1. Maintain a broad base of community information gathering
2. Rapidly mobilize citizen voices
3. Negotiate limits on pre-existing encumbrances
4. Understand your organizational capacity
5. Share the legal burden with others

Authors

Dale N. Schumacher- 6581 Belmont Woods, Elkridge MD. 21075; DaleNSchumacher@aol.com. He was a member of the Land Trust Standards and Practices Program Design Steering Committee. His family properties are under perpetual Maryland Environmental Trust easements.

Meg Schumacher 6589 Belmont Woods, Elkridge MD. 21075; her family property is under a perpetual Maryland Environmental Trust easement.

Photos available from www.SaveBelmont.org, a Rockburn Land Trust site

Belmont – the Developer’s Focus

Belmont, a Colonial mansion built in 1738, is situated at the crest of a hill amidst 82 undeveloped acres 15 minutes from Baltimore-Washington Thurgood Marshall International Airport. It is completely surrounded by the Patapsco State Park and private land under perpetual Maryland Environmental Trust (MET) and Rockburn Land Trust (RLT) conservation easements. A critical point is that access to Belmont is over private land trust conserved land or state park land via a 14 foot wide private right of way. There is no public road access.

In 1962, the Bruce family,[1] owners of Belmont, sold Belmont and its 360 acres to the Smithsonian Institution, who turned it into a Retreat Center. In 1983, the Smithsonian Institution placed a Maryland Historical Trust easement on a small portion of the property to protect the historic mansion. Early in 2004, the Columbia, Maryland Howard Community College and its foundation purchased the 82 acre property.

Howard Community College and “three development schemes”

The preservation community was initially pleased by the community college/foundation purchase. However, soon disquieting events occurred and troubling information emerged. The community college arranged with a then college foundation board member (a prominent and respected real estate developer) to provide $1 million of Belmont’s $5.1 million purchase price (the relatively low price for 82 acres reflected lack of public access and public utilities) and mortgage payments for two years. Many months passed before all the details of the arrangement between the college and the developer became public. In return, the developer was to receive 33 acres of Belmont’s 82 acres (20 acres of wooded Patapsco State Park in a land swap for 20 acres of Belmont’s pasture property and 13 additional acres) to develop up to 118 age-restricted condominiums and up to 26 additional homes.

A substantial portion of the developer’s profits would be shared with the community college. The developer resigned from the foundation board when the Belmont purchase occurred. The preservation community was told it was a done deal. In short order, County legislation was proposed allowing the college’s condominium project to bypass county adequate public facilities requirements. Then, a multi-million dollar county capital project was proposed to provide additional road access, water, and sewerage to the secluded Belmont Retreat Center inholding. The proposed road was to activate an existing but never used 60-foot, 3-acre, right-of-way through the wooded Patapsco State Park – a major recreational area for Baltimore. The website, www.SaveBelmont.org, shows pictures of Belmont, selected press information, correspondence, a map and the foundation development agreement. Land use in Howard County is now the subject of a citizen’s law suit in Federal District Court.[2]

Lesson 1 – Maintain a broad base of community information gathering. The County bureaucracy was involved in this agreement, but individual employees alerted the conservation community.

When the community college and its foundation brought its plans for 118 condominiums and a land swap to the Maryland Historical Trust, public, political, legal and environmental pressure caused a close reading of the 1983 Smithsonian–historical trust easement. The Maryland Historical Trust made the determination that condominiums are inconsistent with their conservation easement, and the Maryland Department of Natural Resources affirmed that a swap of Belmont field acreage for mature state park forest for 118 condominium sites was inconsistent with their mission.

Lesson 2 – Rapidly mobilize citizen voices. Public appeals to state and county agencies and to state and county elected officials are often effective.

The community college then redirected its development plans; the Belmont site and its pristine Colonial mansion was slated for a major academic development with proposed building footprints of over 100,000 square feet and a major parking area. The development focus was to provide a student hospitality training program and evolve colonial Belmont as a commercial conference center. Because the 60-foot right-of-way through the wooded Patapsco State Park failed to gain approval from the Department of Natural Resources, the only access to Belmont for Howard Community College is via a 14-- foot wide 100 year old private drive across a Maryland Environmental Trust conserved property. The owner of this MET property (and a founding Rockburn Land Trust Board member) has filed a law suit[3] against the College for non-compliance with use of an existing Right of Way covenant.

Lesson 3 – Negotiate pre-existing encumbrances if you plan to perpetually preserve an area to reduce conservation conflicts. This covenant was negotiated with a previous owner. The Community College as a governmental entity takes the position that it is not obligated to meet the Covenant’s requirements.

Rockburn Land Trust Response

The conservation stewardship challenges facing the RLT were and continue to be substantial. The RLT has no staff and limited financial reserves in its stewardship fund. RLT is a third party to the historical trust conservation easement and would need to challenge the owner – and counter the well-established, well-funded and politically-connected community college and its development-oriented foundation. Thus, the RLT used a “complex adaptive system” approach and established the SaveBelmont initiative.

Lesson 4 – Understand your organizational capacity. Your land trust resources must match its operational framework – you may have few options in a legal challenge without adequate staff and financial reserves.

