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Sonoma Land Trust Successfully Defends Easement

The Sonoma Land Trust recently successfully negotiated a settlement that upholds an agricultural conservation easement on the 528-acre Lower Ranch near San Pablo Bay in California, ending a four year legal dispute with the landowner.

MarinaSeveral years ago, the landowners began pumping mud from their nearby dredging operations onto the conserved agricultural land, with future plans to significantly increase dredge material deposits. After lengthy but unsuccessful discussions with the landowners, the land trust filed suit in 2006 to enforce the terms of its agricultural conservation easement.

Three years and $200,000 later, this settlement allows the landowners to continue to place dredge and fill material on the ranch, but only in accordance with strict protocols and performance standards on the quantities, locations and handling of materials, and stringent standards for salinity, acidity and contaminants. Most important is the requirement that the affected farm land must be returned to active farming and remain in active production. The landowners also agreed to pay the land trust’s legal fees and to pay for the increased cost of monitoring the easement to ensure that the performance standards are met going forward.

Dredged Material: An Agricultural Enhancement or Conservation Nightmare

Violations

Background

Legal Actions

Settlement Agreement

Costs and Partnerships

Lessons Learned

Dredged Material: An Agricultural Enhancement or Conservation Nightmare?

DredgeWhen Port Sonoma, a holding company of the successor owner of a conserved 540-acre ranch on the San Pablo Bay by the Petaluma River in Northern California, started to dump thousands of cubic yards of dredged material from its adjacent marina onto the ranch agricultural soils and built a retention berm without the agreement of the Sonoma Land Trust, the organization took action.

If the land trust had allowed the landowner to complete their plan to spread salty dredged material, it would have raised the height of the land 3 to 5 feet over the entire ranch, requiring extensive berms, removing the land from production, and potentially degrading the agricultural resources.

Sonoma Land Trust wrote to the landowner asking that they cease the activity. The land trust also protested the county zoning permit allowing the activity, as well as opposing the U.S. Army Corp of Engineers proposed permit that would have allowed even more dredged material be deposited on the conserved agricultural land. The land trust also notified the California State Coastal Conservancy (SCC), the state agency who funded this conservation project. Eventually, SCC brought in the California Attorney General in the ensuing litigation.

Violations

The violations of the conservation easement cited by the land trust in dumping the dredged material on the conserved agricultural soils included:

  1. Impairment of agricultural values. One of the primary conservation purposes of the conservation easement is protecting the agricultural productivity of the land. The dredging operation could easily harm the agricultural productivity by introducing salts and heavy metals and altering soil chemistry.
  2. Establishing a non-agricultural commercial use. The landowner proposed to dump material not only from his adjacent marina but also from other dredging in the area, receiving sign cant revenues in the process.
  3. The unapproved construction of non-agricultural structures. The land trust contended that the primary purpose of the miles of berms was not related to the agricultural use of the ranch.

The landowner claimed that agricultural viability from the dredged materials is enhanced by raising the soil height (which brings the root zone further away from the high, salty water table) and allows higher-value crops to be grown. The landowner had some success with a test garden growing a variety of crops on the raised soils, but many questions remained unanswered. Unfortunately, rather than working the land trust to address these questions, the landowner moved forward in an adversarial fashion and refused to acknowledge the agricultural conservation easement’s requirement for the land trust’s approval to proceed with the plan. That approach, coupled with the landowner’s political connections, deep pockets, and development plans in the vicinity, raised significant concerns over the landowner’s future intentions and the effect of the activities on the ranch and the surrounding conservation landscape.

Background

Lower RanchNearly all of the land surrounding San Pablo Bay, an arm of the greater San Francisco Bay consists of former tidal wetlands that were diked and converted to agriculture over 100 years ago. Most of the land is now below sea level and a series of levees and pumps are needed to keep the land dry. Farmers have to pump water out of their fields most of the winter so they can plant in the spring.

