April 28, 2009 

Contact: Chris Soto
csoto@lta.org

Association Recognized for Innovation in Media and Publishing

Presented with two 2009 EXCEL Awards

Washington, DC—The Land Trust Alliance is being honored by the Society of National Association Publications (SNAP) at its 29th Annual EXCEL Awards, which recognize the best and the brightest in association media and publishing.

As one of 181 winners selected from nearly 1,000 entries, the Alliance is being presented a Gold Award in the Magazines: Most Improved category and a Gold Award in the Magazines: Redesign category (submitted by Bates Creative Group) for taking bold chances and delivering excellence in the association industry.

“Congratulations to the Land Trust Alliance, one of the recipients of our EXCEL Awards,” said Amy Lestition, CAE, SNAP’s executive director, “These publications demonstrate the importance of conveying content in a variety of formats to our constituents. Bravo to the publication and media association professionals for their mastery of the field.”

“We went through a rigorous redesign process and this is a wonderful affirmation of our success,” said Chris Soto, editor of Saving Land, the winning magazine of the Alliance.

The Land Trust Alliance will be honored and celebrated at the 29th EXCEL Awards Gala on June 4, 2009. Award-winning entries are displayed at the EXCEL Awards Gala and are featured in the July/ August issue of Association Publishing. The Alliance may also be a winner of the distinguished EXTRA! Awards—presented to associations pushing the edge of the envelope further to innovate in an ever-changing publishing environment—which will be announced at the EXCEL Awards Gala in June. For more information on the Association Media and Publishing Conference and the EXCEL Awards Gala, visit www.snaponline.org.

For more information about the Land Trust Alliance, please visit www.landtrustalliance.org.

About the Land Trust Alliance: The Land Trust Alliance is a national conservation group that works on behalf of America’s 1,700 land trusts to save the places people love by strengthening conservation throughout America. The Alliance works to increase the pace and quality of conservation by advocating favorable tax policies, training land trusts in best practices and working to ensure the permanence of conservation in the face of continuing threats.

About SNAP: SNAP is the one non-profit, professional society serving the needs of association publishers and communications professionals. Areas of expertise include: fostering effective relationships among publishers, communications professionals, and industry providers; developing and maintaining high editorial and advertising standards through our Excel Awards and Publications Review Program; providing members with the latest industry movements through bi-annual meetings, Lunch & Learn Seminars, the SNAP listserve, and Association Publishing, our bimonthly magazine; and, connecting professionals with career opportunities in association publishing through our Career Center.

The Hicks v. Dowd case that NPR featured is complicated. The nuances of the case and its implications cannot fit into a single NPR radio piece. The Wyoming Law Review will publish a lengthy analysis of the case this summer.  See: http://uwadmnweb.uwyo.edu/law/Student_life/lawreview.asp.

Two cases about conservation easement donations to a public agency:

• Wyoming Easement Extinguishment Case (Hicks v. Dowd) | Hicks v. Dowd Facts
• Walter v. Otero County Land Trust Facts

The land conservation community does not want to let stand the impression that conservation easements are transitory, nor that land trusts lightly terminate perpetual conservation easements or dispose of fee-owned conservation land for development. The Alliance has taken several steps to explain and address this misconception and related issues:

Land Trust Alliance Initiatives to Ensure Permanence

The Alliance is aware of and shares your concern about the potential negative impact of this NPR coverage. The alliance is helping to create good case law, educate attorneys, collect useful legal materials and provide tools to land trusts. These steps are intended to assist the land trust community in making all conservation easements permanent. The Alliance is also working to help all land trusts be strong and effective through Land Trust Standards and Practices, Rally: the National Land Conservation Conference, The Learning Center, the Standards and Practices Curriculum, and the Land Trust Accreditation Commission, an independent program of the Land Trust Alliance.

The best way to avoid legal challenges is to prevent them. The Alliance's training courses are building the knowledge of land trust practitioners, helping them draft strong legal documents and implement sound easement stewardship.

Since August 2007, the Conservation Defense Initiative launched the Network and initiated regular teleconference and regional conference meetings to facilitate information sharing and problem solving among experienced conservation leaders across the country. The online forum allows Network members to address issues rapidly. The Alliance also established the Conservation Defense Fund, for use by the Alliance to intervene in precedent-setting cases, usually by filing a friend of the court brief. Several large law firms around the country have volunteered their services to the Fund to assist with conservation permanence.

Also underway is an investigation of the feasibility of conservation defense insurance so that all land trusts can have access to money and resources to uphold conservation permanence. The Alliance hopes by Rally to report to members about the potential feasibility of such insurance, including proposed policy coverage, premiums, deductibles, claims, review and underwriting standards.

Finally, the Alliance increased its capacity to assist land trusts with enforcement and defense issues, dissemination and analysis of new case law, and guidance in addressing IRS concerns.

Addressing Public Perception and Media Relations

We all know that what is legally true is rarely accepted or appreciated by the general public, especially if the general public hears snippets of news articles while commuting to work or getting the kids off to school. So the Alliance is taking proactive steps on behalf of the land trust community to increase the public's conviction that conservation easements held by knowledgeable, publicly accountable land trusts are indeed permanent.