Complex adaptive systems

Complex adaptive systems focus on self-organization, interdependencies, unpredictability and non-linearity of the situation.[4] Complex adaptive systems rely on several principles (additional details are available on request regarding this approach):

1. Build a “good enough” vision. Complex situations, by their nature, prevent the development of a detailed plan.

2. Balance data and intuition, planning and acting, safety and risk with due consideration to each. It is best to establish minimum specifications and general senses of direction that provide for appropriate autonomy for individuals to self-organize and adapt as time goes by.

3. Foster the “right” degree of information, recognizing that creating self-organization occurs when there is sufficient information flow, diversity of individuals, connectivity and a low power differential (i.e. non hierarchical relationship) among committed individuals.

4. Work with attention to quandaries associated with the challenge. That is, do not attempt to smooth over differences in approaches or priorities among members. Examine them systematically and then move forward. Core group discussions need to be straightforward and open, with attention focused on the vision rather than individual agendas.

5. Prefer action i.e. balance action and planning, but do not over plan.

6. Tap into both formal and informal sources of information.

7. Start small and build linkages to individuals and organizations with the idea of eventually linking these several organizations.

8. Recognize that individuals in an activist group will both cooperate and compete to achieve their own individual agendas. Have leadership strategies and agreements around common goals and values to offset that temptation to compete. Leadership needs to relate to multiple organizations’ goals and values so not all land trusts have the capacity for this.

Stewardship Fund

Both through fundraising and member donations, the RLT was initially able to afford extensive legal advice regarding its third-party standing, the intricacies of the historical trust easement and county zoning regulations regarding uses of Belmont’s “retreat center” zoning.

• The 100 condominium schemes have been stopped.
• The 60-- foot ROW through Patapsco State Park has been stopped.
• The private funded law suit (Howard County Circuit Court 13-C-07-069042 DJ) is in process by the land owner with the 14 foot ROW Covenant affected by the Community College use of Belmont.
• A challenge to the transfer of a liquor license failed – even though students are participants in the hospitality program the County Liquor Board felt this was not sufficient reason to limit alcohol use.
• The RLT and several neighbors have initiated a zoning violation complaint proffering that the Community College commercial use for dinners, a bed and breakfast and weddings is not an essential government function; therefore the College use should come under County zoning regulations.
• While the RLT, the County Planning Board, the League of Women Voters, the Maryland Environmental Trust, the Audubon Society County questioned funding to support development of Belmont, both the County Executive and a divided County Council decided to provide the College sufficient funding to purchase the property. No civic, historic or environmental group supported the college’s funding request.
• The Community College President who envisioned the development of this land locked 82 acre historic parcel has retired.
• In the past five years we have spent (both RLT and private law suits) over $200,000.
• From Community College financial statements, it is readily estimated that the College and its Foundation have spent over $500,000 in legal fees and over $1.3 million buying out the would be condominium developer. The Belmont Conference center has lost over $300,000 from operations since being acquired by the Community College.

History of Rockburn Land Trust

The Rockburn Land Trust was established in 1989 with guidance from the Maryland Environmental Trust. The RLT is a volunteer land trust based in Howard County, Maryland in the fast-growing Baltimore/Washington corridor. Before the real estate bubble broke buildable home sites range from $75,000 to $350,000 per acre.

The RLT has successfully worked with MET to preserve approximately 20 parcels of land amounting to almost 200 acres. In 1996, one of these easement donors accused the MET of “fraud in the inducement” in securing their 1989 easement. RLT members worked closely with the MET and the Maryland Attorney General’s office and this case was resolved unanimously in favor of the MET by the Maryland Court of Appeals.[5] The RLT incurred modest cost related to this action (less than $20,000) since the cost burden fell on the Maryland Department on Natural Resources.

Lesson 5 – When you can, work with governmental agencies so they bear the legal burden.

Conservation Defense Insurance

Easement enforcement and defense increasingly challenges land trusts. Enforcement is complicated and more so if the land trust is a third party to the easement.[6] The Land Trust Alliance (Alliance) is investigating developing insurance to help cover litigation costs that could be valuable in some of these situations.[7] Would Defense Insurance have made a difference if it had been in existence in 2004? In our opinion a resounding YES.

1. Uncertainty would have been reduced. While our forefathers “with a firm reliance on the protection of Divine Providence” pledged “to each other our lives, our fortunes and our sacred honor,” most Americans today are sufficiently risk adverse that reliance on good solid legal expertise and experience would better position a land trust for a defensive action.
2. Sources of Legal support – conservation defense is an arcane area and collective insurance would provide a nexus for sharing, building and networking expertise.
3. The opposition (in our case developers) gets a stronger message if a formal Defense and Stewardship Fund has a basis in an insurance program. The possibility that such support was in existence may have caused the developers to hesitate.
4. Settlement expertise would be useful. In our situation we have a clash of values: RLT is committed to conservation and historic preservation and the Community College is committed to building a campus and sufficient commercial activity to build a positive bottom line.
5. From a business perspective, approaching donors for a targeted Defense and Stewardship Fund makes soliciting donations more feasible especially if a land trust can also point to a collective insurance program for back-up resources.

We look forward to the Alliance implementing the Conservation Defense Insurance program.

Disclosure: Dale N. Schumacher is the plaintiff in Howard County Circuit Court 13-C-07-069042 DJ. The Defendants are Howard Community College and the Howard Community College Educational Foundation.

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

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

Dredged Material: An Agricultural Enhancement or Conservation Nightmare

Violations

Background

Legal Actions

Settlement Agreement

Costs and Partnerships

Lessons Learned

Dredged Material: An Agricultural Enhancement or Conservation Nightmare?

