land under easement. As property values rise, incentives to disrupt or void easements are growing. With the economic downturn, we may well see a greater increase in these challenges as financially distressed landowners or neighbors seek economic relief. Here are some updates on the cases we reported that were unresolved in 2008.
Hikers and campers visiting Big Bend National Park now can legally access the Christmas Mountains in Texas and the sale of this important park to the highest bidder was cancelled. Gun use is still allowed and transfer of the land to the federal government is still under discussion. The Texas Land Commissioner did grant an easement that legally permits public access as if the land were part of the National Park Service.
From December 2007 eNews. See background.
2007 U.S. Dist. LEXIS 86870 (C. D. Cal., Nov. 16, 2007)
Although the main part of this case was successfully concluded by the Center in 2008 at a cost in excess of $600,000 in legal fees plus untold hours of staff time, a related case regarding payment of the developer’s legal fees continues to be tried. The Center estimates its total legal costs for the two cases to be well in excess of one million dollars. The Center anticipates that it will prevail in this second related case as well.
From February 2008 eNews. See background.
Docket No. 2006-5184, Docket No. 2007-496 (2008)
The defendant (Cullen) obtained an extension to file his appellate brief from December to February. The land conservancy did not get treble damages on the tree loss in addition to the $500,000 punitive damages and the almost $100,000 actual damages. The land conservancy has appealed that portion of the decision. The case likely will not be decided until this summer.
From March 2008 eNews. See background.
Docket No. RE-07-077 (Cumberland County Super. Ct., July 29, 2008) (Order granting summary judgment); 2007 Me. Super. LEXIS 140 (Cumberland County Super. Ct., June 29, 2007) (Order granting preliminary injunction)
This case is now closed. In July 2008, the court granted summary judgment to WLT, affirming the earlier determination that the easement prohibited commercial recreational activities. The court also declined to dismiss the case based on the landowner’s claims that WLT did not comply with a mandatory mediation provision in the easement, as the evidence showed that WLT had requested mediation but the landowners had refused.
From April 2008 eNews. See background.
157 P.3d 914 (Wyo., 2007)
In July of 2008, the Wyoming Attorney General filed a complaint in District Court requesting that the deed transferring the conservation easement to the Dowds be cancelled and declared null and void. In the complaint, the Attorney General alleges, among other things, that the County violated its fiduciary duty to assure the ranch’s protection and preservation and the County had an obligation to have a judicial determination made of impossibility before terminating the easement. The case is still in process and it may be some time before a decision is handed down.
From April 2008 eNews. See background.
886 N.E. 2nd 563 (Ill. App. Ct., 2008)
The Illinois Supreme Court denied review, thus ending the case with the appellate court’s rulings. However a prominent national law firm with offices in Chicago (Drinker Biddle & Reath LLP) is researching the general issue of amendments and reviewing this matter further. Some in Illinois are also considering clarifying the matter of amendments in the legislature. Unfortunately, Illinois politics are somewhat distracted at the moment.
From May 2008 eNews. See background.
The trial in this federal indictment for violation of an NRCS easement was originally scheduled for September but was delayed. No new trial date has been set yet and no motions are pending. The case is still open and being pursued by the U.S. Attorney’s office.
From June 2008 eNews. See background.