Here is what the Alliance is doing:

• Contacting NPR to secure placement for a follow-up piece to the March 11 story that better reflects the commitment to easement permanence of nonprofit land trusts
  
  
• Developing a statement regarding conservation permanence, which we will submit for placement on NPR's website
  
  
• Providing spokespersons to NPR who can address the positive message that strong land trusts keep easements permanent
  
  
• Developing further talking points for the land trust community, as needed
  
  
• Informing our members and the professional community about Alliance initiatives to support conservation permanence and the facts of cases such as Hicks v. Dowd

The Alliance suggests to members that, in responding to this NPR story or any other piece, remember the following:

• Do not allow yourself to get pulled into the negative question: "Why aren't easements permanent when they are supposed to be?" Instead focus on the positive message: "Strong land trusts and conservation easements are essential to my community." Remember the old adage: answer the question you wished they had asked, not the one they asked.
  
  
• The bottom line is that our best message is about the WHY of conservation and the WHO that benefit, not the HOW it was done or WHERE or even WHEN.
  
  
• Always remember to talk about your land trust, the good work you are doing and the impact on your community.

Here are some themes to consider and echo in your own messaging:

• Strong land trusts are critical to conserving land in communities across America and conservation easements are one of the best ways to do so.
  
  
• Land trusts have adopted and follow a set of professional standards and practices that help ensure their sound operation and the permanent protection of land. Some government holders also follow these standards, but government holders are not required to the same rules as land trusts.
  
  
• Conservation easements have helped thousands of farmers and ranchers keep their land in agricultural production and have helped communities protect the forests, clean water, scenic views and natural and historic areas that are important to their quality of life.
  
  
• Let me tell you a story about what a difference conservation has made to the people of my community...
  
  
• Conservation easements work because they allow the landowner to stay on the land, they restrict future inappropriate development and they are drafted as legally enforceable documents that protect the natural features or traditional uses of the land.
  
  
• The best way for landowners to permanently conserve their land is to work closely with an established nonprofit land trust in their community -- one that knows and follows established standards for keeping land permanently protected.

We cannot control what NPR may or may not run in response, but we are requesting a follow-up story and will keep you informed of progress. Also, please let us know if you see any local or regional media coverage that may piggyback on the NPR story. Keep in mind the advice to not perpetuate a story by responding too fervently or too frequently to it.

Please let us know if you see any local or regional media coverage that "piggybacks" on the NPR story. We hope this is helpful, and if you have feedback please contact Jim Wyerman, Director of Communications & Development at 202-638-4725 x 310 or communications@lta.org.

Addressing Policy Issues

Separate from the narrow legal fact that Hicks v. Dowd affects only government-held conservation easements is the larger impact that the case has had, and will continue to have, on policy development. This impact is driven both by public perception and by IRS concerns about conservation permanence.

Despite the limited facts in Hicks v. Dowd, the case is contributing significantly to the discussion about the applicability of the charitable trust doctrine to all conservation easements. It may also drive changes in the tax law to apply the same penalties and reporting requirements to government-affiliated land trusts as are currently applicable to publicly-supported land trusts. Attorney General intervention in conservation easement cases has been rare to date. Experts disagree about the advisability and efficacy of such intervention. For more information about the charitable trust doctrine, read the article by Nancy McLaughlin. See also, the Land Trust Alliance research report entitled "Amending Conservation Easements: Evolving Practices and Legal Principles," from August 2007. It can be found on The Learning Center. You will need to login in, click on Library and search by the report title.

Ultimately, the applicability of the charitable trust doctrine and the involvement of Attorneys General are questions of state law.

This debate also supports the need for additional outreach by the Alliance and the land trust community to all government easement holders. Alliance staff is working closely with federal government holders, and some state holders to help them better prepare for conservation permanence.

Addressing Practice Issues

Hicks v. Dowd illustrates the problems with groups accepting conservation easements that do not have the knowledge, resources or resolve to steward them. Full implementation of Land Trust Standards and Practices, as applicable to each individual conservation organization, is one way to ensure conservation permanence. Land trusts can minimize risks of conflict with careful land protection criteria, strategic conservation planning, appropriate evaluation of conservation options, thorough baseline documentation of conservation easement-protected land, annual visits and good communication with landowners. The purposeful protection of land and strategically directed conservation also will help prevent future challenges.

The rapid increase of land protected by private land trusts through conservation easements makes it likely that the proposed termination and modification of conservation easements will become more frequent. This is particularly true as conservation easements age and as ownership of conserved land changes. Conservation easement holders can address these issues by adopting and implementing written policies on conservation easement amendments, termination, condemnation and enforcement.

Nancy McLaughlin aptly observed that "as the cache of conservation easements in this country continues to grow, and as those easements, the vast majority of which are perpetual, begin to age, it will become increasingly important to determine whether, when and how easements that no longer accomplish their intended conservation purposes can be modified or terminated." (Nancy A. McLaughlin, "Rethinking the Perpetual Nature of Conservation Easements," 29 Harvard Environmental Law Review, 422, 424 (2005) at www.law.harvard.edu/students/orgs/elr/ and at http:// learningcenter.lta.org/objects/view.acs?object_id=17089.