Sonoma Land Trust works exclusively in Sonoma County, just north of San Francisco, California. Established in 1976, the land trust has protected more than 19,000 acres of beautiful, productive and environmentally significant land in and around Sonoma County. It has protected close to five thousand acres near San Pablo Bay and is planning a 1,000 acre tidal restoration project about a mile from the Lower Ranch property. The land trust is a member of the California Council of Land Trusts and subscribes to the Land Trust Standards and Practices of the Land Trust Alliance.

Lower Ranch VicinityThe land trust acquired the Lower Ranch property, with a grant from the SCC in the 1980’s. The land trust sold the property a few years later and retained the agricultural conservation easement. Since then, the property has gone through several ownership changes. Later, the Lower Ranch owner, who also owned the marina directly across Highway 37, needed to dredge the marina in order to sell it. The landowner approached the land trust with a one time request to deposit a minimal amount of dredged material in only one 60 acre field of the Lower Ranch. The land trust agreed to this one time arrangement and documented the conditions in writing, but did not follow up to ensure that the landowner fulfilled the agreement conditions prior to the sale. These conditions included removing the berm upon completion of the project. The berm remained after the property was sold to the current owner.

The current owner bought both the marina and the Lower Ranch. They constructed a berm around a second field without the land trust's permission and did more dredging and deposition – again without permission. The land trust found out about the activities after the fact and took action.

Legal Actions

Sonoma Land Trust has been actively working on resolution of this issue for three years with the current landowner. The land trust began by protesting the issuance of permits by the US Army Corps of Engineers, which brought the landowner to the negotiating table.

The landowner chose to proceed with the project without resolving the issue, so the organization hired legal counsel to help. Filing litigation got the landowner’s attention and increased efforts to resolve the issue. The SCC, which has funded many important conservation projects in California, joined in the lawsuit on the basis of its status as a funder and a backup conservation easement holder. The landowner challenged SCC’s standing in the litigation, but was unsuccessful.

Early on in the litigation, the land trust’s attorneys, the highly respected Shute, Mihaly, & Weinberger, LLP, filed a motion for an injunction to stop the dredged material deposition on the ranch, but they lost. They were unable to convince the judge of irrevocable harm to the land at that early stage of the litigation. They also had “dueling” scientific opinions regarding the effect of dredged material on agricultural soils and viability. So there was a factual dispute. Those two obstacles were enough to deny the injunction.

State involvement also ramped up the landowner’s motivation to cooperate in finding a solution after the summary judgment hearing revealed some of the strengths and weaknesses of the case. The hearing also demonstrated the land trust's resolve in pursuing resolution of the case. In addition, the land trust’s attorneys had successfully persuaded the county permit office that the landowner was illegally depositing material without the appropriate grading permit for the project. The county halted further deposition until all the issues could be resolved.

So while the land trust did not obtain the injunction, they still obtained the result they wanted through the permitting process, which was cessation of the deposition until an agreement was reached.

Settlement Agreement

After more than a year of negotiations, the land trust and the landowner were finally able to reach a resolution that reflected the project’s agricultural potential while recognizing terms and conditions of the agricultural conservation easement. The settlement will allow the landowner to continue to place dredge and fill material on the ranch, but only in accordance with strict protocols and performance standards on the quantities, locations and handling of materials, and stringent standards for salinity, acidity and contaminants. Most important is the requirement that any of the land that receives dredge materials MUST be productively farmed. The landowners also agreed to pay the land trust’s legal fees, which amounted to more than $200,000, as well as SCC’s legal costs, and to pay for the increased cost of monitoring the easement to ensure that the performance standards are met going forward.

“We couldn’t stand by and let them divert the use of a productive farm to a mud dump,” said Sonoma Land Trust’s Executive Director Ralph Benson. “At the same time, their contention that mud is ultimately dirt and, with the right handling, can be farmed and farmed well had potential merit. The settlement provides both the landowners and the land trust with the framework needed to ensure that this beautiful ranch at the gateway to Sonoma County remains in farming.

Costs and Partnerships

Sonoma Land Trust’s stewardship director spent 12% of his time in 2007 on this case alone, and a bit less in 2008. The executive director put in extensive time as well, as did the land trust’s legal team and SCC’s designated assistant attorney general. The organization has spent more than $200,000, though the case never went to trial. If it had, the costs could easily have doubled. The California Council of Land Trusts was very supportive and helpful to the land trust with the litigation. CCLT provided technical assistance and connection to resources. Many of California’s land trusts wrote support letters to SCC Board of Directors urging them to help. Bob Neale, The land trust’s stewardship director, says that it is critical to work with your friends and regional coalitions on these big issues that will affect all land trusts.

