FOR IMMEDIATE RELEASE
Contact: Sam Oliver
847-382-7283
BARRINGTON, IL -- Lake County Stormwater Management Commission recognized Patsy Mortimer with the 2010 "Stewardship of the Year” Award December 2 for her dedication and leadership of the Flint Creek Watershed Partnership. SMC Chairman, Steve Mountsier, and Executive Director, Mike Warner, presented a framed photo of Flint Creek in winter to Patsy. Partners and supporters from Citizens for Conservation, Barrington Area Council of Governments, Barrington Area Development Council, North Barrington, Schumm Consulting, SMC, Trillium Native Landscapes and the Village of Barrington joined her for the award presentation.
Patsy helped form Flint Creek Watershed Partnership in 2005 and guided development of the Flint Creek Watershed Plan in 2007 to improve water quality, reduce flooding and protect natural resources. The partnership is now implementing the plan with rain gardens, detention basin retrofits, and native stream buffers. Educational presentations, tours, workshops and displays keep watershed stakeholders engaged, further enhancing the quality of life in the watershed. Mike Warner thanked Patsy and remarked, “Your integrity and compassion are hallmarks of a true steward of the land.”
Flint Creek Watershed Partnership brings together stakeholders to preserve, protect and improve the Flint Creek sub-watershed of the Fox River. More information is at www.flintcreekwatershed.org or contact Patsy Mortimer, pmortimer@earthlink.net 847-381-8663.
Photo caption: Lake County Stormwater Management Commission Executive Director, Mike Warner, and Chairman, Steve Mountsier, present Patsy Mortimer the 2010 Stewardship of the Year award. She is joined by Tom Vanderpoel and Karen Hunter, Citizens for Conservation (CFC); Janet Agnoletti, Barrington Area Council of Governments; Meredith Tucker, CFC; Gary Herrmann, North Barrington; Mike Novotney, SMC; Sam Oliver, CFC; Mike Szymanski, Village of Barrington; Kevin Rische, Trillium Native Landscapes. (Behind the cameras and not pictured: Bob Lee, Barrington Area Development Council and CFC; Nancy Schumm, Schumm Consulting
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]]>The Hicks v. Dowd case that NPR featured is complicated. The nuances of the case and its implications cannot fit into a single NPR radio piece. The Wyoming Law Review will publish a lengthy analysis of the case this summer. See: http://uwadmnweb.uwyo.edu/law/Student_life/lawreview.asp.
Two cases about conservation easement donations to a public agency:
The land conservation community does not want to let stand the impression that conservation easements are transitory, nor that land trusts lightly terminate perpetual conservation easements or dispose of fee-owned conservation land for development. The Alliance has taken several steps to explain and address this misconception and related issues:
Land Trust Alliance Initiatives to Ensure Permanence
The Alliance is aware of and shares your concern about the potential negative impact of this NPR coverage. The alliance is helping to create good case law, educate attorneys, collect useful legal materials and provide tools to land trusts. These steps are intended to assist the land trust community in making all conservation easements permanent. The Alliance is also working to help all land trusts be strong and effective through Land Trust Standards and Practices, Rally: the National Land Conservation Conference, The Learning Center, the Standards and Practices Curriculum, and the Land Trust Accreditation Commission, an independent program of the Land Trust Alliance.
The best way to avoid legal challenges is to prevent them. The Alliance's training courses are building the knowledge of land trust practitioners, helping them draft strong legal documents and implement sound easement stewardship.
Since August 2007, the Conservation Defense Initiative launched the Network and initiated regular teleconference and regional conference meetings to facilitate information sharing and problem solving among experienced conservation leaders across the country. The online forum allows Network members to address issues rapidly. The Alliance also established the Conservation Defense Fund, for use by the Alliance to intervene in precedent-setting cases, usually by filing a friend of the court brief. Several large law firms around the country have volunteered their services to the Fund to assist with conservation permanence.
Also underway is an investigation of the feasibility of conservation defense insurance so that all land trusts can have access to money and resources to uphold conservation permanence. The Alliance hopes by Rally to report to members about the potential feasibility of such insurance, including proposed policy coverage, premiums, deductibles, claims, review and underwriting standards.
Finally, the Alliance increased its capacity to assist land trusts with enforcement and defense issues, dissemination and analysis of new case law, and guidance in addressing IRS concerns.
