Enforcing perpetual conservation easements against third-party violators.

• Author: Jay, Jessica E.
• Position: I. Introduction through III. Legal Cases and Case Studies of Third-Party Violations B. Vermont Cases 2. Chain Sawing Sunbather v. Conservation Land, p. 80-117

1. INTRODUCTION II. APPLICABLE LAW, DRAFTING, STEWARDSHIP, MANAGEMENT, AND ENFORCEMENT OF THIRD-PARTY VIOLATIONS A. Determining the Legal Interest of the Conservation Easement B. Conservation Easement Enforcement Language: Evaluation and Drafting Options 1. Least Landowner Responsibility 2. Moderate Landowner Responsibility 3. Full Landowner Responsibility C. Legal Options: Evaluation for Enforcement of Third-Party Violations III. LEGAL CASES AND CASE STUDIES OF THIRD-PARTY VIOLATIONS A. California Cases 1. Geysers Fire: Geothermal Corporation v. Conserved Open Space 2. Neighbor Access Road v. Conserved Open Space B. Vermont Cases 1. Adverse Possession Claim by Neighbor Encroaching on Conserved Land 2. Chain Sawing Sunbather v. Conservation Land 3. Chain Saws on Big Jay C. Residential Development Trail v. Conservation Easements Open Space D. Neighbor's Ford v. Conserved Land Streambed E. Tire Dump v. Conserved Natural Area F. Fee Owned, Conserved Land Third-Party Violations 1. Adjacent Airport v. Forest Conservancy Land 2. Homeowner v. Surrounding Conservation Land IV. LEARNING LESSONS AND LOOKING AHEAD V. CONCLUSION VI. APPENDIX I. INTRODUCTION

   Among the most daunting challenges the holder of a perpetual conservation easement faces is the enforcement of the easements it holds, for all time, and against all violators. (1) National organizations estimate that at least forty million acres of land in the united States are protected with perpetual conservation easements. (2) Each of these conservation easements is held by an entity, either a government agency or a tax-exempt, non-profit land trust, charged with the responsibility of enforcing easement violations against any and all violators. (3) Holders must contend with violations caused by landowners and third parties. (4) In the latter instance, someone who is not the owner of the easement-protected property enters the land by trespass without the knowledge or permission of the landowner or the easement holder, and violates the conservation easement. (5) A Land Trust Alliance (Alliance) survey, specifically designed to gather information on conservation easement violations, reveals that behind successor-generation landowners, third parties are the most frequent class of easement violators. (6) The findings of this survey track those of an earlier Alliance survey and are consistent with violation reporting in the most recent Alliance census. (7) Further, anecdotal reporting of conservation easement violations indicates that many violations are caused by third parties--possibly as much as forty percent. (8)

   Violations caused by landowners whose lands are protected with conservation easements present fairly linear practical and legal avenues for resolution. The easement holder has an established means of reaching the landowner through the conservation easement document. When a third party causes a violation, the legal and practical avenues are less clear. Part II of this Article explores the legal and practical avenues available for pursuing third-party violators in the context of holders' responsibilities regarding the applicable law of perpetual conservation easements. Part III identifies the tools available for conservation easement drafting, stewardship, management, and enforcement of third-party violations. Part IV distills lessons learned from litigated and non-litigated cases of third-party violations. The Article concludes by offering practical guidance to easement holders anticipating or addressing third-party violations.

2. APPLICABLE LAW, DRAFTING, STEWARDSHIP, MANAGEMENT, AND ENFORCEMENT OF THIRD-PARTY VIOLATIONS

   Conservation easement holders must contemplate both legal and practical considerations in order to identify third-party violators and hold them accountable for damage to the land, the conservation easement, and the conservation values protected by the easement. These considerations include how easement holders identify and gain access to non-parties, and how easement holders approach and handle violations by people who are not the landowner. To determine how to legally hold third-party violators accountable, an easement holder must identify the legal interest or right represented by the conservation easement and held by the holder, as defined by state law. once the holder identifies the legal interest protected by the conservation easement, the holder can explore and evaluate its options available by law and articulated by the conservation easement at issue.

