Managing Conservation Easements in Perpetuity - Environmental ...

Judicial Remedies
Almost all land trusts and attorneys agree that judicial remedies are
the tools of last resort or used only for true emergencies. Going to
court costs time and money, and it may irreversibly damage the landowner–land
trust relationship. However, when determining whether
to go to court, the land trust must also consider the risk of not following
through on its commitment to enforcement.
Sometimes there is no alternative to a judicial proceeding. If a landowner
persists in a restricted activity that damages a protected resource,
a land trust must seek a temporary restraining order and/or preliminary
injunction, and then a permanent injunction from the courts.
Suppose a landowner is digging a hole with a backhoe for a foundation
in an area not approved for structures. Upon inquiry, you find the
landowner is building a house not permitted by the conservation easement
and refuses your request to stop construction. In such a situation,
you have no alternative but to seek a judicial remedy and an injunction
to stop the action until the parties can meet. If you allow the landowner
to proceed with construction while you are filing a court case,
you may lose the entire case because you failed to take steps to limit
the landowner’s financial investment in the construction. Even though
the conservation easement clearly prohibits the structure, a judge may
rule against you. Judges will consider the equities of the situation and
may find the land trust could have prevented economic damage to the
landowner if it had acted quickly by seeking an injunction.
In addition to halting resource damage, litigation may be the only
course available to respond to a landowner who refuses to repair
damage voluntarily. Enforcement of the easement and protection of
the property’s conservation values must be top priority when deciding
the course of action.
Enforcement by a Government Agency
Requesting a government agency to enforce a violation of a conservation
easement that is also a violation of a state, local or federal law
is an extreme step. If you believe that a landowner also violated a law
when he or she violated the easement, and if the landowner refuses
to cooperate with your land trust to resolve the violation, then your
land trust could file a complaint with the government agency charged
with enforcement. For example, suppose a logger under contract with
Violation Resolution and Easement Defense 305