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

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

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

Violations

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

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

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

Background

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

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

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

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

Legal Actions

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

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

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

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

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

Settlement Agreement

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

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

Costs and Partnerships

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

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

Lessons Learned

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

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

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

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

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

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

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

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

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

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

Photos courtesy Sonoma Land Trust

Photo 1: Marina and Lower Ranch

Photo 2: Dredge materials flowing into the field

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

Photo 4: Vicinity of Lower Ranch

The SCC agreed with its hearing examiner that the need for the line had been proven, specifically to cure the reliability problems that will occur on an existing high-voltage line by 2011. The Mt. Storm-Doubs line is a major transmission source of electricity for residents and businesses in Northern Virginia. The SCC determined that the anticipated reliability violations on that line must be fixed.

Several opponents of the 502 Junction-Loudoun line had argued that other alternatives, including new generating plants and conservation programs, could eliminate the need for the line. Some urged the SCC to initiate integrated resource planning to determine whether a combination of options could be superior to the proposed line in removing the threat to reliable power service for Northern Virginia.

In its final order, the SCC said, “We are indeed sympathetic to the opponents’ position that planning for transmission, generation and conservation should be done in an integrated and holistic process, in order to arrive at the most rational and cost-effective plan to meet Virginia’s future load growth and transmission reliability needs.” The Commission went on to say, “The reality is, however, that the law and facts applicable to this matter do not enable us to use a transmission line case [to initiate such a planning exercise] and then use the result of that exercise as the legal basis to deny an application … when a clear reliability need has been shown and the proposed transmission line is an acceptable option under Virginia statutes to meet that need.”

The SCC noted that, by law, the primary responsibility for transmission line planning is given to a regional transmission organization which Virginia’s electric companies were required to join. PJM, Interconnection LLC, headquartered in Pennsylvania, is regulated by the Federal Energy Regulatory Commission (FERC). Federal policies prohibit PJM from the type of integrated transmission and generation planning advocated by the opponents.

PJM also controls when new power plants are allowed to interconnect with the regional electricity grid. In this case, PJM testified that federal policies prevent PJM from accelerating the order in which planned generating units are to be built or from ordering construction of a specific unit even when doing so would solve an identified reliability problem and remove the need for a new line. The SCC said, “Since PJM is regulated by FERC, whether these federal rules represent sensible policy is ultimately for Congress to decide.”

One of several alternatives analyzed by the Commission involved the prospect of accelerating construction of the proposed CPV Warren and Possum Point 7 generating plants. The SCC wrote, “As a result of the current development status of these plants and the limitations imposed by PJM … we cannot reasonably assume that these facilities will be available for dispatch [in time].”

Even assuming that PJM would accept these facilities into the grid by 2011, the SCC said, “… they would not solve the problem that establishes the need for this line.” The SCC explained that the factual evidence shows that even if both these units could realistically be available by then, transmission line overloads would still be present on the Mt. Storm-Doubs line.

With regard to conservation programs, the SCC wrote, “… the [power demand] forecasts that we utilize [in our analysis] include projected megawatt savings from [conservation] programs … We do not find, however, that [conservation] alone – or in hypothetical combination with other alternatives – is a reasonable proposal to meet the need satisfied by the transmission line.”

The SCC also considered another proposed high-voltage line projected to run from West Virginia through Maryland known as the Amos-Kemptown line. The SCC found that, “…the potential for construction of the Amos-Kemptown line remains too speculative.” The SCC said, “We cannot take the risk that a proposed Amos-Kemptown line will be available to meet on a timely basis the proven need [to assure reliability of electricity service to Northern Virginia].”

The SCC agreed with the hearing examiner’s recommendation that approval of the Virginia portion of the 502 Junction-Loudoun line was logically contingent upon approval of segments of the line in West Virginia and Pennsylvania. The SCC ordered that construction of the Virginia segment cannot begin until both the applicable West Virginia and Pennsylvania state authorities have approved segments of the line in those two states.

The SCC also adopted the hearing examiner’s recommendation regarding the route for the line. Generally, this locates the line partially or wholly within existing transmission rights-of-way. For Dominion Virginia Power, this is generally known as the “Southern” route. The SCC found that the route reasonably minimizes adverse impact on scenic assets, historic districts, and the environment of the areas concerned. In areas subject to open space easements, the SCC directed that the line stay within such easements and property owners be given the option of shorter towers in exchange for an additional 60-foot easement into the open space land.

Retired SCC Commissioner Preston C. Shannon was recalled for this case and joined SCC Commissioners Mark C. Christie and Judith Williams Jagdmann in the unanimous decision. Shannon added a separate concurring opinion. Commissioner James C. Dimitri did not participate.

