What does “stewarding” a conservation easement mean?
Designing and negotiating a conservation easement is a big job, but in terms of time it is a small portion of the job compared with ongoing stewardship over the coming years. An organization that secures one conservation easement per year will very quickly find out it is a “stewardship” organization more than a “securement” organization: within a decade, while still securing only one conservation easement per year, they will be stewarding 10.
Over that time period, changes will occur in land tenure, conservation theory, local economies and even the physical character of the land. Conservation easements, and the parties that negotiate them, must be mindful of the implications of conserving land in these ongoing and evolving circumstances.
Every organization and every conservation easement is different, but there are some basic commonalities in the long-term considerations of holding a conservation easement.
After a conservation easement is in place on a parcel of land, that land gains another steward, someone responsible for protecting it. While the landowner has a collection of stewardship responsibilities, the grantee - the holder of the conservation easement - has another collection.
Monitoring against the Baseline Report
The Baseline Report (or Baseline Documentation Report, BDR) is the basis for any subsequent monitoring, usually undertaken at least annually. The conservation easement holder must work out monitoring protocols, conduct monitoring and should report the results back to the landowner. This monitoring allows the easement holder - or grantee - to track changes in the land and land uses and to observe if conservation measures are effective.
It is primarily the landowner who manages access, but the conservation easement holder does need to play a role to ensure access is not affecting the conservation values of the property. In cases where public access is allowed, the qualified organization has a responsibility to assess whether that access is having an undue impact, in some cases with the guidance of an access management plan. In cases where public access is not allowed, there is similar responsibility to include monitoring for access in the overall monitoring plan.
Ongoing land management
The whole basis of the conservation easement tool is that the vast majority of land management responsibility continues to rest with the landowner. However, the easement holder does have certain responsibilities with regard to land management. These are based on the prescriptions included in the management plan associated with the conservation easement agreement. The qualified organization ensures practices outlined in the Management Plan are being employed, and sometimes joins in management activities such as weed management, fence building or other such efforts.
One of the critical roles for the holder of a conservation easement is enforcing the terms of the CE. Monitoring informs when infractions are taking place, and it is the responsibility of the qualified organization to respond to those to ensure the perpetual protection of the parcel’s conservation values. The enforcement process should be laid out in the conservation easement document, and goes from simply bargaining in good faith to seeking injunctions in the courts.
The most important stewardship activity the conservation easement holder can undertake may be a phone call or stopping by the landowner’s house for coffee. During these conversations, the qualified organization can find out about changes in the landscape, local land use, vegetation communities or species abundance. Infractions based on misunderstandings can be avoided and vital stewardship partnerships can be created and fostered.
For more detailed information about conservation easement stewardship, see What is involved in stewarding a conservation easement?
Can a conservation easement be modified?
Recognizing that the land, players and surrounding circumstances will change over time, there is a limited ability to modify a conservation easement.
The Alberta Land Stewardship Act provides that the conservation easement itself can be modified by agreement between the grantor and grantee, or by the designated Stewardship Minister acting in the public interest. Even in those cases, a conservation easement must still be a conservation easement; constraints on purposes, need for conservation intent, etc. still apply.
When the need for a change in the conservation easement is reflected more in the operations and practices (unexpected vegetation invasions, change in the working landscape operation, etc.) than the core structure of the agreement, changes may be made more efficiently through the management plan.
Regardless of the changes made, the parties need to be aware that there could be financial implications. If the conservation easement was certified as a gift of ecological property, the tax advantages provided may be affected and claw back requirements can be significant (see EcoGifts-Change-in-Use-Factsheet).
Changing a document that was drafted with the intent of being perpetual needs to be considered cautiously. Beyond the legal and financial concerns, qualified organizations seen to be “watering down” a conservation easement can find their future ability to work with landowners affected. This unwritten safeguard also needs to be considered in situations where neither party in the agreement has a conservation mandate or intent (e.g., a government agency and a subsequent landowner). For more detailed information, see: How is a conservation easement created?
Can a conservation easement be terminated?