Equally important is building sufficient skills in all land trusts so that termination can be avoided. Many tools exist and more can be created, that allow issues such as those raised in Hicks v. Dowd and in Walter v. Otero County Land Trust to be addressed without easement termination while still preserving the landowner relationship. Land trusts are encouraged to conduct annual visits to conserved land, build trusting landowner relationships, especially with successor owners, provide landowners access to conservation education and resources, and keep sufficient records to uphold an easement's conservation purposes.

Exercising due diligence prior to completing a conservation transaction is also critical. The due diligence required to satisfy the IRS requirements for tax-deductible easements and that required to ensure permanence and ease of stewardship often are different and require different practices. Land trusts can learn from Hicks v. Dowd that a prudent course of action includes a conservation with owners of any severed mineral interest, even if the landowner has obtained the "remoteness letter" required by the IRS. In a best-case scenario, the mineral rights holder may agree to extinguish its rights or subordinate them to the conservation easement. At a minimum, this conversation serves to notify the mineral estate holder of the conservation easement and provides an opportunity for the land trust and landowner to convince the holder to limit its area of exploration or its extraction activities in such a way as to minimize the adverse impact on the conservation resources.

A close reading of the Treasury Regulations at section 1.170A-14(g)(4) and the examples cited indicate that further steps for severed oil and gas interests may be required in order for the easement to qualify as a charitable deduction. While limited, localized disturbance that does not interfere with the overall conservation purpose is permitted, any extraction activities that are "irremediably destructive of significant conservation interests" must be prohibited. To be bound by the terms of the conservation easement, the owner of any minerals whose claim predates the easement must subordinate his or her interest in the minerals to the easement. Land trusts must take additional steps to minimize the adverse impact of all pre-existing legal rights on conserved land to uphold conservation permanence.

Attorneys can also help with better drafting of conservation easements, anticipating potential conflicts and resolving them beforehand. Attorneys and land trusts can help grantors and successor landowners understand the full implications of a permanent conservation easement before they either place an easement on their land or buy conserved property.

In addition, for those unanticipated dilemmas that often occur with a permanent conservation easement, there is a critical middle ground in response to conflicts, such as those shown in the two cases above. Experienced land trusts understand that conflict resolution does not have to result in either land trust capitulation or aggrieved landowners. There can be a satisfactory solution for all that upholds conservation easement purposes, complies with the law and addresses landowner concerns. Knowing how to balance those issues and being expert in addressing problems and finding solutions are the hallmarks of effective conservation organizations.

When voluntary solutions fail, land trusts and their attorneys also must be prepared to defend easements in court if necessary. For many land trusts without sufficient funds for defending easements, the cost of a single lawsuit could threaten the land trust's survival. Congress and the IRS have both raised questions about the ability of land trusts to defend their easements. Currently, land trusts have no conservation defense insurance available. If a land trust fails to properly defend an easement, it could result in bad case law that may jeopardize easements held by other organizations across the United States. To address these threats, it is essential for all conservation easement holders to exercise leadership to ensure the permanence and quality of land conservation. Implementing Land Trust Standards and Practices is one method to accomplish this goal. Working with the Alliance on collective conservation defense in another.

It is worth noting that several government agencies have adopted Land Trust Standards and Practices and are managing conservation easements and landowner requests responsibly and effectively. These groups are to be applauded and used as models for government conservation everywhere on the thousands of conservation easements and fee-owned land under the care of local, state, and federal government.

Conclusion

The land trust community and the Alliance are working to make all land trusts strong and all conservation permanent. As the work of land trusts becomes more visible, however, new threats to conservation easements and fee-owned properties will occur. These threats may come from successor landowners, neighbors or others in the community who do not share the conservation vision of the original grantor, or from lack of public confidence in the permanence of conservation.

The best way to prevent and prepare for challenges to conservation easements and land trusts owned land is to implement good practices, as defined in Land Trust Standards and Practices. How a land trust responds to a potential violation or to a landowner request, especially for amendments or termination of a conservation easement, affects the enforceability of that easement and potentially all other easements. It also affects the public trust and confidence in conservation as a whole as demonstrated by the NPR feature on the Wyoming easement termination.

Conservation easements are new legal tools, and the enabling statutes have not been in place long enough for the development of a full body of case law. As the first cases make their way through state court systems, they are likely to be cases of first impression. States without case law on the topic will look to those states to inform their decisions. It is important that land trusts work together to defend conservation permanence and build a strong body of favorable case law in every state.

Conservation organizations concerned with the credibility and sustainability of conservation, therefore, may want to do everything possible to ensure good practices and sound policies and implement their programs to uphold conservation permanence.

The Hicks v. Dowd case that NPR featured is complicated. The nuances of the case and its implications cannot fit into a single NPR radio piece. The Wyoming Law Review will publish a lengthy analysis of the case this summer.  See: http://uwadmnweb.uwyo.edu/law/Student_life/lawreview.asp.

