Tall firs, zip-lines, and reserved interest deeds: an assessment of the effectiveness of federal conservation easements in the Columbia River Gorge National Scenic Area.

• Author: Baker, Nathan J.

1. INTRODUCTION II. THE COLUMBIA RIVER GORGE NATIONAL SCENIC AREA III. THE FOREST SERVICE'S CONSERVATION EASEMENTS IN THE NATIONAL SCENIC AREA IV. LITIGATION CASE STUDIES A. THE PERRY/PARSONS CASE B. THE HOYTE CASE C. THE GL W VENTURES CASE V. AMENDING FEDERAL CONSERVATION EASEMENTS VI. OTHER RECOMMENDATIONS FOR IMPROVING THE EFFECTIVENESS OF FEDERAL CONSERVATION EASEMENTS IN THE NATIONAL SCENIC AREA VII. CONCLUSION APPENDIX I. INTRODUCTION

   The federal government has been acquiring conservation easements on private lands to protect the nation's resources for decades, (1) yet there has been little analysis of whether these easements have been effective at accomplishing their resource protection goals. (2) In particular, in the 1980s the United States Forest Service (Forest Service)-and later, other federal agencies-began using a special type of conservation easement: the reserved interest deed, by which a landowner conveys all rights in a property to the federal government except for specific rights expressly reserved to the landowner. (4) The reserved interest type of easement has now been used by federal agencies for thirty years. (5) Early on, some commentators predicted that reserved interest deeds would be more favorable to the federal government's interests, and more protective of resources than other types of conservation easements. (6) Since then, there has been little analysis whether these predictions have held true.

   One of the first places where the federal government began to regularly acquire conservation easements via reserved interest deeds was the Columbia River Gorge National Scenic Area (National Scenic Area or Scenic Area), (7) a bistate, federally protected area containing a mix of public and private lands in Washington and Oregon." Between 1988 and 1998, the Forest Service purchased twenty-eight conservation easements on private lands in the Scenic Area" covering nearly two-thousand acres. (10) All of these easements were structured as reserved interest deeds, (11) vesting "[a]ll right, title and interest in [each] property ... in the United States except that specifically and expressly reserved unto the [landowner].' (12)

   The National Scenic Area's complex legal framework (13)--and the constant development pressures it experiences because of its proximity to the Portland, Oregon and Vancouver, Washington metropolitan area (14)--make it an important location for studying the effectiveness of conservation easements styled as reserved interest deeds. As the Columbia River Gorge region has grown and continues to grow, landowners in the National Scenic Area whose properties are burdened by conservation easements have challenged and tested the limits of several of these easements, and will likely continue to do so. (15)

   In hindsight, many of the conservation easements in the Scenic Area were not optimally drafted to accomplish their intended resource protection purposes. When owners of lands burdened by conservation easements in the Scenic Area have sought to develop or use their lands in manners contrary to the interests of the federal government, the easements have not always clearly prohibited the proposed uses, which has led to protracted litigation with surprising frequency. Indeed, three of the twenty-eight conservation easements in the National Scenic Area (more than 10%) have already been the subject of extensive litigation. (16) The disputes have ranged from the relatively mundane (a dispute over a proposed adjustment of parcel boundaries) (17) to the decidedly absurd (a proposed commercial zip-line park whose proponent at one point attempted to justify it as an agricultural use by deeming it a "U-pick pine cones business"). (18) All of these disputes involved properties in the Mount Pleasant area of western Skamania County, Washington, a bucolic landscape viewed by millions of people every year from the Oregon side of the Scenic Area. (19) Evaluating these cases reveals the kinds of disputes that have arisen over conservation easements in the Scenic Area, how the disputes were resolved, whether the conservation easements were effective at protecting resources in the context of these disputes, and what other resource protection tools can help accomplish the easements' objectives.

