Public accountability and conservation easements: Learning from the uniform conservation easement act debates

Natural Resources Journal

Volumn 46, Issue 1, 2006, Pages 65-129

  King, Mary Ann ^a   Fairfax, Sally K ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ACCOUNTABILITY; CONSERVATION MANAGEMENT; NATURE CONSERVATION;

EID: 33750580648     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (421)

1. Sally K. Fairfax et al., Buying Nature: The Limits of Land Acquisition as a Conservation Strategy 1780-2004, at 171, 178-83 (2005) [hereinafter Fairfax et al., Buying Nature] (Chapter seven provides an early history of the land trust movement and the Land Trust Alliance (LTA), the coordinating mechanism/lobbying arm of the land trust movement.).
2. See infra Part II.C.
3. The preface to the proposed legislation makes the claim explicitly. See Uniform Conservation Easement Act (drafted by the NCCUSL, 1981) [hereinafter UCEA], Commissioners' Prefatory Note ¶ 7.
4. McLaughlin advocates a charitable trust interpretation of CEs as a route to accountability concerning their modification and termination. See Nancy A. McLaughlin, Rethinking the Perpetual Nature of Conservation Easements, 29 Harv. Envtl. L. Rev. 421 (2005) [hereinafter McLaughlin, Rethinking].
5. Although we share her accountability concerns, we are less interested in drawing modification and termination issues into the courts than we are with drawing public participation into the decision to create an easement and draft its terms. As easements have become larger, frequently encompassing whole regions such as the "Northern Forest," dealing with them as a form of local or regional land use planning is unavoidable. The watchful neighbor is not a proxy for this kind of community involvement, but by eliminating the requirement of appurtenance and substituting attorney general and perhaps Internal Revenue Service enforcement of trust principles, the UCEA also removed the neighbors. See generally Fairfax et al., Buying Nature, supra note 1 (especially chs. 8, 9).
6. For our more enthusiastic treatment of charitable trust principles, see generally Jon A. Souder & Sally K. Fairfax, State Trust Lands (1996)
7. and Sally K. Fairfax & Darla Guenzler, Conservation Trust (2001).
8. We turn directly to the trust issues that McLaughlin raises in Rethinking, supra, in Part III.C.2, infra.
9. See generally Gerald Korngold, Privately Held Conservation Servitudes: A Policy Analysis in the Context of in Gross Real Covenants and Easements, 63 Tex. L. Rev. 433 (1984).
10. Proceedings in Comm. of the Whole, Uniform Conservation and Historic Preservation Agreements Act, 14 (1979) [hereinafter 1979 Proceedings] (statement of Comm'r Russell L. Brenneman).
11. See generally Leigh Raymond & Sally K. Fairfax, The "Shift to Privatization" in Land Conservation: A Cautionary Essay, 42 Nat. Resources J. 599 (2002).
12. John Costonis suggests that CEs might fit between uncompensated regulations and compensated takings. John J. Costonis, "Fair" Compensation and the Accommodation Power, in Regulation V. Compensation in Land Use Control: A Recommended Accomodation, A Critique, and an Interpretation 3 (John J. Costonis et al. eds., 1977).
13. Indeed, the commissioners never used the term "land trust." See infra note 50. We have also encountered a persistent belief among a small number of old timers in the land trust movement that The Nature Conservancy (TNC) manipulated the UCEA process to the disadvantage of smaller groups. We have found no data to support the darker interpretation. To the contrary, TNC appears to have played a relatively small, informal role and does not, by any account, appear to have distorted the debate or the outcome in any particular direction, self-serving or otherwise.
14. CEs account for more than half of land trust acquisitions (in acreage). Land Trust Alliance, 2003 Land Trust Alliance Census Tables, http://www.Ita.org/census/census_tables.htm. The other half are divided among private preserves, acquisitions that the land trusts maintain and manage, and preacquisitions, or flip transactions, in which the land trust purchases land for subsequent purchase by a government agency.
15. See Fairfax et al., Buying Nature, supra note 1, at 206-14.
16. Although states and localities continue to pass bond issues supporting CEs and land trusts. "In 2004, state and local voters approved 75 percent of the 217 conservation measures on ballots nationwide, generating $4 billion in new conservation funding and continuing a rate of success that has been consistent since 1996. Leading the way were county measures, which enjoyed an almost 80 percent passage rate and accounted for nearly three quarters of total new conservation funding." See Land Trust Alliance, A Divided Electorate Finds Common Ground When It Comes to Conservation, http://lta.org/publicpolicy/landvote2004.htm (last visited Aug. 9, 2006).
17. Senate Finance Committee Chairman Charles E. Grassley (R-Iowa) likened self-dealing and other abuses in the nonprofit world to scandals such as Worldcomm and ENRON. This juxtaposition is not friendly to land trusts and conservation easements. See Panel on the Nonprofit Sector, News Stories About the Panel, Interim Report Release, http://www.nonprofitpanel.org/coverage/coverage_interim.html#post3-2 (last visited June 30, 2006).
18. Its evolution is described in Fairfax et al., Buying Nature, supra note 1, ch. 8, and information is available at Land Trust Alliance, http://www.lta.org/.
19. The LTA spent 14 months drafting a new set of Land Trust Standards and Practices. See Land Trust Alliance, New Resources Available for Land Trust Standards and Practices from LTA, http://www.lta.org/sp/Itanet.htm (last visited June 30, 2006).
20. The IRS has also been at work developing new approaches for auditing conservation easement claims for tax deductions, which is probably the most persistent and pervasive problem. Land trusts participate marginally in the process, signing a document in which the landowner states the value of the easement but technically not certifying that the value is reasonable. Nancy A. McLaughlin, Increasing the Tax Incentives for Conservation Easement Donations - A Responsible Approach, 31 Ecology L.Q. 1, 68-91 [hereinafter McLaughlin, Increasing].
21. The IRS is presently investigating more than 48 easement donors and easement holders, including The Nature Conservancy, suspecting that they have profited "unduly" from easement transactions. See also Joe Stephens, Alliance Starts Plan to Improve Land Trusts: Association Moves to Train and Accredit Conservation Organizations, Wash. Post, Apr. 20, 2005, at A8.
22. See Joe Stephens & David B. Ottaway, $420,000 a Year and No-Strings Fund: Conservancy Underreported President's Pay and Perks of Office, Wash. Post, May 4, 2003, at A21 [hereinafter Stephens & Ottoway, $420,00 A Year];
23. Joe Stephens & David B. Ottoway, How a Bid to Save a Species Came to Grief, Wash. Post, May 5, 2003, at A1;
24. Nonprofit Sells Scenic Acreage to Allies at a Loss: Buyers Gain Tax Breaks with Few Curbs on Land Use, Wash. Post, May 6,2003, at A1.
25. The Washington Post articles are the most famous but not the only arrows in this quiver. See generally Fairfax et al., Buying Nature, supra note 1, ch. 9.
26. As one element of that reconsideration, the tax status of CEs is again in doubt. See Joint Comm. on Tax'n, Options to Improve Tax Compliance and Reform Tax Expenditures, JCS-02-05, at 277-87 (2005), available at http://www.house.gov/jct/s-2-05.pdf.
27. See discussion infra Part II.D.
28. See Fairfax et al., Buying Nature, supra note 1, chs. 8, 9.
29. In early May 2005, the LTA proclaimed on its website, "Congressional Recommendations Threaten Every Land Trust."
30. Paul L. Posner, Accountability Challenges of Third Party Governance 6 (paper prepared for the 20th Anniversary Structure and Organization of Government Research Committee of the International Political Science Association, June 15-18, 2004) (on file with author).
31. See generally Paul L. Posner, Accountability Challenges of Third-Party Government, in The Tools of Government: A Guide to the New Governance 523 (Lester M. Salamon ed., 2002).
32. Dana and Dana have likened the liftoff period in the land trust movement to the start of the dot.com bubble. See Andrew C. Dana & Susan W. Dana, Rogue Land Trusts, Abused Conservation Easements and Regulation of the Private Land Trust Movement (2002) (unpublished manuscript, on file with author).
33. Gordon Abbot, Jr., Saving Special Places: A Centennial History of the Trustees of Reservations: Pioneer of the Land Trust Movement 19-21 (1993);
34. Cynthia Zaitzevsky, Frederick Law Olmstead and the Boston Park System (1982).
35. Fairfax et al., Buying Nature, supra note 1, at 181.
36. Charles C. Goetsch, Conservation Restrictions: A Survey, 8 Conn. L. Rev. 383 (1976).
37. Brenneman, in 1979, counted 36. 1979 Proceedings, supra note 6, at 12 (remarks of Brenneman).
38. Articles that review state statutes prior to the adoption of the UCEA include Russell L. Brenneman, Historic Preservation Restrictions: A Sampling of State Statutes, 8 Conn. L. Rev. 231 (1975-1976) [hereinafter Brenneman, A Sampling];
39. Goetsch, supra;
40. Ross D. Netherton, Environmental Conservation and Historic Preservation Through Recorded Land-Use Agreements, 14 Real Prop. Prob. & Tr. J. 540 (1979).
41. The nomenclature regarding conservation easements has always been complex.
42. One of the best articles on the law of conservation easements is Frederico Cheever, Public Good and Private Magic in the Law of Land Trusts and Conservation Easements: A Happy Present and a Troubled Future, 73 Denv. U. L. Rev. 1077 (1996).
43. Because perpetual easements were vulnerable prior to the passage of the 1969 Massachusetts statute to protect them from the common law, the few pre-1969 easements that The Trustees of Reservations did have were called "100 year easements" and the Trustees renewed them every 30 years. This dodge carved out room for donated easements, but the Trustees are not totally confident that the "100 year easement" concept applies to purchased easements. See Fairfax et al., Buying Nature, supra note 1, at 157-58.
44. "It is my understanding that this project, from the standpoint of the Conference, was initiated primarily by authorities of the American Bar Association." See 1979 Proceedings, supra note 6, at 2 (remarks of Comm'r Rupert R. Bullivant).
45. The proposal is found in Letter from Luther J. Avery, Chairman, Section of Real Property, Probate and Trust Law, ABA, to Committee on Scope and Program, NCCUSL (May 2, 1975) (on file with author).
