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.　

The men received a suspended 18-36 month sentence but will serve 60 days with a pre-approved furlough community restitution program, to begin immediately. A restitution hearing will take place within the next 30 days. The two are also barred from the Big Jay property. The plea agreement brings an end to the state’s case against the men, who illegally cut nearly 1000 trees along a 20 to 60-foot-wide swath that extends more than 2,000 feet from the top of Big Jay, Vermont’s twelfth-highest peak. State officials estimate the cost of damage is nearly $50,000.

"It is good to see a felony conviction in this case," said Secretary Jonathan Wood at the Agency of Natural Resources. "This was one of the most serious cases of damage to public lands we have seen. We appreciate the diligent work of the Orleans State Attorney’s office in aggressively pursuing this case. "We hope that this sends a message to anyone else that cutting ski chutes will not be tolerated," Wood added.

In July 2007, state foresters and Green Mountain Club personnel investigated the cut after reports of chainsaws being heard on Big Jay. Several weeks later, the men signed a confession and were later arraigned on charges of unlawful mischief greater than $1,000, a felony.

Big Jay is owned by the state and is managed as part of Jay State Forest by the Department of Forests, Parks and Recreation. The Green Mountain Club acquired 1573 acres including Big Jay in 1993 as part of its Long Trail Protection Program. GMC transferred the land to the state, retaining a conservation easement co-held with the Vermont Housing and Conservation Board which restricts development and vegetation cutting. See more. The Long Trail, the nation’s oldest long-distance hiking trail, crosses the property and climbs Jay Peak, from which there are spectacular views of Big Jay.

Ted Vogt of the Green Mountain Club’s Stewardship Committee said "We appreciate the efforts of prosecutor Joe Malgieri in handling the criminal case.　 The Green Mountain Club’s ongoing concern is doing what it can to facilitate the restoration of this beautiful place that has been seriously damaged."

The Green Mountain Club has been working over the last two years with the state, the adjacent Jay Peak Ski Resort and skiers to revegetate the cut area and to prevent skiing on the cut land. Once the young trees start to crest the snow pack in winter, they are especially susceptible to damage from skiers. Management of the area over the next ten years will be critical to restoring the area and erasing the scar from the mountain

Officials at Jay Peak ski area worked collaboratively with the Agency of Natural Resources and Green Mountain Club, said owner and president Bill Stenger. The two men were not in any way affiliated with the ski area, the state, or the easement holders.

"I am pleased that the people responsible will have to pay restitution," Stenger said.

Photos by Rebecca Washburn