Amending Perpetual Conservation Easement: A Case Study of the Myrtle Grove Controversy
It is difficult to predict the extent to which state attorneys general and other interested parties will invoke charitable trust doctrine to ensure that perpetual conservation easements are enforced in accordance with their stated purposes, although some state attorneys general have indicated that they take their role as enforcers of conservation easements on behalf of the public very seriously. In many cases other factors - such as the prohibition on private benefit, the ethical standards adopted by land trusts, and specific provisions concerning modification and termination in an easement enabling statute - will be sufficient to discourage inappropriate modifications or terminations. However, charitable trust rules serve as the ultimate backstop, permitting state attorneys general (and, when state attorneys general decline to become involved or are ineffective, parties with a "special interest") to object when the holder of a perpetual conservation easement nonetheless agrees to modify or terminate the easement in contravention of its stated purposes and the public interest. Indeed, the mere threat of enforcement by state attorneys general and other interested parties pursuant to charitable trust principles will help to ensure that: (i) land trusts adhere to the ethical standards promulgated by the Land Trust Alliance, and (ii) the myriad of state and local government agencies that have acquired perpetual conservation easements continue to enforce those easements and otherwise comply with their fiduciary obligations.
McLaughlin, Nancy A. , Amending Perpetual Conservation Easements: A Case Study of the Myrtle Grove Controvers, University of Richmond Law Review, Vol. 40, p. 1031, 2006
Protecting the Public Benefit: Crafting Precedent for Citizen Enforcement of Conservation Easements
Commentators have advanced one prominent additional theory of standing for enforcement actions; it focuses on the treatment of the conservation easement as a "charitable trust" and hinges on the role of state Attorneys General as supervisors of charitable trusts on behalf of the public. Unfortunately, due to the relative novelty of conservation easements, there has been little opportunity to put this theory to the test in actual litigation. … The continuing validity of conservation easements depends, in large part, on the ability of those with an interest in conservation to enforce the terms of the easements. Enforcement case law thus far has come out in a number of different directions concerning the fundamental question of who may enforce a conservation easement. In order to ensure that conservation easements last in perpetuity, courts should give liberal construction to enforcement provisions in order to carry out the policy objectives behind conservation easement statutes. One example of this interpretation was seen in Bright Par, where the court liberally construed the word "beneficiary" to include all citizens of the state of Tennessee. Where statutory language is not as clear, however, there are a number of possible legal frameworks that would allow broad citizen enforcement of conservation easements. It is necessary that courts allow broader enforcement powers in order to protect the public benefits of conservation easements, lest those benefits be lost forever
Ociepka, Sean P. , Protecting the Public Benefit: Crafting Precedent for Citizen Enforcement of Conservation Easements, Maine Law Review, Vol. 58, p. 225, 2006
Third-Party Enforcement of Conservation Easements
The recently released Land Trust Alliance Census tells us of the success of private land conservation efforts: over fifteen hundred local and regional land trusts have partnered with private landowners nationally to conserve working landscapes such as farms and ranches, environmentally significant and sensitive ecosystems, plant and wildlife habitat, historic properties, and scenic vistas across the country. ... For those easement holders, judges, legislators, attorneys, neighbors and citizens seeking clarification of the potential for third parties to enforce conservation easements within their state, the following inquiries should shed some light on the potential for a third-party enforcement right: first, a careful review of the state's conservation easement enabling legislation to determine if third parties are expressly or implicitly permitted to enforce conservation easements, and, if so, how are third parties defined; second, understand the common law or statutory application of the charitable trust doctrine and the public trust doctrine, as either may empower the state's attorney general or citizens to enforce conservation easements; third, recognize that citizens and neighbors may derive standing from federal citizen suit arguments or statutory and contract interpretation of the public's status as a beneficiary and stake in the conservation easement.
Jay, Jessica E. , Third-Party Enforcement of Conservation Easements, Vermont Law Review, Vol. 29, p. 757, 2005
Rethinking the Perpetual Nature of Conservation Easements
Land trusts have generally resisted the characterization of a conservation easement donation as a restricted charitable gift or a charitable trust on the grounds that judicial as well as attorney general involvement in the easement modification or termination process would be unduly burdensome. It is not clear, however, why land trusts should be considered a breed apart from other charitable organizations and allowed to pursue their charitable goals free from the type of oversight exercised by the courts and state attorneys general over other charitable organizations. In addition, exempting land trusts and conservation easements from the longstanding rules governing a charitable donee's use and disposition of its charitable assets seems particularly unwise given the lack of a formal accreditation program for the nation's land trusts, the growing number of reports of incompetent and even "rogue" land trusts, and the importance of land use decisions to society.
McLaughlin, Nancy A. , Rethinking the Perpetual Nature of Conservation Easements, Harvard Environmental Law Review, Vol. 29, p. 421, 2005