There is also a provision in the Alberta Land Stewardship Act for conservation easements to be terminated. Similar to amendments, this can only be done by agreement between the parties or by the designated Stewardship Minister acting in the public interest (though no Minister has ever exercised this power).
As with amendments, implications would include potential tax claw backs and loss of reputational capital. For a termination these would obviously be much more significant. It is important to note a termination could conceivably happen for conservation reasons. For example, amendments that would update and improve the conservation capacity of the CE are so significant that removing the existing CE and starting again is seen as the better route. Such actions would be controversial and precedent setting, and would not be considered lightly.
How are infractions of the conservation easement handled?
Conservation easements generally exist in perpetuity. It is therefore easy to expect there will be infractions against one or more of the restrictions over time. The history of conservation easements has shown infractions (also referred to as infringements) or challenges generally do not occur within the first or even second landowner, but rather with subsequent ones.
Infractions may be the result of a landowner not understanding a restriction or simply not knowing the restriction exists. In other cases the landowner may not agree with the restriction and take an action to challenge the restriction. An infraction may range from simple and relatively benign - such as a change in fencing - all the way up to large-scale landscape transformations that fundamentally affect the land’s conservation values.
Regardless of the reason an infraction occurs, each conservation easement document should describe how to deal with infractions. When there is a conflict, the qualified organization and the landowner generally agree to make a reasonable effort to resolve the problem together. If the conflict cannot be resolved through this effort then the parties usually prescribe a mediation process, and beyond that an arbitration process. In the most severe cases, the parties may end up in a lawsuit.
In cases where the infraction - or pending infraction - has serious and immediate potential to harm the land, the qualified organization may seek legal remedies such as an injunction.
All conservation easements should include a clause that states if one or more of the restrictions is not upheld, the rest of the easement is still valid and in force. This means even if one restriction is either abandoned (as a result of the process described above) or not enforced by the qualified organization for some reason, the conservation easement continues to be in force.
Are conservation easements ever legally challenged?
In more extreme cases, a landowner may challenge the conservation easement itself. This will likely require the land trust to defend the conservation easement in front of a judge. Again, the likelihood of legal challenges against a conservation easement is lower with the first landowner (who negotiated the conservation easement), but becomes more likely with subsequent owners.
Such legal challenges have occurred twice in Alberta with one being settled before going before a judge. In each case the conservation easement was upheld. The issues involved in these challenges actually centered on the clarity of specific clauses (and how they supported the conservation purposes) or the personalities involved, rather than the validity of the conservation easement. This underscores how ongoing communication between the grantor and grantee is vital, as is contact and communication with any subsequent landowners.
Again, because a perpetual agreement carries a high risk of challenge at some point, it is prudent to maintain a legal defence fund. Many qualified organizations create legal defence funds, sometimes for each conservation easement separately, sometimes one fund for all the organization’s CEs. In many cases, the legal defence fund is rolled into the overall stewardship fund.
For more detailed information about legal challenges to conservation easements, see What happens when a conservation easement is challenged?. [Link: What happens when a conservation easement is challenged?]
How is stewardship paid for?
Ongoing stewardship has costs associated with it, ranging from time for staff members to conduct monitoring, to working with landowners on management activities, to responding to infractions or dealing with legal challenges (see What is involved in stewarding a conservation easement? ) Like the conservation easement, these costs will be perpetual. For these reasons, the conservation easement holder has a responsibility to maintain the financial capacity to undertake these duties.
Environmental funding in Alberta, like most jurisdictions, is project based, meaning there are fewer opportunities for simple organizational funding, the sort that would support already-secured land conservation projects. For this reason, organizations contemplating holding conservation easements for a perpetual time period should have a clear plan for how they will cover those ongoing costs.
No one option is the silver bullet, but qualified organizations in Alberta have employed the follow approaches to raising funds for stewardship:
- requesting a stewardship endowment from the landowner at the time of the conservation easement grant;
- establishing an endowment for each (or all) properties, adding to it regularly and structuring it to grow;
- hiring and using dedicated fundraising staff; and/or
- dedicating a portion of project funds from philanthropic or government granting sources to such a purpose.