A Tradable Conservation Easement for Vulnerable Conservation Objectives

I THE ISSUE The critical conservation objectives in some conservation easements will probably be compromised by the effects of climate change in the relatively near future. Prompted to consider that likelihood, we can similarly predict that landscape fragmentation, invasive species, and other catastrophes--anthropogenic and natural--may also seriously diminish the capacity of particular parcels of land to serve narrowly defined conservation purposes, and especially, the conservation of a particular element of biodiversity. II CONSERVATION EASEMENTS, THE LAW, AND THE SCOPE OF THE PROBLEM A. Introduction A fair understanding of the issue and the solution proposed here requires a quick, general look at conservation easements and the law that governs them. Although there are real-property antecedents, such as equitable servitudes, of the now widely used real-estate interests we call conservation easements, specific recognition and authorization of conservation easements under the state property laws that principally govern them is a relatively recent phenomenon. (1) For example, the Uniform Conservation Easement Act (UCEA), (2) a form of which has been adopted in about half the states, (3) was completed by the National Conference of Commissioners on Uniform State Laws in 1981. The UCEA defines conservation easements as a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open-space values of real property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archaeological, or cultural aspects of real property. The UCEA "has the relatively narrow purpose of sweeping away certain common-law impediments which might otherwise undermine the easements' validity, particularly those held in gross.'' (5) That purpose could be and was effected with a model law comprising six short sections. UCEA-type conservation easements can be temporary or permanent and can be purchased or donated. They can be designed to serve purposes as broad and widely diverse as the above-quoted UCEA definition suggests: from air quality to preserving buildings of architectural distinction. (6) Conservation easements broadly intended and drafted to serve those kinds of general purposes are, as a group, unlikely to be so acutely affected by changing ecological conditions that their broad purposes will cease, over time, to be served. If no easements were narrowly focused on the conservation of very specific conservation objectives, existing solutions in law to the occasional problem that did arise would be sufficient. Further, existing law will generally offer adequate solutions when conservation easements are purchased or exacted. A conservation easement purchased or exacted by a governmental agency that ceases to serve the purposes for which it was acquired may be "released, modified, terminated, or otherwise altered or affected in the same manner as other easements,'' (7) that is, by agreement with the owner of the restricted property. Before making such changes, however, the agency must observe governing law relating to the disposition of public property, including any specific restrictions on disposing of park-type property interests acquired for the perpetual use of the public. Also the agency may be constrained by government or donor restrictions on funds used in the transaction. (8) A nongovernmental charitable organization that holds a purchased conservation easement that has ceased to serve its intended purpose likewise has the option of seeking an agreement to terminate, but it also must consider, at least, the representations made in soliciting funds used to purchase the easement, as well as any restrictions on such funds. …