Bob believes that “complex and expensive legal challenges to conservation easements are becoming common place,” at least in California. Attorney general involvement as well as the state agency funder involvement is essential in the big cases. They both have played a critical support role with the Lower Ranch case.

Lessons Learned

The real issue in this case was determining whether conservation easements really are forever. Can clever, wealthy, well connected successor landowners who have additional non-conservation goals for the land, directly or indirectly subvert conservation easements. These kinds of issues are likely to become more common as urban sprawl pushes into rural conservation lands, making their relatively low land values targets for developers. For Bob, this case “really highlights the need for a strong legal defense fund.” Bob said that he “thinks land trusts in California should have a minimum of $500,000 in their legal defense fund to be able to defend a conservation easement against a well financed and determined successor landowner.”

“You also need a good legal team and they are expensive, but worth it,” according to Bob. “Don’t try to save money on legal counsel; you’ll only hurt your case.” The land trust retained Shute, Mihaly & Weinberger, LLP of San Francisco. “They’ve been fantastic,” he said. “Kerr & Wagstaffe LLP were also brought in to help with litigation and have also been excellent.” Having legal counsel that really understands the dilemmas and challenges and can assist with risk analysis is essential, but they also must understand the philosophical issues and underlying commitment to conservation to really be effective.

In general, this case demonstrates Land Trust Standards and Practices are “really important” according to Bob. The one time dredge material agreement from ten years earlier was not followed up by the land trust and the berm not removed as it should have been. Removal may have made a difference in preventing the future violations. Having the staff or capacity to follow up promptly is critical, as is documentation and record keeping. Following all of the Land Trust Standards and Practices can save land trusts lots of expensive headaches in the long run.

“Any big problem is rarely the result of one thing,” Bob continued. “It is usually the confluence of many things. A crafty landowner can take advantage of that accretion of small issues.” Following Land Trust Standards and Practices can prevent issues or can reduce the magnitude of issues.

Land trusts need to consider getting public relations and professional media help with these types of issues. Bob says that sometimes the battle is won on the public front, not the courtroom. Having the right professional to help with that at the right time is critical. “Land trusts get involved in the details and forget how to tell the story,” says Bob, “Then you lose an audience fast.” Mobilizing public perception in favor of conservation and the land trust is essential.

Friends of Sonoma Land Trust and neighbors to the Ranch alerted the organization to some of the issues. Having that network is also important. Land trusts need to nurture that sense of involvement by friends and neighbors of our conservation lands.

The land trust and its attorneys also effectively leveraged the regulatory component of the case. Their legal counsel convinced the county that the landowner had been depositing material without the required grading permit. The county directed the landowner to stop its deposition until it obtained both a grading permit and a use permit. When the parties finalized their agreement, the county still had the landowner in a holding pattern.

The land trust also leveraged its funder’s involvement. Because the SCC is a state agency, their involvement brought the state attorney general into the case on the organization’s side. That had both important legal effects as well as positive public perception and succeeded in demonstrating to the landowner the seriousness of the issue and the conservation community’s resolve.

Balancing landowner relationships and reasonable flexibility while still upholding the purposes of the conservation easement and the original grantor’s intentions is tough. But it is important. Land trusts need to spend the time necessary to develop written policies and processes to address approval, amendments and violations. Follow up on all agreements is critical.

Bob concludes by saying that “it is important for land trusts to discuss these issues, including our mistakes, so we can learn from them.” If land trusts are going to uphold conservation permanence, then we need to talk about what we did right and where we need to make different judgment calls and reallocate resources.

 

Photos courtesy Sonoma Land Trust

Photo 1: Marina and Lower Ranch

Photo 2: Dredge materials flowing into the field

Photo 3: Map of Lower Ranch; all of green area protected

Photo 4: Vicinity of Lower Ranch

 

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