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Conservation easements and land trusts: Adapting private land

conservation to a new age of environmentalism

A Senior Paper

Presented to

The Faculty of the Environmental Program

The Colorado College

In partial Fulfillment of the

Requirements for the Degree

Bachelor of Arts

By

Cyrus Isidor W.L. Hernstadt

Date:_________________________________________________________

Approved by:

_________________________________________________________ Mark Smith – Professor of Economics

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Table of Contents:

Introduction ………………………………………………………….………… 3

Section One: Historical Development ………………………….…....………….5

Part A: Bundle of Rights ………………………………………….…….5

Part B: Conservation Easements and Land Trusts ……………….……..8

Section Two: Conservation Easements and Land Trusts Today ………………14

Part A: I.R.C. 170 and Related Tax Codes …………………...………..16

Part B: The Restatement (Third) Of Servitudes …………….………….20

Part C: The Uniform Conservation Easement Act ……………….…….22

Part D: Land Trust Alliance Standards and Practices ………………….24

Part E: Unique State Legislation ……………………………………….25

Section Three: Criticisms of Conservation Easements and Land Trusts ………26

Part A: Termination and Amendment Controversy ……………………27

Part B: Conflict with Competing Rights ……… ………………………31

Part C: Lack of Flexibility in Easements ………………………………34

Section Four: A Second Universal Conservation Easement Act ………………34

Bibliography ……………………………………………………………………38

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Introduction:

Rising human population and developmental activity have caused the

earth to enter a period of rapid climate change. A crucial aspect of addressing

climate change and mitigating its negative effects on humanity is conserving land

to protect and maintain healthy ecosystems and biodiversity. In the United States,

land has traditionally been conserved primarily through government ownership,

but since the 1960’s, private land conservation has been on the rise, in large part

due to conservation easements. Conservation easements are permanent, legal

agreements between a landowner and qualified land trust or government agency

in which landowners agree to limit the developmental potential of the land in

return for a government subsidy in the form of tax benefits. Because easements

may be imposed on a variety of land types, and the tax benefits may be applied

towards income tax, property tax, or inheritance tax, land trust conservation

easement programs are extremely effective at encouraging private land

conservation. As conservation easements have increased in popularity, land trusts

have simultaneously grown and multiplied to meet growing demand. Today, the

private land trust and conservation system is “arguably the dominant form of

conservation organization in the United States”.1

Despite the growing popularity of conservation easements, the system is

not without faults. The legal doctrine governing conservation easements is

confused, consisting of often-conflicting federal, state and local laws. As a result,

the legal treatment of easements varies significantly across the United States.

1 Bray, Zachary. "Reconciling Development and Natural Beauty." Harvard Law Reviw 34 (2010): 120-74.

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Most troubling is the lack of concrete legislation guiding the amendment and

termination of easements, and the status of easement rights when in conflict with

oil and gas interests. In these areas, even the most progressive legislation may be

insufficient to uphold the conservation intent of an easement, should it even be

referenced in the decision making process. The purpose of this paper is to suggest

changes that could plausibly be made to reform the easement system, making it

more effective and efficient. America is a common law country, meaning our

legal doctrine is evolutionary, and adapts to the cultural values of the day.

Therefore, I will first examine the historical development of the conservation

easement and land trust system, in order to ensure that the suggested changes

represent a reasonable progression of law, and are thus feasible in practice. Then,

the modern legal status of conservation easements and land trusts will be

established and critiqued, to establish which areas are in need of improvement.

Finally, I will propose the creation of a second uniform easement act, containing

provisions that will amend the flaws in modern easement law without neglecting

legal traditions.

Throughout the paper, certain terms may be used interchangeably.

Specifically, the terms easement and servitude, and the terms mineral or gas rights

and mineral or gas estates have the same meaning. Just as the legislation

regarding easements varies across jurisdictional boundaries, so to does the

wording used in legal documents. The use of multiple terms reflects the different

legal terminologies employed by various sources, and the original wording is

maintained to ensure that the legal context is reflected accurately.

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Section One: Historical development of conservation easements

Like our parent country Great Britain, the United States legal system

follows common law. The common law system was developed in England in the

middle ages2, and is essentially law derived from customs and traditions, instead

of rules made by an executive or legislature. Essentially, as customs and traditions

evolve, common law typically evolves to reflect it. For example, if enough

judges interpret an unclear law in a certain way, this new interpretation may

become codified as the official interpretation. So, the evolution of common law

follows the social evolution of societies. This section tracks the evolution of

conservation easement law, and the distinct legal ideas that comprise it. We will

find that every instance of significant legal development was preceded by a

complementary development of culture and tradition.

A: The Bundle of Rights

The legal basis of conservation easements, or servitudes, is the idea that

certain aspects of property rights may be held separately from actual property

ownership. In common law, the most fundamental aspect of property ownership

is excludability, the right to prevent or allow the use of your land by other people.

Therefore, when an individual donates an easement to a land trust, they are giving

the land trust the right to exclude all others from certain activities on their

property. This is possible because, in common law, discrete portions or subsets of

property rights may be separated from overall property ownership. For example,

in the western United States, mineral and water rights are often separated from the 2 "English Law." Encyclopedia Britannica.

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land they lie on, and so landowners may not have control over the oil under their

home, or the stream running through their property. This idea is referred to as the

bundle of rights, a legal analogy in which property ownership consists of a bundle

of sticks, each “stick” representing a discrete property right – or specific land use

– with respect to which the owner of that right can exclude others3. The

progression of property rights from absolute, to exclusionary, to divisible is a

story of hundreds of years of British and American common law tradition, which

we will find to be surprisingly relevant to modern conservation law4.

It begins in the middle ages, when a Lord’s free reign over the natural and

human resources found on his land meant that property ownership was absolute,

with the Lord exercising the right to control rather than merely the right to

exclude5. This idea of property rights is more similar to modern day civil law –

the statute-dominant traditional European mainland legal system – than to modern

common law. Then, during the renaissance, a growing merchant and middle class

meant that property ownership was no longer restricted to a small ruling class6.