Read SCC Decision

View excerpt containing Commissioner Shannon's Opinion

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News Articles:

• Wyoming files suit to restore scenic trust, Forbes (7/30/08)
• State sues to restore scenic trust, Casper Star Tribune (7/30/08)

More information:

• Text of the complaint (PDF, 5MB)
• Overview of the full case of Hicks v. Dowd

News Articles:

• Wyoming files suit to restore scenic trust, Forbes (7/30/08)
• State sues to restore scenic trust, Casper Star Tribune (7/30/08)

More information:

• Text of the complaint (PDF, 5MB)
• Overview of the full case of Hicks v. Dowd

More Details from the U.S. Attorney:

• Duffy’s Marsh according to the NRCS office in Wisconsin is “one of the best examples in the country”. NRCS assembled 17 properties in an effort to protect the Marsh of which the 17 acres clear cut were a part. The clear cut destroyed significant habitat, removed all the trees and an eagle’s nest from this sensitive area.
• NRCS gave the landowner two prior written notices not to clear cut the area and not to remove any vegetation without specifically consulting with them. The landowner did it anyway because he felt the trees were “junk”. The landowner acknowledged that he had hired a logger to clear the area and that he had received the two prior notices advising him not to clear the trees.
• NRCS says that remediation is possible and will cost an estimated $30,000.
• The landowner trial is scheduled for September 2008. The landowner has not yet suggested a negotiated settlement.

Read the press release

Working on a Solution

 The Three Rivers Land Conservancy in Oregon had been struggling with the issue for almost two years, and they knew that they had to do something soon. They wanted their response to be both compassionate and uphold their conservation values as well as being responsive to neighbor’s complaints.

Stewardship director Laura O’Leary and executive director Jayne Cronlund looked into finding a solution. They did an internet search and learned of JOIN, a nonprofit working on homeless issues with a program emphasis on outreach services, and worked with the group to help the camper.

The conservancy staff received training from JOIN about how to best deal with the issue. They entered the situation with an attitude of wanting to help and wanting to avoid “running over this person.” They asked a number of questions of JOIN staff:

• When would be the best time to meet the person?
• What do we do?
• How do we talk with him?

JOIN also addressed concerns about community perceptions if dealing with the homeless camper didn’t go smoothly. JOIN staff made plans to go with them on the visit.

Reaching Out

Laura and a JOIN outreach worker went to speak with the camper, offering resources and help transitioning off the Preserve. In order to have proper documentation, Laura also left a letter stating that he was on private property and would need to vacate the Preserve within 7 days. Laura told the camper she would be back the following week to check on his status and that she would have to call the police if he was still there. She also asked him to clean up the site.

Early the following week the camper’s sister called. She said that the camper was now living with her temporarily until they could get him set up in a more sustainable situation. She asked for JOIN’s number and was going to use JOIN resources in support of the process. She also requested an additional week to get all of his belongings off the property, which the conservancy staff granted. She mentioned how much they appreciated the conservancy treating him with respect and dignity. Laura said that response from the sister meant a lot to the staff at Three Rivers.

Lessons Learned

The conservancy drafted a homeless camper policy after addressing this situation. They also have a strong partnership with JOIN that Laura expects will prove mutually beneficial in the future.

Laura says “I think having a policy and procedure to follow helped me tremendously.” Jayne agrees and adds that “sticking our collective head in the sand and ignoring the issue was one alternative, but we chose to address it. This is something all land trusts face especially when we know the problem is going to be difficult to address.”

After the conservancy’s response, the neighbor has also now stepped up and removed invasive species from his property so that they don’t spread onto the conserved land. This neighbor is now a partner because Jayne and Laura listened to him and involved him in the solution.

“Bringing community into partnership with the land trust to solve the issues is critical,” Jayne continues. “Community oriented results are better solutions and strengthen ties to the community. Build relationships. Don’t think yuck. If you deal with it creatively it can be a great experience.”

Many chronic homeless person cases are exacerbated by mental illness. Jayne says these are the most difficult and the ones for which society doesn’t have great systems. Jayne reiterates the conservancy’s mission and values when she states that “we are all interconnected and it is a great opportunity for conservationist to be part of a larger solution rather than a barrier. It depends on your perspective as you approach the issue. Are you willing to be open and listen, are you willing to look to others for assistance and expertise and be creative. Asking neighbors and the community to help identify the solution invests them in preserving the land and makes them feel part of the successful solution.”

Many of us know of someone who faces mental health or other challenges that push that person to the edge of society. This is a personal issue for all of us and a health and safety issue for the town in which we live. Conservationists can be part of making the world a better place for everyone and defend their conservation easements and protect their fee-owned land. The two are not mutually exclusive. It only takes a little extra effort and creativity.

A Happy Conclusion

Strong conservation defense can help build better communities and help people who are falling through the cracks so we can have a better place to live for everyone. This successful event inspired Three Rivers Land Conservancy’s staff to be more creative in upholding conservation easements and conservation land. Their solution also furthered their mission.

What was a conflict turned into an opportunity for the conservancy. They helped someone to get needed services, built community, engendered gratitude and upheld important conservation purposes. Conservation defense can be compassionate, creative and consider community values as well as upholding conservation values forever.

For more info, call:

Laura O'Leary, Stewardship Director
Three Rivers Land Conservancy
PO Box 1116 1675 South Shore Blvd.
Lake Oswego, OR 97035
503.699.9825
503.699.9827 FAX
www.trlc.org

The mission of Three Rivers Land Conservancy is to inspire and involve people in the conservation of private natural land in the watersheds of the Clackamas, Tualatin, and lower Willamette Rivers in and around Portland, Oregon. They believe that conserving land creates stronger healthier communities now and for future generations. They envision a future with thousands of acres of conserved natural land and miles of connecting trail. A future where nature is interconnected with the built environment and development is in balance with nature.