Two cases about conservation easement donations to a public agency:

• Wyoming Easement Extinguishment Case (Hicks v. Dowd) | Hicks v. Dowd Facts
• Walter v. Otero County Land Trust Facts

The land conservation community does not want to let stand the impression that conservation easements are transitory, nor that land trusts lightly terminate perpetual conservation easements or dispose of fee-owned conservation land for development. The Alliance has taken several steps to explain and address this misconception and related issues:

Land Trust Alliance Initiatives to Ensure Permanence

The Alliance is aware of and shares your concern about the potential negative impact of this NPR coverage. The alliance is helping to create good case law, educate attorneys, collect useful legal materials and provide tools to land trusts. These steps are intended to assist the land trust community in making all conservation easements permanent. The Alliance is also working to help all land trusts be strong and effective through Land Trust Standards and Practices, Rally: the National Land Conservation Conference, The Learning Center, the Standards and Practices Curriculum, and the Land Trust Accreditation Commission, an independent program of the Land Trust Alliance.

The best way to avoid legal challenges is to prevent them. The Alliance's training courses are building the knowledge of land trust practitioners, helping them draft strong legal documents and implement sound easement stewardship.

Since August 2007, the Conservation Defense Initiative launched the Network and initiated regular teleconference and regional conference meetings to facilitate information sharing and problem solving among experienced conservation leaders across the country. The online forum allows Network members to address issues rapidly. The Alliance also established the Conservation Defense Fund, for use by the Alliance to intervene in precedent-setting cases, usually by filing a friend of the court brief. Several large law firms around the country have volunteered their services to the Fund to assist with conservation permanence.

Also underway is an investigation of the feasibility of conservation defense insurance so that all land trusts can have access to money and resources to uphold conservation permanence. The Alliance hopes by Rally to report to members about the potential feasibility of such insurance, including proposed policy coverage, premiums, deductibles, claims, review and underwriting standards.

Finally, the Alliance increased its capacity to assist land trusts with enforcement and defense issues, dissemination and analysis of new case law, and guidance in addressing IRS concerns.

Addressing Public Perception and Media Relations

We all know that what is legally true is rarely accepted or appreciated by the general public, especially if the general public hears snippets of news articles while commuting to work or getting the kids off to school. So the Alliance is taking proactive steps on behalf of the land trust community to increase the public's conviction that conservation easements held by knowledgeable, publicly accountable land trusts are indeed permanent.

Here is what the Alliance is doing:

• Contacting NPR to secure placement for a follow-up piece to the March 11 story that better reflects the commitment to easement permanence of nonprofit land trusts
  
  
• Developing a statement regarding conservation permanence, which we will submit for placement on NPR's website
  
  
• Providing spokespersons to NPR who can address the positive message that strong land trusts keep easements permanent
  
  
• Developing further talking points for the land trust community, as needed
  
  
• Informing our members and the professional community about Alliance initiatives to support conservation permanence and the facts of cases such as Hicks v. Dowd

The Alliance suggests to members that, in responding to this NPR story or any other piece, remember the following:

• Do not allow yourself to get pulled into the negative question: "Why aren't easements permanent when they are supposed to be?" Instead focus on the positive message: "Strong land trusts and conservation easements are essential to my community." Remember the old adage: answer the question you wished they had asked, not the one they asked.
  
  
• The bottom line is that our best message is about the WHY of conservation and the WHO that benefit, not the HOW it was done or WHERE or even WHEN.
  
  
• Always remember to talk about your land trust, the good work you are doing and the impact on your community.

Here are some themes to consider and echo in your own messaging:

• Strong land trusts are critical to conserving land in communities across America and conservation easements are one of the best ways to do so.
  
  
• Land trusts have adopted and follow a set of professional standards and practices that help ensure their sound operation and the permanent protection of land. Some government holders also follow these standards, but government holders are not required to the same rules as land trusts.
  
  
• Conservation easements have helped thousands of farmers and ranchers keep their land in agricultural production and have helped communities protect the forests, clean water, scenic views and natural and historic areas that are important to their quality of life.
  
  
• Let me tell you a story about what a difference conservation has made to the people of my community...
  
  
• Conservation easements work because they allow the landowner to stay on the land, they restrict future inappropriate development and they are drafted as legally enforceable documents that protect the natural features or traditional uses of the land.
  
  
• The best way for landowners to permanently conserve their land is to work closely with an established nonprofit land trust in their community -- one that knows and follows established standards for keeping land permanently protected.

We cannot control what NPR may or may not run in response, but we are requesting a follow-up story and will keep you informed of progress. Also, please let us know if you see any local or regional media coverage that may piggyback on the NPR story. Keep in mind the advice to not perpetuate a story by responding too fervently or too frequently to it.

Please let us know if you see any local or regional media coverage that "piggybacks" on the NPR story. We hope this is helpful, and if you have feedback please contact Jim Wyerman, Director of Communications & Development at 202-638-4725 x 310 or communications@lta.org.

Addressing Policy Issues

Separate from the narrow legal fact that Hicks v. Dowd affects only government-held conservation easements is the larger impact that the case has had, and will continue to have, on policy development. This impact is driven both by public perception and by IRS concerns about conservation permanence.