46. Letter from Frank F. Jestrab, Executive Committee, NCCUSL, to the NCCUSL Committee on Scope and Program (May 19, 1966) (on file with author).
47. See Ellen Edge Katz, Conserving the Nation's Heritage Using the Uniform Conservation Easement Act, 43 Wash. & Lee L. Rev. 369 (1986).
48. Because this was done state-by-state in very different ecological and political circumstances, the state law of easements varies considerably. Id.
49. For information on which laws were passed and differences among them, see Protecting the Land: Conservation Easements Past, Present, and Future (Julie Ann Gustanski & Rodrick H. Squires eds., 2000).
50. Letter from Luther J. Avery to Committee, supra note 26.
51. The ABA had organized its own Committee on Historic Preservation and Easements to address the topic.
52. Netherton, supra note 22.
53. See also Report from Albert B. Wolfe, ABA Advisor to the NCCUSL Committee, to the ABA Real Property, Probate and Trust Section Officers (Oct. 12, 1979) (on file with author).
54. The drafting committee consists of state commissioners and is appointed by the NCCUSL Committee on Scope and Program.
55. See generally Russell L. Brenneman, Private Approaches to the Preservation of Open Land (1967);
56. Brenneman, A Sampling, supra note 22;
57. Russell L. Brenneman, Should "Easements" Be Used to Protect National Historic Landmarks?: A Study for the National Park Service (1975) [hereinafter Brenneman, A Study for the National Park Service];
58. Peter Ames Eveleth, An Appraisal of Techniques to Preserve Open Space, 9 Villanova L. Rev. 559 (1964);
59. Goetsch, supra note 22;
60. Jan Z. Krasnowiecki & James C.N. Paul, The Preservation of Open Space in Metropolitan Areas, 110 U. Pa. L. Rev. 179 (1961-1962);
61. Russell R. Sicard, Pursuing Open Space Preservation: The Massachusetts Conservation Restriction, 4 Envtl. Aff. 481 (1975);
62. Paul E. Wilson & H. James Winkler II, The Response of State Legislation to Historic Preservation, 36 Law & Contemp. Probs. 329 (1971);
63. Note, Techniques for Preserving Open Spaces, 75 Harv. L. Rev. 1622 (1961-1962).
64. See Lauren Gwin & Sally K. Fairfax, England's National Trust: What Can It Teach U.S. Land Trusts? 29-31 (prepared for the Land Trust Alliance Rally, Providence, Rhode Island (Oct. 2004)).
65. The goals of the NCCUSL concerned both predictability and uniformity concerning CE use. Memorandum from John M. McCabe to Drafting Committee on Uniform Conservation and Historic Preservation Easements Act, Review Committee, Reporters 6 June 12, 1980) (on file with author) (listing possible changes to the 1980 draft of what was to become the UCEA and providing comments regarding the proposed changes). Comments accompanying the list of changes noted that a "prime reason to seek uniformity is to help agencies and organizations with national duties, and powers to award grants-in-aid, to administer easement programs with equity between the states." Id.
66. Letter from Luther J. Avery to Committee, supra note 26.
67. Id.
68. Bullivant wrote that one of the purposes of the Act should be to "make it easier for the average lawyer to draft in this area, without fear of overlooking some common law problems which might still be hidden in the morass of academic and ancient real property law." Letter from Rupert R. Bullivant, Chair of Drafting Committee, to John C. Deacon, President NCCUSL (Nov. 24, 1980) (on file with author).
69. Georgia, Illinois, and Vermont were the three naysayers. The UCEA was approved by the ABA in 1982.
70. The NCCUSL maintained ties to the ABA, holding its conference concurrently with the annual ABA meeting until 1962, 90 years after the NCCUSL was established. The relationship remains dose. The ABA is invited to provide an advisor to the special/drafting committees assigned to each Act and provides some financial assistance to the NCCUSL. The NCCUSL offers proposed legislation to the ABA for approval. One NCCUSL president stated, The maintenance of a close working relationship between the Conference and the American Bar Association is of the utmost importance. The Association gives us substantial financial support which we should be reluctant to lose; but this is by no means its greatest contribution to our welfare. The imprimatur of the American Bar Association upon Conference Acts gives them an acceptability with state legislatures and with the public which they could achieve in no other way.... Walter P. Armstrong, Jr., A Century of Service: A Centennial History of the National Conference of Commissioners on Uniform State Laws 91 (1991).
71. See also NCCUSL, History, http://www.nccusl.org/Update/ DesktopDefault.aspx?tabindex=0&tabid=11 (last visited Mar. 23, 2006).
72. The official name became the NCCUSL in 1915, and many of its histories repeat that "[w]ith a name like that it must be useful." Armstrong, supra, at 30.
73. NCCUSL, About NCCUSL: Organization, http://www.nccusl.org/nccusl/ aboutus.asp (last visited July 19, 2006).
74. See also Armstrong, supra note 40;
75. National Conference of Commissioners on Uniform State Laws, Reference Book (published annually);
76. Allison Dunham, A History of the National Conference of Commissioners on Uniform State Laws, 30 Law & Contemp. Problems 233 (1965);
77. Alan Schwartz & Robert E. Scott, The Political Economy of Private Legislatures, 143 U. Pa. L. Rev. 595 (1994-1995);
78. James J. White, Ex Propio Vigore, 89 Mich. L. Rev. 2096 (1991).
79. See generally White, supra note 41.
80. Several scholars and chroniclers of the organization's history allude to federal-state relations as an underlying theme in the organization's work - either responding to a fear of increased federal power and pre-emption of state law or legislating in the absence of federal authority to do so. In the UCEA case, the impetus was probably the latter. Id.
81. That definition includes the District of Columbia, Puerto Rico, and the U.S. Virgin Islands.
82. See National Conference of Commissioners on Uniform State Laws, 2002-2003 Reference Book (2002).
83. "The expenses are apportioned among the States primarily based upon their population." Id. at 9.
84. Interview with K. King Burnett, member of NCCUSL Special Committee on the UCEA and former president, in Salisbury, Md. (July 23, 2004).
85. See generally infra Part II.D (a short discussion of federal law as it applies to conservation easements).
86. The UCEA had two co-reporters, neither of whom were state commissioners, both of whom were deeply involved in the land trust community at the time. Russell L. Brenneman had experience in public service with the Connecticut Resources Recovery Authority and had been a director of the Conservation Law Foundation of New England. He authored numerous papers and studies on preservation agreements while in private practice. This included a report to the National Park Service (NPS) that advised the NPS to "encourage the preparation of a uniform law relating to conservation and historic preservation easements for consideration by the various state legislatures." Brenneman, A Study for the National Park Service, supra note 33. John J. Costonis had worked on transfer of development rights (TDR) while a professor at the New York University School of Law and his research extended from local historic preservation to the use of conservation easements and TDRs internationally.
87. See generally NCCUSL Constitution and Bylaws § 2.9(b), available at http://www.nccusl.org/Update/DesktopDefault.aspx?tabindex=3&tabid=18 (last visited Mar. 22, 2006).
88. "An advisory member has the privilege of the floor at any annual or special meeting of the Conference during the terms of the appointment and is eligible to serve as an advisory member of a Special Committee, but may not vote." Id. Although advisory committee members do not have a vote in drafting committee decisions, many decisions are made through discussion and consensus rather than votes. See generally NCCUSL Constitution and Bylaws § 2.9(b), available at (last visited Mar. 22)
89. See Interview with Russell Brenneman, co-reporter, NCCUSL Special Committee on the UCEA, in Hartford, Conn. (July 22, 2004);
90. Interview with K. King Burnett, supra note 45;
91. Telephone Interview with Michael Dennis, General Counsel, The Nature Conservancy (Aug. 24, 2004). Nevertheless, at least two of the drafting committee members (Brenneman and Burnett) had rather extensive experience working with local, regional, and national land trusts.
92. Note, however, that early in the movement the larger national and regional organizations, which we now routinely consider land trusts, did not view themselves as such. TNC, the Trust for Public Land, and The Trustees believed themselves to be a cut above the proliferating new organizations. See Fairfax et al., Buying Nature, supra note 1, at 293 n.24. Three other private groups, the Environmental Law Institute, the Conservation Law Foundation of New England, and the Conservation Foundation, were invited to participate in the discussions, along with two private individuals, a practicing attorney, and a law professor.
93. Comments were received from the National Trust for Historic Preservation, the Conservation Law Foundation of New England, and the Trust for Public Land. See Letter from Ralph W. Benson, General Counsel, Trust for Public Land, to Robert H. Cornell, Halley, Cornell & Lynch (Feb. 20, 1981).
94. See infra note 83.
95. See Brenneman, A Study for the National Park Service, supra note 33.
96. See also National Park Service, Scenic Easements (nd), id., app.
97. Norman Williams, Jr., Land Acquisition for Outdoor Recreation - Analysis of Selected Legal Problems 16 (report to the Outdoor Recreation Resources Review Commission (1962)).
98. Robert E. Coughlin & Thomas Plaut, The Use of Less-Than-Fee Acquisition for the Preservation of Open Space (Regional Science Research Institute, Discussion Paper Series No. 101 (1977)) (based on research conducted for the Bureau of Outdoor Recreation).
99. The ABA secured funding for the UCEA from the Department of Transportation (DOT). In the late 1970s, as it was assembling a committee and beginning the UCEA drafting process, the NCCUSL was experiencing general difficulty securing funding from states - "four states made no contribution to the Conference or to defraying the expenses of their commissioners, although they were not averse to adopting uniform acts." In fact, the only grant that the NCCUSL received that year was for the UCEA. Armstrong, supra note 40, at 114. The DOT also commented on the Act.
100. See, e.g., Memorandum from Lorenzo Casanova, Chief Counsel, DOT, to Ross D. Netherton, Contract Manager, DOT (Feb. 22, 1980) (on file with the Natural Resources Journal).
101. For the initial list, see letter from Alicia V. Pond, Executive Secretary, NCCUSL, to Members of the Special Committee on Uniform Historical Preservation Agreement Act (Nov. 24, 1976) (on file with the Natural Resources Journal). Co-reporter Brenneman later added a few more individuals to the list: a trustee for the National Trust for Historic Preservation (NTHP) General Counsel of the NYC Planning Commission; and an individual formerly with the American Land Title Association.