Addressing Public Perception and Media Relations
We all know that what is legally true is rarely accepted or appreciated by the general public, especially if the general public hears snippets of news articles while commuting to work or getting the kids off to school. So the Alliance is taking proactive steps on behalf of the land trust community to increase the public's conviction that conservation easements held by knowledgeable, publicly accountable land trusts are indeed permanent.
Here is what the Alliance is doing:
The Alliance suggests to members that, in responding to this NPR story or any other piece, remember the following:
Here are some themes to consider and echo in your own messaging:
We cannot control what NPR may or may not run in response, but we are requesting a follow-up story and will keep you informed of progress. Also, please let us know if you see any local or regional media coverage that may piggyback on the NPR story. Keep in mind the advice to not perpetuate a story by responding too fervently or too frequently to it.
Please let us know if you see any local or regional media coverage that "piggybacks" on the NPR story. We hope this is helpful, and if you have feedback please contact Jim Wyerman, Director of Communications & Development at 202-638-4725 x 310 or communications@lta.org.
Addressing Policy Issues
Separate from the narrow legal fact that Hicks v. Dowd affects only government-held conservation easements is the larger impact that the case has had, and will continue to have, on policy development. This impact is driven both by public perception and by IRS concerns about conservation permanence.
Despite the limited facts in Hicks v. Dowd, the case is contributing significantly to the discussion about the applicability of the charitable trust doctrine to all conservation easements. It may also drive changes in the tax law to apply the same penalties and reporting requirements to government-affiliated land trusts as are currently applicable to publicly-supported land trusts. Attorney General intervention in conservation easement cases has been rare to date. Experts disagree about the advisability and efficacy of such intervention. For more information about the charitable trust doctrine, read the article by Nancy McLaughlin. See also, the Land Trust Alliance research report entitled "Amending Conservation Easements: Evolving Practices and Legal Principles," from August 2007. It can be found on The Learning Center. You will need to login in, click on Library and search by the report title.
Ultimately, the applicability of the charitable trust doctrine and the involvement of Attorneys General are questions of state law.
This debate also supports the need for additional outreach by the Alliance and the land trust community to all government easement holders. Alliance staff is working closely with federal government holders, and some state holders to help them better prepare for conservation permanence.
Addressing Practice Issues
Hicks v. Dowd illustrates the problems with groups accepting conservation easements that do not have the knowledge, resources or resolve to steward them. Full implementation of Land Trust Standards and Practices, as applicable to each individual conservation organization, is one way to ensure conservation permanence. Land trusts can minimize risks of conflict with careful land protection criteria, strategic conservation planning, appropriate evaluation of conservation options, thorough baseline documentation of conservation easement-protected land, annual visits and good communication with landowners. The purposeful protection of land and strategically directed conservation also will help prevent future challenges.
The rapid increase of land protected by private land trusts through conservation easements makes it likely that the proposed termination and modification of conservation easements will become more frequent. This is particularly true as conservation easements age and as ownership of conserved land changes. Conservation easement holders can address these issues by adopting and implementing written policies on conservation easement amendments, termination, condemnation and enforcement.
Nancy McLaughlin aptly observed that "as the cache of conservation easements in this country continues to grow, and as those easements, the vast majority of which are perpetual, begin to age, it will become increasingly important to determine whether, when and how easements that no longer accomplish their intended conservation purposes can be modified or terminated." (Nancy A. McLaughlin, "Rethinking the Perpetual Nature of Conservation Easements," 29 Harvard Environmental Law Review, 422, 424 (2005) at www.law.harvard.edu/students/orgs/elr/ and at http:// learningcenter.lta.org/objects/view.acs?object_id=17089.
Equally important is building sufficient skills in all land trusts so that termination can be avoided. Many tools exist and more can be created, that allow issues such as those raised in Hicks v. Dowd and in Walter v. Otero County Land Trust to be addressed without easement termination while still preserving the landowner relationship. Land trusts are encouraged to conduct annual visits to conserved land, build trusting landowner relationships, especially with successor owners, provide landowners access to conservation education and resources, and keep sufficient records to uphold an easement's conservation purposes.
