Enforcing Conservation Easements: The Through Line

• Author: Nancy A. Mclaughlin
• Position: Robert W. Swenson Professor of Law at the University of Utah S.J. Quinney College of Law
• Pages: 167-214

ARTICLES

Enforcing Conservation Easements: The Through

Line

NANCY A. MCLAUGHLIN*

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

I. The Special Status of Conservation Easements . . . . . . . . . . . . . . . . . . . . 171

A. Created to Benefit the Public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

B. Heavily Subsidized by Public. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

C. Hybrids . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

II. Cases Recognizing the Special Status of Conservation Easements . . . . . . 182

A. Old Common Law Rules Barring In-Gross Easements . . . . . . . . . . . 183

B. Laches and Estoppel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

1. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

2. Conservation Easement Enforcement Cases. . . . . . . . . . . . . . . 189

a. Feduniak . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

b. Weston Forest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

3. The Way Forward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

C. Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

D. Subdivision Restrictions (Restraints on Alienation) . . . . . . . . . . . . . 204

E. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

INTRODUCTION

“Through line: a common or consistent element or theme shared by items in a

series or by parts of a whole.”

1

Through Line, MERRIAM-WEBSTER, https://perma.cc/MFG3-UPTN (last visited Aug. 13, 2021).

Conservation easements now dominate private land conservation efforts in the

United States. Billions of dollars of public funds are invested in them annually

through tax-incentive and easement purchase programs.

2

More than forty million

* Nancy A. McLaughlin is the Robert W. Swenson Professor of Law at the University of Utah S.J.

Quinney College of Law. © 2022, Nancy A. McLaughlin.

1.

2. See infra Part I.B.

167

acres are estimated to be subject to conservation easements, which is an area

more than eighteen times the size of Yellowstone National Park and larger than

the states of New York, Connecticut, and Rhode Island combined.

3

See Conservation Easements and the National Conservation Easement Database, NAT’L

CONSERVATION EASEMENT DATABASE, https://perma.cc/YNL5-CCGZ (last visited Aug. 13, 2021); Park

Facts, NAT’L PARK SERV., https://perma.cc/NSC2-H3KV (last visited Aug. 13. 2021); State Area

Measurements and Internal Point Coordinates, U.S. CENSUS BUREAU, https://perma.cc/WR7A-SM45

(last visited Aug. 13, 2021).

Hundreds of

government entities and charitable conservation organizations are focusing their

efforts on acquiring and stewarding conservation easements.

4

See, e.g., ELIZABETH BYERS & KARIN MARCHETTI PONTE, THE CONSERVATION EASEMENT

HANDBOOK 7–8 (Land Trust All., 2d ed. 2005) [hereinafter 2005 CONSERVATION EASEMENT

HANDBOOK] (“Conservation easements are often the tool of choice for the nation’s 1,537 land trusts . . .

Hundreds of public agencies across the country also hold conservation easements.”); National

Conservation Easement Database Mapping Application, NAT’L CONSERVATION EASEMENT DATABASE,

https://www.conservationeasement.us/interactivemap/ (last visited Mar. 7, 2022) (containing location,

number of acres, and nonprofit or public agency holder data for conservation easements throughout the

United States); Find a Land Trust, LAND TRUST ALL., https://www.findalandtrust.org/land-trusts (last

visited Mar. 7, 2022) (containing data on the number of acres encumbered by conservation easements

held by individual land trusts).

In addition,

President Biden’s plan to protect 30% of the nation’s lands and waters by 2030—

the “America the Beautiful” initiative—is expected to accelerate the pace of con-

servation easement acquisitions.

5

See Exec. Order No. 14,008, 86 Fed. Reg. 7,619, § 216(a) (Feb. 1, 2021); U.S. DEP’T OF THE

INTERIOR, U.S. DEP’T OF AGRIC., U.S. DEP’T OF COM., COUNCIL ON ENVT’L QUALITY, CONSERVING AND

RESTORING AMERICA THE BEAUTIFUL (2021), https://www.doi.gov/sites/doi.gov/files/report-conserving-

and-restoring-america-the-beautiful-2021.pdf.

By any reasonable accounting, conservation

easements would appear to be a major success story.