102. See Letter from Russell L. Brenneman to Rupert R. Bullivant, Commissioner, NCCUSL (Jan. 10, 1979).
103. The individuals that agreed to serve on the committee represented a much smaller subset of that group. Although we may not have the complete list, we know it included John M. Fowler, Advisory Council on Historic Preservation; John R. Linton, Nat'l Ass'n of Realtors; Norman Marcus, Att'y at Law; Ross B. Netherton, ABA Section of Real Prop., Probate, & Trust; Robert E. Stipe, a trustee for the NTHP (but who did not represent the NTHP on the Special Committee, Email from Professor Robert E. Stipe to Mary Ann King, Oct. 19, 2004); Glenn T. Tiedt, NPS; Walter G. Van Dorn, ABA Section of Taxation; Albert B. Wolfe, ABA. See UCEA, Commissioners' Prefatory Note.
104. Fairfax et al., Buying Nature, supra note 1, chs. 7-9.
105. Brenneman also comments on the blurring of federal, state, and private: "The conclusion that in all likelihood federal law would be applied to validate easements on National Historic Landmarks if they are held by the National Park Service, however, leaves open the question of the applicable law in the case of an easement held by a unit of local government or a private charitable organization...." I Brenneman, A Study for the National Park Service, supra note 33, at 69.
106. Brenneman reiterated this point in his study for the NPS. I Brenneman, A Study for the National Park Service, supra note 33, at 63-69.
107. There may still be some question as to the application of state law. See U.S. Army Legal Servs. Agency, USALSA Report: Environmental Law Division Notes, Army Law. 43-46 (June 2000).
108. See also Karen A. Jordan, Perpetual Conservation: Accomplishing the Goal Through Preemptive Federal Easement Programs, 43 Case W. Res. L. Rev. 401 (1993) (discussing federal preemption in this area).
109. It is also interesting to note that North Dakota was one of the last states to pass CE legislation. Ohm et al. attribute this to North Dakota's history as a "frequent battleground over easements for waterfowl management rights owned by the federal government." Ohm et al., Conservation Easements in the Seventh and Eighth Federal Circuits, in Protecting the Land: Conservation Easements Past, Present, and Future, supra note 28, at 313.
110. The North Dakota easement enabling statute applies only to historic preservation term easements. See McLaughlin, Rethinking, supra note 4, at 426 n.13.
111. United States v. Little Lake Misere Land Co., 412 U.S. 580, 604 (1973).
112. U.S. Army Legal Servs. Agency, supra note 58, at 44
113. (citing Little Lake, 412 U.S. at 595).
114. United States v. Albrecht, 496 F.2d 906 (8th Cir. 1974).
115. U.S.C. § 715, particularly d(2).
116. Albrecht, 496 F.2d at 909.
117. Id. at 911 (citation omitted).
118. Those easements are discussed in Fairfax et al., Buying Nature, supra note 1, at 92-94, and references cited therein.
119. Proceedings, supra note 6, at 11-12 (statement of Brenneman).
120. This may have been because the FWS was acquiring and holding wetland easements rather than relying on states and private organizations. The U.S. Forest Service was also notably absent from the federal side. Id.
121. Also missing was the Bureau of Land Management (BLM). Id.
122. This likely reflects the importance of historic preservation in the NCCUSL discussions. The BLM now appears along with the FWS as the most effective participant in the easement game. Fairfax et al., Buying Nature, supra note 1, at 245-48.
123. Preston L. Schiller, Taking the High Road: Protecting Open Space Along America's Highways 9 (2002).
124. Environmentalists, government officials, business leaders, and private citizens attended the White House Conference on Natural Beauty held in May 1965. The topics suggest the environmental priorities of the day: automobile junkyards, underground installation of transmission lines, tree-planting, local programs for natural beauty, and "policies of taxation which would not penalize or discourage conservation and the preservation of beauty." LBJ for Kids!, America the Beautiful: A Legacy, White House Conference on Natural Beauty, at http://www.lbjlib.utexas.edu/johnson/lbjforkids/enviro_legacy.shtm (last visited June 12, 2006).
125. Highway Beautification Act of 1965, Pub. L. 89-285, codified at 23 U.S.C. § 131.
126. The title of the best book on the subject suggests that the Act had major flaws: Charles F. Floyd & Peter J. Shedd, Highway Beautification: The Environmental Movement's Greatest Failure (1979).
127. More recently, and with the same conclusions, see Craig J. Albert, Your Ad Goes Here: How the Highway Beautification Act of 1965 Thwarts Highway Beautification, 48 U. Kan. L. Rev. (2000).
128. The President was so insistent on passage of the Act to please his wife that one Senator moved to insert "Lady Bird" in place of the Secretary of Commerce in the implementation language. Floyd & Shedd, supra, at 81.
129. Roger A. Cunningham, Scenic Easements in the Highway Beautification Program, 45 Denv. U. L. Rev. 167 (1968).
130. For a pre-Highway Beautification Act description of use of highway easements, see Ross D. Netherton, Control of Highway Access 266-70 (1963).
131. Barry Mackintosh, The Historic Sites Survey and National Historic Landmarks Program: A History 17 (1985).
132. In particular, the NPS sought to avoid sites representing any socially or politically controversial subject. For example, following an Advisory Board recommendation, a list of places sent in 1937 to the NPS regional offices for study under the Historic Sites Survey intentionally omitted "all sites of contemporary or near contemporary nature which might lead to controversial questions." Id. at 81.
133. Charles B. Hosmer, Jr., Preservation Comes of Age: From Williamsburg to the National Trust, 1926-1949, at 811 (1981).
134. Id. at 824-41.
135. For detail on the English system, see Gwin & Fairfax, supra note 34.
136. This task force was appointed by President Johnson to report on the preservation of natural beauty. The findings of the task force were issued as a report to Congress, Lyndon B. Johnson, Natural Beauty of Our Country: Message from the President of the United States, H.R. Doc. 89-78 (1965).
137. See also James A. Glass, The Beginnings of a New National Historic Preservation Program, 1957 to 1969, at 7 (1990).
138. Specifically, the Act states that "the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people." National Historic Preservation Act, 16 U.S.C. § 470 (b)(2) (2000).
139. Glass notes that the Johnson administration, the NPS and the Rains Committee were all seeking legislation for different reasons: "The administration desired to encourage a popular activity through grants to the states. The NPS wanted to enhance its position in the preservation movement through a grants-in-aid program. The Rains Committee was seeking primarily to curb destructive actions by federal agencies." Glass, supra note 77, at 17. During 1966, all three worked to have their own objectives emphasized in legislation.
140. The statute itself did not officially mandate the name; the NPS began referring to the register by this name in mid-1968, and Congress made it the legal name in the 1980 amendments to the Act. Macintosh, supra note 74, at 38-41.
141. The NHPA also established a federal loan program for those wanting to acquire and rehabilitate historic properties and for tax relief measures. The 1976 NHPA amendments established a Historic Preservation Fund (HPF) providing matching grants to states and the National Trust-money comes from outer continental shelf oil leases. 16 U.S.C. § 470h (2000).
142. Mackintosh, supra note 74, at 5.
143. Once the NHPA passed, the NPS sent letters to each state governor requesting that liaisons for the new program be appointed; these became the SHPOs. Glass, supra note 77, at 23.
144. Glass notes that "[a]bout half of them represented state historical commissions or societies; a third park and recreation departments; and the remainder miscellaneous entities, such as planning or economic development agencies, tourism divisions, secretary of state offices, and even a state highway department." Id. (citation omitted).
145. Mackintosh, supra note 74, at 63.
146. The NHPA also created the ACHP, which soon morphed from an inter-agency panel to an independent agency no longer staffed and supported through the NPS. This change resolved a tension that developed because the ACHP was being staffed by NPS employees yet was also overseeing NPS actions. Glass, supra note 77, at 43-44.
147. See also Memorandum from David A. Watts, Acting Assoc. Solicitor, Conservation & Wildlife, to Assistant Sec'y for Fish & Wildlife & Parks (regarding "Legal considerations concerning the adoption of a policy of accepting easements over real properties on the National Register of Historic Places) (n.d.), in II Brenneman, A Study for the National Park Service, supra note 33, app. B, at B-25;
148. Memorandum from Edward Weinberg, Solicitor, to Sec'y of the Interior (regarding "Authority to accept scenic easements; Historic Sites Act") (n.d.), in II Brenneman, A Study for the National Park Service, supra note 33, app. B, at B-26.
149. "[The UCEA] seems essential for even administration of federal grant programs." Letter from Luther J. Avery to Committee, supra note 26, at 2.
150. few commissioners were hostile to conservation easements and were more willing to embrace historic preservation: "I would suggest to the Committee that they consider two Acts, one on historic preservation and the other on conservation. Historic preservation by itself may have a much better chance." 1979 Proceedings, supra note 6, at 22 (remarks of Comm'r Hershman).
151. Albert Wolff noted that the 1976 IRS code also included historic preservation under conservation. Letter from Albert B. Wolff, ABA Advisor to the NCCUSL Drafting Committee, to Chairmen, ABA Entities Concerned with the Proposed Uniform Conservation Easement Act, and Their Designees (July 27, 1981).
152. UCEA, § 1(1).
153. But historic preservation is not a major element of the land trust movement. According to the most recent Land Trust Census, only 191 land trusts are working in the area of historic and cultural preservation. See http://www.lta.org/aboutlt/census.shtml (last visited July 27, 2005).
154. Discussed extensively in Fairfax et al., Buying Nature, supra note 1, especially ch. 9.
155. "The conclusion that in all likelihood federal law would be applied to validate easements on National Historic Landmarks if they are held by the National Park Service, however, leaves open the question of the applicable law in the case of an easement held by a unit of local government or a private charitable organization...." I Brenneman, A Study for the National Park Service, supra note 33, at 69.
156. See infra Part IV.B.4 (regarding UCEA amendment and the relationship between federal regulatory programs and non-federal easement acquisition, particularly with regard to exacted CEs).
157. The commitee had probably looked at every statute in existence. Brenneman looked in-depth at three (Massachusetts, Connecticut, and New Hampshire). Brenneman, A Sampling, supra note 22.
158. Most concisely articulated in Russell L. Brenneman, Background, Issues and Options (Draft 3), written for the Drafting Committee on Uniform Conservation and Historic Preservation Agreements Act (July 25, 1979) [hereinafter Brenneman, Background, Issues and Options] (on file with author).
