JESSICA OWLEY UNIVERSITY AT BUFFALO LAW SCHOOL Conservation Easements

A Brief History of American Land Conservation Public Land Ownership Regulation Private Land Ownership Class Property Law Tools [Servitudes]  Easements  Real Covenants  Equitable Servitudes Conservation Easements

The Basics Nonpossessory interests Creature of State Law Enable someone to restrict a landowner’s actions on her own property beyond what the law currently requires  Someone = NGO or Government Entity Must have a conservation purpose In perpetuity Conservation Easements

Methods of Creation Donations  Federal tax deduction  Need to follow rules of I.R.C. 170h (including limited purposes and perpetuity) Sales Condemnations  5 th Amendment. Eminent Domain.  Cf. Regulation Exactions Court Settlements / Damage Assessments

The Players The Landowner The Conservation Easement Holder  Governmental Entities  Land Trusts  Tribes Third-Party Enforcer Government Entities Funders  Federal agencies (USDA)

UCEA §1. Definitions. "Conservation easement" means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open-space values of real property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property.

Definition of Holder (i) a governmental body empowered to hold an interest in real property under the laws of this State or the United States; or (ii) a charitable corporation, charitable association, or charitable trust, the purposes or powers of which include retaining or protecting the natural, scenic, or open-space values of real property, assuring the availability of real property for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property.

2. Creation, Conveyance, Acceptance, Duration (a) Except as otherwise provided in this Act, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements. … (c) Except as provided in Section 3(b), a conservation easement is unlimited in duration unless the instrument creating it otherwise provides.

4. Validity A conservation easement is valid even though: (1) it is not appurtenant to an interest in real property; (2) it can be or has been assigned to another holder; (3) it is not of a character that has been recognized traditionally at common law; (4) it imposes a negative burden; (5) it imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder; (6) the benefit does not touch or concern real property; or (7) there is no privity of estate or of contract.

Benefits Flexible in formation Quick to form Perpetual Gap-filling Go beyond government action Support working landscape Minimize human/nature divide

The Common Law Problems Did Not Disappear Privatization Concerns Dead hand control Utility of land Undemocratic Accountability Environmental Justice Drawbacks

Ecological Concerns Static  Hampers Adaptive Management Piecemeal Marginal Lands Restrictions may be inadequate  Foster development  Few affirmative duties by LO or LT [no active mgmt] Drawbacks Cont.

Suggested Improvements Further study Holistic  Incorporate into current planning processes. Term Conservation Easements  Facilitates Adaptive Management  Acknowledges Changing Societal Needs  Increases Visibility  BUT…  This will increase transaction costs  Tax implications

Final Thoughts Current state of things likely to lead to underreagulate and underprotecting the environment based on a belief that conservation easements are doing the job Need to think further about what this mode of property says about property and society in general.  Libertarian reinforcement of the private landowner as the one who gets to shape society. Better off without them?  Galvanizing force  We’ll take anything we can get.