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The Confidence to Say No When Appropriate

mathias-waterfallSteve Goodwin of the Appalachia Ohio Alliance says that “nothing is more intimidating than sitting in a farmer’s dining room and having to deny a request that compromises the conservation easement values.”  When the farmer threatens legal action to force the issue, “the situation becomes very tense.” Appalachia Ohio Alliance has responsibility for 30 conservation easements, including working relationships with dozens of land owners and ownership of four parcels of land.  Clyde Gosnell, board member and past president says that “this has been a serious first 7 years with a steep learning curve and legal challenges.”

“Our land trust has already learned how potentially vulnerable we are. We have had 3 new successor owners and 4 serious stewardship challenges,” says Clyde.  “Fortunately, we resolved them successfully without legal proceedings.  While we do have a defense fund and have recently increased our endowment reserves, it could be expended with one trial.” 

Appalachia Ohio Alliance works with many types of rural landowners including farmers.  Of their 30 easements 29 were donated.  Several easements are with past or present board members as is typical of young land trusts.   “Farmers and ranchers are of necessity determined and independent – farming demands commitment,” says Steve.  That brings certain challenges in managing an easement program and working with land owners to adapt to economic and agricultural changes. 

One new farm owner requested subdivision of the conserved land which did not contain such a provision.    The land trust had to deny the request as made, but they expended much time and thought to understand the desires of the land owner.  They did work out a solution that was satisfactory to all, upheld the easement purposes and complied with the law; however it was difficult and challenging for the board to work with a disgruntled landowner.  This same new farm owner also wanted to change the stream flow.  The conservation easement was not clear on this point, so again they spent the time to find a workable solution.  They got the local soil and water district involved and eventually the government agency, the farmer and the land trust all agreed that the farmer’s proposal made sense and was consistent with the easement purposes of agriculture.  As another example of a challenge that must be confronted and resolved,   Steve said that it is “important to keep partners involved; having the soil and water district provide an outside point of view and technical expertise was valuable.”

Steve also pointed to the possibility that guidance from the proposed Conservation Defense Insurance program  “would help us evaluate and analyze these potential challenges.    Being able to share issues with more experienced people and learning what other land trusts around the country do will give us more confidence.  If we could make just one phone call to the program, concerning an issue and receive help, it would be fabulous.”

Appalachia Ohio Alliance is conducting successor owner visits immediately after conserved land transfers occur, considering the trends they observe and the new issues that continue to arise.  They try to have amicable transitions of ownership and prepare people for the responsibilities of owning conserved land.

Appalachia Ohio Alliance has also had one utility ROW challenge, where the utility company wanted to relocate an easement on land owned by a board member.  The board evaluated the situation according to the easement and their written policies, and then determined that they must deny the utility demand.  Appalachia Ohio Alliance was concerned that it would trigger a condemnation action and a potential law suit but fortunately it did not.  The lines were located elsewhere without objection from neighbors or the board member.  The board member involved excused himself from all evaluation and conversations about his land according to Appalachia Ohio Alliance conflict of interest policy.

Steve emphasizes that “having good written policies is foremost.” When the land trust shows the landowner, the IRS requirements, including the prohibition on private inurement, it helps the landowner understand that the land trust has legal constraints.   The land trust has a responsibility to comply with the law and uphold conservation objectives.  They also recognize that all the good practices and procedures they implement may not be enough in every case.  Steve and the board recognize that   the proposed collective Conservation Defense Insurance Program will “greatly reinforce our responsibilities.”

Clyde stresses that the board of Appalachia Ohio Alliance believes that the conservation community “must have a collective Conservation Defense Insurance Program.

We encourage all land trusts to seriously consider enrolling in the Alliance proposed program immediately.  The Land Trust Alliance has been helpful to all of us in assisting with the creation of this needed program; so this is a one time opportunity that we must take advantage of now.”

Steve emphasizes the importance of having a safety net of insurance as it will provide for the following values: 

  • one big case could bankrupt a land trust especially a small or young one
  • increases land trust confidence in dealing with challenges
  • the collective backing of the land trust community is formidable
  • help with dealing with new issues is invaluable
  • landowners have confidence in the land trust when they learn  about the insurance program and provides  an important selling point to prospective donors

 

The detailed terms and conditions and commitment letter plus additional background information are available at www.lta.org/cdinsurance.   Please call Leslie Ratley-Beach with any questions at 802-262-6051 or write to lrbeach@lta.org.

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Support from land trusts

Christian Freitag, attorney-at-law and executive director at Sycamore Land Trust (IN), says "I view Conservation Defense Insurance as another step the land trust community is taking to keep our promises. We claim that we will help people protect their land in perpetuity. With this program, the public can be more confident than ever that we take that commitment seriously."

 

Greg Gamble, executive director at Ojai Valley Land Conservancy (CA), says that "this is one of the most helpful things that the Land Trust Alliance could attempt for its members, and I have greatly appreciated the professional, thoughtful, fair and inclusive process that you have led."

 

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