159. Proceedings, supra note 6, at 41-42 (remarks of Brenneman).
160. Brenneman, Background, Issues and Options, supra note 91, at 8,9.
161. UCEA, Commissioners' Prefatory Note.
162. They described their task as "assimilating these easements to conventional easements." Id. ¶ 6.
163. This was apparently not in conformity with some of the priorities of the members of the ABA committee. See Letter from Russell L. Brenneman to R.R. Bullivant 1 (June 1, 1979).
164. And, we note, that strategy was not only applied to public accountability but also to tax provisions, etc. The drafting committee repeatedly emphasized that the Act was limited in its purposes.
165. Proceedings in Comm. of the Whole, Uniform Conservation and Preservation Easements Act of the NCCUSL, 77-78 (July 27 & 29, 1980) [hereinafter 1980 Proceedings] (remarks of Comm'r John J. Costonis).
166. See infra Part III.B.3.
167. UCEA, Commissioners' Prefatory Note ¶ 7.
168. Letter from Russell L. Brenneman to R.R. Bullivant, supra note 95, at 2.
169. UCEA, Commissioners' Prefatory Note ¶ 8.
170. Not all states have abstained; Virginia, Massachusetts, Colorado, and Montana are among those states that have adopted provisions for public approval and/or restrictions on land trusts. See Todd D. Mayo, A Holistic Examination of the Law of Conservation Easements, in Protecting the Land: Conservation Easements Past, Present, and Future, supra note 28, at 26.
171. Interestingly, states have generally taken a much more aggressive tack with regard to water rights acquired by private organizations for instream conservation purposes. Not only are all transactions subject to public approval (which is characteristic of all water rights creation, transfers, or changes of use), but also private organizations are precluded in many states (e.g., Washington, Oregon, Colorado, Montana) from holding the rights they acquire. In this respect, instream water rights have not found equal footing with water rights for consumptive use. The Colorado easement enabling statute was amended in 2003 to clarify that a conservation easement may tie water rights to the encumbered land in certain circumstances. See Mary Ann King, Getting Our Feet Wet: An Introduction to Water Trusts, 28 Harv. Envtl. L. Rev. 495 (2004);
172. Jack Sterne, Instream Rights & Invisible Hands: Prospects for Private Instream Water Rights in the Northwest, 27 Envtl. L. 203 (1997).
173. See also Mary Ann King & Sally K. Fairfax, Beyond Bucks and Acres: Land Acquisition and Water, 83 Tex. L. Rev. 1941 (2005).
174. Proceedings, supra note 6, at 33-34 (remarks of Bullivant).
175. This reliance on charitable organizations has taken on an interesting spin among colleagues who have assisted us by commenting on earlier versions of this article. Some, like Nancy McLaughlin, wonder why land trusts should be subject to any less scrutiny than any other charitable organization. Many NCCUSL commissioners appear to have believed that CEs should not be subject to any more scrutiny than any other servitude or easement. Others assert that land trusts should not be subject to more scrutiny than any other charitable organization. We notice that the public has long had well-defined rights to plan for community land use. Accountability measures should acknowledge that charitable arrangements may threaten to erode or preempt democratic planning processes.
176. Telephone Interview with Prof. John J. Costonis, Chancellor of the LSU Paul M. Herbert Law Center (Aug. 26, 2004).
177. Proceedings, supra note 6, at 46-47 (statement of Costonis).
178. UCEA, Commissioners' Prefatory Note ¶ 8. Perhaps the fledgling land trust community did not participate in the NCCUSL process as vigorously as one might have presumed because it was focused on assuring favorable federal legislation and interpretation regarding tax issues.
179. See generally Fairfax et al., Buying Nature, supra note 1, at 178-83.
180. In the early 1980s, particularly when IRS regulations were either unwritten or untested and the IRS had not yet weighed in on what would qualify for a deduction, it was unclear what would qualify and how strictly the "conservation purpose" language of the 1980 Act would be interpreted and reviewed. The Brandywine Conservancy, for example, went to great lengths to document the conservation and public purposes served by its easements to support the easement's deductibility. The Conservancy also was an early leader of a movement to adopt the UCEA in Pennsylvania in order to assure that easements in gross would be valid and perpetual; both are requirements of tax deductibility. Thus, although the UCEA was not written to match the tax code, it did support easement legal validity and perpetuity required by the Code. Interview with William Sellers, Executive Dir., French & Pickering Creeks Conservation Trust, in Chadds Ford, Pa. (July 27, 2004).
181. UCEA, Commiissioners' Prefatory Note ¶ 11.
182. Proceedings, supra note 97, at 5 (statement of Brenneman). We think the Commissioners did more than merely leave the issue to the states. We argue that their decision to exclude measures regarding greater public oversight and participation from the uniform act and to relegate inclusion of those measures to the states complicated efforts to make CE decisions and holders accountable to the public.
183. See Letter from Luther J. Avery to Committee, supra note 26.
184. One commissioner stated, "the main purpose of it right now is government acquisition. [The government is actively using this device - the federal government - and they need the protection of being sure that these are valid, as, in most cases, they are paying for them." 1979 Proceedings, supra note 6, at 45 (statement of Comm'r K. King Burnett).
185. Proceedings, supra note 6, at 12-13 (statement of Brenneman).
186. servitude is "[a]n encumbrance consisting in a right to the limited use of a piece of land without the possession of it; a charge or burden on an estate for another's benefit." Black's Law Dictionary 1400 (8th ed. 2004).
187. Dukeminier and Krier remind us that modern servitudes (generally, a right to affect someone else's use of their own land, see Restatement (Third) of Property: Servitudes §§ 1.6 & 7.11 (1998), can be divided into easements (a limited right to use the land) and covenants (a promise regarding the use of land). Covenants can be enforced at law (real covenants) or in equity (equitable servitudes). There is a long story behind these terms and many complications that we will try not to explore.
188. According to Dukeminier and Krier, [w]hen easements were hedged in during the Industrial Revolution by judges who regarded them as interfering with marketability, landowners sought enforcement in the law courts of promissory agreements (covenants) against successors to the promisor's land. But the law courts, ever jealous of fetters on land, threw up roadblocks against these "covenants running with the land." Finally, turning to equity, landowners found a more sympathetic ear. The chancellor began to enforce restrictive covenants, which came to be known as equitable servitudes. The law of servitudes thus is a study of how the tides of urbanization and the demands of the market for efficient control of externalities swept around the artificial barriers limiting one form of servitude and forced courts to develop other forms. Jesse Dukeminier & James E. Krier, Property 781 (5th ed. 2002).
189. The authors go on to describe the resulting law as "disorderly." Id. at 782.
190. Hearty souls who have not benefited from a property law course may enjoy Private Land Use Controls: The Law of Servitudes, id. ch. 10.
191. Gerald Korngold, supra note 5, at 436-37, is among those who argue that using the easement terminology in discussing conservation easements is incorrect (CEs are not easements) and is likely to cause confusion when the contracts are interpreted by judges steeped in the common law of property.
192. See also Antony W. Dries & Dean Lueck, Common Law, Statute Law and the Birth of the Conservation Easement (prepared for the Property and Environment Research Center's 14th Political Economy Forum, Private Land Conservation: Institutions and Instruments, Big Sky, Montana, Dec. 5-8, 2002). We are grateful to Professor Andrea Peterson for her help, discussion, and reading assignments on this topic.
193. Andrew Dana & Michael Ramsey, Conservation Easements and the Common Law, 8 Stan. Envtl. L.J. 2, 24-25 (1989).
194. Alexander R. Arpad, Private Transactions, Public Benefits, and Perpetual Control over the Use of Real Property: Interpreting Conservation Easements as Charitable Trusts, 37 Real Prop. Prob. & Tr. J. 91, 100 (2002) (internal quotation marks omitted).
195. Some authors have suggested that the common law of servitudes is not only hostile to CEs but could also be "hazardous to your health": The law in this area is an unspeakable quagmire. The intrepid soul who ventures into this formidable wilderness never emerges unscarred. Some, the smarter ones, quickly turn back to take up something easier like the income taxation of trusts and estates. Others, having lost their way, plunge on and after weeks of effort emerge not far from where they began, clearly the worse for wear. On looking back they see the trail they thought they broke obscured with foul smelling waters and noxious weeds. Few willingly take up the challenge again. Edward H. Rabin, Fudamental of Modern Real Property Law 489 (1974)
196. (quoted in Susan F. French, Toward a Modern Law of Servitudes: Reweaving the Ancient Strands, 55 S. Cal. L. Rev. 1261, 1261 n.1 (1982)). But we should also be clear that there was a rationale behind the impediments that arose to negative easements in gross: an appurtenant landowner served an important function in being aware of and concerned about an easement, particularly in the absence of adequate recordation systems. And concerns about CE recording have not disappeared.
197. See infra Parts III.B.3 ("Out with the Interested Neighbor") and V.C.3 ("Issues that Provide Room for Everybody - Even Academic Researchers").
198. This is also echoed in Dries and Lueck's efforts to find an economic logic to the evolution of the common law of servitudes. Dries & Lueck, supra note 115.
199. UCEA, Commissioners' Prefatory Note ¶ 7.
200. Cheever, supra note 24, at 1080.
201. Except for one of the four types recognized by common law: light, air, and subjacent or lateral support or for the flow of an artificial stream. But there was some indication at the time of the UCEA's drafting that lack of appurtenance would not necessarily render a servitude invalid. In early communications about the UCEA, Allan Rodgers and Albert Wolfe of the ABA suggest that many cities had engaged in federal urban renewal programs with "restrictive schemes" that were considered enforceable without appurtenant land. Allan G. Rodgers & Albert B. Wolfe, "Some Legal and Policy Questions" Re a Proposed Uniform Conservation and Preservation Act 3-4 (1976) (prepared for the NCCUSL Drafting Committee).
202. "[B]ut not until the blanketing of the country with renewal authorities were state courts put into the position that they could not require ownership of appurtenant land for enforcement, without thereby undermining a major federal program." Id. at 4.
203. The IRS rulings "supporting deductibility of donations of such interest...gave further seal of legal respectability." Id.