Many vast estates previously controlled by lords were fragmented, which resulted

in confusion over travel: could a peasant cross a certain property in order to take

their produce to the nearest market? New questions like this could not be

answered by existing legal doctrine, and so over time, as customs were developed

3 Di Robilant, Anna. "Property: A Bundle of Sticks or a Tree?" Vanderbilt Law Review 66, no. 3, 869-931. 4 "The Evolution of Conservation Easements." The Nature Conservancy. Accessed April 3, 2015. http://www.nature.org/about-us/private-lands-conservation/conservation-easements/evolution-of-conservation-easements.xml. 5 Bray, Zachary 6 Ishay, Micheline. The History of Human Rights from Ancient Times to the Globalization Era. University of California Press, 2008.

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and codified, the issues of excludability, and selective excludability became

relevant aspects of property law.

By the 1800’s, excludability was a fundamental aspect of progressive

thought, having appeared in the works of Cicero, Grotius, Pufendorf, Locke,

Carmichael, Hutcheson, Kames, Hume, Adam Smith, Blackstone, Benthem, and

other writers of distinguished works7, and as a result, grew to hold a more

prominent position in legal discourse. The phrase “the bundle of rights” first

appeared in the 1860’s, as a governmentally created, clarifying concept8. By this

time, the world had grown more complicated, and issues of selective excludability

became increasingly relevant, and some form of official legal intervention was

deemed necessary. However, the U.S. and English governments were burdened

by a public espousing competing ideologies, democracy and collectivism versus

liberalism, and a compromise was needed to settle the issue of without ignoring

either group9. As a result, the governments became rule setters, rather than

arbitrators. By defining property rights as the bundle of rights rather than

something more fluid, they created a strict but fair system through which property

disputes could be settled. In it, individuals could own certain aspects of other

individual’s property, using a legal agreement known as an easement. This

arrangement is still in place today, and as a compromise between the two

dominant ideologies, is fairly representative of the customs and traditions of the

day.

7 Klein, Daniel. "Property: A Bundle of Rights? Prologue to the Property Symposium." Econ Journal Watch 8, no. 3 (2011): 193-204. 8 Bray, Zachary 9 Bray, Zachary

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B: Conservation Easements and Land Trusts

Today, conservation easements and land trusts are inseparable, but this

was not always so. The two were created around the same time, but grew

separately until the 1950’s. The first land trust was founded in 1891 in

Massachusetts. It was the brainchild of Charles Elliot, a landscape architect and

prominent member of the naturalist movement, who was discouraged by the

urbanization and overcrowding of Boston. He envisioned a system in which non-

profit organizations could hold land tax-free for the benefit of the public10, and his

model was a success. Throughout the early 20th century, the number of land trusts

grew slowly but steadily; by 1960 there were at least 132 land trusts registered

nationwide. The conservation system implemented by the trustees, and utilized by

the aforementioned early land trusts is called fee purchasing, a form of private

land conservation in which land trusts directly purchase the land they wish to

conserve. Fee purchasing is still used today, although conservation easements

have surpassed it in total acres conserved11.

The first conservation easements appeared in the late 1880’s in Boston, to

protect the Frederick Law Olmsted Parkway12. The next milestone occurred in the

1930’s, when the Park Service began protecting parkways13. Then, in the 1950’s,

the state of Wisconsin began protecting parkways and rivers with easements.

There are only three examples of pre-1965 conservation easements because, in the

10 "Trustees History." The Trustees of Reservations. Accessed April 3, 2015. http://www.thetrustees.org/about-us/history/. 11 Bray, Zachary 12 Bray, Zachary 13 Hocker, Jean. Protecting the Land: Conservation Easements Past, Present, and Future (Forward). 2nd ed. 2001.

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absence of specific legislation allowing them, they were generally considered

illegal. In common law, a conservation easement is a negative easement in gross,

meaning it places a restriction on how property owners use their land.

Traditionally, common law only recognizes four legal types of negative

easements; prohibitions on blocking sunlight, on blocking air movement, against

removing subjacent or lateral support from adjacent properties, and against

interfering with the flow of an artificially created stream14.

The historical resistance by courts to the legality of conservation

easements is only one of the pre-1950s legislative barriers to the implementation

of the modern conservation easement and land trust system. Additionally, there

was no federal legislation, and minimal state legislation allowing private land

trusts to accept conservation easements, and there was no federal or state tax

incentive given to property owners who donated easements. Finally, there was

very little public knowledge and interest in easements as a form of conservation.

The turning point for the conservation easement land trust system came

during the start of 1950’s-1970’s renaissance of the American conservation

movement, with the publishing of William H. Whyte’s Open Space for Urban

America: Conservation Easements15. In it, Whyte explained the generally

unknown conservation tool, and argued that the right to hold conservation

easements should be extended to private land trusts. His argument contained four

main points

14 House, Nicholas. "Conflicting Property Rights between Conservation Easements and Oil and Gas Leases in Ohio: Why Current Law Could Benefit Conservation Efforts." William and Mary Law Review 55, no. 4 (2015): 1589-616. 15 Bray, Zachary

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1) The government has the ability to appropriate certain elements of

property for the sake of the public good, such as existing easements and some

instances of eminent domain:

2) Private citizens may purchase elements of other citizen’s property for a

variety of reasons, which is commonplace in the form of positive easements, such

as building a driveway through your neighbor’s property:

3) The government is unwilling to devote the resources necessary to

monitor all potential conservation easements, and so for the general benefit of the

public, private organizations should be able to accept donated conservation

easements, so long as they enforce the terms to the same extent and using the

same rules as the government; and

4) Tax benefits should be extended to landowners who donate easements,

in order to provide an incentive for conservation16:

Whyte’s pamphlet was a clear success, firmly placing conservation

easements within the progressive environmental discourse of the time. In 1961, a

wave of state legislation enabling private land trusts to manage conservation

easements began with the passing of Massachusetts General Law 184(32) and

Montana code 76-6-20417. By 1975, sixteen states had enabling statutes, and in

1982, congress passed the Uniform Conservation Easement Act, which required

all states to pass a law allowing private and trusts to own conservation

16 Whyte, William. "Securing Open Space for Urban America: Conservation Easements." January 1, 1959. 17 Bray, Zachary

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easements18. This federal act represents a major turning point in easement law. In

response to a shift in public opinion, common law was amended to include a fifth

exception to the rule against negative easements.

