iConservation Defense Activities Help You Keep Your Promises
“Some of my most enjoyable days are sitting at the kitchen table brainstorming with a family about what we are going to protect,” says Amy Schwarzbach, executive director of the accredited La Plata Open Space Conservancy in Durango, Colorado. “When you sit down and negotiate the terms of a conservation easement and then consult legal counsel, you think you’ve drafted a document that is timeless,” she says. “But it’s not.”
Conservation defense bolsters the legal underpinnings of a conservation agreement or a fee simple ownership and ranges from building trusting relationships with owners and neighbors of conserved land to ensuring the land trust is adequately insured. Conservation defense begins on the day you acquire the property or sign the conservation easement, says Glenn Hoagland, president and chief executive officer of the accredited Mohonk Preserve in Ulster County, New York.
“As land trusts mature, more and more of their time will be taken up by stewardship,” says Leslie Ratley-Beach, the Land Trust Alliance’s conservation defense director, who is an attorney with expertise in creating and defending easements and other conservation agreements. She also led the Alliance effort that created the first-ever national conservation defense liability insurance program, Terrafirma Risk Retention Group LLC.
“Conservation defense is an integral part of long-term land stewardship,” says Hoagland. “It’s something you have to plan for.”
Fading memories, successor owners and outdated language can all work to erode conservation agreements. A conservation defense challenge, such as a lawsuit, is just a matter of time.
Preparedness
For the accredited Lyme Land Conservation Trust in Lyme, Connecticut, that amount of time was 40 years. In 2009 the trust went to court seeking a declaratory judgment on a conservation easement violation after many attempts to resolve the issue outside of court. “We’ve overseen 68 conservation easements in our now 50 years,” says Executive Director George Moore. “This was the first lawsuit we encountered.”
In 1981 the Town of Lyme asked the trust to hold a conservation easement it required as part of a building permit for a 16.9-acre parcel on the Connecticut River. The easement allowed building on 4 acres of the property, but required that the rest, 12.6 acres, be kept in its then-current state, mostly a meadow, mowed annually, and a forest.
Twelve years later, the accredited Nature Conservancy would declare the lower Connecticut River as one of its 40 Last Great Places in the Western Hemisphere, validating the conservation significance of the site and the town’s earlier concern for its future.
Two owners came and went without incident. In 2007, however, new owners began landscaping the meadow. The owners ripped out the native vegetation and brought in 37 truckloads of topsoil fill. The trust reached out to the landowners but couldn’t reach an agreement with them.
The leadership of the land trust had turned over many times in the nearly three decades between the trust’s acquisition of the easement and the start of the lawsuit. Good records were vital to the defense of the easement, Moore says. “You don’t want to go into court empty-handed.” Photos of the property 10 years before it had been landscaped turned out to be key pieces of evidence in the case, which ultimately was decided in the land trust’s favor.
While the case received both local and national attention from the media, the trust made an effort to keep the case’s profile down, both internally and externally. A separate group within the board handled the case so the board as a whole would not be overwhelmed.
The trust ran up some big legal bills in spite of its law firm handling much of the work pro bono. The case began before Terrafirma was formed, but the trust received a grant and a loan from the Alliance, which it will be able to repay with the settlement from the successful resolution of the case.
Persistence
Many land trusts see a day in court as a failure. Some see even the act of consulting an outside attorney as a sign that they have not been nice enough or persuasive enough. Ratley-Beach advises land trusts to reach out to an attorney before a dispute gets out of hand. This may help a land trust avoid simple mistakes, such as not giving adequate notice or not gathering documentation.
That has been one of the lessons that the Mohonk Preserve has taken away from two recently resolved court cases where neighboring landowners sought to gain possession of over 116 acres of land owned by the preserve. One case took nine years, the other 14 years.
“We’ve learned not to acquiesce,” says Hoagland.
The Mohonk Preserve protects over 8,000 acres in fee simple ownership in five towns in the Shawangunk Mountains between the Hudson River and Catskills. It has more than 200,000 visitors a year who come to climb its world-famous cliffs, hike or ride mountain bikes on its trails. It shares 50 miles of boundaries with 250 immediate neighbors.
It both keeps a close eye on its boundaries and tries to be friendly with its neighbors. So, for example, when a neighbor accidently paved a driveway on a sliver of what actually was preserve property, a swap was made for an equivalent amount of unpaved land. Everybody walked away happy.
Through the years the preserve leadership has become savvier about when it had to take a firmer stand with neighbors. Earlier in its history it received an injunction to stop tree-cutting along one boundary, only to have the neighbor start cutting along another. It secured another injunction and in the end the court awarded monetary damages. “We learned from that to persevere in defending our land from abuse,” says Hoagland.
Even when everything is as it should be during a site visit, the staff is thinking about documentation. “We are always thinking, ‘Will it be needed for evidence in court?’” says Hoagland. It’s not enough to put up a boundary sign. A preserve steward will also take a photo with a time stamp on it, so if the sign is taken down, there is a record it was there. “It has become routine,” Hoagland says.
Timeless Easements
Sometimes, when La Plata Open Space Conservancy’s Schwarzbach sits down with the new owner of an existing conservation easement property, she comes across an artifact of an earlier era that ranks right up there with a mullet haircut or a pet rock.
