Conservation easements are one of the most effective means of permanently protecting and preserving land in its natural state. Consequently, virtually every land trust has a program for the acquisition and monitoring of conservation easements. Conservation easements are documents that are executed by a landowner and a land trust. They govern what uses can take place on a specified area of land. Like deeds, conservation easements are recorded and appear in the chain of title. Most conservation easements are in a form that specifies a list of activities and uses that can take place on the property and a list of prohibited activities and uses.  The most common use of a conservation easement is to prohibit residential or commercial development so that the land may remain in its natural state. In many, if not most instances, the conservation easement is drafted so that the landowner can continue to use the land as it has always been used, for example as an open space.  Even working lands, such as farms and ranches, can be put under a conservation easement so that the landowner and the landowner's descendants can continue their agricultural uses as they always have. Today, more than ever, farmers and ranchers are using conservation easements to preserve their traditional way of life.  Conservation easements are legal in all fifty states.  Contact CPC now to find out if Jim can represent you in your state.

Conservation Easement Tax & Valuation

Conservation easements may offer substantial financial and tax benefits to landowners. For example, land trusts often purchase conservation easements outright for market value. Under current tax laws, landowners can also donate conservation easements and receive a tax deduction on both their federal and state income taxes. (For example, see IRS Code Section 170(h) [pertaining to tax deductions for donated conservation easements]; Treasury Regulation Section 1.170A-14 and Treasury Regulation Section 1.170A-7 [setting out further requirements for tax deductibility of conservation easement donations]; Treasury Regulation Section 1.501(c)(3)-1(d)(1)(ii) [pertaining to requirements for 501(c)(3) status]; Treasury Regulation Comments on Abusive Conservation Easement Transactions; and the full text of IRS Code Section 170 from the Cornell Law School Website.)  Conservation easements can also be used for wealth preservation in estate planning.  Because conservation easement negotiation and conservation easement drafting can both be quite complex, both the land trust and the landowner are typically represented by legal counsel.  Conservation & Preservation Counsel is experienced in representing both land trusts and landowners in complex conservation easement transactions.  Consequently, Conservation & Preservation Counsel can serve as either the land trust attorney or the landowner attorney in a given transaction. (Follow this link to the LTA Press Release on the introduction of the Conservation Easement Incentive Act, H.R. 1831).  For guidance on tax issues related to conservation easement transactions, visit Steve Small's website "Preserving Family Lands" which contains a wealth of information and also links to an on-line store for purchase of Steve Small's highly regarded publications on tax issues.  For information on recent changes to the tax code which provide increased tax benefits for conservation easement donors see this recent tax update written by attorney Bill Hutton.  For a somewhat dated but still extremely helpful scholarly discussion of the tax code prohibitions on private benefit see "Private Benefit Under IRC 501(c)(3)."  For a discussion of how global warming might impact conservation easement drafting and a detailed explanation of how provisions for valuation of conservation easements upon termination should be drafted see Jim Olmsted's article "Capturing the Value of Appreciated Development Rights on Conservation Easement Termination" which appears in Vol. 30, No. 1 of the University of California at Davis School of Law publication Environs Environmental Law and Policy Journal.

Conservation Easement Statutes & Cases

Land Trust Alliance Conservation Easement Webpage,

Ohio State University Fact Sheet on Conservation Easements,

Uniform Conservation Easement Act,

Summary of the Uniform Conservation Easement Act,

Conservation Easement Statutes by State (referencing UCEA)

Alaska Conservation Easement Law,

California Conservation Easement Law,

Idaho Conservation Easement Law,

Montana Conservation Easement Law,

Nevada Conservation Easement Law (scroll down),

Oregon Conservation Easement Law,

Virginia Conservation Easement Law, and

Washington Conservation Easement Law (also please see following links)

RCW 84.34.200; RCW 84.34.210; RCW 84.34.220;

RCW 84.34.230; RCW 84.34.240; RCW 84.34.250;

RCW 64.04.130 and RCW  84.36.500.

Salzburg v. Dowd (Motion for Summary Judgment)

Hicks v. Dowd (Opinion)

Connecticut v. American Electric Power Company (Opinion)

http://www.climatecasechart.com/   

Conservation Easement Scholarship: Policy, Law & Economics

• "Amending and Terminating Perpetual Conservation Easements," Nancy A. McLaughlin & Benjamin Machlis, Probate & Property, 2009

• "Private Conservation Easements," Gerald Korngold, Lincoln Institute of Land Policy, 2009

• "Perpetuity, Latent Ancillary Rights, and Carbon Offsets in Global Warming Era Conservation Easements," James L. Olmsted, 39 Environmental Law  Reporter 10842, 2009

• "Drawing the Line: Striking a Principled Balance Between Regulating and Paying to Protect the Land," John Echeverria & Jeff Pidot, 39 Environmental Law  Reporter 10868, 2009