Federal tax law concerning easements lagged during this period,

struggling to catch up with the general shift in legal tradition. And although tax

law is not strictly binding like the UCEA, by defining the incentive for

conservation, it has a considerable effect on easements. A federal tax deduction

for conservation easements was first introduced in 1965, but it only applied to

easements donated to eligible government bodies19. In 1976, the deduction was

formally included in the Internal Revenue Code 170(f)(3)(B), but its wording left

unclear whether or not congress intended for the deduction to apply to privately

held easements20. Finally, in 1980, congress enacted I.R.C. 170(h), which

expressly permitted tax deductions for privately held easements, establishing

I.R.C. 170 as the primary tax doctrine of conservation easements. 170(h) was

expanded upon by additional I.R.C. regulations in 1984 to include a wider range

of acceptable easements, and more concrete rules to evaluating the deduction, and

in 1986 to include estate tax in the list of applicable deductions (I.R.C. 2055)21.

In 1997, I.R.C. 2031(c) gave expanded the provisions regarding the estate tax

deduction22.

18 National Conference of Commissioners on Uniform State Laws, “Uniform Conservation Easement Act.” Drafted July 31-August 7, 1981 19 McLaughlin, Nancy. "Increasing the Tax Incentive for Conservation Easement Donations - A Responsible Approach." Ecology Law Quarterly 31, no. 1 (2004). 20 McLaughlin, Nancy 21 Bray, Zachary 22 Bray, Zachary

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In the early 2000’s, a series of public scandals in which national land

trusts took advantage of the deduction system using false claims prompted

reform: 2004 I.R.S. Notice 2004-41. In it, the Internal Revenue Service

acknowledged that it was aware that individuals might attempt to improperly

claim tax deduction under I.R.C. 170(h), and so clarified stricter rules for

deductions, and promised punishment for false claims23. Conservation advocates

and land trusts reacted predominantly positively to the notice, interpreting it as a

“shot across the bow” intended to give land trusts the opportunity to “shut down

the bad deals and clear the air”24. Although IRS employee Steven T. Miller later

corroborated this opinion25, the political perception of conservation easements

was changed, and the increased attention led to increased scrutiny. Future

adjustments to easement requirements or tax benefits generally are written to

emphasize stricter requirements than their predecessors, such as the 2006 Pension

Protection Act, which includes a stricter statutory standards for appraising the

worth of easements26 and stricter punishments for over-deducting easement

23 Internal Revenue Bulletin: 2004-28. Notice 2004-41 “Charitable Contributions and Conservation Easements.” July 12, 2004 24 Small, Stephen. "Legal Opinion: IRS Notice Could Be Good News." Land Trust Alliance. September 1, 2004. http://www.cfinetwork.org/ltanet Exchange_23_04_07.pdf. 25 Steven T. Miller, “Comm’r, Tax Exempt and Government Entities, Internal Revenue Ser.,” Remarks before the spring public lands conference March 28, 2006 26 Jay, Jessica. "When Perpetual Is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements." Harvard Environmental Law Review 36 (2012).

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related tax benefits27. Fortunately, conservation easements have continued to

spread rapidly despite stricter regulations28.

Since the passing of the UCEA in 1982, conservation easements have

entered a golden age. Allowing the tax benefits listed in I.R.C. 170(h) to apply to

easements donated to private land trusts sparked a period of rapid growth in the

easement system, defined by expanding tax benefits and rapid expansion of acres

protected by conservation easements. By 1990, land trusts held 450,000 acres in

conservation easements nation wide29. By 1994, land trusts managed more land

under conservation easements than under fee management, the previously

dominant method of private land conservation30. As conservation easements

increased in popularity, so did the publics awareness of the program, leading to

ever-higher rates of growth. The number of acres privately held under easements

nearly doubled between the years 1994 and 1998, and again between 1998 and

200031. And between 2000 and 2005, the number of acres conserved by state and

local land trusts (including land held under fee management arrangements) more

than doubled, from 2.3 million acres to 6 million acres32. The rapid growth of

private land trusts since 1982 has made them “the strongest arm of the

27 Hoffman, Marc. "Conservation Easement and Appraiser Penalty Provisions in PPA 2005." Planned Giving Design Center. August 26, 2006. http://www.pgdc.com/pgdc/conservation-easement-appraiser-penalty-provisions-ppa-2006. 28 "Data Tables: National Data." The Land Trust Alliance. Accessed April 5, 2015. http://www.landtrustalliance.org/land-trusts/land-trust-census/data-tables. 29 Bray, Zachary 30 Bray, Zachary 31 Bray, Zachary 32 "Data Tables: National Data." The Land Trust Alliance.

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conservation movement”33, and much of their growth can be attributed to the

increasingly favorable legal treatment of conservation easements.

Section Two: Conservation Easements and Land Trusts Today

As was explained above, conservation easements and land trusts have

separate origins, and only relatively recently became associated with one another.

Despite their disparate backgrounds, however, they today should be considered

inseparable. The comparative rarity of pre-land trust conservation easements

indicates that the government recognized the public benefit of conservation

easements, and was willing to subsidize conservation (in the form of a tax

benefit), but was unwilling to devote the necessary resources to the public

management of easements. Similarly, pre-easement land trusts were far less

numerous than they are today, because the fee-purchasing conservation system

was limited by high costs. By allowing private land trusts to hold conservation

easements, the government essentially made a trade. They accepted the financial

burden of the land trusts, and in return, land trusts accepted a managerial role

from the government.

This trade-off was a resounding success; land trust growth between the

1890’s and 1960’s had been nearly stagnant, yet since the introduction of the

UCEA and I.R.C. 170, land trusts have grown rapidly. This is no coincidence:

“the fact that the growth in the use of easements and the number of land trusts has

33 Michael Fischer, Remarks found in Bray, Zachary, Page 29

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so closely paralleled evolution of the federal tax incentives strongly suggests that

such growth is attributable, at least in part, to such incentives.”34

It is clear that the rise of the land trust is clearly related to the rise of

conservation easements, yet it has positively affected other areas of private land

conservation as well. As land trusts grew in size and number, their funding and

spending grew as well. While the total amount of land protected by fee

purchasing was surpassed by conservation easements in 1994, fee purchasing is

still an extremely popular and widely utilized method of conservation. In 2005,

11.9 million acres were conserved by state and local land trusts, but of this, only

6.2 million are held under conservation easements, meaning that 48% of the land

is conserved through different means35. Thus, the land trust and conservation

easement system has clear secondary benefits for conservation.