204. The Commissioners sought to identify common law defenses against conservation easement and to "negat[e] their use in actions to enforce conservation or preservation easement." UCEA § 4 cmt. They did so in section 4 of the UCEA, which states: 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. Id. § 4.
205. McLaughlin notes that until recently it was common practice for land trusts in Wyoming to acquire a small parcel of appurtenant land. Interview with Nancy A. MacLaughlin (Aug. 6, 2005).
206. Clifornia has recently added Indian tribes to the list of eligible CE holders. California Senate Bill 18 includes two categories: (1) "a federally recognized California Native American tribe" and (2) "a nonfederally recognized California Native American tribe that is on the contact list maintained by the Native American Heritage Commission." 2004 Cal. Adv. Legis. Serv. 905 (Deering).
207. UCEA, Commissioners' Prefatory Note ¶ 3. The Committee considered including private individuals as eligible holders but decided against it. 1979 Proceedings, supra note 6, at 26 (statement of Bullivant). The charitable organizations category was defined in section 1(2)(ii) of the Act as 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.
208. UCEA § 1(2)(ii). The Restatement (Third) of Property suggests that conservation easements granted to private individuals function in the same way as other easements but without the special treatment that conservation easements might receive. Restatement (Third) of Property § 1.6(a) cmt. (1998).
209. The new Wyoming statute, for example, provides that a charitable easement holder must have as a primary purpose or power "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, archeological or cultural aspects of real property." UCEA, Wyo. Stat. Ann §§ 34-1-201 to 34-1-207 (2005.
210. See 1979 Proceedings, supra note 6, at 33-34 (statement of Bullivant).
211. In which they were correct, as the land trust movement is now learning. See U.S. Dep't of the Treasury, Internal Revenue Serv., Exemption Requirements, http://www.irs.gov/charitable/article/0,,id=96099,00.html (last visited Aug. 9, 2006) (discussing I.R.C. § 501(c)(3) (2000).
212. See also U.S. Dep't of the Treasury, Internal Revenue Serv., IRS Pub. 557, Tax Exempt Status for your Organization, (Rev. Mar. 2005).
213. Or, for a brief rundown, see Fairfax & Guenzler, supra note 4, at 15-16.
214. Proceedings, supra note 97, at 79 (statement of Costonis).
215. See Lester M. Salamon, Third-Party Government: Rise of Third-Party Government, 16 The Bureaucrat, Summer 1987, at 27.
216. See also Lester M. Salamon, Partners in Public Service: Government-Nonprofit Relations in the Modern Welfare State (1995).
217. According to the Commissioners, the American legal system generally regards private ordering of property relationships as sound public policy. Absent conflict with constitutional or statutory requirements, conveyances of fee or non-possessory interests by and among private entities is the norm, rather than the exception, in the United States. By eliminating certain outmoded easement impediments which are largely attributable to the absence of a land title recordation system in England centuries earlier, the Act advances the values implicit in this norm. UCEA, Commissioners' Prefatory Note ¶ 8.
218. Id. § 1(2)(ii); Brenneman, Background, Issues and Options, supra note 91, at 6-7 (discussing how charitable purposes may change). A period piece, the UCEA does not mention wildlife, habitat, or endangered species although the commissioners contemplated that the uses that society would define as charitable and as conservation may change.
219. See Letter from Robert H. Cornell to R.R. Bullivant, Esq. (Oct. 9, 1980) (considering whether it might be appropriate to consider solar energy as a conservation easement purpose);
220. Fairfax et al., Buying Nature, supra note 1, chs. 6-9 (discussing changing conservation goals over the last half century).
221. The Act specifies that the conservation easement is not valid without the written acceptance of the holder. The drafters were concerned that at common law it was possible to convey property without the knowledge or consent of the recipient, as in a will. Recognizing that acceptance of conservation easements could give rise to obligations upon the holder not necessarily present with a traditional common law easement, the commissioners were persuaded to include a provision to protect the holders from unwanted donations. As the Commissioners' Comment for section 2 states, "Conservation and preservation organizations using easement programs have indicated a concern that instruments purporting to impose affirmative obligations on the holder may be unilaterally executed by grantors and recorded without notice to or acceptance by the holder ostensibly responsible for the performance of the affirmative obligations." UCEA § 2, Comment ¶ 2.
222. We are grateful to our colleague Carol Rose for pounding on us about the interested neighbor. We hope we have it right now.
223. Letter from Ross Netherton, Chairman ABA Comm. on Historic Preservation & Easement, to Chairman & Members of the ABA Real Prop. Div. Subcouncil 4 (June 12, 1980).
224. McLaughlin notes that many state easement-enabling statutes require that a conservation easement be recorded in the local property records to be valid, and, for all practical purposes, so do the IRS regulations under section 170(h). See McLaughlin, Rethinking, supra note 4, at 494 n.244.
225. Letter from Albert B. Wolfe to Chairmen, supra note 86, at 3.
226. Memorandum from Albert B. Wolfe, ABA Advisor to the NCCUSL Drafting Comm., to Chairmen, ABA Entities Concerned with Approval of the UCEA as being submitted to the House of Delegates at their Mid-Winter Meeting, & Designees of such Chairmen 3 (Nov. 25, 1981) (on file with author).
227. See also Gwin & Fairfax, supra note 34 (National Trust land protection programs seem more effective than American ones, they argued, in part because effective national land use planning mechanisms minimize the need to buy land or interests in land in order to prevent urban sprawl.)
228. UCEA § 2(a). See Memorandum from John McCabe to Drafting Committee, supra note 35 (discussing alternatives in recording, such as geographic indexing, that would make conservation easements more easily identifiable). Governmental agencies interested in making use of easements may well be loath to support enactments unless some reasonable way is found to avoid loss of interests if a governmental clerk 30 years hence fails to file claim of notice, and name the owners. Some way of keeping track of conservation and preservation easements by location, as in case of public utility easements, with maps filed at Registries, say be ever[y] ten years, could coordinate the two Acts.
229. Letter from Albert B. Wolfe to John C. Deacon, President, NCCUSL 6 (Apr. 20,1980) (on file with author).
230. Letter from Ross Netherton to Chairman and Members, supra note 134, at 3-4.
231. Note that California has enacted a supplemental recordation statute that requires the registrar to maintain, "within the existing indexing system, a comprehensive index of conservation easements and Notice of Conservation Easements on land within that county." Cal. Gov't. Code § 27255(a) (West 2006).
232. Brenneman, Background, Issues and Options, supra note 91, at 8.
233. Letter from R.R. Bullivant to Russell L. Brenneman 2 (June 7, 1979).
234. Proceedings, supra note 97, at 76 (remarks of Bullivant).
235. Fairfax et al., Buying Nature, supra note 1, at 268-69.
236. See Darla Lynn Guenzler, Using Conservation Easements to Achieve Regulatory Objectives (2004) (unpublished Ph.D. dissertation, University of California, Berkeley).
237. See also Jessica Owley Lippmann, Exacted Conservation Easements (2005) (unpublished Ph.D. dissertation, University of California, Berkeley) [hereinafter Owley Lippmann, Exacted CEs];
238. Jessica Owley Lippmann, Exacted Conservation Easements: The Hard Case of Endangered Species Protection, 19 J. Envt'l. L. & Litig. 293 (2004) [hereinafter Owley Lippmann, ECEs: The Hard Case].
239. Darla Guenzler, Ensuring the Promise of Conservation Easements (1999);
240. Jessica E. Jay, Land Trust Risk Management of Legal Defense and Enforcement of Conservation Easements: Potential Solutions, 6 Envtl. Law. 441 (2000);
241. Melissa K. Thompson & Jessica E. Jay, An Examination of Court Opinions on the Enforcement and Defense of Conservation Easements and Other Conservation and Preservation Tools: Themes and Approaches to Date, 78 Denv. U. L. Rev. 373 (2001).
242. UCEA, Commissioners' Prefatory Note ¶ 2.
243. UCEA § 3(a)(1)-(4).
244. See also Sheila S. Asher, Termination and Modification of Conservation Easements (n.d.) (document found in the NCCUSL files). All three elements have become hotly debated topics within the land trust community. The 2005 LTA Rally included well-attended debates, particularly on modifying and terminating.
245. See, e.g., Andrew C. Dana & Nancy A. McLaughlin, Extinguishments of Conservation Easements (Advanced Legal Roundtable, National Land Conservation Conference, Oct. 15, 2005, Madison, Wis.).
246. UCEA §§ 1(3), 3(a)(3).
247. Id. § 3(4).
248. Most obviously, the AG might become involved under charitable trust law, discussed below at Part III.C.1.b. See also Jessica E. Jay, Third-Party Enforcement of Conservation Easements, 29 Vt. L. Rev. 757, 776 (2005).
249. Land trusts generally have deep concerns about any third-party enforcement. They conclude correctly that they cannot count on attorneys general to help them when they need help, or to stay out when they do not want to pursue issues in court. See id.;
250. McLaughlin, Increasing, supra note 13;
251. McLaughlin, Rethinking, supra note 4.
252. Proceedings, supra note 97, at 108 (remarks of Comm'r Allison Dunham).
253. Id. at 158 (remarks of Bullivant). Bullivant noted further: the historic concern with and obligations concerning a charitable relationship of some kind, and many of these relationships where the government or governmental agency is not a grantee will involve charitable considerations where the attorney general has duties and certainly a legitimate interest. That is the reason, primarily, for placing him in this provision, which involves either modification or termination.
254. Id.
255. Proceedings, supra note 97, at 108 (remarks of Dunham). Others have urged us to ignore the green curtain that the AG was placed behind, asserting that the charitable trust doctrine clearly applies.
256. The confusion between land trusts and charitable trusts is significant enough that in Michigan the AG has ruled that charitable organizations holding conservation easements cannot use the term "trust" in their name. Hence, Michigan organizations tend toward names like "conservancy," "association," or "foundation." See Fairfax & Guenzler, supra note 4, at 21-22.
257. One letter attempted to compile the language used in the state statutes and found 15 different terms for what we might now understand to be a conservation easement. "Preservation restriction" and "conservation easement" were the most commonly used. Memorandum from Paula Craighead, Greater Portland Landmarks, Inc., to Ross D. Netherton and the Comm. on Historic Preservation & Easements, at app. A (Feb. 25, 1980).
