Conservation Easement Reform: As Maine Goes Should the Nation Follow?

Article excerpt

[S]ome dark omens cloud the future of the [land trust] movement and, absent some changes in the legal structures that support it, time may erode the happy congruity between public and private at the cost of the environment and the public good. The legal community associated with the land trust movement should address these potential problems. (1)

Governing with a view to "conservation-easement-time" requires many elements including laws addressing transferring, amending, and extinguishing easements. More fundamentally, though, it requires systems to track conservation easements' terms, holders, and locations. (2)

Not everything is the public's business. This is a private transaction.... Not everything needs to be run by the government. That's why land trusts exist.... There is great land conservation and stewardship going on. Leave it alone. (3)

I

INTRODUCTION

Six years ago, the Lincoln Institute of Land Policy published Reinventing Conservation Easements: A Critical Examination and Ideas for Reform (Reinventing Conservation Easements). (4) The work questioned the sufficiency of laws supporting conservation easements as today's land-conservation paradigm in America.

In 2007, Maine addressed many of the issues raised in Reinventing Conservation Easements by enacting the first, and to date the only, comprehensive conservation easement reform law in the nation (Reform Law). (5) This article explores how the Reform Law has worked and whether it makes sense as a model for other states in response to weaknesses in their enabling laws. After setting the contextual stage, this article tells the story of how the Reform Law came into being in Maine, which has more land under conservation easement than any other state. This article then examines significant provisions of the Reform Law and describes how, since its enactment, these provisions are perceived by a number of those most actively involved. The article concludes with suggestions for improvements in the law, including potential lessons for other states.

II

THE CONSERVATION EASEMENT PHENOMENON

Conservation easements eclipse all other land-conservation tools in America today. Founded upon enabling laws in virtually all of the states, underwritten by tax subsidies and public-financing programs, and promoted by the nation's thousands of land trusts and government holders, conservation easements have exploded onto the landscape. For better and for worse, conservation easements have displaced both public land acquisition and government regulation as the darling of the land-conservation movement. (6)

Currently there is no systematic method of accounting for all the conservation easements held by national, state, and local governments, and land trusts. In 2005, the most recent census as of this writing, the Land Trust Alliance (LTA) reported that in the previous five-year period the number of local and regional land trusts had increased nearly a third to over 1600, (7) while their reported conservation easement holdings had increased nearly 150% to over 6 million acres. (8) With the number of easements having inclined almost 2500% over two decades, (9) charts depicting this growth closely resemble exponential curves. Even these figures significantly understate reality, for they do not include several million acres of easements held by national groups such as The Nature Conservancy (TNC), or untold millions held by federal, state, and local governments. (10)

III

THE LEGAL CONTEXT AROUND THE COUNTRY

Starting more than fifty years ago with California, New York, Massachusetts, and Maryland, virtually all states have now enacted conservation easement enabling laws." Although state variations abound, many of these laws are based upon the Uniform Conservation Easement Act (UCEA), adopted in 1981 by the National Conference of Commissioners on Uniform State Laws. (12)

Despite this proliferation, very few state enabling laws explicitly deal with conservation easement content, structure, amendment, termination, or other issues discussed in this article. …