Despite the widespread use of conservation easements, they exist to a

certain extent in a legal grey area. This is largely because conservation easements

are regulated according to four separate, and often conflicting legal doctrines: The

US Federal Tax Code 170 and associated updates, the Restatement (Third) of

Property: Servitudes, the Uniform Conservation Easement Act, and the Land

Trust Alliance Standards and Practices. Each of the four doctrines has a different

specific aim, yet they often overlap. The rules guiding the amendment and

termination of easements are particularly contestable. The remainder of this

section will explore the laws that regulate conservation easements, with a

particular focus on amendment and termination.

34 Bray, Zachary 35 "Data Tables: National Data." The Land Trust Alliance.

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A: The US Federal Tax Code 26 USC § 170(h)

Tax code 170 is the federal tax code formalizing the rules for tax benefits

related to donated conservation easements. Today, alongside 26 Code of Federal

Regulations (CFR) 1.170A, the general law guiding all deductions due to

charitable contributions36, and I.R.C. 2055, the U.S. Code guiding estate tax

deduction, § 170 is one of the principal legal guides to conservation easements.

Section 170 defines conservation easements as legally binding “negative

easements in gross with affirmative obligations” enabling the owner of the

easement to prohibit or limit the developmental actions of the landowner, such as

preventing one from building a second home on a protected area of the property.

According to § 170 and CFR 1.170A, property owners who donate conservation

easements that satisfy I.R.C. requirements for “qualified conservation

contributions” may be eligible for tax benefits, in the form of income tax

deductions, estate tax reductions, and estate tax exclusions.

Section 170 defines a qualified conservation a “qualified real property

interest”, donated to a “qualified conservation organization,” for a “conservation

purposes” (26 USC § 170(h)(1)). Specifically, a qualified real property interest is

“an easement or other interest in real property that under state law has attributes

similar to an easement.”37 A qualified conservation organization is a 501(c)(3)

tax-exempt charitable organization or a government entity that has the resources

36 "26 CFR 1.170A-1 - Charitable, Etc., Contributions and Gifts; Allowance of Deduction." 26 CFR 1.170A-1. Accessed April 14, 2015. https://www.law.cornell.edu/cfr/text/26/1.170A-1. 37 See, 26 USC § 170(h)(2)

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and commitment to conserve the land in perpetuity38. Finally, conservation

purposes range from land preserved for outdoor recreation or education, the

protection of the natural habitat of local wildlife, the maintenance of scenic open

space such as farmland and forestland, and the preservation of historically

important land or structures39.

Perhaps the most important characteristic of conservation easements is

that they exist in perpetuity40. This means that all activities that may disturb the

conservation purpose of the land are illegal. For example, surface mining is

generally prohibited on land held in conservation easement. In fact, the general

rule is that property owners who do not own the mineral rights on their property

may not claim a charitable deduction, unless the probability of “extraction or

removal of the minerals by any surface mining method is so remote as to be

negligible”41. Similarly, “mortgage holders must subordinate to the right of the

easement holder to enforce the terms of the conservation easement”42. While it is

the responsibility of the land trust to avoid holding easements that may easily be

violated, it is sometimes the case that the terms are violated outside of the control

of the land trust or property owner, in such a way that the easement no longer

provides any conservation value, such as if the owner of the mineral rights under

the land decide to develop a mine. When this happens, property owners and land

trusts may choose to enter judicial proceedings to terminate the easement43. In

38 Jay, Jessica 39 See, 26 USC § 170(h)(4) 40 See, 26 USC § 170(h)(5) 41 See, 26 USC § 170(h)(5) 42 Jay, Jessica 43 See, 26 CFR 1.170A-14(g)

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these cases, the holder of the easement has continuing rights to a “portion” of the

land, and is entitled to a percentage of the proceeds of any eventual sale

proportionate to the easements value, to be used in a manner consistent with the

intent of the easement, meaning it must be reinvested in conservation44.

Section 170(h) also established rules for valuing the tax benefit of an

easement donation. It requires the creation of a “qualified appraisal” by a

“qualified appraiser,” which should be included in the donor’s tax return to show

the validity of the donation45. Qualified appraisals typically use the before and

after method, in which the property is valued according to its highest and best use

with and without the easement in place, and the difference in value is calculated

to find the total value of the charitable contribution. This value may then be

adjusted to compensate for the more complex impacts of easements on property

value. For example, should the easement increase the value of a property owned

by the donor or a related party, the increase in the value of the second property is

deducted from the value of the charitable contribution46. The intent of this clause

is to prevent profiteering from the easement system, a theme that is found in all

four legal doctrines guiding conservation easements, as well as much of the

associated case law47. Similarly, easements “granted in return for something, i.e.,

where there is a quid pro quo,” are not eligible for charitable deductions. For

example, should the existence of an easement on a particular piece of land raise

the value of a nearby property owned by a related party, the increase in value of

44 See, 26 CFR 1.170A-14(g) 45 See, 26 CFR 1.170A-14(h)(3)(i), (ii) and 26 CFR 1.170A-13 46 Jay, Jessica 47 Jay, Jessica

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the second property may be deducted from the potential tax benefit given to the

protected property. Easements must be donated, or sold under market value in

order to meet the “donative intent” requirement for charitable donations48.

After determining the validity of the donation and the value of the

charitable contribution, § 170(h) states that tax deductions may be used to reduce

the income tax of the easement donator for up to six years. Deductions may be

used against ordinary income as well as capital gains49. For rules regarding the

effect of duration of property ownership on deductions, refer to § 170(b)(e), and

for rules regarding the time limitations placed on tax deductions, refer to § 170(d).

For rules regarding the 2006-2007 expanded tax deductions due to the 2006

Pension Protection Act, refer to § 170(b).

The rules governing the application of tax benefits to estate taxes are

found in 26 USC 2055 and Treasury Regulation 1.2055. They refer to two types

of estate tax reductions: active and passive. Passive reductions are universal to all

property owners with land under easement, and take place simply because the

I.R.S. calculates estate tax according to after-easement value of the property50.