Despite the limited facts in Hicks v. Dowd, the case is contributing significantly to the discussion about the applicability of the charitable trust doctrine to all conservation easements. It may also drive changes in the tax law to apply the same penalties and reporting requirements to government-affiliated land trusts as are currently applicable to publicly-supported land trusts. Attorney General intervention in conservation easement cases has been rare to date. Experts disagree about the advisability and efficacy of such intervention. For more information about the charitable trust doctrine, read the article by Nancy McLaughlin. See also, the Land Trust Alliance research report entitled "Amending Conservation Easements: Evolving Practices and Legal Principles," from August 2007. It can be found on The Learning Center. You will need to login in, click on Library and search by the report title.

Ultimately, the applicability of the charitable trust doctrine and the involvement of Attorneys General are questions of state law.

This debate also supports the need for additional outreach by the Alliance and the land trust community to all government easement holders. Alliance staff is working closely with federal government holders, and some state holders to help them better prepare for conservation permanence.

Addressing Practice Issues

Hicks v. Dowd illustrates the problems with groups accepting conservation easements that do not have the knowledge, resources or resolve to steward them. Full implementation of Land Trust Standards and Practices, as applicable to each individual conservation organization, is one way to ensure conservation permanence. Land trusts can minimize risks of conflict with careful land protection criteria, strategic conservation planning, appropriate evaluation of conservation options, thorough baseline documentation of conservation easement-protected land, annual visits and good communication with landowners. The purposeful protection of land and strategically directed conservation also will help prevent future challenges.

The rapid increase of land protected by private land trusts through conservation easements makes it likely that the proposed termination and modification of conservation easements will become more frequent. This is particularly true as conservation easements age and as ownership of conserved land changes. Conservation easement holders can address these issues by adopting and implementing written policies on conservation easement amendments, termination, condemnation and enforcement.

Nancy McLaughlin aptly observed that "as the cache of conservation easements in this country continues to grow, and as those easements, the vast majority of which are perpetual, begin to age, it will become increasingly important to determine whether, when and how easements that no longer accomplish their intended conservation purposes can be modified or terminated." (Nancy A. McLaughlin, "Rethinking the Perpetual Nature of Conservation Easements," 29 Harvard Environmental Law Review, 422, 424 (2005) at www.law.harvard.edu/students/orgs/elr/ and at http:// learningcenter.lta.org/objects/view.acs?object_id=17089.

Equally important is building sufficient skills in all land trusts so that termination can be avoided. Many tools exist and more can be created, that allow issues such as those raised in Hicks v. Dowd and in Walter v. Otero County Land Trust to be addressed without easement termination while still preserving the landowner relationship. Land trusts are encouraged to conduct annual visits to conserved land, build trusting landowner relationships, especially with successor owners, provide landowners access to conservation education and resources, and keep sufficient records to uphold an easement's conservation purposes.

Exercising due diligence prior to completing a conservation transaction is also critical. The due diligence required to satisfy the IRS requirements for tax-deductible easements and that required to ensure permanence and ease of stewardship often are different and require different practices. Land trusts can learn from Hicks v. Dowd that a prudent course of action includes a conservation with owners of any severed mineral interest, even if the landowner has obtained the "remoteness letter" required by the IRS. In a best-case scenario, the mineral rights holder may agree to extinguish its rights or subordinate them to the conservation easement. At a minimum, this conversation serves to notify the mineral estate holder of the conservation easement and provides an opportunity for the land trust and landowner to convince the holder to limit its area of exploration or its extraction activities in such a way as to minimize the adverse impact on the conservation resources.

A close reading of the Treasury Regulations at section 1.170A-14(g)(4) and the examples cited indicate that further steps for severed oil and gas interests may be required in order for the easement to qualify as a charitable deduction. While limited, localized disturbance that does not interfere with the overall conservation purpose is permitted, any extraction activities that are "irremediably destructive of significant conservation interests" must be prohibited. To be bound by the terms of the conservation easement, the owner of any minerals whose claim predates the easement must subordinate his or her interest in the minerals to the easement. Land trusts must take additional steps to minimize the adverse impact of all pre-existing legal rights on conserved land to uphold conservation permanence.

Attorneys can also help with better drafting of conservation easements, anticipating potential conflicts and resolving them beforehand. Attorneys and land trusts can help grantors and successor landowners understand the full implications of a permanent conservation easement before they either place an easement on their land or buy conserved property.

In addition, for those unanticipated dilemmas that often occur with a permanent conservation easement, there is a critical middle ground in response to conflicts, such as those shown in the two cases above. Experienced land trusts understand that conflict resolution does not have to result in either land trust capitulation or aggrieved landowners. There can be a satisfactory solution for all that upholds conservation easement purposes, complies with the law and addresses landowner concerns. Knowing how to balance those issues and being expert in addressing problems and finding solutions are the hallmarks of effective conservation organizations.