258. Which did not further the commissioners' effort to establish conservation easements as interests in land.
259. See Lauri DeBrie Thanheiser, The Allure of a LURE: Proposed Federal Land Use Restriction Easements in Remediation of Contaminated Property, 24 B.C. Envtl. Aff. L. Rev. 271 (1997). A 1977 ABA report called them "recorded land-use agreements."
260. See ABA, Comm. on Historic Preservation & Easements, Section of Real Prop., Probate & Trust Law, Environmental Protection Through Recorded Land-Use Agreements (Mar. 1977);
261. Third Restatement of the Law: Propety: Wills and Other Donative Transfers (2005) (referring to them as "conservation servitudes").
262. Brenneman expressed his own confusion: It bothers me...to call an "agreement" a "right" which then becomes an "interest in land." In the past, I have favored the use of the word "restriction" over the word "easement" because the latter carried with it unwanted history and concepts. However, I grant that "restriction" does not quite carry the day either because we are interested in affirmative "running" obligations as well as negative limitations. Letter from Russell L. Brenneman to R.R. Bullivant, supra note 95.
263. But only after three permutations of the Act's title.
264. Korngold, supra note 5, at 436-37. Korngold urged that the temptation to do so should be avoided for two reasons: First, assuming there is validity to the traditional dichotomy between real covenants and easements, conservation servitudes more closely resemble real covenants than easements and hence should not be labeled and treated as easements. Although conservation servitudes are negative restrictions, they do not resemble any of the four traditional types of negative easements. Like real covenants, conservation servitudes are promises respecting the use of land."
265. Id.
266. UCEA, Commissioners' Prefatory Note ¶¶ 3-5. In doing so, the NCCUSL rejected two alternatives: first, removing the common law disabilities associated not only with easements, but also real covenants and equitable servitudes when used for conservation; second, creating a new interest, a "statutorily modified amalgam of the three traditional common law interests." The Commissioners' Prefatory Note provides three reasons for favoring the easement designation: First, lawyers and courts are most comfortable with easements and easement doctrine, less so with restrictive covenants and equitable servitudes, and can be expected to experience severe confusion if the Act opts for a hybrid fourth interest. Second, the easement is the basic less-than-fee interest at common law; the restrictive covenant and the equitable servitude appeared only because of then-current, but now outdated, limitations of easement doctrine. Finally, non-possessory interests satisfying the requirements of covenant real or equitable servitude doctrine will invariably meet the Act's less demanding requirements as "easements." Hence, the Act's easement orientation should not prove prejudicial to instruments drafted as real covenants or equitable servitudes, although the converse would not be true.
267. Id. ¶ 5.
268. UCEA § 2(a).
269. Brenneman, Background, Issues and Options, supra note 91, at 5.
270. Proceedings, supra note 97, at 55 (remarks of Burnett).
271. Burnett notes that the Maryland provision does not reflect confusion regarding the nature of CEs, but rather an effort to reduce the temptation for government agencies to focus condemnations of private property for projects on land that had been lowered in value by an easement. Email from K. King Burnett, member of NCCUSL Special Committee on the UCEA and former president, to Mary Ann King (on file with author). See also Richard R. Powell & Patrick J. Rohan, Powell on Real Property 581 (1968) (noting that, in most states, the condemnation of a conservation easement would be treated as the taking of an interest in property, and compensation would be paid to the holder of the easement).
272. For discussion on the issue of valuating a modified or terminated easement, see McLaughlin, Increasing, supra note 13, at 68-91.
273. Note as well that recommended nomenclature continues to change. TNC and TPL commissioned research to formulate an "everyday vocabulary which resonates with the general electorate." Memorandum from Lori Weigel, Public Opinion Strategies, John Fairbank & Dave Metz, Fairbank, Maslin, Maullin & Assoc. to The Nature Conservancy/Trust for Public Land, Lessons Learned Regarding the "Language of Conservation" from the National Research Program 1 (June 1, 2004).
274. The report offers "A New Vocabulary for Conservation Easements." Id. at 5. Note as well that recommended nomenclature continues to change. TNC and TPL commissioned research to formulate an "everyday vocabulary which resonates with the general electorate." Memorandum from Lori Weigel, Public Opinion Strategies, John Fairbank & Dave Metz, Fairbank, Maslin, Maullin & Assoc. to The Nature Conservancy/Trust for Public Land, Lessons Learned Regarding the "Language of Conservation" from the National Research Program 1 (June 1, 2004).
275. The consultants recommend avoiding the term easements and using a vocabulary that stresses "the voluntary nature of land preservation agreements." "Voluntary is inherent in the word 'agreement,' which in part explains why phrases which incorporate the word 'agreement' test far better than the word 'easement.'" Id. at 6. Note as well that recommended nomenclature continues to change. TNC and TPL commissioned research to formulate an "everyday vocabulary which resonates with the general electorate." Memorandum from Lori Weigel, Public Opinion Strategies, John Fairbank & Dave Metz, Fairbank, Maslin, Maullin & Assoc. to The Nature Conservancy/Trust for Public Land, Lessons Learned Regarding the "Language of Conservation" from the National Research Program 1 (June 1, 2004).
276. The public responds more positively to "land preservation agreements" or "land protection agreements" than conservation easements. Id. at 5. Note as well that recommended nomenclature continues to change. TNC and TPL commissioned research to formulate an "everyday vocabulary which resonates with the general electorate." Memorandum from Lori Weigel, Public Opinion Strategies, John Fairbank & Dave Metz, Fairbank, Maslin, Maullin & Assoc. to The Nature Conservancy/Trust for Public Land, Lessons Learned Regarding the "Language of Conservation" from the National Research Program 1 (June 1, 2004).
277. Land Trust Alliance, Frequently Asked Questions, http://www.lta.org/faq/ index.shtml (last visited Mar. 24, 2006).
278. We return to questions regarding whether a conservation easement-as legal agreement or an interest in property - would have sufficient heft to constitute a trust corpus below. The answer is not clear. But there is sufficient possibility for courts to identify donated easements as charitable trusts and, indeed, good reason for asserting that they ought to do so. See generally McLaughlin, Rethinking, supra note 4.
279. The bundle of sticks metaphor is not itself without controversy. See Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 Yale L.J. 357, 365 (2001).
280. See generally Eric T. Freyfogle, The Owning and Taking of Sensitive Lands, 43 UCLA L. Rev. 77 (1995);
281. J.E. Penner, The Bundle of Rights Picture of Property, 43 UCLA L. Rev. 711 (1996);
282. Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 Mich. L. Rev. 239 (1994).
283. See Arpad, supra note 117, at 112-20.
284. In addition, Arpad argues that this does not address the issue of who gets what if the easement is terminated for any reason. But see McLaughlin, Increasing, supra note 13, at 25-26, 70-71;
285. McLaughlin, Rethinking, supra note 4, at 490-502.
286. See Fairfax et al., Buying Nature, supra note 1, at 176-77. Colleague and author Nancy McLaughlin, when reviewing an earlier draft of this article, commented: The problem is that it is little understood that an easement should be treated as a restricted gift or charitable trust. Therefore, the value of the easement is suppressed until released in the context of a cy pres proceeding. At that point the value should be applied to similar charitable purposes in another location or manner. The value of any restricted charitable gift is suppressed in the holder's hands-i.e., the gift of a Monet to an art museum that is subject to the condition that it cannot ever be sold and must be displayed by the museum. How much is the Monet worth to the museum if it is not allowed to sell it? It may be a net liability because maintenance costs exceed the percentage of entrance fees attributable to the Monet. But the museum will still list the Monet as an asset that has value for certain purposes, such as insurance. Email from Nancy McLaughlin to authors.
287. See Arpad, supra note 117, at 136. The IRS uses the reports to distinguish between a public charity and a foundation. Land trusts need to ensure that they are viewed by the IRS as a non-profit.
288. C.F.R. § 1.170A-14(g)(6)(ii) (2000).
289. See also Arpad, supra note 117, at 108-29 (relied upon heavily in this discussion).
290. Sellers responds, correctly, that IRS regulations require that the holder must be compensated for any rights that are taken. Thus, the sticks do not go away - the holder simply cannot sell or exercise them. Interview with William Sellers, supra note 108. This again raises the possibility that the easement is not a right or a stick, but a restriction.
291. See UCEA, Commissioners' Prefatory Note ¶ 7.
292. See generally King & Fairfax, supra note 102 (discussing the problems of enforcing water quality and quantity oriented easements).
293. UCEA § 2(c).
294. U.S.C. § 170(h)(2)(C) (2000).
295. Proceedings, supra note 6, at 49 (remarks of Comm'r Hershman).
296. Proceedings in Comm. of the Whole, Uniform Conservation Easement Act of the NCCUSL, 28 (Aug. 4-5, 1981) [hereinafter 1981 Proceedings] (remarks of Comm'r Wellmann).
297. Brenneman, Background, Issues and Options, supra note 91, at 9.
298. See Robert H. Levin, When Forever Proves Fleeting: The Condemnation and Conversion of Conservation Land, 9 N.Y.U. Envtl. L.J. 592 (2001);
299. Terri Finkbine Arnold, Condemnation and Conservation Easements, Back Forty, Nov.-Dec. 1992, at 6.11;
300. Geysers Pipeline Threatens Sanctuary, 31 Leaves (Madrone Audubon Soc'y), Oct. 1997, available at http://audubon.sonoma.net/newsletter/v31n2/ v31n2.html (In Sonoma County, California, the Mayacamaus Mountains Sanctuary faced a threat of condemnation by the City of Santa Rosa for a pipeline through the ostensibly "forever wild" preserve.).
301. UCEA, Commissioners' Prefatory Note ¶ 11.
302. Fairfax et al., Buying Nature, supra note 1, at 263-64 (expressing our opinions about the wisdom of eminent domain).
303. Compare with the "inalienability" rules under which the British National Trust operates. See Lauren Gwin & Sally K. Fairfax, England's National Trust: What Can It Teach U.S. Land Trusts? (unpublished manuscript, on file with author) (noting that lands declared "inalienable by the [National Trust] are not subject to compulsory purchase without the site specific approval of Parliament").
