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Land Trust Accreditation Commission Announces Accreditation of 39 Land Trusts

Contact:
Ethan Winter
Land Trust Alliance
(518) 587-0774

Maureen Wren
New York State Department of Environmental Conservation
(518) 402-8000

The Funds Strengthen Community-Based Land Conservation Across New York

Albany, NY - The New York State Department of Environmental Conservation (DEC) and the Land Trust Alliance (Alliance), a not-for-profit land conservation organization, announce their seventh annual round of competitive grants for local land trusts under the New York State Conservation Partnership Program.

Approximately $1.4 million will be awarded in early 2009 to New York land trusts, enabling these local organizations to strengthen land conservation and public outreach programs, build community partnerships and implement best business practices. (Local land trusts, including those that are not a member of the Land Trust Alliance, are eligible for grant funding.) The Conservation Partnership Program is a cost-effective model for leveraging public and private funding for land trusts and their efforts to advance New York's communities' conservation goals as part of the Open Space Plan and to protect New York's clean air, water and special places.

"Now more than ever, land trusts play a vital role in ensuring that New York's communities are healthy places to live, work and play," DEC Commissioner Pete Grannis said. "For its seventh year, the Conservation Partnership Program will help enable the cooperative efforts of land trusts and state and local governments to achieve DEC's goal of re-connecting New Yorkers to nature and helping communities create new public access to natural areas."

Established in 2002 and funded through the Environmental Protection Fund (EPF), the Conservation Partnership Program is administered by the Alliance in coordination with DEC. Over the last six years, the Alliance has received a total of $3 million in EPF appropriations for re-grants and technical assistance, investing in over 200 projects with 64 different land trusts working in communities from Harlem to the Adirondacks. This pioneering initiative has leveraged millions of dollars in additional conservation funding and helped communities permanently conserve more than 10,000 acres of environmentally-significant land across New York.

"This program represents an exciting public-private partnership that demonstrates how communities can dramatically accelerate the pace and quality of local conservation efforts," said Rand Wentworth, President of the Land Trust Alliance. "Land trusts provide for long-term land stewardship in communities, connecting children and families to the land and providing outdoor recreational opportunities close to home. We are proud to partner with DEC, and thank the State of New York for its leadership and investment in New York's land trust community."

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About the Land Trust Alliance

The Alliance is a national conservation group that works to save the places people love by strengthening land conservation throughout America. It 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.  2007 marked the 25th anniversary of the Alliance, and during this time its members have permanently conserved over 36 million acres across the country. The New York State Conservation Partnership Program is based out of the Alliance's Northeast office in Saratoga Springs, NY.

For more information about the New York State Conservation Partnership Program, and to download application forms for the 2008-09 land trust grants, please visit the Land Trust Alliance's website at www.landtrustalliance.org, or contact Ethan Winter, the Alliance's New York Conservation Manager, at (518) 587-0774.

Click here to access more information on the New York State Conservation Partnership Program including 2008-09 grant applications, summaries of previously funded projects, and details on the history of the Conservation Partnership Program.

Contact:
Jim Wyerman
Director, Communications & Development
Phone: 202-638-4725 x 310
E-mail: jwyerman@lta.org

Legislators call for more accountability in Colorado's conservation easement tax credit
Vow to "make a successful program stronger"

Denver - House Majority Leader Alice Madden (D-Boulder), Rep. Bernie Buescher, (D-Grand Junction) and Rep. Kathleen Curry (D-Gunnison) will join Senator Jim Isgar (D-Hesperus) tomorrow in introducing legislation to add an extra layer of accountability for state conservation easement tax credits.

Additional photos are available; e-mail pressroom@lta.org

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.

Contact:
Rachel Kuntzsch
Heart of the Lakes
517-285-0460
rachel@heartofthelakes.org

Erin Heskett
Land Trust Alliance
269-324-1683
eheskett@lta.org

$1 Million Program to Bolster Michigan Land Conservancies

June 30, 2008

Lansing, MI — Conservation groups today reported that Michigan ranks only 25^th in the nation in terms of percent of land conserved in the state (1.3%) and called on the state’s nonprofit conservancies to step up and do more to stop the rapid loss of land to development.  Toward that end, Heart of the Lakes Center for Land Conservation Policy and the Land Trust Alliance (the Alliance) announced today a new conservation program in Michigan to help transform the state’s land conservancies into a high-performing, sustainable and cohesive conservation community.

Called the “ACE” program for Advancing Conservancy Excellence, this call-to-action initiative will provide three years of sustained coaching, training and capacity-building to strengthen land conservancies across the state.  Over the course of the next 30 years, more than four million acres of land in Michigan, including vital open space in urban areas, will disappear to development.  The ACE program will accelerate the growth and development of Michigan conservancies so that they have the ability to scale up their operations and the sustainability to increase greatly the number of conservation transactions.

The new program will also help position Michigan’s land conservancies to win national accreditation through the Land Trust Accreditation Commission, an independent program of the Alliance.  Accreditation provides the assurance of quality and permanence of land conservation and recognizes a conservancy’s ability to protect important natural places and working lands forever.

“Michigan’s nonprofit land conservancies are doing great work helping communities save the land that defines our quality of life,” said Rachel Kuntzsch, Executive Director of Heart of the Lakes. “With the tools, training and technical assistance provided through ACE, they can achieve so much more.”

Rand Wentworth, President of the Land Trust Alliance, an umbrella group for the 1700 land conservation groups in America, said: “This is the right program, the right strategy, and the right group of experienced players who can really make a difference on the ground.  Model programs like ACE are what the land conservation community needs if we hope to double the pace of conservation over the next 25 years.  The alternative will be over 50 million acres of land paved and lost to development across America that would otherwise sustain our drinking water supplies, wildlife habitat, and recreation lands.”