When voluntary solutions fail, land trusts and their attorneys also must be prepared to defend easements in court if necessary. For many land trusts without sufficient funds for defending easements, the cost of a single lawsuit could threaten the land trust's survival. Congress and the IRS have both raised questions about the ability of land trusts to defend their easements. Currently, land trusts have no conservation defense insurance available. If a land trust fails to properly defend an easement, it could result in bad case law that may jeopardize easements held by other organizations across the United States. To address these threats, it is essential for all conservation easement holders to exercise leadership to ensure the permanence and quality of land conservation. Implementing Land Trust Standards and Practices is one method to accomplish this goal. Working with the Alliance on collective conservation defense in another.

It is worth noting that several government agencies have adopted Land Trust Standards and Practices and are managing conservation easements and landowner requests responsibly and effectively. These groups are to be applauded and used as models for government conservation everywhere on the thousands of conservation easements and fee-owned land under the care of local, state, and federal government.

Conclusion

The land trust community and the Alliance are working to make all land trusts strong and all conservation permanent. As the work of land trusts becomes more visible, however, new threats to conservation easements and fee-owned properties will occur. These threats may come from successor landowners, neighbors or others in the community who do not share the conservation vision of the original grantor, or from lack of public confidence in the permanence of conservation.

The best way to prevent and prepare for challenges to conservation easements and land trusts owned land is to implement good practices, as defined in Land Trust Standards and Practices. How a land trust responds to a potential violation or to a landowner request, especially for amendments or termination of a conservation easement, affects the enforceability of that easement and potentially all other easements. It also affects the public trust and confidence in conservation as a whole as demonstrated by the NPR feature on the Wyoming easement termination.

Conservation easements are new legal tools, and the enabling statutes have not been in place long enough for the development of a full body of case law. As the first cases make their way through state court systems, they are likely to be cases of first impression. States without case law on the topic will look to those states to inform their decisions. It is important that land trusts work together to defend conservation permanence and build a strong body of favorable case law in every state.

Conservation organizations concerned with the credibility and sustainability of conservation, therefore, may want to do everything possible to ensure good practices and sound policies and implement their programs to uphold conservation permanence.

The most powerful state incentives for conservation are the transferable tax credits available in Colorado, Georgia, New Mexico, South Carolina and Virginia. Such credits can be sold to an individual or corporation with high tax liability, generating immediate income for the donor.  Arkansas, California, Connecticut, Delaware, Iowa, Maryland, Massachusetts, Mississippi, New York, and North Carolina offer some form of non-transferable income tax credit.  All but AR, CO, MD, MS and NY apply to some fee-simple land donations as well as conservation easements.

Each state's program is unique, and qualifying for a federal tax benefit does not automatically qualify a donor for a state benefit. Basic information on the existing state tax credit programs can be found below. You may also find this 2004 chart comparing ten state tax credits a useful resource, although some programs have changed.

The list of states with tax incentives is expanding - the Arkansas, Florida, Iowa and Massachusetts incentives described below were added over the past few years. We recently worked with the National Assembly of Sportsmen's Caucuses to develop and promote an issue brief that seeks to inspire new state tax credits. The latest state policy updates, including tax incentives are covered on our state funding page.

Local, State and Federal Incentives for Conservation Easements

Former South Carolina Director of Revenue, Burnet Maybank, has published an excellent resource on tax incentives for conservation. It focuses on South Carolina law, but will be useful to anyone interested in conservation tax incentives.(posted 7/21/2006) View the PDF (2.59 MB)

If you have information on a pending credit, or would like to update the information below, please e-mail policy@lta.org.

Arkansas | California | Colorado | Connecticut | Delaware | Florida | Georgia | Iowa | Maryland | Massachusetts | Mississippi | New Mexico | New York | North Carolina | South Carolina | Virginia

Arkansas

In early 2009, the Arkansas legislature expanded the Wetland and Riparian Zones Tax Credit Program to allow credits for the donation of conservation easements in wetland and riparian zones.  Easement donors in these areas may qualify for an income tax credit for 50% of the easement's appraised value, up to $50,000.  While these credits are not transferable, remaining amounts may be carried forward for up to 9 years. Unfortunately the entire tax credit program is capped at $500,000, but supporters are hopeful that getting their foot in the door will pave the way for future expansion.

Learn More:

• Read the Full text of Act 351 of 2009.
• See the Wetland and Riparian Zones Tax Credit Program website.

California

The Natural Heritage Preservation Tax Credit Act offers incentives to preserve wildlife and plant habitat, agricultural lands, open spaces, and water rights on private lands. Landowners, including pass-through entities who donate land, an easement, or water rights are eligible for the credit. Eligible donations must meet the goals of a conservation plan, protect species or habitat, conserve threatened agricultural land, or increase public access to open space or archaeological resources. The tax credits are managed by the state resource agencies and essentially "granted" to landowners. Donors are allowed an income tax credit of 55% of the fair market value of the donated property against their income, with an eight-year carry-forward period. The tax credit program was suspended in 2002, but reinstated in 2005. Under the reinstated program, the state resource agencies and departments have to provide funds to the state's general fund to replace any tax credit claimed by a landowner. Please see the links below for details on the current status. The California conservation easement tax credit is non-transferable and applies in addition to federal tax benefits.

Learn More:

• See the California Council of Land Trusts website for more details.
• See the text of the California law.