304. Proceedings, supra note 6, at 37-38 (remarks of Bullivant).
305. Bullivant raised an interesting issue that we do not consider here but that merits further analysis, that the relationship goes beyond a charitable trust and may implicate a public trust: [O]n the issue of termination by agreement of the involved parties, I agree this is a very feasible and worthwhile objective. But we are somewhat concerned, because these instruments may create a public trust. Once it is created, irrespective of the language of the creating document, you may run into a problem of whether you can by this agreement effectively foreclose those persons which may be entitled to assert some area of the public interest not specifically contemplated by or provided for in the originating document. Id.
306. Fairfax and Guenzler make a hard distinction between the two that is useful but may turn out not to be the complete story. See Fairfax & Guenzler, supra note 4.
307. The most interesting issue seems to be whether an easement is sufficiently weighty to constitute trust property. The commissioners' position that easements are an interest in land is, as noted above, not consistent, nor are land trusts' positions.
308. Readers may already have noticed that both the applicability of charitable trust principles to conservation easements and the desirability of using those principles to address problems of easement modification and termination are under intense discussion as we write. We are skeptical on both counts and emphasize that the unsettled issues create uncertainty for public accountability. McLaughlin, Rethinking, supra note 4,
309. and Jeff Pidot, Reinventing Conservation Easements: A Critical Examination and Ideas for Reform (2005), are strong advocates on both counts.
310. Arpad, supra note 117, perhaps falls somewhere in the middle.
311. For the particulars, with slight legal detail but diverse applications, Souder & Fairfax, supra note 4, at 2-4,
312. and Fairfax & Guenzler, supra note 4, at 27, are good places to start.
313. For the fastest possible rundown on implied trusts, see Fairfax & Guenzler, supra note 4, at 27.
314. Certainly land trusts and easement donors are aware of the extinguishment and division of proceeds provisions required by the Treasury Regulations, as discussed in McLaughlin, Rethinking, supra note 4, at 490-92, but the general public is not. Clarifying the constraints on perpetuity is an important element of necessary improvements in public accountability.
315. UCEA, Commissioners' Prefatory Note ¶ 8. Section 2 of the UCEA discusses "Creation, Conveyance, Acceptance and Duration" of conservation easements. Section 2(a) provides that "a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements." The comments clarify further that conservation easements are indistinguishable from easements recognized under the pre-Act law of the state in terms of their creation, conveyance, recordation, assignment, release, modification, termination or alteration. In this regard subsection (a) reflects the Act's overall philosophy of bringing less-than-fee conservation interests under the formal easement rubric and of extending that rubric to the extent necessary to effectuate the Act's purposes given the adopting state's existing common law and statutory framework. Id. § 2 cmt. ¶ 1.
316. See Fairfax & Guenzler, supra note 4, at 33.
317. See also UCEA § 3 cmt. ¶¶ 2-3.
318. Proceedings, supra note 175, at 32 (remarks of Bullivant).
319. Julia D. Mahoney, Perpetual Restrictions on Land and the Problem of the Future, 88 VA. L. Rev. 739, 777-79 (2002)
320. Barton H. Thompson, Jr., The Trouble with Time: Influencing the Conservation Choices of Future Generations, 44 Nat. Resources J. 601, 613 (2004).
321. few commissioners suggested that charitable organizations like land trusts should exercise caution and care in modification: "Mr. Chairman, in the alternative draft...it says: 'Conservation and preservation agreements may be transferred by the holder.' But it seems to me that the holder has an interest in perpetuities that no one else can challenge. They may very well not want to do that." 1979 Proceedings, supra note 6, at 32 (remarks of Commissioner Davies). And we felt that the parties then in interest - to wit, the holder or the alternate enforcer or the grantor or his agents - should be able, if they are prepared, to enter into such a type of modification. However, it would seem that if this modification involved a substantial change, the parties, like any prudent trustee, would seek the advice of a court, to protect them in what they are doing.
322. Id. at 35 (remarks of Bullivant).
323. court would not, of course, have carte blanche to rewrite easements. They go through a rather tightly choreographed series of analyses designed to protect the purpose of the easement as closely as possible. See McLaughlin, Rethinking, supra note 4, at 464-80.
324. For example, in Maine, a UCEA-influenced state according to Mayo, most easements are drafted as hybrids of statutory easements/express charitable trusts. When a town sought to terminate a land use restriction on a property by selling an easement back to a developer, the effort was "forestalled by a well-placed inquiry to the town by the attorney general, who noted that the easement was granted 'in trust.'" Karen Marchetti & Jerry Cosgrove, Conservation Easements in the First and Second Federal Circuits, in Protecting The Land: Conservation Easements Past, Present And Future, supra note 28, at 78, 88;
325. see Arpad, supra note 117, at 144 n.266, and accompanying text.
326. Marchetti and Cosgrove's tale, supra note 194, could have had a very different outcome, of course, if the AG had been oppositely inclined.
327. McLaughlin and Pidot present compelling arguments that application of the charitable trust doctrine may be the best and even perhaps the only available viable option for existing easements. Advising on an earlier draft of this article, Pidot comments: If conservation easements are not charitable trusts, what then? Can it really be viable to argue that an easement, once established for the public purposes that it expresses pursuant to an enabling law that was enacted to allow those public purposes in derogation of the common law, is really just a private arrangement between the land trust and the landowner?...[T]hen what happens to an easement that is abandoned, as many will be in coming years? If a tax deduction was taken, can it be that Congress meant just to let the thing go? Does the AG really have no charitable oversight of both the easement and of the land trust? In the end, to me the strongest argument is that CEs are charitable trusts and Lts are charitable trusts because all other roads lead ultimately to hell. I say let's make this clear in the enabling statutes, but in the meantime we have to go with the only thing that we have, which is charitable trust doctrine. E-mail from Jeff Pidot, to Sally Fairfax & Mary Ann King (Aug. 4, 2005) (on file with author).
328. For a quick rundown on marketable title acts as they apply to CEs, see McLaughlin, Increasing, supra note 13, at 27 n.96.
329. See generally Owley Lippmann, ECEs: The Hard Case, supra note 142.
330. See UCEA, Commissioners' Prefatory Note ¶ 10;
331. Proceedings, supra note 97, at (remarks of Bullivant);
332. E-mail from K. King Burnett to Mary Ann King (Nov. 1, 2005) (on file with author).
333. Commissioner Dunham stated, Under existing law in a marketable title state, I would take it that perpetuity means no more than forty years, because the state statute so provides....Adverse possession means that it can be terminated in twenty years, o[r] whatever the state statute is. So I have a feeling that the comments are trying to conceal from us what is really the case, that there is no such thing as perpetuity.... 1980 Proceedings, supra note 97, at 55 (remarks of Dunham).
334. McLaughlin discusses marketable title acts in Increasing, supra note 13, at 27, n.96.
335. Merger was discussed in the context of eminent domain proceedings. 1980 Proceedings, supra note 97, at 71-72 (remarks of Burnett).
336. Gary A. Van Cleve, Beware the Merger Doctrine - Rights in a Real Estate Contract Can Be Lost Under the Doctrine of Merger, FindLaw, http://library.findlaw.com/1999/Jun/1/127328.html (last visited Aug. 9, 2006).
337. See Fairfax & Guenzler, supra note 4, at 188-90.
338. See also Rob Levin & Jessica Jay, Memorandum of Law 4-7 (Legal Roundtable on Third-Party Standing, LTA Rally 2003).
339. Discussed in Fairfax & Guenzler, supra note 4, at 78, 188-90.
340. Levin and Jay believe that it is "relevant to query whether courts afford standing to multiple holders; if so, how (individual or joint); and how the co-holders define their own relationship to the conservation easement, grantor, and enforcement rights and responsibilities." Levin & Jay, supra note 203, at 4.
341. UCEA, Commissioners' Prefatory Note § 2 cmt. ¶ 4.
342. Proceedings, supra note 97, at 26-27 (comments of Comm'r Thomas).
343. See also Jay, supra note 148, at 791 (discussing Tennessee Environmental Council and the precedent it sets for creating standing for "citizens and neighbors to enforce conservation easements against owners of property adjacent to and unencumbered by conservation easements for their impacts to the easement property").
344. Interview with William Sellers, supra note 108.
345. Constitution of the NCCUSL, art. 6, § 6.1, in NCCUSL, 2002-2003 Reference Book, at 97.
346. See Fairfax et al., Buying Nature, supra note 1, chs. 7, 8.
347. Id.
348. But note that state and local bond issues and referenda continue to provide funding for state and local acquisition programs. Id. at 241.
349. McLaughlin, Increasing, supra note 13, at 36, 39;
350. Land Trust Alliance, Advocates Alert: Congressional Committee Proposes Severe Cuts in Easement Deductions (Jan. 28, 2005), http://www.lta.org/ publicpolicy/adv_012805.htm.
351. See also Staff of Joint Comm. on Taxation, Options tro Improve Tax Compliance and Reform Tax Expenditures, JCS-02-05, at 277-87 (2005), available at http://www.house.gov/jct/s-2-05.pdf.
352. The Land Trust Alliance: Land Trust Census, graph 1, available at http://www.lta.org/census/index.shtml (last visited Nov. 18, 2004).
353. Id. LTA data does not include information regarding the acreage protected or conservation easements held by national land trusts, TNC, TPL, and TCF.
354. Fairfax et al., Buying Nature, supra note 1, at 209.
355. See, e.g., R. McGreggor Cawley, Federal Land, Western Anger: The Sagebrush Rebellion and Environmental Politics (1993);
356. Rethinking the Federal Lands (Sterling Brubaker ed., 1984).
357. Proceedings, supra note 6, at 61 (remarks of Comm'r McClaugherty).
358. More recently, preacquisitions have been expanded and complicated by complex land exchanges, in which private entities such as land trusts serve as a go-between, helping both the government and private holders acquire parcels that would be useful to balance a large land swap. For more detail on both preacquisitions and land exchanges, see Fairfax et al., Buying Nature, supra note 1, at 191, 63-66, 211-15, respectively.
359. On land exchanges generally, see Janine Blaloch and the Western Lands Project website at http://www.westlx.org.
360. See generally Cheever, supra note 24;
361. Fairfax et al., Buying Nature, supra note 1.
362. Fairfax et al., Buying Nature, supra note 1, at 261-62.
363. See id. at 239-42.
364. The authors' research assistant, Matt Gerhart, talked with David Brooks and Margaret Stuart, Senate Energy and Natural Resources Committee; Shawn Whitman, Staff to Senator Craig Thomas; Max Peterson, International Association of State Fish and Wildlife Agencies; and John Doggett, American Farm Bureau, who greatly enhanced our understanding of CARA.