Exercising due diligence prior to completing a conservation transaction is also critical. The due diligence required to satisfy the IRS requirements for tax-deductible easements and that required to ensure permanence and ease of stewardship often are different and require different practices. Land trusts can learn from Hicks v. Dowd that a prudent course of action includes a conservation with owners of any severed mineral interest, even if the landowner has obtained the "remoteness letter" required by the IRS. In a best-case scenario, the mineral rights holder may agree to extinguish its rights or subordinate them to the conservation easement. At a minimum, this conversation serves to notify the mineral estate holder of the conservation easement and provides an opportunity for the land trust and landowner to convince the holder to limit its area of exploration or its extraction activities in such a way as to minimize the adverse impact on the conservation resources.
A close reading of the Treasury Regulations at section 1.170A-14(g)(4) and the examples cited indicate that further steps for severed oil and gas interests may be required in order for the easement to qualify as a charitable deduction. While limited, localized disturbance that does not interfere with the overall conservation purpose is permitted, any extraction activities that are "irremediably destructive of significant conservation interests" must be prohibited. To be bound by the terms of the conservation easement, the owner of any minerals whose claim predates the easement must subordinate his or her interest in the minerals to the easement. Land trusts must take additional steps to minimize the adverse impact of all pre-existing legal rights on conserved land to uphold conservation permanence.
Attorneys can also help with better drafting of conservation easements, anticipating potential conflicts and resolving them beforehand. Attorneys and land trusts can help grantors and successor landowners understand the full implications of a permanent conservation easement before they either place an easement on their land or buy conserved property.
In addition, for those unanticipated dilemmas that often occur with a permanent conservation easement, there is a critical middle ground in response to conflicts, such as those shown in the two cases above. Experienced land trusts understand that conflict resolution does not have to result in either land trust capitulation or aggrieved landowners. There can be a satisfactory solution for all that upholds conservation easement purposes, complies with the law and addresses landowner concerns. Knowing how to balance those issues and being expert in addressing problems and finding solutions are the hallmarks of effective conservation organizations.
When voluntary solutions fail, land trusts and their attorneys also must be prepared to defend easements in court if necessary. For many land trusts without sufficient funds for defending easements, the cost of a single lawsuit could threaten the land trust's survival. Congress and the IRS have both raised questions about the ability of land trusts to defend their easements. Currently, land trusts have no conservation defense insurance available. If a land trust fails to properly defend an easement, it could result in bad case law that may jeopardize easements held by other organizations across the United States. To address these threats, it is essential for all conservation easement holders to exercise leadership to ensure the permanence and quality of land conservation. Implementing Land Trust Standards and Practices is one method to accomplish this goal. Working with the Alliance on collective conservation defense in another.
It is worth noting that several government agencies have adopted Land Trust Standards and Practices and are managing conservation easements and landowner requests responsibly and effectively. These groups are to be applauded and used as models for government conservation everywhere on the thousands of conservation easements and fee-owned land under the care of local, state, and federal government.
Conclusion
The land trust community and the Alliance are working to make all land trusts strong and all conservation permanent. As the work of land trusts becomes more visible, however, new threats to conservation easements and fee-owned properties will occur. These threats may come from successor landowners, neighbors or others in the community who do not share the conservation vision of the original grantor, or from lack of public confidence in the permanence of conservation.
The best way to prevent and prepare for challenges to conservation easements and land trusts owned land is to implement good practices, as defined in Land Trust Standards and Practices. How a land trust responds to a potential violation or to a landowner request, especially for amendments or termination of a conservation easement, affects the enforceability of that easement and potentially all other easements. It also affects the public trust and confidence in conservation as a whole as demonstrated by the NPR feature on the Wyoming easement termination.
Conservation easements are new legal tools, and the enabling statutes have not been in place long enough for the development of a full body of case law. As the first cases make their way through state court systems, they are likely to be cases of first impression. States without case law on the topic will look to those states to inform their decisions. It is important that land trusts work together to defend conservation permanence and build a strong body of favorable case law in every state.
Conservation organizations concerned with the credibility and sustainability of conservation, therefore, may want to do everything possible to ensure good practices and sound policies and implement their programs to uphold conservation permanence.
]]>The Hicks v. Dowd case that NPR featured is complicated. The nuances of the case and its implications cannot fit into a single NPR radio piece. The Wyoming Law Review will publish a lengthy analysis of the case this summer. See: http://uwadmnweb.uwyo.edu/law/Student_life/lawreview.asp.