JOIN exists to support the efforts of homeless individuals and families to make successful and sustainable transitions off the street. JOIN was founded in 1992 to bridge the gap between homeless and housed members of our community. JOIN’s program emphasis is for outreach services to homeless individuals who remain outside the traditional system and on the street. The provision of these services is grounded in an innovative blend of harm reduction and mutual relationships that emphasizes strengths rather than deficits. JOIN’s vision is to create a community where homelessness is a short-term circumstance and not a long-term or chronic condition. Their priority is to rapidly re-house homeless individuals and families and stabilize them in their new homes.

Using the ‘National Interest Electric Transmission Corridor’ designation allows utilities federal condemnation authority to site transmission lines, is exempt from environmental review, and preempts traditional state regulation of transmission lines and local land use laws.

Read more about the background of the issue

Find out who to contact for more information

2/12/09 Update:

Utility Infrastructure Advocacy Coalition and Obama Administration Energy and Environmental Advisors

Presented by Sherri Evans-Stanton Director, Environmental Management Center Brandywine Conservancy

 5/16/08 Update:

The Senate Energy and Natural Resources Committee plans to hold an oversight hearing on the Department of Energy's (DOE) implementation of the transmission corridor program, which permits the federal government to overrule state concerns in siting transmission lines. The hearings were prompted by a bipartisan coalition of 14 senators who say DOE has exceeded its authority in establishing high-priority transmission areas and has infringed on state rights.

DOE received widespread criticism after issuing a final rule last October that designated large swaths of land in the Mid-Atlantic and Southwest as corridors, cases our conservation defense team have been following closely. More

How you can help

 Articles by Nancy McLauglin:

• Condemning Open Space: Making Way for National Interest Electric Transmission Corridors (or Not), (PDF, 130KB)
• Condemning Conservation Easements: Protecting the Public Interest and Investment in Conservation, (PDF, 330KB)

March Updates

3/24/08 Article:

• Los Angeles Times, 'Corridors' of power are finding resistance

3/19/08 Update:

Senator Casey (PA) has launched a nationwide petition on his website against the Department of Energy’s implementation of the National Interest Electric Transmission Corridor designation. NIETC designation affects all or portions of 8 states in the Mid-Atlantic and 2 in the Southwest, and is quickly becoming a national program. The petition is not specific to Pennsylvania. If you are from PA, please send Senator Casey a thank you for being a leader on this important issue.

See the petition and a useful summary of the issues, maps and news articles

February Updates

2/29/08 Update: Senate Panel To Hold Oversight Hearing On Transmission Corridors

2/11/08 Update: Eleven environmental organizations sued the U.S. Department of Energy (DOE) in January over DOE’s designation of an eight-state area where federal eminent domain can be used to fast track new high-voltage transmission lines. Led by the National Wildlife Federation and the Piedmont Environmental Council, the groups filed suit because of DOE’s failure to study potential environmental impacts.

The Alliance is assisting by hosting this conservation defense section of the website and discussion group. Also see an article from the new Exchange on tactics to fight condemnation.

For more information:

• Contact Rob Marmet at Piedmont Environmental Council at rmarmet@pecva.org or (540) 347-2334
• Go to the Piedmont Environmental Council website
• Go to the Pennsylvania Land Trust Association website

• "Environmentalists sue DOE," Boston Globe (MA), 1/14/08
• "Proposed power corridor focus of lawsuit," The Wilmington News Journal, 1/19/08

Background

A national electric corridor "threatens over 400,000 acres of roadless forest in southern California,” according to the California Wilderness Coalition. See a map of the threatened corridor in California and Arizona (PDF, 1MB).

The US Department of Energy has also designated more than 116,000 square miles in upstate New York through Ohio in another corridor. The Corridor encompasses all of Delaware and 52 counties in Pennsylvania. See a map of the threatened corridor in the Mid-Atlantic (PDF, 2MB).

Using the ‘National Interest Electric Transmission Corridor’ designation allows utilities federal condemnation authority to site transmission lines, is exempt from environmental review, and preempts traditional state regulation of transmission lines and local land use laws. 

For more information:

• Contact Liese Dart at Piedmont Environmental Council at ldart@pecva.org or (202) 857-7982
• Go to the Piedmont Environmental Council website
• Go to the Pennsylvania Land Trust Association website

Additional Resources:

• Letter to Secretary Samuel Bodman, United States Department of Energy, from Brandywine Conservancy.
• Comments of the Southern Environmental Law Center, et. al , responding to the United States Department of Energy's draft Mid-Atlantic area national corridor & draft southwest area national corridor.
• Map of electric transmission congestion areas according to the Department of Energy, created by Piedmont Environmental Council.
• "Juicing the System" an article from Forbes by Daniel Fischer
• "Groups Challenge Department of Energy over Mid-Atlantic Corridor Designation" an article from the PA Department of Environmental Protection
• Announcement of public meetings January on West-wide energy corridors
• Map of the final designation of the Mid-Atlantic Corridor Map
• Map created by Piedmont Environmental Council showing proposed transmission lines benefit nation's oldest, dirtiest power plants.
• Pages from EPA Act 2005
• Application for rehearing and immediate stay of the Department of Energy's order of the Southern Environmental Law Center, et. al. for the Mid-Atlantic are NIETC and the Southwest area NIETC
• The Wilderness Society
  Nada Culver, Senior Council
  nada_culver@tws.org
  303-650-5818 x 117

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

• First Rob believes that the land trust community should applaud the AG for getting involved in this case.  By intervening on behalf of a small and under funded land trust, the AG increases the odds of a pro-conservation outcome.  In the face of all of the demands placed on the AG’s office, the land trust community should appreciate that the AG regards the enforcement of conservation easements as a priority. 