Active reductions are the reductions that occur due to the application of tax

benefits from easement donations. These benefits may be applied to any land

held by the easement donator, including the land upon which the easement is

placed51. The actual size of the reduction in estate tax is dependent on the

property owners tax bracket, and the years congressionally approved federal tax

48 Jay, Jessica 49 See, 26 USC § 170(e) 50 See, 26 USC § 2055 51 Jay, Jessica

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plan. Because tax plans tend to change on a yearly basis, so too does the estate tax

deduction. For example, the highest estate tax bracket was reduced from 50% to

45% from the years 2007 to 2009, dropped to 0% between 2009 and 2010, and

then reverted back to its current standard rate of 55% in 2011; in each of these

periods, estate tax deductions varied52.

B: Restatement (Third) of Servitudes:

A legal restatement is a distillation of “legal doctrine of judge-made

common law to inform judges and attorneys about general legal principals”53.

Essentially, it is a middle step in common law evolution, a statement of customary

interpretation that has yet to be codified and made official, and thus in practice

acts as a strong but non-binding suggestion. The Restatement was issued in 2000,

meaning it is written from a legal perspective twenty years more evolved than

much of the original easement-related legislation54. Its most relevant sections in

relation to this paper address the protocol for amending and terminating

easements, and in doing so represent a significant improvement over the official

protocol found in I.R.C. 170. In fact, it is arguably the strongest of the legal

doctrines from an environmental and conservation perspective.

The Restatement contains two sections of particular note, 7.10 and 7.11.

Section 7.10 applies to all easements, while 7.11 applies specifically to perpetual

conservation easements. Specifically, 7.10 gives an updated definition of

52 Jay, Jessica 53 Jay, Jessica 54 Restatement (Third) of Property (Servitudes) § 4.8 (2000)

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easements, and the circumstances in which they may be modified or terminated.

This definition is far closer to the original definition of conservation easements

than traditional easements, implying a general escalation of enforcement of

easements55. The protocol for amendment and termination is also tightened;

servitudes may be changed to reflect new conditions so long as the new terms

permit the original goal to be accomplished, or if this is impossible, to at least

preserve the benefit of the original servitude56. The only circumstance in which

an easement may be terminated is if there is a fundamental change to the

circumstances so severe that enforcing the servitude will not serve the original

intent at all – a similar, yet more rigid version of the termination doctrine in §

170. This is an example of the strict application of the changed-conditions

doctrine.

Section 7.11 applies specifically to perpetual conservation easements, and

as such contains even stronger wording than 7.10. In addition to the changed

conditions doctrine, 7.11 relies the charitable trust doctrine cy pres in matters

concerning the amendment or termination of easements. Cy pres is a legal term of

French origin which means “as close as possible”57. By combining the cy pres

and changed-conditions doctrines, the language of 7.11 tacitly allows greater

freedom in amending easements. Additionally, 7.11 emphasizes that amendments

must strictly adhere to the “donors intent”, meaning that amendments must

accomplish the highest conservation purpose possible, give the circumstances.

55 Jay, Jessica 56 Jay, Jessica 57 "Cy Pres: Legal Definition." The Legal Dictionary. Accessed April 14, 2015. http://legal-dictionary.thefreedictionary.com/cy pres.

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This blended doctrine allows a wider interpretation of the conservation purpose of

an easement, making it far more difficult to argue that an easement must be

terminated due to changed circumstances58. According to the Restatement, so

long as an amendment accomplishes a comparable conservation purpose, it is

legally viable.

The inclusion of the cy pres doctrine clearly improves the conservation

capability of easements, but it also presents a problem for the legal doctrine. Cy

pres is a trust doctrine, requiring that parties to do their best to meet the intent of

the law rather than a set legal standard59. As a result, it is viewed as potentially

weak, and certainly out of line with traditional property law60. Furthermore, the

Restatement makes it very clear that amendments that change the intent of the

easement are allowed only when the easement can no longer accomplish its

original intent at all. So, while the Restatement represents a definite improvement

in the flexibility of easements, it still only allows change in dire circumstances,

rather than whenever change may improve the conservation effects of an

easement.

C: Uniform Conservation Easement Act:

Uniform acts are federal laws that require states to pass a law

accomplishing a specific goal. States may use the wording from the uniform act,

or may develop their own so long as it accomplishes the intent of the federal act.

The UCEA had the dual effects of removing the common law impediment to

58 Jay, Jessica 59 Jay, Jessica 60 Jay, Jessica

23

conservation easements in the various states, and allowing private land trusts to

hold easements. While it accomplished these goals perfectly well, as a broad piece

of legislation it was not intended to address many specific aspects of easement

law, and the protocol for the amendment and termination of easements is one of

the aspects that fell through the cracks61.

The UCEA set far less demanding standards for amendment and

termination than the Restatement, or even I.R.C. 170, essentially treating

conservation easements as traditional easements62. It allows courts to freely

“modify or terminate a conservation easement in accordance with principals of

law or equity”63. These principals may include charitable trust or real property

law, but the wording of the law leaves the intent quite unclear64. The UCEA also

includes the idea of cy pres in the law, yet it never explicitly acknowledges the

term by name65. While the Restatement is proof that including trust law and

traditional property law doctrine can have powerful results, the UCEA does not

provide any framework for determining which doctrine is given precedence in any

given situation, creating a significant amount of ambiguity in the law and

potentially challenging many of the beneficial aspects of the Restatement section

7.1166. For these reasons, a plain reading of the UCEA does not inspire

confidence that the law is able to protect the public’s interest in easements67.

However, the act is still extremely significant to easement law; it overcame the

61 Jay, Jessica 62 See, UCEA, section 2.a 63 See, UCEA, section 3.b 64 Jay, Jessica 65 Jay, Jessica 66 Jay, Jessica 67 Jay, Jessica

24

common law barriers to conservation easements, setting a precedent that modern

environmental law may be progressively evolutionary.