Colorado

A conservation tax credit is available to Colorado residents, corporations, estates, and trusts who donate a conservation easement. Since 2007, the credit has been valued at 50% of the fair market value of the easement, up to a maximum credit of $375,000. A taxpayer can also sell all or part of a credit to a "transferee.” In recent years, Colorado land trusts have worked with the state legislature to craft additional reforms that ensure the integrity of the program and address budgetary concerns without permanently restricting its size.

Learn More:

• See details on Colorado’s conservation easement credit statute.
• Additional details from Colorado Cattlemen’s Agricultural Land Trust.
• Explore the Tax Credit Connection’s FAQ’s on the Credit.
• Learn more about transferring state tax credits in Colorado from the Conservation Resource Center

Connecticut

Connecticut provides a state corporate income tax credit for donations of conservation land or easements equal to 50% of the donation's fair market value. A 10-year carry forward period is available to donors whom do not use up the entire credit in the year of its origination. Donated land or easements must a) conserve natural or scenic resources, b) protect natural streams or water supplies, c) conserve of soils, wetlands, beaches, or tidal marshes, d) enhance neighborhood parks, forests, wildlife preserves, nature reservations, or other open space, e) enhance public, recreation opportunities, or f) preserve historic sites. The Connecticut conservation easement tax credit is non-transferable and applies in addition to federal tax benefit.

Learn More:

• See form 1120DL to claim the Connecticut credit.

Delaware

Delaware provides tax incentives to individuals or corporations that donate land or conservation easements. The credit is equal to 40% of the fair market value of the donation with a maximum credit of $50,000 for individuals per year. A 5-year carry forward period is available to individuals whom do not use up the entire credit in the year of its origination. Delaware conservation donations aim to conserve open space, natural habitat, recreational properties, resource conservation, and historic properties. The Delaware conservation easement tax credit is non-transferable and applies in addition to federal tax benefits.

Learn More:

• See the text of the Delaware law.

Florida

Florida has no state income tax, so in November 2008, Florida voters took the innovative approach of exempting land under easement from all state property tax, passing Amendment 4 by an overwhelming margin.  The law has two parts -- the first provides for a tax exemption for properties with a perpetual conservation easement.  The second provides for a "conservation assessment" on land that is in conservation use. The legislature recently enacted implementing legislation.

The permanent conservation easement portion includes requirements that mirror what land trusts already do in compliance with IRS rules and land trust standards and practices.  The bill does require that properties be at least 40 acres, unless they have special environmental features or are located next to protected areas, and excludes one acre around homes and buildings.  The second section allows for voluntary ten year covenants to restrict development rights.  There is a re-capture mechanism for back taxes when the land is taken out of conservation, but the rules for this are not spelled out, and will be developed by the Department of Revenue.

Learn More:

• Information on the property tax exemption from the Acquisition and Restoration Council
• Department of Revenue Application Form

Georgia

Georgia provides a state tax credit to individuals and corporations donating land or easements for conservation. The tax credit allows taxpayers to claim a credit against their state income tax liability of 25 percent of the fair market value of the donated property interest, up to a maximum credit of $250,000 for individuals and $500,000 for corporations. The allowed tax credit may not exceed the amount of tax owed for the taxable year, but any unused portion of the tax credit may be carried forward for the next five years. In Spring 2011 the Georgia tax credit was amended to make it transferable.

Learn More:

• See the text of the Georgia law.
• See the amendment that made it transferable.
• Additional details on the credit.

Iowa

Thanks to new legislation passed in 2008, Iowa taxpayers can now claim a substantial Iowa tax credit for donations of land or conservation easements.  Donors may receive 50% of the fair market value of the donated property interest up to a maximum tax credit of $100,000. These credits are not transferable, but any remaining value may be carried forward over a total of 20 years!  Iowa Natural Heritage Foundation (INHF) was part of a team of conservation interests that pitched their state tax credit to legislators and encouraged its adoption. “We really appreciate the work of so many lawmakers who understood that conservation budgets could not keep pace with land inflation, so they supported this innovative tax policy to encourage more voluntary land protection,” said INHF Public Policy Director Duane Sand.

Learn More:

• See Iowa Natural Heritage Foundation's guide for landowners which includes a wealth of links including legislative text.

Maryland

Maryland income tax payers who donate a conservation easement (not land in fee) may be eligible for a conservation tax credit. Easement donors qualifying for the State Income Tax Credit can deduct up to $5,000 per year with a 15 year carry forward period. Easements must be held or co-held by the Maryland Environmental Trust or the Maryland Agricultural Land Preservation Foundation, and approved by the Board of Public Works.

In addition, easement donors may also qualify for the Conservation Property Tax Credit if their easement protects unimproved, non-commercial land. This credit is worth 100% of the property tax paid on the eased land. The Maryland conservation easement tax credit is non-transferable and applies in addition to federal tax benefits.

Learn More:

• Learn more about the State Income Tax Credit from the Maryland Environmental Trust.
• See the official application form for the Conservation Property Tax Credit.
• For more information view the Eastern Shore Land Conservancy tax benefits information.

