Challenges With Perpetual Conservation Easements
| Author | Jessica E. Jay |
| Pages | 101-361 |
Page 101
Chapter IV:
Challenges With Perpetual
Conser vation Easements
Jessica E. Jay
A. Introduction
Over 47 mi llion acres of land in the United States are currently protected by conservation ea sements,
an increase of twenty-three million acres since 2000.1 As the use of perpetu al conser vation easements to
protect private property for the public’s benet continues to grow in popularity, so grow the challenges
associated with these perpet ually binding promises. Today’s conservation community2 faces two immu-
table challenges to perpetual conservation easements: their holders’ willingness and capacity to steward and
enforce them, and their durability and relevance in t he face of changing conditions.3 is chapter focuses
on both challenges: the intersection of perpetual conservation easements with changing la ndscapes, cli-
mate, and public interests over time, and the management of resources to ensure their holders’ capacity and
willingness to enforce and defend perpetual conservation easements over time. is chapter further frames
the necessarily inherent and ancilla ry discussions that surround these dual challenges including what legal
doctrine or doctrines ought to guide decisions relating to perpetual conservation easements, alternatives to
perpetual easements such as term and lease easements, the termination of easement by taking and merger,
and other important considerations surrounding perpetual easements including climate change in t he
face of a permanent document, democracy and social justice concerns relating to perpetual conservation
easement-protected lands, and water rights bound or impacted by perpetual conser vation easements.
First Challenge: Perpetuity
By promising to protect land in its current state forever using the perpetual conservation easements, we not
only create a legal device that ies in the face of hundreds of years of real property doctrine, we also create
a seemingly insurmountable task of providing exibility with durability, responsiveness with permanence,
and adaptability without changing a thing. e fact that each one of these qualities is intended to occur not
in a vacuum, but in the ever-changing world of public opinion and public interest in land protection goals,
all t hey while spanning an eternity cannot help but seem arrogant—who are we to ma ndate the choices
and decisions of future generations? And, perhaps more importantly, how a re we to implement choices
made in a dierent literal and gurative world, climate, environment, and landscape, over eternity? If and
as the world around a perpetual conservation easement continues to evolve, morph, and change over time,
these questions must be raised and answered: should the perpetual conservation easement likewise evolve,
morph, and respond to these changes . . . or should it stay frozen in time, a monument and testament to
1. Jessica E. Jay, Enforcing Perpetual Conservation Easements Against ird-Party Violators, 32 UCLA J. E. L. P. 1 (2014).
2. For the purposes of this Article, “conservation community” is dened to include nonprot tax-exempt organizations and government-entity
holders of perpetual conservation easements, landowner donors, and all of the professionals and practitioners involved in perpetual conservation
easement transactions.
3. Jessica E. Jay, When Perpetual Is Not Forever: e Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation
Easements, 36 H. E. L. R. 1 (2012).
Editors’ Note: We omitted most citations in the excerpted works for bre vity and reada bility. Asterisks were used to indicate delete d
portions of the tex t. And a “leaf ” icon was placed betwee n each excerpt.
Page 102 A Changing Landscape: The Conservation Easement Reader
the original intent and language of its creators? And, is there an approach that overcomes the insurmount-
able object of providing exibility with durability that honors the original intent of a perpetual easement’s
creators, while allowing an easement to respond to the changing needs and interests of the public, on whose
behalf the easement was created and granted in perpetuity? e conservation community continues to
wrestle with these questions and has begun to provide the framework for its answers in the articles cited in
subsections B–F, H, and I, below.
1. Jessica E. Jay, When Perpetual Is Not Forever: The Challenge of Changing Conditions,
Amendment, and Termination of Perpetual Conservation Easements, 36 HARV. ENVTL. L. REV.
1 (2012)
***
is Article focuses on *** the intersection of perpetual conservation easements with changing landscapes,
climate, and public interests. It refrains from questioning per se the perpetual nature of conservation ease-
ments in favor of focusing on the dierent legal regimes and on the evolving law guiding perpetual conser-
vation easement amendment and termination.
***Conservation ea sements t incongruously within common law real property doctrines governing the
use and conveya nce of land because they allow easement donors to direct land uses for a ll time, for their
own and the public’s benet, without relinquishing ownership of the land, and—under certain circum-
stances—in exchange for va luable tax benets. Assisted by the development of several legal regimes to
guide their creation, implementation, enforcement, modication, and termination, conservation easements
have become a familiar, signicant, and invaluable component of private land protection. Because of varia-
tions among the dierent legal regimes’ g uidance, however, much remains unsettled regarding certain
aspects of perpetua l conservation easements: in particu lar, their modication and termination. e unset-
tled nature of the law surrounding perpetual conservation easement amendment and termination provides
the impetus for this Article.
is Article is intended principally for the community4 of perpetual conservation easement donors,
holders, practitioners, and professionals, all of whom are working on the land and attempting to orienteer
the dierent legal regimes’ guidance for easement amendment and termination.5 Although conservation
practitioners, professionals, and academics do not universal ly agree about whether, when, and how per-
petual conservation easements ought to be amended or terminated, this Article presupposes that many do
agree with the common goal of protecting the integrity and perpetual nature of conservation easements.