   Although the easements were in many cases inartfully drafted, their resource protection goals have nevertheless been accomplished, but often only after extensive litigation. A major factor in that result has been the zoning regulations in the National Scenic Area, which have worked in concert with the conservation easements to protect resources. (20) Each of the conservation easements in question expressly states that where a zoning ordinance is more restrictive than the easement in prohibiting land uses, the zoning ordinance will prevail. (21) By incorporating zoning restrictions directly into the conservation easements, the federal government wisely expanded the easements' effectiveness. As a result, disputes involving these properties have typically been addressed first via the zoning and state court processes, before the Forest Service or any other interested party attempted to enforce or litigate the conservation easements in federal court."

   Zoning enforcement by governments in the Scenic Area--particularly Skamania County--and by the citizen group Friends of the Columbia Gorge (Friends) has been key to the success of federal conservation easements. (21) In practice, reserved interest deeds have been effective at protecting resources in the Scenic Area because government and citizen enforcement of zoning requirements have filled gaps left by ambiguous or silent easement terms.

   Finally, the Forest Service has seldom taken advantage of an important tool in its resource protection toolbox: amending existing conservation easements to clarify landowners' rights and/or improve resource protections in a manner mutually agreeable to the Forest Service and the landowners. (24) Federal agencies are generally reluctant to amend conservation easements because the amendment process might open the door to weakened resource protections and less effective terms. (25) On the other hand, if the Forest Service had used the amendment tool more frequently, it might have reduced the extent of litigation that has come to pass in the Scenic Area.

   This Article examines several case studies in the Columbia River Gorge National Scenic Area to explore whether conservation easements styled as reserved interest deeds have been effective in protecting resources. Part II introduces the statutory and regulatory authority governing land use activities in the Scenic Area. Part III discusses the conservation easements that the Forest Service has acquired in the Scenic Area, including the Forest Service's choice to structure them as reserved interest deeds. Part IV examines three litigation case studies concerning disputes over conservation easements in the Scenic Area, determining that reserved interest deeds have generally been effective at protecting resources, but only because government agencies and citizens have enforced the easements in tandem with zoning requirements. Part V examines whether the Forest Service has the authority to amend conservation easements in the Scenic Area and under what circumstances it should do so. Part VI provides additional recommendations for improving the effectiveness of federal conservation easements in the Scenic Area. Part VII concludes that zoning requirements as well as government and citizen enforcement of these requirements have played critical roles in supplementing the terms of federal conservation easements in order to protect resources in the Scenic Area, and that the Forest Service and other implementing government agencies should further improve the effectiveness of federal conservation easements in the Scenic Area through several legislative and administrative measures.

2. THE COLUMBIA RIVER GORGE NATIONAL SCENIC AREA

   In 1986, Congress enacted the Columbia River Gorge National Scenic Area Act (Scenic Area Act). (26) The Act established the Columbia River Gorge National Scenic Area (27) in order "to protect and provide for the enhancement of the scenic, cultural, recreational, and natural resources of the Columbia River Gorge," and "to protect and support the economy of the Columbia River Gorge area by encouraging growth to occur in existing urban areas." (28) The Scenic Area Act authorized Oregon and Washington to establish a thirteen-member Columbia River Gorge Commission (Gorge Commission) to "facilitate cooperation among the States of Oregon and Washington" in implementing the Act. (29) In 1987, the two states created the Gorge Commission via the interstate Columbia River Gorge Compact. (30) The Forest Service is the Gorge Commission's partner agency in implementing the Scenic Area Act, and the states of Oregon and Washington, plus six county governments in the National Scenic Area, also play pivotal roles in carrying out the Act. (31)

   The Act established three management classifications for the lands within the National Scenic Area. First, the Act established the boundaries for thirteen urban areas (UAs) within the Scenic Area, (32) within which the land use restrictions required by the Act do not apply. (33) Second, the Act also designated Special Management Areas (SMAs) (34) in portions of the National Scenic Area especially important for their sensitive and unique aesthetic and natural resources. (35) The Forest Service administers the SMAs. (36) Finally, all lands within the Scenic Area not designated as UA or SMA are part of the General Management Area (GMA), and are subject to the general terms of the Act. (37) The Gorge Commission administers the GMA. (38)

   Today, nearly half of the lands within the Scenic Area are in private ownership, (39) and about a quarter of the Scenic Area is National Forest System land managed by the Forest Service. (40) The remaining lands...