• "In Defense of Conservation Easements: A Response to The End of Perpetuity," Nancy A. McLaughlin, 9(1) Wyo. L. Rev. 1, 2009

• "Protecting the Public Interest and Investments in Conservation: A Response to Professor Korngold's Critique of of Conservation Easements," Nancy A. McLaughlin & Mark Benjamin Machlis, 2008 Utah L. Rev. 1651, 2008

• "Representing Non-Concurrent Generations: The Problem of Now," James L. Olmsted, 23(2) J. Envtl. L. & Litig., 451, 2008 (Point-Counterpoint: Julia D. Mahoney)

•  "Land Preservation and Institutional Design," Julia D. Mahoney, 23(2) J. Envtl. L. & Litig. 433, 2008 (Point-Counterpoint: James L. Olmsted)

• "Hicks v. Dowd: The End of Perpetuity," Timothy C. Lindstrom, 8(1) Wyo. L. Rev. 25, 2008

• "Conservation Easements: Perpetuity and Beyond," Nancy A. McLaughlin, 34 Ecology L. Q. 673, 2007

• "In Perpetuity or for Forty Years, Whichever is Less: The Effect of Marketable Record Title Acts on Conservation and Preservation Easements," Jennifer Cohoon McStotts, 27(1) J. Land, Resources, & Envtl. Law 41, 2007

•  "Solving the Contentious Issues of Private Conservation Easements: Promoting Flexibility for the Future and Engaging the Public Land Use Process," Gerald A. Korngold, 2007 Utah L. Rev. 1039, 2007

• "Capturing the Value of Appreciated Development Rights on Conservation Easement Termination," James L. Olmsted, 30(1) Environs Law and Policy Journal 39, 2006

• "Perpetual Trusts, Conservation Servitudes, and the Problem of the Future," Susan F. French, 27 Cardozo L. Rev. 2523, 2006

•  "Amending Perpetual Conservation Easements: A Case Study of the Myrtle Grove Controversy," Nancy A. McLaughlin, U. Rich. L. Rev., 2006

•  "Rethinking the Perpetual Nature of Conservation Easements," Nancy A. McLaughlin, 29 Harv. Envtl. L. Rev. 421, 2005

• "Reinventing Conservation Easements: A Critical Examination and Ideas for Reform," Jeff Pidot, Lincoln Institute of Land Policy, 2005

•  "The Emergence of Exacted Conservation Easements," Jessica Owley Lippmann, 84 Neb. L. Rev. 1043, 2005-2006 

• "Dynamic Conservation Easements: Facing the Problem of Perpetuity in Land Conservation," Duncan M. Greene, 28 Seattle U. L. Rev. 883, 2005

•  "The Trouble with Time: Influencing the Conservation Choices of Future Generations," Barton H. Thompson, Jr., 44 Nat. Resources J. 601, 2004

•  "Exacted Conservation Easements: The Hard Case of Endangered Species Protection," Jessica Owley Lippmann, 19 Envtl. L. & Litig. 293, 2004 

• "Perpetual Restrictions on Land and the Problem of the Future," Julia D. Mahoney, University of Virginia School of Law, Land and Economic Research Papers; Working Paper No. 01-06, 2001

• "Forever and Ever, Amen: Land Trusts and the Frightening Thought of Perpetuity," Tim Findley, Range Magazine, 2009

Conservation Easement Scholarship: Science & Biodiversity  

• "Conservation Easements: Biodiversity Protection and Private Use," Adena R. Rissman, Lynn Lozier, Tosha Comendant, Peter Kareiva, Joseph M. Kiesecker, M. Rebecca Shaw & Adina M. Merelender, Conservation Biology Volume 21, No. 3, 709-718, 2007

• "Estimating the Effect of Protected Lands on the Development and Conservation of Their Surroundings," Robert I. McDonald, Chris Yuan-Farrell, Charles Fievet, Matthias Moeller, Peter Kareiva, David Foster, Ted Gragson, Ann Kinzig, Lauren Kuby & Charles Redman, Conservation Biology Volume 21, No. 6, 1526-1536, 2007

• "Conservation easements in context: a quantitative analysis of their use by the Nature Conservancy," Joseph M. Kiesecker, Tosha Comendant, Terra Grandmason, Elizabeth Gray, Christine Hall, Richard Hilsenbeck, Peter Kareiva, Lynn Lozier, Patrick Naehu, Adena Rissman, M. Rebecca Shaw & Mark Zankel, The Ecology Society of America 5(3), 125-130, 2007

• "Conservation Easements as a Conservation Strategy: Is there a Sense to the Spatial Distribution of Easements?" Christopher Yuan-Farrell, Michelle Marvier, Daniel Press, Peter Kareiva, Natural Areas Journal Vol. 25(3), 282-289, 2005

• "Land Trusts and Conservation Easements: Who Is Conserving What for Whom," A.M. Merenlender, L. Huntsinger, G. Guthey & S. K. Fairfax, Conservation Biology Volume 18, No. 1, 65-75, February 2004