   1. Determining the Legal Interest of the Conservation Easement

      An easement holder must first understand the nature of the interest or right that it holds in the conservation easement before determining legally how to approach a third-party violator and violation of a conservation easement. Conservation easement enabling acts provide definitions of the right or interest represented by a conservation easement, and by extension, illuminate legal avenues to pursue the violator. For example, if a state's enabling act defines conservation easements as real property interests, an easement holder within that state may have standing to sue a third-party violator because the holder owns a vested property right. (9)

      Almost all state enabling acts define conservation easements as enforceable real property interests. This definition is consistent with the definitions provided by the legal regimes that guide perpetual conservation easements: the Internal Revenue Code (and associated Treasury Regulations), (10) the Restatement of Law, (11) and the Uniform Conservation Easement Act (UCEA). (12) The Internal Revenue Code section, which creates a federal tax deduction for the gift of a conservation easement, requires that qualified contributions consist of qualified real property interests. Qualified real property interests are defined as interests in real property, and include restrictions on the use that may be made of the real property granted in perpetuity. (13) The National Law Conference created the UCEA to promote uniformity of state statutory law. The UCEA identifies conservation easements as non-possessory property interests. While the UCEA does not explicitly give standing to easement holders to sue third parties, the UCEA does recognize enforcement rights in the landowner, easement holder, third-party enforcers, and persons authorized by other laws. (14) The Restatement of Property also recognizes a right of enforcement for holders where there is interference with a conservation easement interest. (15) While the Restatement does not explicitly give standing to easement holders to sue third parties, neither does the Restatement expressly prohibit standing. (16) Rather, it encourages courts to vigorously defend conservation easements using the full panoply of legal and equitable remedies and damages designed to deter bad acts and actors. (17)

      Although most state conservation easement enabling acts define conservation easements as real property interests, some do not explicitly define the conservation easement interest or right, are silent, or imply that conservation easements create contractual or other rights. Illinois' enabling act, for example, merely refers to a conservation right contained within a restriction, easement, covenant, condition, deed, will, plat, or any other instrument executed by the owner of the land, without defining that right as a property interest. Ambiguous enabling acts, or those that endow conservation easements with contractual rights, may still provide standing to enforce the conservation easement in certain circumstances. If a state's enabling act is ambiguous about whether a conservation easement is a property interest or a contract right, a holder can argue that the legislative intent of the enabling act allows standing to enforce based on the statute's enforcement language or other state laws. Easement holders may have standing under a state's real property, criminal, or tort laws, despite the ambiguous or contract-based language of the enabling act. Colorado, for example, defines conservation easements as property interests with limited rights of enforcement, (18) but also creates enforcement rights against third parties for any trespass against the real property of someone with a proprietary interest, in another statute. (19) An easement holder therefore could argue that it has a proprietary interest in a conservation easement, agricultural land, (20) or the "premises," which includes stream banks and streambeds, in order to establish standing to enforce against a third-party violator. (21)

      Further exploration of the relevant state's enabling act is instrumental in clarifying a holder's right to enforce the conservation easement interest it holds against third-party violators. Although most enabling legislation gives an easement holder a right of enforcement, it is not always clear if that right applies to enforcement against third parties. (22) In Colorado, for example, the enabling statute states that both a conservation easement donor and the easement's holder may initiate an enforcement action for injunctive relief. This statute may be read to mean enforcement against one another or against a third party. (23)

      By contrast, Vermont's enabling act recognizes conservation "preservation rights and interests" (24) in real property running with the land, but makes these rights enforceable only against the landowner. (25) However, because the statute also allows an easement holder to exercise all of the rights of a fee owner, including the right to enter and the right to pursue injunction or liquidated damages, (26) easement holders can enforce the same rights as the landowner against third parties. (27) Additionally, Vermont recently amended its criminal forestry trespass statute to include severe fines and penalties for anyone who knowingly cuts, destroys, or removes forest products without the consent of the owner. (28) A violator or offender is...