Practitioners, professionals, and academics might further agree with the notion that a process should exist
to guide certain perpet ual easement modications and a ll terminations.6 Starting with this common goal,
this Article builds a foundation for clear guidance, recognizing that pathways toward the goal may diverge
and overlap along the way.
4. For the purposes of this Article, “conservation community” is dened to include nonprot tax-exempt organizations and government-entity
holders of perpetual conservation easements, landowner donors, and all of the professionals and practitioners involved in perpetual conservation
easement transactions.
5. is Article also is intended for the benet of the authors, reporters, drafters, and creators of the existing or new legal regimes guiding
land conservation through the use of perpetual conservation easements, including but not limited to: the U.S. Congress; the U.S. Treasury
Department; the Internal Revenue Service (“IRS”); state legislatures, administrators, and regulators; the American Law Institute; the Uniform
Law Commission National Conference of Commissioners on Uniform State Laws (“ULC”); and the Land Trust Alliance (“LTA”), each of
which are responsible for crafting laws, codes, regulations, or guidance for perpetual easements.
6. In furtherance of protecting the integrity of perpetual conservation easements, some practitioners and professionals can agree generally that a
process exists or should exist to guide donated easement amendments and modications that aect a donated easement’s original purpose(s)
or donor intent, or that terminate the easement in part or in whole. Otherwise, most of the control and decision-making authority generally
remains or should remain and be vested in the holder.
Challenges With Perpetual Conservation Easements Page 103
e conservation community can protect t he integrity of perpetual conser vation easements by provid-
ing clear and consistent guidance t hrough existing or new legal frameworks for state legislatures, as well
as t he courts, landowners, and easement holders that are eva luating and deciding requests for easement
modication and termination. In so doing, the community does its best to ensure that perpetual conserva-
tion easements and the purposes they protect wi ll endure with exibility and relevance over time.
is Article addresses these issues in three sta ges. Part I examines the gu idance set out by the di erent
legal regimes, including the Internal Re venue Code (“the Code”) a nd its attendant Treasury Regulations
(“Regulations”), the Restatement (ird) of Property: Ser vitudes (“Restatement”), the Uniform Conservation
Easement Act (“UCEA”), and the Land Trust Alliance (“LTA”) Standards and Practices (“Standards and
Practices”). Next, Part II studies emerging judge-made common law and evolving statutory law, regula-
tions, and policies crafted by legislatures, regulators, administrators, and communities of holders to provide
additional guidance in the midst of these dierent legal regimes. Finally Part III examines options and next
steps for addressing the overlap between these regimes, including: waiting and seeing; doing something to
interpret, amend, or create state law, policy, or regulations to assist in decision-making ; doing something
to make consistent the legal regimes and their guidance; and doing something to inspire the Internal Rev-
enue Service (“IRS”) to provide its own guidance, defer to state law, or revise the Regulations specically
to address perpetual easement amendment.
I. Origins, Legal Framework, and Guidance
No fewer than four dierent legal regimes guide perpetual conservation easements: the Code and its
associated Regulations; t he Restatement ; the UCEA; and the LTA Standards and Practices. Each regime
serves a dierent purpose, with dierent goals and foci. e Code outlines requirements for tax-deductible
conservation easement gif ts, and the Reg ulations guide the implementation of the Code. e Restatement
guides judge-made common law, a nd t he UCE A guides statutory law for conservation easements. e
LTA’s Standards and Practices establishes rules and procedures for member nonprot-organization holders
of conservation easements.
Each regime’s purpose, goals, and foci lead to slightly dierent treatment of amending a nd terminat-
ing perpetual conservation easements. ese variations may confuse landowners, easement holders, and
courts facing easement amendment and termination requests and t hereby undermine the overall integrity
of perpetua l conservation easements. It is therefore prudent to understa nd with specicity t he langu age,
purposes, and goals of the regimes; to identify variations between, among, and within them; and to deter-
mine how the variations might be reconciled going forward.
A. Internal Revenue Code and Treasury Regulations
Congress craf ted section 170(h) of the Code to create an income-tax deduction for donated conservation
easements w ith conser vation purpose s, the protection of which provides signicant public benets. e
dening characteristic of all qualifying easement gifts is that they are perpetual, ostensibly to provide pub-
lic benet forever.7 A lthough legislative history suggests the intention to revisit and possibly mod ify this
provision of the Code, Congress does not appear to have contemplated the modication or termination of
perpetual conser vation easements.8
e Code states t hat to be eligible for a tax deduction based on t he gift of a qualied conservation
contribution, the contribution must be “of a qualied real property interest,” given in perpetuity “to a
qualied organization,” and made “exclusively for conservation purpose s.” For the conservation gift to be
made “exclusively for conservation purposes,” the conservation purpose must be protected in perpetuity.
Congress therefore required both the conservation easement and the easement’s purpose to be perpetual,
7. S. R. N. 96-1007, at 8–9 (1980). e legislative history shows the requirement of perpetuity created an exception to the restriction on
gifts of partial interests in real property by allowing the perpetual easement to be treated as an undivided interest in real property. Id. at 7.
8. See id. at 9–10 (discussing the revision of the denition of “conservation purposes,” but not anticipating easement modication or termination).
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