Two cases about conservation easement donations to a public agency:
The land conservation community does not want to let stand the impression that conservation easements are transitory, nor that land trusts lightly terminate perpetual conservation easements or dispose of fee-owned conservation land for development. The Alliance has taken several steps to explain and address this misconception and related issues:
Land Trust Alliance Initiatives to Ensure Permanence
The Alliance is aware of and shares your concern about the potential negative impact of this NPR coverage. The alliance is helping to create good case law, educate attorneys, collect useful legal materials and provide tools to land trusts. These steps are intended to assist the land trust community in making all conservation easements permanent. The Alliance is also working to help all land trusts be strong and effective through Land Trust Standards and Practices, Rally: the National Land Conservation Conference, The Learning Center, the Standards and Practices Curriculum, and the Land Trust Accreditation Commission, an independent program of the Land Trust Alliance.
The best way to avoid legal challenges is to prevent them. The Alliance's training courses are building the knowledge of land trust practitioners, helping them draft strong legal documents and implement sound easement stewardship.
Since August 2007, the Conservation Defense Initiative launched the Network and initiated regular teleconference and regional conference meetings to facilitate information sharing and problem solving among experienced conservation leaders across the country. The online forum allows Network members to address issues rapidly. The Alliance also established the Conservation Defense Fund, for use by the Alliance to intervene in precedent-setting cases, usually by filing a friend of the court brief. Several large law firms around the country have volunteered their services to the Fund to assist with conservation permanence.
Also underway is an investigation of the feasibility of conservation defense insurance so that all land trusts can have access to money and resources to uphold conservation permanence. The Alliance hopes by Rally to report to members about the potential feasibility of such insurance, including proposed policy coverage, premiums, deductibles, claims, review and underwriting standards.
Finally, the Alliance increased its capacity to assist land trusts with enforcement and defense issues, dissemination and analysis of new case law, and guidance in addressing IRS concerns.
Addressing Public Perception and Media Relations
We all know that what is legally true is rarely accepted or appreciated by the general public, especially if the general public hears snippets of news articles while commuting to work or getting the kids off to school. So the Alliance is taking proactive steps on behalf of the land trust community to increase the public's conviction that conservation easements held by knowledgeable, publicly accountable land trusts are indeed permanent.
Here is what the Alliance is doing:
The Alliance suggests to members that, in responding to this NPR story or any other piece, remember the following:
Here are some themes to consider and echo in your own messaging:
We cannot control what NPR may or may not run in response, but we are requesting a follow-up story and will keep you informed of progress. Also, please let us know if you see any local or regional media coverage that may piggyback on the NPR story. Keep in mind the advice to not perpetuate a story by responding too fervently or too frequently to it.
Please let us know if you see any local or regional media coverage that "piggybacks" on the NPR story. We hope this is helpful, and if you have feedback please contact Jim Wyerman, Director of Communications & Development at 202-638-4725 x 310 or communications@lta.org.
Addressing Policy Issues
Separate from the narrow legal fact that Hicks v. Dowd affects only government-held conservation easements is the larger impact that the case has had, and will continue to have, on policy development. This impact is driven both by public perception and by IRS concerns about conservation permanence.
Despite the limited facts in Hicks v. Dowd, the case is contributing significantly to the discussion about the applicability of the charitable trust doctrine to all conservation easements. It may also drive changes in the tax law to apply the same penalties and reporting requirements to government-affiliated land trusts as are currently applicable to publicly-supported land trusts. Attorney General intervention in conservation easement cases has been rare to date. Experts disagree about the advisability and efficacy of such intervention. For more information about the charitable trust doctrine, read the article by Nancy McLaughlin. See also, the Land Trust Alliance research report entitled "Amending Conservation Easements: Evolving Practices and Legal Principles," from August 2007. It can be found on The Learning Center. You will need to login in, click on Library and search by the report title.
Ultimately, the applicability of the charitable trust doctrine and the involvement of Attorneys General are questions of state law.
This debate also supports the need for additional outreach by the Alliance and the land trust community to all government easement holders. Alliance staff is working closely with federal government holders, and some state holders to help them better prepare for conservation permanence.