Most of the conservancy’s 170 or so conservation easements were written early in the organization’s 25-year history. The legal language of land trusts has kept evolving, but the easements, meant to last forever, contain language that can cause problems today.
For example, Schwarzbach says, older easements sometimes have reserved rights that include the option to consider amendment at a later date. Negotiating amendments was easier back then, she says. Today it can take as much time to complete due diligence for an amendment as the original easement. That puts a strain on the conservancy’s two staffers, who oversee the protection of 20,000 acres in southwestern Colorado and northwestern New Mexico.
The simple language of the earlier documents seems easier to understand. It may use the term “barn.” But what if a new owner uses the structure as a venue for weddings or yoga, Schwarzbach asks. Is it still a barn? The intent of the easement might have been for it to be an agricultural structure or a nonresidential structure. That language is more technical but also ages more gracefully.
“Sometimes we’re on our fourth or fifth landowner and the fourth or fifth attorney interpreting that language,” Schwarzbach says.
The solution for LPOSC is that when landowners come to them asking for an amendment to their conservation easement, the conservancy begins a legal process that allows it to adjust the contract language in addition to amending the contract. This resolves landowner issues and gives the conservancy the opportunity to update the easement to current standards.
Additional Skills
When Stacy Meyers joined Openlands, an accredited regional conservation organization based in Chicago, as a policy coordinator over 10 years ago, she was able to draw on a decade of experience that included environmental litigation and regulatory experience to take on projects like protecting the Midewin National Tallgrass Prairie from a highway project and Illinois Beach State Park from disturbance from water pipe construction.
Today, as Openlands’ staff attorney, she deals with the full scope of its activities, which range from strengthening water quality standards to negotiating better transportation solutions to the land acquisition matters that are the mainstay of most land trust attorneys.
Meyers says that despite all of her experience in litigation, regulation and policy, the land acquisition work can still feel very new. She has been able to blend resources from the Land Trust Alliance with her experience to provide her organization with the assistance it needs.
She recently attended the Alliance’s sixth Symposium on Advanced Legal Topics in Land Conservation in San Antonio. “It helped me understand not only the legal debates, but that there are tools to help me decipher the issues I have,” she says. Those tools included information about event contracts — which don’t come up much in regulatory and policy work — and an explanation of easement amendment policy.
“The Alliance resources are a compendium of all our work products,” Meyers says. “They let you see how other experts are handling those issues. It’s a big think tank that I can benefit from. I’m grateful for that.”
A Helping Hand
“Any time a potential violation comes to light, your heart just sinks,” says Abbie Church, conservation director of the accredited Mississippi Valley Conservancy in Wisconsin. “Knowing that we have this whole team of brilliant minds at the Alliance has provided so much peace of mind.”
Recently, for example, a landowner rented out a field to a farmer in violation of a conservation easement that forbids agricultural use. “We had never dealt with an easement violation of this type, and our attorney has never dealt with one,” she says. The conservancy’s first step was to research the situation on The Learning Center, an online resource for Alliance members.
It also filed a “placeholder” claim with Terrafirma, just in case. Church says the Terrafirma policy not only benefits the conservancy, but also comforts donors who need to be assured that the conservancy has the resources to carry out their wishes to conserve their land forever.
“The expert advice, the sample documents and the insurance itself lets us know that we are not alone in this,” Church says.
Peggy Horner, executive director of the Ozark Regional Land Trust also says that the Alliance’s conservation defense resources help it feel less isolated while protecting 28,000 acres in Missouri, Arkansas, Kansas and Oklahoma. She appreciates that Ratley-Beach has her eyes on the horizon, scouting for problems that are just emerging. That is helpful to the average land trust, which has to focus on what’s coming at it at the moment.
Even the biggest and most experienced land trusts can benefit from the Alliance’s resources.
“The Nature Conservancy has thousands of conservation easements,” says Joan Dwoskin, a senior attorney for the Conservancy. “We were revising our conservation easement template and asked Leslie, based on her work with the Alliance and Terrafirma, which provisions were most likely to lead to a conflict between a land trust and an owner.”
Ratley-Beach provided the information. “The Alliance is lucky to have her, and so are land trusts,” says Dwoskin. “She knows more about the case law and IRS positions than, I would say, anybody.”
“We are the largest land trust,” she says, “but she would have done it for any land trust.”
In fact, Ratley-Beach says, “The trend data we pulled from that has been wildly popular with other land trusts. This is what is so great about this national collective network — we all have a piece of the puzzle. Putting it together, sharing and caring is what makes conservation defense effective.”
Big or small, land trusts are aiming for the same conservation defense goals and the same relationship with owners and other stakeholders.
“The best relationship is the person who, when you bump into them in the grocery store, says, ‘Hey, I was going to replace that barbed wire fence with smooth wire.’ And I say, ‘Great, I’ll put that in your file.’ Then we hug or shake hands,” says Schwarzbach. “That’s usually the first landowner. You have to rebuild the relationship with subsequent landowners.”
The kitchen tables may change, but the bond created there does not. As Meyers of Openlands says, “While it is important to maintain a connection with landowners, people come and go, but the relationship with the land is forever.”
Madeline Bodin is a freelance writer.