D: Land Trust Alliance Standards and Practices:

The Land Trust Alliance is a prominent conservation organization that

focuses on the management of land trusts as well as conservation easements68. Its

standards and practices are considered to be industry guidelines, and while the

Alliance’s published standards are not a legally binding document, they represent

the interpretation of easement law followed by all accredited land trusts69. It

contains twelve broad sections, each containing an associated set of rules. The

sections are: mission; compliance with laws; board accountability; conflicts of

interest; fundraising; financial and asset management; volunteers staff and

consultants; evaluating and selecting conservation projects; ensuring sound

transactions; tax benefits; conservation easement stewardship; and fee land

stewardship70. For this paper, numbers ten and eleven – tax benefits and

conservation easement stewardship – are the most relevant.

Section ten states that land trusts must “work diligently to see that every

charitable gift of land or easement meets federal and state tax law requirements,”

and cautions them not to make “assurances as to whether a particular … easement

donation will be deductible … and what the resulting tax benefits of the deduction

68 "Leadership in Land Conservation." — Land Trust Alliance. Accessed April 14, 2015. http://www.landtrustalliance.org/about. 69 "Steps to Adopt Land Trust Standards and Practices." — Land Trust Alliance. Accessed April 14, 2015. https://www.landtrustalliance.org/training/sp/steps-to-adopt-land-trust-standards-and-practices. 70 "Land Trust Standards and Practices." January 1, 2004. Accessed April 14, 2015. https://www.landtrustalliance.org/training/sp/lt-standards-practices07.pdf.

25

will be”71. Essentially, it encourages land trusts to flourish whenever possible,

but also to be very careful about situations in which tax fraud may occur. This

would arguably have the effect of inspiring caution, and therefore a certain

amount of inaction, in land trusts. Section eleven requires land trusts to have

stewardship plans for each easement they hold, including specific provisions

regarding the amendment and termination of easements. These provisions must

result “in either a positive or not less than neutral conservation outcome”72. This

wording is quite progressive, and more in line with the Restatement’s

interpretation of amendment and termination protocol than that of I.R.C. 170 or

the UCEA. So, in practice, land trusts should tend to be progressive on matters of

termination and amendment, and cautious in matters of tax benefits, most likely

due to the controversy in the early 2000’s.

E: Unique State Legislation:

Conservation easement legislation varies considerably across different

states, but the UCEA has ensured that all states have, at the very least, an enabling

statute modeled after the. However, states have the discretion to pass additional

legislation so long as it does not contain less demanding provisions than the

UCEA73. While some states chose not to take further legislative action to

incentivize easements, many states have passed additional easement related laws.

71 "Land Trust Standards and Practices." 72 "Land Trust Standards and Practices." 73 Bray, Zachary

26

Examples of some unique, state-specific legal doctrines can be found on the Land

Trust Alliances website74.

Section Three: Criticisms of the Conservation Easement and Land Trust System

The land trust and conservation easement system is a powerful tool for

private land conservation, yet it is not without criticism. The most obvious

shortcoming of the easement system is the legal confusion over their amendment

and termination, which threatens the most fundamental aspects of the

conservation system: its permanence. Similarly, there are no federal doctrines

guiding conflicts between easement rights and mineral and gas rights, and such

decisions often fall to state courts to decide. However, I would argue that

easement law is not merely confused, but it is in fact incomplete. As discussed

above, modern easement law came about through the cohesion of multiple

disparate ideas and laws, and is legally viable today only because the UCEA

overcame the requisite legal barriers. And while the disparate legal entities and

concepts coalesced into a mostly functioning conservation system, easement law’s

numerous shortcomings are proof that it is yet incomplete. This section will

examine some of the more pressing shortcomings in order to set the stage for the

development of a proposed unifying legal doctrine in section four. Specifically,

issues pertaining to amending and terminating of easements, reconciling them

with competing “sticks” from the bundle of rights, and general complaints

regarding their inflexibility and lack of specialization will be addressed.

74 See, http://www.landtrustalliance.org/policy/documents/nc-tax-credit-comp.pdf

27

A: Termination and amendment controversy:

Terminating and amending easements is difficult, and subject to

considerable legal controversy. The four legal doctrines guiding conservation

easements contain conflicting provisions, and thus provide no legally binding

framework on a federal level. As a result, decisions are often left to state courts,

are subject to some form of UCEA mandated legislation in addition to whatever

state and local laws are deemed relevant. Balancing conflicting federal

regulations with complicated local and state laws makes it difficult for courts to

render decisions on the termination or amendment of easements, let alone

consistent ones. Two court cases, Bjork v. Draper and Hicks v Dowd, addressing

the amendment and termination of easements respectively, demonstrate the

complicated nature of these decisions.

Bjork v. Draper is an ongoing Illinois court case between a landowner

Draper, and a neighbor, Bjork. Draper owns a historic home on the Lake

Michigan Circle Tour, on which a previous owner had placed an easement, which

was managed by the Lake Forest Open Lands (LFOLA) land trust75. Draper

sought to make certain changes to the property, including a new addition to the

home and a driveway, which he alleged was allowable so long as he donated an

additional, proportionately sized area of the property to the land trust. Bjork sued,

claiming the additions to the home violated the terms of the easement because (1)

Illinois has no specific statute regarding the amendment of easements and (2) The

75 "Bjork-v-draper-summary." — Land Trust Alliance. April 1, 2008. Accessed April 14, 2015. https://www.landtrustalliance.org/conservation/conservation-defense/conservation-defense-insurance/CDdocuments/bjork-v-draper-summary.pdf/view.

28

amendments resulted in blocking his view of the property, which violated the

conservation intent of the easement76.

While the Illinois easement act does not contain provisions addressing the

amendment of easements, the existence of federal laws (I.R.C. 170 and the

UCEA) recognizing amendments meant that the Illinois trial court did not outright

reject the concept of amendment. Instead, they relied on deed and contract law,

and found that the permissibility of termination implies the permissibility of

amendment, albeit as a lesser right77. Under this interpretation, the amendment of

easements may be allowed so long as they do not damage the conservation value

of the easement. However, when the property was inspected, the court found that

the landscaping plan did interfere with the public’s view of the property, and so

violated the intent of the historic conservation easement78. However, only some of

the modifications were struck down, and the court upheld the majority of the

changes proposed in the amendment79

Although the court determined that easement amendments were legal

using deed and contract law, its interpretation of the specific rules governing

amendments is similar to that of federal easement law (which was not applied in

this circumstance because the LFOLA is a local, rather than national land trust,

and falls under local court jurisdiction). The court reasoned that the word

“perpetual” applied to the purpose of the easement, rather than the easement itself,

76 "Bjork-v-draper-summary." — Land Trust Alliance. April 1, 2008. 77 Jay, Jessica 78 Jay, Jessica 79 "Bjork-v-draper-summary." — Land Trust Alliance. April 1, 2008.