But a significant risk to conservation easements and the benefits they provide

to the public lurks just beneath the surface: in enforcement cases, courts tend to

treat conservation easements as if they are traditional servitudes, like right-of-

way easements between neighbors, even though they are clearly distinguishable.

6

See, e.g., infra Part II.C, discussing Cahaba Riverkeeper, Inc. v. Water Works Bd. of Birmingham,

_ So.3d _, 2022 WL 571047 (Ala. 2022), in which the court applied the common law doctrine of merger

to hold that an entity could not establish and hold a conservation easement on property that it owned;

infra Part II.E, discussing Wetlands Am. Tr. v. White Cloud Nine Ventures, 782 S.E.2d 131 (Va. 2016),

in which the court held that the common law principle that restrictive covenants are to be strictly

construed in favor of free use of property applied to conservation easements. See also Michael Allan

Wolf, Conservation Easements and the “Term Creep” Problem, 3 UTAH L. REV. 787 (2013) (discussing

the hazards associated with applying concepts applicable to traditional easements to the statutory

creation we know as “conservation easements”). For other concerns associated with the use of

conservation easements, see, e.g., K. King Burnett, John D. Leshy & Nancy A. McLaughlin, Building

Better Conservation Easements for America the Beautiful, 45 HARV. ENVTL. L. REV. ONLINE (2021),

https://harvardelr.com/2021/09/15/building-better-conservation-easements-for-america-the-beautiful/.

This tendency can have pernicious effects. Traditional servitudes principles were

developed to facilitate the marketability and development of land and to resolve

disputes between private parties. Applying those principles to conservation

3.

4.

5.

6.

168 THE GEORGETOWN ENV’T LAW REVIEW [Vol. 34:167

easements, the purpose of which is to constrain development to provide conserva-

tion benefits to the public, will often be directly contrary to the public interest.

It is critical to address this risk now because we are likely to see a significant

uptick in enforcement cases in the coming years. The dramatic growth in the use

of conservation easements in the United States began roughly three decades ago.

7

See NANCY A. MCLAUGHLIN, UNIFORM CONSERVATION EASEMENT ACT STUDY COMMITTEE

BACKGROUND REPORT 5–6 (June 11, 2017) (unpublished report prepared for the Uniform Law

Commission) [hereinafter UCEA BACKGROUND REPORT], https://perma.cc/3RLX-9UVQ.

Many existing conservation easements have significantly aged and the lands they

encumber are changing hands. As new owners who were not involved in the ease-

ments’ creation take possession of the restricted lands, we can expect to see an

increase in violations, in questions regarding interpretation of the easements’

terms, and in outright challenges to the easements’ validity.

How courts resolve these cases will profoundly impact the effectiveness of

conservation easements as land protection tools. It also will have a profound

impact on conservation efforts in this country generally, given that conserva-

tion easements have in many cases displaced other conservation measures,

such as fee acquisition and regulation. If, for example, courts extinguish con-

servation easements via the doctrine of merger, or bar holders from enforcing

them on laches or estoppel grounds, or interpret them in favor of free use of

property rather than to carry out their conservation purposes, many of the con-

servation gains that were made over the last three decades could end up being

ephemeral.

The goal of this Article is to help ensure that does not happen by providing a

solid foundation for the next chapter in conservation easement enforcement. This

Article builds that foundation in two ways.

This Article first explains the special status of conservation easements—why

they are fundamentally different from traditional servitudes. Three characteristics

of conservation easements most clearly distinguish them from traditional servi-

tudes. Conservation easements are validated under state law only if they are struc-

tured to provide benefits to the public. The public heavily subsidizes the creation

of conservation easements through tax-incentive and easement purchase pro-

grams. And conservation easements are not true easements despite the “conser-

vation easement” moniker; they are peculiar hybrids. Although conservation

easements are interests in real property, they also generally are created under the

auspices of a state enabling statute, they often are conveyed in whole or in part

as charitable gifts, and they typically are structured to comply with rules govern-

ing tax-incentive or easement purchase programs, thus implicating various

bodies of law. This Article explains the three distinguishing characteristics of

conservation easements and the various bodies of law relevant to conservation

easement enforcement.

7.

2022] ENFORCING CONSERVATION EASEMENTS: THE THROUGH LINE 169