Managing Conservation Easements in Perpetuity - Environmental ...

Mediation: The act of an impartial
third person negotiating between
two or more contenders with a view
to persuade them to settle their
dispute or to discover by an interactive
process of conversation and
negotiation a mutually acceptable
solution to their dispute. This procedure
is different than the formal and
binding process of arbitration.
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Temporary, emergency court orders may be necessary in some circumstances
to prevent irreparable harm to the land’s conservation resources
if the landowner will not halt the activity after verbal or written requests.
If the violation is severe or significant enough, court action or litigation
could be the first response to the discovery of a violation, or if there
is major, irreparable damage occurring to a resource that is central to
the conservation purpose of the easement. For example, a landowner
has heavy equipment on the land and is digging what appears to be a
foundation for a permanent structure in a spot that is not approved for
such a structure in the conservation easement. You discover the activity
as the backhoe reaches three feet below ground level. You immediately
call the landowner and ask him to stop while you discuss his plans and
the conservation easement. He refuses to meet you at the site and hangs
up. You have no choice at this point. The landowner is uncooperative;
the damage is potentially severe and ongoing. You call your attorney to
be certain that this is a violation, and you document the violation. If
your attorney determines that an injunction or a temporary restraining
order is appropriate and obtainable, then the attorney acts immediately
to file the necessary court action that will make the landowner stop
so you have time to address the situation. This tactic also prevents the
landowner from continuing to invest time and money in an activity that
he is likely to have to unravel. You want to prevent this waste because
sometimes courts will find that requiring the landowner to undo an
investment is not equitable and will find against the land trust for not
stopping the activity sooner.
If your formal notice of violation and request to halt the violation and
restore the land is ignored, your land trust must then follow its violation
procedures and pursue its other options to resolve the violation.
These options may include:
• Sending a second certified letter demanding a halt to the violation
and the immediate restoration of the affected conservation
attributes
• Seeking formal mediation of the issue with the landowner
• Searching for a person sympathetic to the land trust and who
knows the landowner well to intervene with the landowner to
prevent litigation
• Seeking a court order or initiating litigation against the
landowner
• Notifying the government agency responsible for enforcement
if the landowner also violated the law
Managing Conservation Easements in Perpetuity