29

and so the issue became the intent of easement80. However, the court did not

interpret the intent of the easement as broadly as the Restatement does; in the

decision, thee Court determined intent strictly according to the wording of the

original easement, and so upheld Draper’s modifications to the easement despite

the loss of public benefit to his neighbors81. This lucky win highlights the

importance of a single legal system that operates uniformly across jurisdictional

boundaries in preventing distortions in the easement system.

Hicks v. Dowd was a Wyoming court case between Dowd, a property

owner, and Hicks, a local conservationist. Dowd’s predecessor had donated a

conservation easement to the Scenic Preserve Trust (SPT) in Jackson County,

Wyoming. Dowd proposed to terminate the easement, so as to participate in the

development of Coal-bed Methane, which he claimed was, “unpreventable,

unanticipated, and inconsistent with the terms of the conservation easement”82.

Hicks claimed that the easements termination damaged his public benefit from the

easement83. Although the district court originally recognized Hick’s standing

based on an interpretation of the Scenic Preserve Trust as a charitable trust, and

Hicks as a beneficiary qualified to enforce it, on appeal, the Court decided Hicks

did not in fact have standing, and so the case was eventually dismissed due to

what amounts to a technicality84.

The case was then appealed in the Wyoming Supreme Court, which held

that Hicks lacked standing, and instead allowed the Wyoming Attorney General to

80 Jay, Jessica 81 "Bjork-v-draper-summary." — Land Trust Alliance. April 1, 2008. 82 Jay, Jessica 83 Jay, Jessica 84 Jay, Jessica

30

take his place, creating the new case Salzburg v. Dowd85. Salzburg, the Attorney

General, asserted that the SPT failed its fiduciary duties to the public by

terminating the easement, and furthermore violated the Wyoming Constitution by

using public funds for a private purpose (because the easement was terminated

without reciprocal conservation action, Dowd was considered to have been

“given” an estate worth upwards of one million dollars)86. Considering the

easement was valued at over one million dollars, its termination without

compensation from Dowd did not satisfy the neutral or better-than-before

conservation outcome required by cy pres proceedings implied in UCEA

legislation. The court reinstated the easement in full force, with additional

amendments removing Dowd’s control of mineral extraction on his land87.

Although Hicks v. Dowd was decided in Hicks favor, and represented a

victory for conservation values, it was not necessarily done for the right reasons.

The decision to reinstate the easement was made because the lack of reciprocity in

the original termination agreement violated the UCEA-based enabling legislation,

not because the termination violated the intent of the easement. Essentially,

Wyoming’s easement law represents a federal minimum and as such does not

necessarily consider the intent of the easement to be significant. If not for the

apparently blatent cooperation between Dowd and the Scenic Preserve Trust in

abolishing the easement, the termination very well may have been upheld.

In both cases, the eventual court decision was dependent on a variety of

complicated factors. In Bjork v. Draper, the easement was allowed to be

85 Jay, Jessica 86 Jay, Jessica 87 Jay, Jessica

31

amended in a manner that reduced the conservation potential of the land, simply

because Illinois lacks the necessary legislation to protect easements. In Hicks v.

Dowd, the final decision was favorable not because of the strength of federal

easement law, but because of the blatantly illegal cronyism between Dowd and

the Land Trust. Neither decision set a precedent relevant on a federal level, which

is perhaps a good thing, considering that neither was in line with progressive

easement legislation. Without a unifying doctrine guiding the termination and

amendment of easements, there is no guarantee that an easement is secure in its

ability to conserve land.

B: Conflict with Competing Property Rights

The legal concept of separating developmental potential, or minerals, oil

and gas rights from strict property ownership shares a legal root, the bundle of

rights. However, while the bundle allows for the separation of rights into sub-

aspects, it does not dictate the interactions between these rights when they are in

competition. Some easement legislation does address such conflict, but not in a

manner beneficial to perpetual easements. I.R.C. § 170(h)(5) states that tax

benefits will not be awarded to easements taken out on land with separately

owned mineral rights due to the potential for conflict, and the easements

subsequent dissolution. The only exceptions are if the land trust has reason to

believe that no mining will ever occur, or if such mining will not damage the

conservation potential of the easement. However, Hicks v. Dowd demonstrates

that land trusts are not always capable of avoiding conflicts between competing

32

rights. Given that current easement legislation does not address this issue beyond

establishing preventative measures, state law invariably ends up deciding the

issue88.

The recent natural gas boom across the United States has made the issue

of easements v. mineral rights increasingly, and often pressingly, relevant. Ohio

is a hotbed for natural gas extraction and contains many conservation easements,

making it an excellent case study for the conflict of rights. Ohio’s easement

legislation consists of the UCEA enabling statute, as well as some limited aspects

of I.R.C. 170, making it acceptably representative of the usual state of affairs in

the “average” state – that is, states in which more specific statues or a developed

case law do not exist89. Specifically, Ohio law prevents the extraction of minerals

through surface mining from property held under easement, if the easement

predates the separation of the mineral rights. The exception being that extraction

is allowed so long as it does not violate the intent of the easement. This is

problematic because the “fracking” natural gas extraction technique has low

surface area requirements, yet the underground migration and surface spills

inherent to fracking may easily damage the conservation value of neighboring

easements90.

Except for the above-mentioned exception, Ohio law concerning the

competing rights is largely undeveloped, and as such follows older principals of

88 House, Nicholas 89 House, Nicholas 90 Wernick, Adam. "As Fracking Booms, Waste Spills Rise - and so Do Arsenic Levels in Groundwater." Public Radio International. November 18, 2014. Accessed April 14, 2015. http://www.pri.org/stories/2014-11-18/fracking-booms-waste-spills-rise-and-so-do-arsenic-levels-groundwater.