Addressing Practice Issues
Hicks v. Dowd illustrates the problems with groups accepting conservation easements that do not have the knowledge, resources or resolve to steward them. Full implementation of Land Trust Standards and Practices, as applicable to each individual conservation organization, is one way to ensure conservation permanence. Land trusts can minimize risks of conflict with careful land protection criteria, strategic conservation planning, appropriate evaluation of conservation options, thorough baseline documentation of conservation easement-protected land, annual visits and good communication with landowners. The purposeful protection of land and strategically directed conservation also will help prevent future challenges.
The rapid increase of land protected by private land trusts through conservation easements makes it likely that the proposed termination and modification of conservation easements will become more frequent. This is particularly true as conservation easements age and as ownership of conserved land changes. Conservation easement holders can address these issues by adopting and implementing written policies on conservation easement amendments, termination, condemnation and enforcement.
Nancy McLaughlin aptly observed that "as the cache of conservation easements in this country continues to grow, and as those easements, the vast majority of which are perpetual, begin to age, it will become increasingly important to determine whether, when and how easements that no longer accomplish their intended conservation purposes can be modified or terminated." (Nancy A. McLaughlin, "Rethinking the Perpetual Nature of Conservation Easements," 29 Harvard Environmental Law Review, 422, 424 (2005) at www.law.harvard.edu/students/orgs/elr/ and at http:// learningcenter.lta.org/objects/view.acs?object_id=17089.
Equally important is building sufficient skills in all land trusts so that termination can be avoided. Many tools exist and more can be created, that allow issues such as those raised in Hicks v. Dowd and in Walter v. Otero County Land Trust to be addressed without easement termination while still preserving the landowner relationship. Land trusts are encouraged to conduct annual visits to conserved land, build trusting landowner relationships, especially with successor owners, provide landowners access to conservation education and resources, and keep sufficient records to uphold an easement's conservation purposes.
Exercising due diligence prior to completing a conservation transaction is also critical. The due diligence required to satisfy the IRS requirements for tax-deductible easements and that required to ensure permanence and ease of stewardship often are different and require different practices. Land trusts can learn from Hicks v. Dowd that a prudent course of action includes a conservation with owners of any severed mineral interest, even if the landowner has obtained the "remoteness letter" required by the IRS. In a best-case scenario, the mineral rights holder may agree to extinguish its rights or subordinate them to the conservation easement. At a minimum, this conversation serves to notify the mineral estate holder of the conservation easement and provides an opportunity for the land trust and landowner to convince the holder to limit its area of exploration or its extraction activities in such a way as to minimize the adverse impact on the conservation resources.
A close reading of the Treasury Regulations at section 1.170A-14(g)(4) and the examples cited indicate that further steps for severed oil and gas interests may be required in order for the easement to qualify as a charitable deduction. While limited, localized disturbance that does not interfere with the overall conservation purpose is permitted, any extraction activities that are "irremediably destructive of significant conservation interests" must be prohibited. To be bound by the terms of the conservation easement, the owner of any minerals whose claim predates the easement must subordinate his or her interest in the minerals to the easement. Land trusts must take additional steps to minimize the adverse impact of all pre-existing legal rights on conserved land to uphold conservation permanence.
Attorneys can also help with better drafting of conservation easements, anticipating potential conflicts and resolving them beforehand. Attorneys and land trusts can help grantors and successor landowners understand the full implications of a permanent conservation easement before they either place an easement on their land or buy conserved property.
In addition, for those unanticipated dilemmas that often occur with a permanent conservation easement, there is a critical middle ground in response to conflicts, such as those shown in the two cases above. Experienced land trusts understand that conflict resolution does not have to result in either land trust capitulation or aggrieved landowners. There can be a satisfactory solution for all that upholds conservation easement purposes, complies with the law and addresses landowner concerns. Knowing how to balance those issues and being expert in addressing problems and finding solutions are the hallmarks of effective conservation organizations.
When voluntary solutions fail, land trusts and their attorneys also must be prepared to defend easements in court if necessary. For many land trusts without sufficient funds for defending easements, the cost of a single lawsuit could threaten the land trust's survival. Congress and the IRS have both raised questions about the ability of land trusts to defend their easements. Currently, land trusts have no conservation defense insurance available. If a land trust fails to properly defend an easement, it could result in bad case law that may jeopardize easements held by other organizations across the United States. To address these threats, it is essential for all conservation easement holders to exercise leadership to ensure the permanence and quality of land conservation. Implementing Land Trust Standards and Practices is one method to accomplish this goal. Working with the Alliance on collective conservation defense in another.