365. The Washington Post ran a series of articles in 1998 about the Myrtle Grove controversy that were quite supportive of the NTHP's position to prevent subdivision. The series featured such headlines as Peter S. Goodman, Agreement Saves Estate on Maryland's Eastern Shore; Trust Had Wrongly Approved Subdivision, Wash. Post, Dec. 11, 1998, at G7.
366. NTHP was created by legislation in October 1949 and received federal funding until 1998. It is presently a nonprofit. A history of the organization is available on the NTHP website at http://www.nationaltrust.org/about_the_trust/history.html.
367. Memorandum of Law in Support of Attorney General's Motion for Summary Judgment at 12, Att'y Gen. for the State of Maryland v. Miller, No. 20-C-98-003486 (Cir. Ct. for Talbot County, Md.).
368. Letter from David A. Doherty, Vice President and General Counsel, National Trust for Historic Preservation, to Thomas A. Coughlin, Esq. (June 27, 1994). We are not convinced that, balancing what was lost and gained, the choice was on its face a bad one.
369. Memorandum of Law in Opposition to Defendant Miller Trusts' Motion to Dismiss or Stay at 4, Attorney Gen. for the State of Maryland v. Miller, Case No.: 20-C-98-003486 (Cir. Ct. for Talbot County, Md.).
370. Given the Myrtle Grove facts, this seems obvious. But one point in the discussion is that the "right side" of the issue is not necessarily that easy to identify. A charitable trust will not always help the land trust and/or its conservation goals.
371. Bill Silberstein, Law Update: The Doctrine of Merger as Applied to Conservation Easements, Exchange, Winter 1999, at 17.
372. "Perhaps most importantly this case raises issues of first impression of Maryland law that could affect hundreds of preservation easements in Maryland held by state agencies and private non-profit organizations." Memorandum of Law in Opposition to Defendant Miller Trusts' Motion to Dismiss or Stay at 6, Attorney Gen. for the State of Maryland v. Miller, Case No. 20-C-98-003486 (Cir. Ct. for Talbot County, Md.).
373. Id. at 4 (emphasis added).
374. The Maryland AG filed suit in Talbot County Circuit Court in Maryland. The landowners had filed suit against the NTHP in the District of Columbia Superior Court in 1994 (Patrice R. Miller et al. v. the National Trust for Historic Preservation, No. 97-CA-787 (Super. Ct. for D.C., Civ. Div.)).
375. See Goodman, supra note 222.
376. There are a number of lessons to take from the Myrtle Grove experience. Public consultation requirements or oversight measures, had they existed, might have alerted the NTHP to the problems with its initial agreement to amend the easement to permit subdivision. The awareness and involvement of other land trusts, however, indicates a willingness and an ability on the part of the land trust community to identify standards for easement amendment and to take action (by applying pressure or through legal action) when the efficacy of an easement is threatened.
377. The expert on this subject is our colleague Jessica Owley Lippmann. See Owley Lippmann, ECEs: The Hard Case, supra note 142;
378. Owley Lippmann, Exacted CEs, supra note 142.
379. See Raymond & Fairfax, supra note 7, at 628-29.
380. But see Cheever, supra note 24, who suggests that perhaps a more accurate way to frame CEs is as a contracting out of the regulatory process.
381. See, e.g., Owley Lippmann, ECEs: The Hard Case, supra note 142, at 142.
382. See, e.g., Fairfax & Guenzler, supra note 4, at 195-97.
383. Owley Lippmann, ECEs: The Hard Case, supra note 142.
384. Owley Lippmann's work on CEs exacted in the Habitat Conservation Plan process under the Endangered Species Act has been complicated by myriad difficulties in identifying and locating the easements. See Owley Lippmann, ECEs: The Hard Case, supra note 142, at 303 (observing that "[h]olders of conservation easements may be located anywhere")
385. Fairfax & Guenzler, supra note 4, at 155-68 (discussing the private Stephen Phillipps Memorial Preserve Trust, which is at the center of a "growing web of land conservation" in Maine).
386. See generally Owley Lippmann, ECEs: The Hard Case, supra note 142. The Tri-Valley Conservancy in California receives easements from the Alameda County bonus density plan. Similarly, the California Coastal Commission accepts "offers to dedicate" easements from coastal property holders when granting them permission to develop
387. Amy Wilson Morris, This Land: Private Rights and Public Benefits - Conservation Easement Governance in California and Massachusetts (Oct. 18, 2005) (unpublished qualifying exam proposal, on file with author).
388. Stephens & Ottaway, $420,000 a Year, supra note 14;
389. Joe Stephens & David B. Ottaway, How a Bid to Save a Species Came to Grief, Wash. Post, May 5, 2003, at A1;
390. Joe Stephens & David B. Ottaway, Nonprofit Sells Scenic Acreage to Allies at a Loss: Buyers Gain Tax Breaks with Few Curbs on Land Use, Wash. Post, May 6, at A1.
391. Ironically, the Washington Post covered the Myrtle Grove case extensively and was sympathetic to the land trust's position.See, e.g., Goodman, supra note 222.
392. See, e.g., The Federal Tax Law of Conservation Easements (4th ed. 1997);
393. Stephen J. Small, An Obscure Tax Code Provision Takes Private Land Protection into the Twenty-First Century, in Protecting the Land: Conservation Easements Past, Present, and Future, supra note 28, at 55;
394. Stephen J. Small, Presserving Family Lands: Essential Tax Strategies for the Landowner (2nd ed. 1992);
395. Stephen J. Small, Preserving Family Lands, Book II: More Planning Strategies for the Future (1997);
396. Stephen J. Small, The Tax Benefits of Donating Easements in Scenic and Historic Property, 7 Real Est. L.J. 304 (1979).
397. Stephen J. Small, Proper - and Improper - Deductions for Conservation Easement Donations, Including Developer Donations, Tax Notes, Oct. 11, 2004, at 217, 218 (2004).
398. See supra note 211.
399. Rand Wentworth, President of the Land Trust Alliance, stated, To crack down on transactions of dubious conservation purpose the committee staff has considered requiring the federal government to certify land trusts and/or conservation easements. As an alternative, LTA has suggested that the committee allow land trusts to create a program of voluntary self-regulation based on the Land Trust Standards and Practices, and the LTA is studying the best approach to such a program. Rand Wentworth, President's Column: Senate Finance Committee Pushes Reforms - LTA Proposes New Ethical "Standards and Practices," 23 Exchange, Spring 2004, at 3.
400. See William R. Breetz, Jr. & Roger D. Schwenke, Dirty Land, Clouded Title - The Uniform Environmental Covenants Act Helps Clean-Up Both (Am. Coll. of Real Est. Law. Seminar Article, 2004), available at http://www.acrel.org/Documents/Seminars/Breetz.rtf.
401. King Burnett, who originally served on the NCCUSL's drafting committee for the UCEA (and who was serving as both NCCUSL president and board member of the Maryland Environmental Trust at the time), proposed the second meeting and LTA policy Director Russ Shay convened it.
402. Telephone Interview with Russ Shay, LTA Public Policy Director (Nov. 11, 2004).
403. Pidot, supra note 183, at 36-37.
404. Cheever, supra note 24.
405. Letter from Norman Marcus, Counsel, City of New York Dep't of City Planning, to J.C. Deacon, President, NCCUSL (Feb. 11, 1980) (on file with author).
406. Proceedings, supra note 97, at 36.
407. As it was during the drafting process. See supra Part II.D.
408. See LTA website, http://www.lta.org/publicpolicy/ppc.htm (last visited July 27, 2006).
409. For example, the Marin Agricultural Land Trust purchases all its easements in part to allow the fee holder to reinvest in her farming practices.
410. Peter Forbes, personal communication with authors, at Society for the Protection of New Hampshire Forests 100th Anniversary Celebration, Bretton Woods, N.H. (Sept. 21, 2001). Forbes reviewed TPL's transactions and found that "less than 2/3 of the below-fair-market value-sellers had claimed a tax deduction" (by submitting IRS Form 8283, Noncash Charitable Contributions). Peter Forbes, personal communication with authors, Nov. 15, 2005.
411. They discussed, for example, the possibility of permitting "a single private individual to set up a dummy corporation and whatever else he wants to do to transfer property with an open land easement in perpetuity...." 1980 Proceedings, supra note 97, at 79 (remarks of Comm'r Langrock).
412. Id. at 79-80. Another commissioner, opposing an approval role for government planning bodies, responded, that a zoning commission could be similarly unrepresentative of the public interest. Anybody who has been through a hearing of a typical planning commission or zoning board - anybody who realizes that you can control a planning commission or zoning board as readily as you can have the rich person who is controlling the charitable corporation - would be very concerned about allowing what purported to be a grant of easement in perpetuity to be terminated or modified by a planning commission.
413. Id. at 80-81 (remarks of Comm'r Everett).
414. Land Trust Alliance, Land Trust Standards and Practices (revised 2004), http://www.lta.org/sp/index.html.
415. Land Trust Alliance, An Introduction to the new Voluntary Land Trust Accreditation Program (Oct. 2005), http://www.lta.org/accreditation/ accreditation.pdf.
416. Sellers is among those who also argue that land trusts holding easements ought to be required to demonstrate that they have a defense fund or endowment sufficient to defend the conservation goals if they are challenged. Interview with William Sellers, supra note 108.
417. California's statute requires the recorder in each county to maintain, after January 1, 2002, "a comprehensive index of conservation easements and Notice of Conservation Easements on land" within the county. Cal. Gov't Code § 27255 (West 2006).
418. second registry bill would have required the Secretary of Resources to establish a publicly available central registry of state-owned or funded conservation easements. S.B. 695, 2005-2006 Reg. Sess. (Cal. 2005). It was vetoed by the governor. Veto message (Oct. 7, 2005), available at http://www.leginfo.ca.gov/pub/bill/sen/sb_0651-0700/ sb_695_vt_20051007.html.
419. See Morris, supra note 240, at 19.
420. See Fairfax et al., Buying Nature, supra note 1, at 191-92.
421. Letter from Albert B. Wolfe to John C. Deacon, supra note 137.