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"Russ Shay" rshay@............. 
To :
Subject :
RE: [LT] FW: Caution, Conservation Easement Altered
Date : Wed, 18 Feb 2004 07:51:26 -0500

The Wetland Reserve Program easements are "reserved interest 
deeds".  They give the NRCS all rights not specifically reserved to the 
landowner in the document.  This is a very landowner-unfriendly arrangement.  I 
know of no land trust that uses such instruments. 
The Department of Agriculture's attorneys like them -- precisely because if 
anything does go to court, the reserved interest deeds make it clear that if 
there is a question about whether the landowner or NRCS has a right, the default 
answer is that NRCS has it.
In addition, WRP "easements" are also contracts -- the landowner is 
required to do wetland restoration (good thing), to NRCS's future specification. 
 Would you sign a contract requiring you to undertake expensive work without 
saying what that work was -- only that you would be told exactly what it was in 
the future?
WRP is a very useful -- and important -- program for wetlands restoration, and 
it helps deliver income to farmers from land that is best used for wetlands 
rather than ag production.  But its record of success with landowners is due 
more to administration by farm-friendly and knowledgeable local NRCS personnel 
than to its formal structure and instruments.  In this case, this human element 
may have run into some serious bumps. 
By the way, thanks largely to work by Ducks Unlimited, the South Dakota House 
resoundingly defeated the legislation referred to in the posted article, which 
was intended to make permanent conservation easements illegal.
Russ Shay
Land Trust Alliance

	-----Original Message----- 
	From: Barry H. Epstein [mailto:BEpstein@...........] 
	Sent: Tue 2/17/2004 7:22 PM 
	To: Kathryn Kelly; LandTrust 
	Subject: RE: [LT] FW: Caution, Conservation Easement Altered 
	I've read the Ninth Circuit opinion (issued Sept. 15, 2003) and just re-read it 
in response to this email.  The write-up attached to Kathryn's post is somewhat 
misleading because the CE at issue in the litigation is far from the typical 
private land trust-type CE for several reasons.  
	The case involved a conservation easement sold by the landowner (Big Meadows 
Grazing Association) to the U.S. Natural Resource Conservation Service (NRCS) 
under the Wetlands Reserve Program.  The federal statute concerning the Wetland 
Reserve Program requires that a landowner enter into an agreement to grant an 
easement and to implement a wetland conservation plan on the property.  The CE 
covered 1,812 acres and the landowner was paid $1.9 million.  
	Unlike a typical private land trust CE, this easement provided that the 
landowner granted to the NRCS the affirmative right to undertake "any" 
restoration activities on the property:  "The [U.S.] shall have the right 
to enter unto the easement area to undertake ... any activities to restore, 
protect, manage, maintain, enhance, and monitor the wetland and other natural 
values of the easement area."   So the CE included affirmative restoration 
rights in favor of the grantee.  Not a typical CE.  
	According to the Ninth Circuit opinion, the landowner thought the NRCS's 
restoration plan was too much and sued.  The Court found that nothing in the 
easement precluded the scope of the restoration plan the NRCS had adopted.  The 
plan did not exceed the scope of the easement rights granted to NRCS (in a real 
property sense).  Further, nothing in the statute gave the landowner the right 
to approve the restoration plan.
	As noted above, the affirmative rights to undertake a major restoration project 
on the property make this easement quite different from the typical CE, which 
only contains negative prohibitions on activities by the underlying owner (and 
very limited ancillary affirmative rights in favor the easement holder, such as 
access for easement monitoring purposes).
	The real issue in that case was that the landowner wanted more control over the 
restoration plan that would be undertaken on their property.  However, the 
landowner didn't obtain the right to control the scope of the restoration plan 
in the easement and also did not have any right to control the scope of the plan 
by statute.  There does not appear to be anything in the statute that would have 
prevented the landowner from reserving more control over the restoration 
activities.  But they didn't.
	I don't see why the perpetual versus maximum 30-year term for a CE, as 
mentioned in the attached write-up, is at all relevant to the issues in this 
litigation.  Same dispute exists between the landowner and NRCS either way.
	It's certainly true that landowners who "give away" (for $1.9 
million!!) some of their property rights do need to fully understand what they 
are giving up.  That's true for any contract involving real estate or anything 
else.  Good drafting and clear communication beforehand are what apparently were 
missing in the Big Meadows case.  
	Barry H. Epstein

	Fitzgerald Abbott & Beardsley LLP
	1221 Broadway, 21st Floor 
	Oakland, CA 94612
	tel  510.451.3300
	fax 510.451.1527 


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		-----Original Message-----
		From: Kathryn Kelly [mailto:kkelly@.........]
		Sent: Tuesday, February 17, 2004 10:43 AM
		To: LandTrust
		Subject: [LT] FW: Caution, Conservation Easement Altered 
		Does anyone know the actual facts on this?
		Kathryn Kelly
		Executive Director
		Yolo Land Trust
		PO Box 1196
		Woodland, CA 95776
		(530) 795-3110
		(530) 795-3220 fax

		From: ellenk@.......... [mailto:ellenk@.............] 
		Sent: Thursday, February 12, 2004 3:57 PM
		To: ellenk@..............
		Subject: Caution, Conservation Easement Altered 

		Caution, Conservation Easement Altered 

	A recent decision by the Ninth Circuit Court of Appeals should send up red 
flags for landowners before they enter into any type of conservation easement 
agreement. The government paid $1.9 million to Big Meadows Grazing Association 
for a permanent conservation easement on 1,812 acres in Flathead County, Montana 
to "restore, manage, maintain, and enhance" wetlands. Before the 
agreement was finalized, the government informed Big Meadows that it would cost 
them $80,000 to implement the conservation plan, but after the deal was done, 
the government projected the plan would cost Big Meadows $486,000 to implement. 
Big Meadows objected to the new plan saying it was "radically 
different" and refused to agree to the changes. The government informed Big 
Meadows it didn't need their approval and went ahead with the project. Big 
Meadows took their complaint to District Court and lost. The Association 
appealed the decision and the Ninth Circuit Court of Appeals subsequently ruled 
for the government. In South Dakota, legislators have recognized the problems 
attached to perpetual conservation easements and have filed HB 1194, which 
limits conservation easements to 30 years. It has been approved by the House 
Agriculture Committee and is headed for the full House. State representative Jim 
Lintz said; "[M]any people who give away those future property rights may 
not fully understand what they're doing." In real estate law, you cannot 
prevent someone from conveying their land if they desire to sometime in the 
future, except where a conservation easement is attached. Environmentalists have 
done their homework. Landowners need to do theirs.