Managing Conservation Easements in Perpetuity - Environmental ...

All conservation easements
should include a clause requiring
the landowner to pay the
land trust’s litigation costs if
the land trust prevails.
Arbitration: The reference of a
dispute to an impartial third person
chosen by the parties to a dispute
who agree in advance to be bound
by the arbitrator’s decision issued
after a formal hearing. Arbitration
is different from the informal and
nonbinding process of mediation.
294
trust determines this course to be the best option for resolution, you
may need to file a complaint to compel the landowner to mediate.
Having a legal defense fund (or combined easement stewardship and
legal defense fund) to support enforcement actions and pay legal counsel
is essential. Experienced land trusts estimate that litigation costs
run from $25,000 to more than $250,000 per case and potentially
higher, depending on jurisdiction, appeals and complexity. See the
discussion of legal defense funds on page 313 for more information.
Payment of costs
Your land trust’s violation policy and procedures should address
whether landowners will pay the costs associated with resolving violations,
including attorney fees, staff time and associated out-of-pocket
expenses. Violations can be time consuming and extremely expensive,
putting a severe strain on a land trust’s resources. Some land trusts
waive these costs for all voluntarily resolved violations to support
continued good landowner relationships. Others insist that landowners
pay at least the land trust’s out-of-pocket expenses, while others
require landowners to pay all the costs of resolving a violation in hopes
of deterring future violations, or because they need to recoup the costs
to replenish their legal defense fund.
All conservation easements should include a clause requiring the landowner
to pay the land trust litigation costs if the land trust prevails in a
suit (commonly called an “attorneys’ fees” clause; see The Conservation
Easement Handbook for samples). Land trusts should not agree to pay
the opposing party’s attorneys’ fees because doing so may be a disincentive
to appropriate enforcement. Depending upon the facts of the
case and other factors, litigation, mediation or arbitration can result in
an order for restoration of the land, payment of monetary damages or
both. Land trusts often seek monetary damages when the conservation
resources harmed by an easement violation cannot be restored or
if the restoration will take a long time (such as planting trees to replace
an old-growth forest that was impermissibly harvested). Therefore, if
your land trust decides to litigate, mediate or arbitrate a violation, it
may be appropriate to ask for damages in addition to resolution of
the violation. Most experienced land trusts, however, do not rely on
these payments as a means to fund future litigation or replenish the
easement defense fund. Monetary damages are often used to conserve
lands with similar conservation values as the land harmed by an easement
violation that cannot be remediated quickly.
Managing Conservation Easements in Perpetuity