It is worth noting that several government agencies have adopted Land Trust Standards and Practices and are managing conservation easements and landowner requests responsibly and effectively. These groups are to be applauded and used as models for government conservation everywhere on the thousands of conservation easements and fee-owned land under the care of local, state, and federal government.
Conclusion
The land trust community and the Alliance are working to make all land trusts strong and all conservation permanent. As the work of land trusts becomes more visible, however, new threats to conservation easements and fee-owned properties will occur. These threats may come from successor landowners, neighbors or others in the community who do not share the conservation vision of the original grantor, or from lack of public confidence in the permanence of conservation.
The best way to prevent and prepare for challenges to conservation easements and land trusts owned land is to implement good practices, as defined in Land Trust Standards and Practices. How a land trust responds to a potential violation or to a landowner request, especially for amendments or termination of a conservation easement, affects the enforceability of that easement and potentially all other easements. It also affects the public trust and confidence in conservation as a whole as demonstrated by the NPR feature on the Wyoming easement termination.
Conservation easements are new legal tools, and the enabling statutes have not been in place long enough for the development of a full body of case law. As the first cases make their way through state court systems, they are likely to be cases of first impression. States without case law on the topic will look to those states to inform their decisions. It is important that land trusts work together to defend conservation permanence and build a strong body of favorable case law in every state.
Conservation organizations concerned with the credibility and sustainability of conservation, therefore, may want to do everything possible to ensure good practices and sound policies and implement their programs to uphold conservation permanence.
]]>FOR IMMEDIATE RELEASE
Contact: Citizens for Conservation
847-382-7283 | cfc@CitizensforConservation.org
BARRINGTON, IL -- Douglas Tallamy proposes that we create a new 22-million acre national park. This “Suburban National Park” could become reality if every homeowner in the country replaced half his lawn with native plants.
A capacity audience attended Tallamy's program sponsored by Citizens for Conservation's Community Education Committee on February 12. “We have been gardening for aesthetics,” he said, “and we need to start gardening for sustainability.” Instead of putting beds of native flowers in a lawn, we can plant beds of lawn grass only where it is needed in a yard filled with native plants.
Tallamy’s book Bringing Nature Home has been widely praised as a science-based case for the use of native plants in home landscaping. More than that, he shows that diverse native species support a healthy environment for birds, other wildlife, and people. At the University of Delaware where he is a professor and Chair of the Department of Entomology and Wildlife Ecology, research has shown that native plants support far more species of insects than do alien plants. For example, oak trees support 534 species of Lepidoptera (moths and butterflies). These native insects are essential food for 90% of birds as well as for spiders and many small mammals. The web of life which nourishes us begins with plants that support a wide variety of insects. Biodiversity is a national resource, according to Tallamy. Just as we protect air and water, we should protect biodiversity, and that’s easy for homeowners to do.
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]]>FOR IMMEDIATE RELEASE
Contact: Citizens for Conservation
847-382-7283 | cfc@CitizensforConservation.org
BARRINGTON, IL -- More than 120 people attended the recent Conservation and Native Landscaping Awards ceremony held at the Metcalfe Federal Building in Chicago. The awards recognize exemplary natural landscaping, conservation development, and ecosystem protection sites and projects. Susan Hedman, Regional Administrator for U.S. EPA Region 5 opened this special event and welcomed the diverse group of local government representatives, park districts, forest preserve districts, landscape contractors, volunteer stewards and other shining lights of the conservation community.
The Baker’s Lake Savanna restoration in Barrington was an award recipient. Citizens for Conservation, with a contract from the Village of Barrington, initiated restoration of the 17-ace preserve in 1988. Baker’s Lake Savanna is now a spectacular showplace of over 125 species of woodland wildflowers, including the rare Lespedeza violacea, violet bushclover. For 22 years volunteers have spent thousands of hours collecting seed, removing invasive brush and conducting prescribed burns at the preserve. The work continues and CFC welcomes new volunteers.
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