33

common law that long pre-date the fracking boom. Under common law, the

possession of an oil or gas lease gives one a contractual right to remove the oil

and gas from the property, and a limited property right,91 which among other

things includes the right to reasonable surface use and to protect the mineral estate

from drainage92. Furthermore, common law dictates that between or among

competing rights of similar natures, in this case the right to extract minerals or the

right to protect land from development, the competing plan of action that will

result in the greater public benefit takes precedence93. Ohio’s common law is in

line with the majority of states in “favoring the development of the mineral estate

over the interests of the surface estate,” including other secondary interests such

as easements94.

In Ohio, and all other states with minimal easement legislation and

traditional common law principals concerning land use and easements, conflicts

between mineral estates and conservation easements are almost a foregone

conclusion. The positive short-term economic effect of natural gas extraction

means that many courts will uphold mineral estates dominance over easements,

which is devastating to land trusts. Not only are existing easements threatened,

but the I.R.C. 170 requirement that land trusts avoid easements from severed

estates means that increasingly less land will be eligible for easements as mineral

leasing continues at its current pace. This legal stance is entirely reliant on the

91 House, Nicholas 92 House, Nicholas 93 Mullins, LoValerie. "The Equity Illusion of Surface Ownership in Coalbed Methane Gas; The Rise of Mutual Simultaneous Rights in Mineral Law and the Resulting Need for Dispute Resolution in Split Estate Relations." Environmental Law and Policy Review 109 (2009): 142-43. 94 House, Nicholas

34

idea that the development of natural gas creates a greater public benefit than

conservation – an idea that future (and even present) generations may well

disagree with.

C: The General Inflexibility of Easement Law:

The final criticism of current easement law is mine alone, and it is that

easements are unnecessarily inflexible. Since modern easement law was born in

the 1970’s and 1980’s, it has progressed significantly. Most importantly, the legal

idea of “permanence” has evolved from a strict interpretation of the easement, to a

progressive interpretation of an easement’s intent. Unfortunately, this progress

has been limited to the amendment of easements, which can only take place if the

original circumstances of the easement have changed. This aspect of easement

law is firmly out of line with progressive environmental policy, which evolves to

compensate for our changing understand of natural science. If the goal of a

conservation easement is to conserve a property to create the greatest possible

public benefit, than the terms of an easement must be fluid enough to adapt not

only to a change in circumstances, but to a shift in our conception of what

constitutes efficient and effective conservation.

Section Four: A New Uniform Conservation Easement Act

All of the significant legal progressions addressed in this paper were

precipitated by a shift in societal values and traditions. Exclusion became central

to property law only after it was cemented as a fundamental aspect of

35

contemporary progressive thought95. The wave of environmental legislation in

50s, 60s, and 70s can be directly attributed to the American environmental

renaissance of the same time96. Today, America is arguably in the midst of a

second environmental renaissance. Environmental values have permeated almost

all aspects of our society, including philosphy97, architecture98, engineering99,

international100 and domestic politics101, art102, film103, education104,

technology105, food106, and of course, law. It is clear that environmental and

conservation values are on the rise, and our common law legal system should

reflect this. There is both a need and precedent for a new legal doctrine of

conservation easements.

A better easement doctrine would improve upon two major aspects of

current law, the amendment and termination of easements, and their conflict with

95 Klein, Daniel 96 Bray, Zachary 97 See, "Environmental Philosophy." - The Journal of the International Assoc for. Accessed April 14, 2015. https://www.pdcnet.org/envirophil/Environmental-Philosophy. 98 See, Gauzin-Müller, Dominique. Sustainable Architecture and Urbanism: Design, Construction, Examples. 2002. 99 See, "Journal of Environmental Engineering (ASCE)." Journal of Environmental Engineering (ASCE). Accessed April 14, 2015. http://ascelibrary.org/journal/joeedu. 100 See, "IUCN, the International Union for Conservation of Nature." IUCN. Accessed April 14, 2015. http://www.iucn.org/. 101 See, "About." Mission. Accessed April 14, 2015. http://www.lcv.org/about/mission/. 102 See, "Mission." Inhabitat Sustainable Design Innovation Eco Architecture Green Building Mission Comments. Accessed April 14, 2015. http://inhabitat.com/mission/. 103 See, "Environmental Films." ISEE International Society for Environmental Ethics. June 10, 2012. Accessed April 14, 2015. http://enviroethics.org/film/master-list-of-environmental-films/. 104 See, "National Environmental Education Foundation | Home." National Environmental Education Foundation | Home. Accessed April 14, 2015. http://www.neefusa.org/. 105 See, Smith, Adrian. "Environmentalism and Technology." SPRU Electronic Working Paper SeriesPaper 149 (2006). 106 See, "Our Mission." Bioneers RSS2. Accessed April 14, 2015. http://www.bioneers.org/what-is-bioneers/our-mission/.

36

other property rights. Because of the confused and fragmented nature of modern

easement law, the most effective way to accomplish this would be to create a

single unifying legal doctrine with specific provisions addressing the issues. Of

the legal doctrines examined in this paper, I believe the UCEA is the most ideally

suited to accomplishing this goal. It the only federal legal doctrine of easements

followed by all states, and as such is effectively a federal minimum. Therefore, I

propose the creation of a second Uniform Conservation Easement Act, to raise the

federal minimum legislation to a point reflective of current customs and

traditions.

The new UCEA would contain provisions on the termination and

amendment of easements similar to those found in the Restatement. Amendments

would be allowable only if they result in a neutral or positive conservation

outcome, and termination would only be allowed if no possible amendments

could preserve any conservation value at all. The hybrid cy pres and changed-

circumstances doctrine must be formally codified to accomplish this.

Additionally, amendments must not be limited only to changed-circumstances

situations; whenever there is reason to believe that an amendment could improve

the public benefit of an easement without increasing the burden on the landowner,

it should be allowed. Perhaps landowners could even be awarded additional tax

benefits for suggesting such amendments. Finally, a more comprehensive system

must be established to reconcile easement rights with mineral rights. It would be

unfair to ask that easement rights be given legal dominance, and so instead, I

propose that they be given equal standing. This would ensure that conflicts of

37

rights would be judged on a case-by-case basis, giving easement rights a fighting

chance without compromising mineral development, and overly offending oil and

gas proponents. Such a law would bring the conservation easement and land trust

system in line with progressive environmental values, and make it an even

stronger tool for protecting Americas remaining natural places.

38

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