• Ever since the initial passage of the Maine Conservation Easement Act in 1985, the AG has had the right to intervene in a conservation easement lawsuit.  The defendant landowners mistakenly asserted that such an intervention right was only recently enacted as part of the amendments to the statute.  

• The crux of the intervention-related arguments was whether Windham Land Trust was insolvent.  However, this appears to be based on a mistaken reading of the amended statute.  The AG retains the right to intervene as it sees fit.  According to the rules of permissive intervention, this is a right it has enjoyed all along. 

• What the amendments to the statute achieve is to enumerate a set of limited circumstances in which the AG may “initiate” (i.e., file a new lawsuit, as opposed to intervening in an already existing lawsuit) an action.  See 2007 P.L. Ch. 412, § 478(1)(D).  In a future case, many hope that the AG does not view itself as bound by this narrow and apparently incorrect reading of § 478 as it applies to intervention.

• What is beyond question is that in order for the AG to initiate a conservation easement-related lawsuit, at least one of the four requirements of §478(1)(D) must be met.  One of these requirements is that the holder of the easement is “bankrupt or insolvent.”  This case sheds light on how the AG has interpreted the term “insolvent.”  First, the AG did not require that WLT actually be penniless, but rather that its liabilities exceed its assets.  Second, to demonstrate insolvency, the AG requested from WLT, and eventually attached as exhibits to its reply brief, WLT’s detailed financial records, including profit and loss statements, balance sheets, and legal billing statements. 

• In addition to citing provisions of the Maine Conservation Easement Act, the AG also argued for intervention on charitable trust grounds, citing 5 MRSA § 194, a provision that governs gifts to charity and charitable trusts.  In other words, the AG claimed that regardless of any limitations in § 478(1)(D), it had the right to intervene because a conservation easement is subject to charitable trust provisions.  Some experts find it difficult to see how the AG makes this argument in light of the new and detailed standing provisions of § 478.  Nevertheless, the AG’s embrace of the charitable trust doctrine bears consideration in determining how to construe the statute. 

• Because the court did not issue an opinion with its order granting the AG’s motion, we do not really know which of the various arguments were most persuasive.  In particular, we do not know whether the court seriously entertained the AG’s charitable trust argument.   

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

The beloved summer retreat of an extended family will continue as a nature preserve and education center after the Western New York Land Conservancy prevailed in litigation against a wealthy neighbor who clear cut three large areas for roads and a pond.  The Kenneglenn Nature Preserve is 130 acres located in Wales, New York.  The Land Conservancy acquired the property in 2000 and the New York State Department of Parks holds a back-up conservation easement on the parcel.

In a unanimous jury decision, The Land Conservancy was awarded almost $600,000 of which half a million dollars were punitive damages.  The high damages for “punishment” of the neighbor’s actions “really makes a statement”, according to Executive Director Patricia Szarpa, calling the decision “a victory for land conservation in Western New York!”  

History
Legal Actions
Components of a Successful Case
Lessons Learned
Celebrating Permanence and Upholding Promises   

History

Before the Land Conservancy bargain purchased the 130 acre preserve, the family sold their manor home and a 12 acre landlocked parcel to a private buyer.  The manor home is served by a driveway and utility right of way through the Preserve.  The Preserve completely encircles the 12 acre house site.

After the manor sustained a major fire, the first owner sold it to the current owner, a wealthy and powerful businessman.  The current owner trespassed repeatedly on the Preserve while rebuilding the home and redesigning the landscaping.  After the property transfer,  The Land Conservancy called and wrote letters to the new neighbor to introduce themselves but received no response. 

In March 2005, Land Conservancy volunteer caretaker for Kenneglenn, Rev. Jack Printzenhoff, discovered that the neighbor had extended a new pond onto the Preserve by 120 feet.  Testimony at trial by the contractors working on the neighbor’s land confirmed that he knew he had crossed the property boundary.  He told the workers to cross the line, and pull boundary stakes and clear cut a successional hardwood swamp of 80 years of growth.   

The Land Conservancy immediately called and wrote to the neighbor to attempt to resolve the issue and restake the property boundary, but had no response.  The non-resident neighbor ignored repeated efforts to negotiate and resolve the matter by The Land Conservancy.

The neighbor also owned a farm next to the Preserve where he was staging the construction work for his new mansion.  At approximately the same time as the pond encroachment,  his workers cut a 20’ foot wide road across the Preserve for access between the staging area and the mansion.  He installed culverts, removed trees, vegetation and topsoil, and placed gravel rather than use the designated ROW and public road back to the driveway and entrance of the farm property he owned.

The Land Conservancy responded with more calls and letters to the neighbor, again with no response.  They located the property manager working at the site and got his attention.  The Land Conservancy chained the new road and demanded that the neighbor cease all trespass.  In response, the neighbor cut another 20’ road across the Preserve to the staging area.

Legal Actions

After The Land Conservancy gave written warning that they may need to take legal action, the neighbor sued them for interference with his quiet enjoyment of his property.  The Land Conservancy responded with counterclaims for the encroachments.  Just before trial, the neighbor dropped all his charges.  

