Little Traverse Conservancy
3264 Powell Road
Harbor Springs, MI  49740

For more information, please call:  231.347.0991

Imagine you are on a boat in Emmet County’s Crooked Lake, moving north along the Inland Waterway. You are heading toward the Crooked River and ahead of you are the Alanson locks which will transport you safely to the Crooked River. To your left, just before the locks, are beautiful, undeveloped wetlands. It is a place where the call of kingfishers is common, as is the water trail of a muskrat or otter that just passed through.

This spring, Little Traverse Conservancy purchased 2,000 feet of this frontage along with 23 acres of marsh and forested wetlands to create the Inland Waterway Preserve. According to wildlife ecologist Burt Ebbers, “I cannot think of any other waterfront parcel in the upper Crooked River watershed more deserving of preservation than this property, both in terms of helping maintain water quality and providing quality habitat for native plants and animals.” Ebbers noted that the new preserve includes a well-defined Northern Fen community, a rarity in this region.

“Protecting this much shoreline near the top of the waterway was a high priority for the Conservancy,” said Tom Bailey, executive director for the Conservancy.      

Funding for the purchase came primarily from the Taylor Foundation, and was greatly enhanced with a $15,000 contribution from the Pickerel-Crooked Lake Association (PCLA), a dynamic group that has worked in partnership with the Conservancy throughout the years. Most notably, this group served a significant role in protecting the Oden Island Nature Preserve and the Black Hole Nature Preserve.

“The PCLA is made up of members with a wide variety of backgrounds with the common interest of protecting the environmental well being of our lakes,” said Ray McMullen, president of PCLA. “Unscientifically speaking, one of the best ways to maintain or enhance the quality of a water body is to leave it the heck alone. This is why PCLA has been pleased to work with LTC on many conservation projects.”

The new preserve directly adds to protection provided by other preserves. On June 24, a pontoon ride to the new preserve will depart from Ryde Marine in Oden at 6:30 pm. There is limited space and pre-registration is required, so please call 231.347.0991 for more information or visit www.landtrust.org.

Since 1972, the Little Traverse Conservancy has been working as the oldest regional, non-profit land trust in Michigan. With the support of more than 4,000 members, the Little Traverse Conservancy works with private landowners and units of local government to permanently protect ecologically significant and scenic lands from development. Since it was founded, more than 40,000 acres and 103 miles of shoreline along our region’s lakes, rivers, and streams have been set aside to remain in their natural state within Charlevoix, Cheboygan, Emmet, Mackinac, and Chippewa counties. In addition, more than 6,000 young people participate in a Conservancy environmental education outing every year. For more information about the Little Traverse Conservancy and land protection options for your land, please contact their office at 231.347.0991 or visit www.landtrust.org.

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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:

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

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

Land Trust Alliance Initiatives to Ensure Permanence

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

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

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

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

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

Addressing Public Perception and Media Relations

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

Here is what the Alliance is doing:

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

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

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

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

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

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

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

Addressing Policy Issues

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

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

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

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

Addressing Practice Issues

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

Two cases about conservation easement donations to a public agency:

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

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

Land Trust Alliance Initiatives to Ensure Permanence

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

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

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

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

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

Addressing Public Perception and Media Relations

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

Here is what the Alliance is doing:

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

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

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

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

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

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

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

Addressing Policy Issues

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

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

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

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

Addressing Practice Issues

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

REGISTER ONLINE >>

We are offering a buy two, get one free discount to encourage colleagues to learn together. To take advantage of this offer, please register your first two participants individually using the link above and email us to add your third person.

FOR IMMEDIATE RELEASE

Contact: Anne Fleming
Communications and Publications Coordinator
Little Traverse Conservancy
(231) 347-0991 | anne@landtrust.org

Petoskey Gem Donated to Little Traverse Conservancy

HARBOR SPRINGS, MI -- A beautiful property on the outskirts of Petoskey was recently donated to the Little Traverse Conservancy so that it could remain a natural sanctuary for animals for all time.

Martha “Marty” Alice Curtis was described as a private woman who had a strong connection to all living things and the earth. Born in Petoskey, Martha developed a love of farming growing up on her family’s hobby farm. Her formal training was in nursing and she worked as a surgical nurse in both Petoskey and California. But her passion was animals.

One of Martha’s closest friends, Lois Holmes, described Martha as generous, non-boastful, and someone who lived the simple life by choice. “I called her ‘the St. Francis of Petoskey’ because she believed every creature was entitled to life, including insects and spiders,” Lois said. “She always felt that when she was with nature, she was close to God.”

Late in high school, Martha owned and registered a small herd of Galloway cattle and used her own money to raise oats and hay for them. At one time, she started a business raising puppies to be trained as guide dogs for the blind.

In her will, Martha donated 25 acres of mixed forest and field, including beautiful views of Little Traverse Bay. The property has been identified as a “priority area” for the protection of water quality in the Little Traverse Bay Watershed Plan.

As part of her gift, Martha included money to remove the home and associated development and for ongoing stewardship of the property. She requested that hunting would not be allowed and that no trails or parking area be developed. Her desire was that the land be returned to its natural state so that local animals could find refuge there. “It was as if the wild animals knew that they were safe on that land,” Lois said.

“And every year, the monarchs seemed to find refuge in Marty’s woods and converged in the fields because of the milkweed. You could count on it every year.”

The new preserve will be known as the Martha A. Curtis Nature Preserve. Lying adjacent to the Bay View Woods, the property greatly increases both watershed and wildlife protection in an otherwise developing region. “Natural lands like this — sitting amidst neighborhoods — serve a multitude of purposes for both wildlife and humans,” said LTC Executive Director Tom Bailey.

“This preserve is a significant addition to land conservation in the area. Together with the Bay View Woods, it provides significant wildlife habitat and protects water quality by maintaining the natural hydrology of a large area with steep slopes that drain into Little Traverse Bay.  It is a wonderful gift to the community and to conservation.”

Since 1972, the Little Traverse Conservancy has been working as the oldest regional, non-profit land trust in Michigan. With the support of more than 4,100 members, the Little Traverse Conservancy works with private landowners and units of local government to permanently protect ecologically significant and scenic lands from development. Since it was founded, more than 40,000 acres and 105 miles of shoreline along our region’s lakes, rivers, and streams have been set aside to remain in their natural state within Charlevoix, Cheboygan, Emmet, Mackinac, and Chippewa counties. In addition, more than 6,000 young people participate in a Conservancy environmental education outing every year. For more information about the Little Traverse Conservancy and land protection options for your land, please contact their office at 231.347.0991 or visit www.landtrust.org.

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