Managing Conservation Easements in Perpetuity - Environmental ...

This solution, available in only limited circumstances, required painstakingly
careful evaluation of all financial, legal and resource issues. When the land trust
completed all these evaluations, it could have determined that the new struc-
tures were a major detriment to the central conservation purposes of the ease-
ment and needed to be moved. In such a situation, a land trust must carefully
evaluate its options with the assistance of a competent and pragmatic litigator.
Whatever the decision, you must address the violation in a manner consistent
with all laws and the highest ethical principles, your land trust’s internal poli-
cies and mission, the express language of the conservation easement and the
original grantor’s documented intent. Ignoring a violation is never an option.
Mediation and Arbitration
If the violation dispute cannot be easily resolved between the landowner
and the land trust, one option is for the parties to try to reach an
agreement with the assistance of a third person who acts as a mediator.
Frequently, mediation is a worthwhile alternative to the courtroom. In
a real-life example, a landowner cleared four acres of highly sensitive
desert habitat and created a pond in violation of the conservation easement.
When approached by the land trust, the landowner claimed he
did nothing wrong because with the pond he was creating good habitat,
one of the easement’s general purposes. The land trust disagreed
but offered that he could keep the pond if he gave up two of his four
reserved house rights, each of which would disrupt about four acres of
land. The landowner rejected this solution and all attempts to negotiate.
The land trust filed suit and suggested mediation as an alternative
to a lengthy and expensive trial. The landowner agreed, and together
they selected an impartial mediator with a pragmatic reputation. After
13 hours locked in the mediator’s office, the parties emerged with a
solution agreeable to both sides.
In mediation, the parties retain a neutral, third-person mediator to
assist them in negotiating a mutually agreeable resolution. Mediation
preserves the land trust’s decision-making powers, because the process
is not binding on either party. Because mediation is not binding and
may not result in a negotiated settlement, the land trust must preserve
as a secondary option the filing of a civil action in a court of law.
Also, only through court order may the land trust obtain a temporary
restraining order or preliminary injunction, which can halt landowner
activities posing immediate harm to an easement’s purposes or conservation
values.
Violation Resolution and Easement Defense 303