Attorney Anthony Rupp represented The Land Conservancy. Robert Besanceney a real estate attorney and Land Conservancy board member, acted as liaison between Tony Rupp and the organization for the last 2 years during all phases of the litigation.  Pat Szarpa estimates that Robert devoted at least 1000 hours of time to the case.  “We could not have done it without Rob’s dedication to this case and all of the volunteer time he gave to this organization in working with our attorney,” said Pat, “the work of the organization over the last two years may have been greatly compromised without it.”  The remainder of the board and staff put in at least another additional 500 hours, not counting Tony Rupp’s time.  The effort cost the Land Conservancy at least $70,000 in out of pocket expenses.  This represented an investment of 35% of The Land Conservancy stewardship fund that they will now need to replace.

The attorneys feel certain that the neighbor is likely to appeal the jury verdict.  It may be quite some time before the Land Conservancy receives any of the $600,000 award assuming that they continue to win on appeal.  Appeal costs will continue to diminish the award unless the organization is able to add those costs to the award and is able to actually collect the award. In the next few weeks the Court will convert the jury's verdict into a judgment. The judgment will confirm the jury's award and grant other remedies that have been requested by the Land Conservancy. 

Robert Besanceney in reporting the result to the board said that, “this is a wonderful result and reaffirms the efforts the Land Conservancy has taken to defend it rights and property.  Our attorney, Tony Rupp, deserves tremendous credit for directing this effort and masterfully handling an extremely difficult opponent. To be sure, this is not over.  (The neighbor) will certainly appeal the judgment.  Even if his appeal fails, we may not actually receive any funds for year or more.”

Components of a Successful Case

Pat Szarpa says that what made this a successful case was a combination of basic respect for the neighbor (despite severe provocation) and dedication to the land.  In reverse, the intentional and repeated acts of the neighbor, despite the Land Conservancy’s strong efforts to talk and stop the damage without retaliating was, in her opinion,  one of the critical points in the jury’s decision.  Pat says that staying calm and treating the neighbor respectfully was key.  No one at the Land Conservancy ever demeaned or attacked the neighbor in public.  Pat would not even use his name publicly.  The Land Conservancy took the high road and it paid off in the jury award. 

Another critical component was that The Land Conservancy retained independent engineers to visit the land and give a dispassionate assessment of the damage to the Preserve.  The engineers were able to quantify and model the loss of 80 years of successional growth and soil quality.  They were also able to effectively make the point to the jury that it will take another 80 years to replace what was lost because you can’t go to a store and buy that kind of growth.

Hiring outside experts was critical according to Pat.  She said that it took the Land Conservancy’s  opinion out of it and the jury heard from experts about damage, restoration and costs.  The engineers used a damages theory based on total restoration costs.  The court will consider trebling the tree damages portion ($57,742) of the compensatory award due to intentional acts.  This was the organization’s first major violation that went to trial.

The baseline documentation report was also critical to proving their case.  They could produce the photos and narrative to show the property condition prior to the damage.  The biologist, Dr. Paul Rutledge, who did the BDR also testified.  Pat reported that his testimony was essential to the success of the case.  Dr. Rutledge was on the stand for a day and a half. His testimony coupled with the engineers’ testimony overwhelmed the jury.

Finally, good recordkeeping is critical.  The Land Conservancy was able to produce in court all the letters they sent to the neighbor as well as the contemporaneous with closing BDR.  It documented their good faith attempts to resolve the matter and also demonstrated the neighbor’s contempt for property rights and his general incivility. 

Lessons Learned

Overall the lesson the Western New York Land Conservancy learned from the case is to make sure every land trust has proper and orderly documentation for their properties.  Pat felt that the case demonstrated how absolutely important every bit of documentation was from the BDR to correspondence and board reports.  She also believes that the land trust  accreditation process will be really helpful in making sure land trusts are fully prepared for any future litigation by improving all land trust systems, especially documentation. 

The case for Pat proves the importance of proper recordkeeping because a land trust never knows what will happen when.  If land trusts do not have good records on their properties, Pat emphasizes, “then get them done now.” 

She also stressed that learning who your neighbors are and getting to know them is critical.  According to Pat, land trusts should “go the extra mile and maintain good relationships with everyone.  Litigation should be your last resort.”

Celebrating Permanence and Upholding Promises

Robert Besanceney summed up everyone’s feelings when he said, “For now, we can clearly enjoy the feeling that what we did was right.  We defended ourselves against a wealthy and powerful opponent and protected property that is special to all of us!”

For more information call Patricia Szarpa Executive Director Western New York Land Conservancy at 716-687-1225 or pszarpa@wnylc.org.  The Land Conservancy has 2 staff and is 17 years old with an active and expert board.  The Land Conservancy has more than 4,000 acres conserved in 8 counties in western New York.  They hold 38 conservation easements and 14 fee properties.

Rob Bleiberg, executive director of Mesa Land Trust says that “You don’t know what is around the corner for your land trust, so you need to be prepared for the worst without overreacting.” The three overlapping violations in the last three years put an “amazing amount of stress on the organization especially as they happened during the same time as the Colorado IRS audits.” Mesa Land Trust was able to continue protecting land but many other activities slipped in order to uphold conservation permanence. The challenges were “time consuming and emotionally draining”, according to Rob.

