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Maine Attorney General Intervenes in Conservation Easement Case

March 7, 2008 | Maine

A Maine court granted a motion on January 2, 2008 by the Maine Attorney General’s office to intervene in a case on behalf of the Windham Land Trust.  It is the first example of the Maine Attorney General intervening in conservation easement-related litigation. 
 
In Windham Land Trust v. Jeffords, et. al, 2007 Me. Super. LEXIS 140 (Cumberland County Superior Court, June 29, 2007), the court granted a temporary restraining order and preliminary injunction to prohibit a music festival that would likely violate a conservation easement. 

The case has several noteworthy points according to Maine attorney Robert Levin:

  • First Rob believes that the land trust community should applaud the AG for getting involved in this case.  By intervening on behalf of a small and under funded land trust, the AG increases the odds of a pro-conservation outcome.  In the face of all of the demands placed on the AG’s office, the land trust community should appreciate that the AG regards the enforcement of conservation easements as a priority. 
  • Ever since the initial passage of the Maine Conservation Easement Act in 1985, the AG has had the right to intervene in a conservation easement lawsuit.  The defendant landowners mistakenly asserted that such an intervention right was only recently enacted as part of the amendments to the statute.  
  • The crux of the intervention-related arguments was whether Windham Land Trust was insolvent.  However, this appears to be based on a mistaken reading of the amended statute.  The AG retains the right to intervene as it sees fit.  According to the rules of permissive intervention, this is a right it has enjoyed all along. 
  • What the amendments to the statute achieve is to enumerate a set of limited circumstances in which the AG may “initiate” (i.e., file a new lawsuit, as opposed to intervening in an already existing lawsuit) an action.  See 2007 P.L. Ch. 412, § 478(1)(D).  In a future case, many hope that the AG does not view itself as bound by this narrow and apparently incorrect reading of § 478 as it applies to intervention.
  • What is beyond question is that in order for the AG to initiate a conservation easement-related lawsuit, at least one of the four requirements of §478(1)(D) must be met.  One of these requirements is that the holder of the easement is “bankrupt or insolvent.”  This case sheds light on how the AG has interpreted the term “insolvent.”  First, the AG did not require that WLT actually be penniless, but rather that its liabilities exceed its assets.  Second, to demonstrate insolvency, the AG requested from WLT, and eventually attached as exhibits to its reply brief, WLT’s detailed financial records, including profit and loss statements, balance sheets, and legal billing statements. 
  • In addition to citing provisions of the Maine Conservation Easement Act, the AG also argued for intervention on charitable trust grounds, citing 5 MRSA § 194, a provision that governs gifts to charity and charitable trusts.  In other words, the AG claimed that regardless of any limitations in § 478(1)(D), it had the right to intervene because a conservation easement is subject to charitable trust provisions.  Some experts find it difficult to see how the AG makes this argument in light of the new and detailed standing provisions of § 478.  Nevertheless, the AG’s embrace of the charitable trust doctrine bears consideration in determining how to construe the statute. 
  • Because the court did not issue an opinion with its order granting the AG’s motion, we do not really know which of the various arguments were most persuasive.  In particular, we do not know whether the court seriously entertained the AG’s charitable trust argument.   

Reprinted and edited with permission from Maine Land Conservation Law E-Bulletin January 2008 by Robert H. Levin - Attorney at Law, Land Conservation, Values-Based Estate Planning, and Nonprofit Organizations, 94 Beckett Street, 2nd Floor, Portland, Maine 04101, Phone and Fax: 207-774-8026, rob@roblevin.net, www.roblevin.net.

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