The ACE Program is made possible through the generous support of the Carls Foundation. Charles Stewart Mott Foundation, Frey Foundation, Kresge Foundation, and Wege Foundation.

Tom Bailey, Executive Director of Little Traverse Conservancy in Harbor Springs, Michigan, and President of Heart of the Lakes credited the funders for their leadership, saying, “Thanks to the support of a number of Michigan foundations, Heart of the Lakes and the Land Trust Alliance will be able to help land conservancies increase their level of performance and advance collaborative, strategic and high-impact land conservation in Michigan.”

Helen Taylor, State Director in Michigan for The Nature Conservancy noted, “This program will be a great resource for land trusts in Michigan—a resource that not only will strengthen the performance of individual organizations, it also will strengthen our skills and ability to partner and collaborate effectively to collectively achieve greater results.”

Michigan is home to more than forty active land conservancies who have collectively protected more than 400,000 acres of Michigan coastline, forests, unique agricultural land, and other natural areas for future generations to enjoy.  Conservancies work on a local, regional, or statewide basis with private landowners, local units of government, and the state to ensure the permanent protection of the state’s natural assets.

New state and federal tax incentives for private land conservation are leading to increased landowner interest in conservation options.  This, combined with declining public budgets for conservation programs, points to the need for a strong, sustainable conservancy community.

Michigan conservancies will have the opportunity to participate in the ACE program’s technical trainings, organizational assessments, mentoring, and consultations tailored individually to their needs.  Capacity-building grants up to $20,000 per conservancy will also be available on a competitive basis.  In addition, the program will facilitate the formation and strengthening of strategic partnerships among conservancies, government agencies and the private sector that will achieve more conservation throughout the state.

For more information on ACE, visit Heart of the Lakes or the Land Trust Alliance.

Heart of the Lakes Center for Land Conservation Policy is a nonprofit organization serving as the policy voice and convener of Michigan land conservancies. Our member organizations have helped to protect more than 400,000 acres of Michigan forests, farmland, coastline, and other extraordinary places. Heart of the Lakes is also a source of independent research, analysis, new ideas, and communications on Michigan's biggest conservation successes and challenges.

The Land Trust Alliance is a national conservation group that works to save the places people love by strengthening conservation throughout America.  It 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.

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Nonprofit organizations have won an extension of a generous tax incentive for donations of land or historically important property under a law approved by Congress Thursday.

A two-year extension of the so-called conservation easement deduction was included in a bill to protect farmers, which became law Thursday over President Bush’s veto.

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Contact: Russ Shay
Director of Public Policy
202-638-4725 x 305
rshay@lta.org

Legislative Victory for Land Conservation

Congress Passes Conservation Tax Incentive for Family Farms and Ranches

May 23, 2008

WASHINGTON, D.C.  — The hotly debated Farm Bill, which Congress enacted yesterday with an override of the President’s veto, renews a powerful tax incentive which has helped conserve a million or more acres of farms, ranches and natural areas across the US.  The incentive had expired January 1st, but is now retroactive to the beginning of the year and will last through 2009. 

A broad coalition representing sportsmen, outdoors enthusiasts, farmers, ranchers and national conservation groups, embraced the measure.  Rand Wentworth, president of the Land Trust Alliance, said “This renewed tax incentive for donations of conservation easements is one of the best things Congress could do this year to help landowners choose the conservation option over sprawl.  Especially for family farmers and ranchers of modest income, this is a great way to help them keep productive agricultural land from being lost.”

Wentworth gave special credit to Senators Max Baucus (D-MT) and Charles Grassley (R-IA) and Representatives Mike Thompson (D-CA) and Dave Camp (R-MI), saying “They are all true conservation leaders who have worked tirelessly to save a conservation measure that has already had benefits in hundreds of communities across the country.”  In conserving land, Wentworth added, “We also are protecting clean air, clean water, wildlife habitat, local food sources, historic landscapes and scenic beauty.”

Senator Baucus, who originated the incentive provision, said “Simply put—this is an incentive that works: for conservation, for farmers, for ranchers, and for all landowners who want a fair deal for their tremendous generosity in donating conservation easements.  Many ranchers and other landowners in Montana and across the US have told me they could not afford to conserve their land without this measure.”

The incentive, which applies to a landowner’s federal income tax, will:

• Raise the deduction a donor can take for donating a voluntary conservation agreement from 30% of their income in any year to 50%;
• Allow farmers and ranchers to deduct up to 100% of their income; and
• Increase the number of years over which a donor can take deductions from 6 to 16 years.

Landowner donations to conservation organizations known as land trusts have resulted in millions of acres of working lands and natural areas being conserved for the future.  According to the Alliance, many conservation groups reported an annual doubling of the number of conservation agreements completed in 2007, in response to the same incentive that had expired in January.   Land trusts in America have together saved more than 36 million acres from development, an area the size of New England.

The Alliance also credited the success of the measure to the entrepreneurial spirit of the private sector, which has taken the lead in conserving land in recent years.  Said Wentworth, “The fact is that conservation in this country now depends greatly on the generosity of individuals.  It is the individual rancher, farmer or forester, working the land in a way that is conservation-oriented, who will largely define our natural heritage in the future.’

Lead Organizations Supporting the Conservation Tax Incentive

The Land Trust Alliance is a national conservation group that works to save the places people love by strengthening conservation throughout America.  It works to  increases 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.  This year marks the Alliance’s 25th anniversary.