Three Conservation Easement Violations

The gas boom in 2006 from the energy price increases caused exploration activities and a violation of road building across conserved land. Defending that easement cost the land trust over $55,000 in attorney and other expert costs over 16 months of negotiations. Fortunately the land trust recovered its costs from the gas company. The land trust retained an extremely influential and experienced mineral attorney to represent them and credits his efforts for this success.

Big Creek Ranch was the second violation in July 2008 and involved another gas exploration violation this time by a successor landowner who granted an easement for a gas pipeline across his conserved land. Unfortunately due to a limited title search by the gas company, it was not aware of the 1980 conservation easement. Despite issues with the drafting of this old easement that was assigned to the land trust in 1987, the Land Trust managed to negotiate a new, more restrictive agreement with the pipeline builder that contains some sideboards on location, construction, and restoration of the right-of-way. Rob says that they “got best conservation protection possible all things considered.” That effort cost the land trust more than $30,000 out of pocket for attorney fees for which the land trust was not reimbursed, though the pipeline company gave the land trust $5,000 for the stewardship endowment for the conservation easement.

A water rights dispute started in 2007 and is still in progress in mid-2009 overlapping the second gas-related violation. So far the dispute has cost the land trust more than $45,000 in outside expenses and is likely to be much more. The Land Trust filed suit against successor landowners who severed important and valuable water rights from property that is subject to a 1990 conservation easement. The water rights were retained by the sellers when they conveyed the property to new owners in late 2007. They indicated that they intend to sell the water rights to a nearby domestic water supplier for a significant amount of money. The 1990 conservation easement was granted to the land trust by the United States, acting through the Farmer’s Home Administration after it had acquired the property. The conservation easement encumbers all water rights and the sellers acquired the property at a price which reflected that the water rights were encumbered and tied to the property. This case is potentially precedent setting at least in Colorado with respect to water rights encumbered by conservation easements prior to 2003 when Colorado passed specific legislation.

Success Story

Mesa Land Trust has demonstrated the resolve and the resources to uphold conservation permanence. They were ready and were not lulled into complacency by decades with no problems. Rob quips that “when it rains it pours even here in the desert of western Colorado” when discussing the legal slogging of the last three years. He gives lots of credit to the board over the years because it “knows that we have unquantified liabilities and risk that we take on with each conservation easement.” He continued that “we chose whenever possible to fund annual stewardship activities from operations so that could build our reserves just for the challenges we have seen recently. The board has focused consistently on legal defense so that can deal with simultaneous issues.”

Mesa Land Trust also carefully evaluates these cases after they are concluded for improvements they can make to their already strong systems and sound thinking. Rob emphasizes the importance of requiring the one-way legal fees clause in the enforcement section of all conservation easements. “Don’t give up on that,” he says. “It is critical; land trusts must insist on having that clause despite landowner or attorney objections.” That clause helped bring the gas company to the table faster in the first violation, and its absence in the two older conservation easements has proved to be a considerable expense.

Rob also notes from the second violation case that land trusts need to be aware of the statutory title search period and to record a notice of the conservation easement within statutory period so that title searchers are aware of the conservation easement. In the second violation, the gas company searched title for statutory 25 years but the easement was earlier and so they did not see it and that contributed to the violation.

Finally, Rob asserts that not having to worry about money was critical to their success. They could hire the best help they could find and those experts make all the difference to conservation permanence. “Land trusts must have sufficient reserves,” Rob states. “You need to assume that some day you will need them. It takes years to build adequate funds and land trusts must start now if they do not already have substantial resources available.”

Conservation Defense Insurance

Rob says that he and the Mesa Land Trust board are “very excited to have a backstop through the possible conservation defense insurance program that the Land Trust Alliance is exploring. It gives us and landowners confidence that we have a safety net to steward our portfolio of protected lands.” He adds one last thought, “Through our current litigation, I have been struck by how little conservation easement case law is out there. All organizations are vulnerable to bad court decisions setting bad precedent. Even if you don’t think you’ll ever have to defend an easement or that you have sufficient resources to effectively self-insure, you still have a distinct interest in seeing the defense insurance program flourish. By having as many land trusts as possible participate in the program, we can help bring the best legal defense to as many easement challenges as possible. And that benefits all of us.”

For more information, call or write:

Rob Bleiberg

Executive Director

(970) 263-5443

http://www.mesalandtrust.org/  

The Alliance website has more information about conservation defense insurance at www.lta.org/cdinsurance.

"I was able to respond that the Alliance is putting together a nation-wide risk pool program that will assist with legal defense," reported Winston. He also added that the land trust continues to build its defense reserves as suggested by Land Trust Standards and Practices so that if the insurance program starts it will be a safety net to the land trust’s good financial management.

"Apparently, continued Winston, "this landowner's friend had just defended a conservation easement threatened by a very wealthy business person who had tried to build a "mega-mansion" (his term) in the center of the area protected by the easement.　 The potential donor was aware of the cost of this legal action, and is smart enough to make the connection with his own plans."

Check out how the possible conservation defense insurance program might help your land trust with its sound financial management, help increase donor confidence and develop your land trust effectiveness in responding to legal challenges at the Alliance Conservation Defense Insurance web page.

The last day to comment on the proposed program is May 15. Enter the YOU NAME IT contest by May 15 and win a free 90-minute workshop from the Alliance suite of online trainings. We invite you and your colleagues to suggest a name for the proposed conservation defense insurance program via e-mail to lrbeach@lta.org.