Massachusetts

In January 2009, Massachusetts enacted a new state tax credit for donors of land or easements. Donors may receive 50% of the fair market value of the donated property interest up to a maximum tax credit of $50,000. These credits are not transferable, but any remaining value may be carried forward for up to 10 years. Unfortunately, the entire program is currently capped at $2 million per year. The new credit enters into effect January 1, 2011.

Learn More:

• See the final bill text.
• See the state's tax credit webpage
• See a fact sheet on the tax credit

Mississippi

Mississippi appears to have two, small, narrowly focused tax credits for conservation:

H.B. 701 of 2003 offers a non-transferable credit toward 50% of allowable transaction costs associated with donating an easement on "Lands to protect stream bank habitats and  stability and to protect high biodiversity sites with exemplary natural communities or species of special concern or endangered species." The credit is capped at $10,000 and may be carried forward for 10 years.

A second credit was enacted in April 2010 with the passage of H.B. 1716. It appears to provide a credit of $5.50 per acre, per year, for certain lands made available for habitat or recreational purposes.  Information about the new credit is still limited.

Learn More:

• See the text of the 2003 tax credit for transaction costs

New Mexico

The Land Conservation Incentives Act of New Mexico offers a tax credit of up to $250,000 per year to anyone donating a qualified fee interest or conservation easement to any 501(c)3 organization or government entity. The credit is for 50% of the fair market value of the appraised value of the land or easement and may be carried forward for twenty successive years. In addition, the credit is transferable, meaning that a qualifying applicant for the credit can sell it on the open market at a discounted rate.  Qualifying land or easements must be donated for preservation of relatively natural habitat, open space, agricultural lands, outdoor recreation or education for the benefit of the general public, and/or historically important structures or land areas.

Learn More

• Visit The New Mexico Land Conservancy's website for additional details on the credit.
• Visit the Tax Credit Connection for information about the transferability of credits.

New York

Beginning in 2007, this innovative credit will give New York State landowners whose land is restricted by a conservation easement income tax credit. The landowner's state income tax will be reduced by 25% of the property tax paid on the eased property, up to $5,000. It is available to all owners of easement-restricted land, regardless of when the easement was created, provided that the easement was wholly or partially donated to a land trust or a governmental agency. The New York conservation easement tax credit is non-transferable, but is refundable and applies in addition to federal tax benefits.

Learn More:

• See more details on the New York State tax credit.

North Carolina

The North Carolina Conservation Tax Credit Program provides an income tax credit to some land easement donors. Land or easement donations must provide public access to land or water, fish and wildlife conservation, or fulfill other land conservation purposes (note: this is different from the federal tax code specification). The credit is worth 25% of the fair market value of the donation with a total credit of $250,000 for individuals and $500,000 for corporations. Any unused portion of the credit may be carried forward for five succeeding years. Credit taken in any year may not exceed the amount of income tax imposed by the state, reduced by the sum of all other credits. The North Carolina conservation easement tax credit is non-transferable and applies in addition to federal tax benefits.

Learn More:

• See the North Carolina Department of Environmental and Natural Resources for more details on the credit.
• See the text of the North Carolina law for corporations.
• See the text of the North Carolina law for individuals.
• See the Carolina Mountain Land Conservancy for FAQs on North Carolina’s conservation easements

South Carolina

The amended section of the 1976 code requires that a landowner has qualified for and claimed on their federal income tax return a charitable deduction for a gift of land for conservation, or for a qualified conservation contribution, to be eligible for the state income tax credit. South Carolina’s tax incentive comes in the form of a tax credit equal to 25% of the fair market value of the conservation gift. The tax credit is limited to a maximum of $52,500 per year, and to $250 per acre. The South Carolina tax incentive allows the landowner to carry the unused portion of the credit forward indefinitely until the full credit is claimed. The South Carolina conservation easement tax credit applies in addition to federal tax benefits.

Learn More:

• Detailed information on Local, State and Federal Tax Incentives in South Carolina is available from the Department of Revenue (PDF).
• Explore resources from the Open Space Protection Collaborative.
• Learn about buying and selling credits from the South Carolina Conservation Credit Exchange.

Virginia

Under the Virginia Land Conservation Act of 1999, every landowner who donates land or an easement for conservation is entitled to a credit against state income tax. The credit is worth 40% of the easement’s fair market value, up to $100,000 per year. Virginia’s income tax credit is available to tax-payers who donated a conservation easement after January 1, 2000. This tax credit applies to any person, corporation, partnership, organization, trust or estate subject to state or local taxation. If the credit is not used up in the year of the easement donation, it can be carried forward for an additional five years. Furthermore, if the easement was donated after 2001, the credit may be sold or transferred to other Virginia taxpayers. Individuals and corporations in the state of Virginia may buy or sell conservation tax credits, as long as a notification of the transfer of the credit is sent to the tax commissioner. For 2009 and 2010, the Legislature reduced the cap from $100k to $50k, but since the credits are transferable a donor should still be able to claim full credit--they may just have to transfer credits to more separate taxpayers.

Learn More:

• Read the Virginia Department of Taxation’s synopsis of the state tax credit program.
• See information from the Virginia Outdoors Foundation.
• See the text of the Virginia law.

If you have information on a pending credit, or would like to update the information above, please e-mail policy@lta.org.