Excerpted from the Back Forty, The Newsletter of Land Conservation Law

January/February 1999 Vol 8, No. 1

"The Silent Partner in Conservation Easements: Drafting for the Courts"

Andrew C. Dana

Practical Aspects of Conservation Easement Negotiation and Drafting

In my conservation real-estate law practice, my experience has been that land trust personnel--who are often untrained in drafting legal documents--negotiate and draft conservation easements themselves, without direct attorney oversight. Although this practice is contrary to most printed advice and the Land Trust Alliance's recommended Standards and Practices, the reasons are practical and understandable. First, land trusts are experienced players in the conservation easement donation process, and, at least superficially, one conservation easement transaction is very much like any other. Second, land trusts often develop standard conservation easements, usually in consultation with counsel and adapted from the Land Trust Alliance's Model Conservation Easement, that are easily adaptable to specific projects. Third, because land trusts and landowners typically share common land preservation goals, involvement of attorneys is sometimes viewed as counterproductive. Land trust personnel and landowners develop close ties and a common understanding of the terms and conditions of their conservation easement projects. The parties understand what they want to accomplish, so there is no need to involve attorneys who will only complicate matters with legal "mumbo-jumbo." land trusts and donors invariably exists at the time of easement creation, land trusts should understand exactly what they are doing: They and their easement donors actually entangle themselves in a complex, mutual land-ownership arrangement, with each party having fundamentally different rights and obligations. Conservation easements inevitably carry seeds of future conflict because of these disparate rights. If these seeds bear fruit--that is, if an easement violation occurs resulting in the need to bring an enforcement action--one party or another is likely to rouse the slumbering giant in every conservation easement transaction: The Courts. Judges or juries will be invited to determine how to enforce the terms of the conservation easement.

This article considers the importance of drafting conservation easements with the expectation that every easement is likely to be violated at one time or another, so conservation casements should be drafted in anticipation of a court defense of easement terms. This pessimistic expectation is one that I believe is shared by all cautious lawyers who represent land trusts, but which, in my view, is too often ignored by land trust personnel. Lawyers tend to draft easements with the idea that every word and every statement of intent may be subject to judicial scrutiny. This explains why attorneys fiddle with language that they themselves may have drafted for conservation easements only a few weeks before. Lawyers understand (and fear) the weight courts place on written terms in conservation easements. Lawyers also understand (and fear) the consequences of poor conservation easement drafting.

By contrast, non-lawyers tend to be much less sensitive to precision in legal drafting and terminology, using shorthand terms or terms of art or science in conservation easements instead. A land trust employee with a planning background, for example, may include a clause in an easement that prohibits "subdivision" based on that employee's understanding of the local zoning code. A court construing that restriction, however, may have an entirely different concept of the term "subdivision," leading to consequences that are completely unanticipated by the land trust.'

Failure to anticipate how courts might view conservation easement terms may result in unfavorable court decisions which, in turn, could affect conservation easement enforcement cases throughout the country. If this article serves no other purpose, my hope is that it will emphasize to land trust personnel the importance of clarity of meaning, terminology and expression in conservation easements. While the article is intended primarily to heighten non-lawyer sensitivity to ways in which the courts are likely to interpret and enforce conservation easements, the article also contains topics that should be of interest to lawyers, as well, including: (1) a discussion of several judicial decision-making models, (2) a review of judicial rules of deed and contract construction, (3) a debate about the appropriate scope and content of conservation easements, and (4) a sprinkling of drafting suggestions.

Typical Conservation Easement Enforcement Cases

Before discussing how courts have interpreted and are likely to interpret conservation easements, it; is important to discuss the types of cases that may ultimately reach the courts. As a preliminary matter, this article is not concerned with conservation easement questions that may arise in tax proceedings. My focus is on enforcement of substantive provisions of conservation easements, including, for example, allegations that a landowner has engaged in prohibited land uses, and allegations that a land trust has exceeded its rights in prohibiting certain uses of property.

In such enforcement cases, the issues that may be decided by the courts include (a) issues of law and (b) issues of fact. Issues of law include such fundamental questions as: What are the respective rights of the parties? Is a conservation easement provision ambiguous? And, how should a specific clause in a conservation easement be interpreted? By contrast, issues of fact include such questions as: What did a landowner or land trust actually do on the property? And, what are the specific activities that support the allegations of easement violation? In general, judges decide issues of law, or, in jury trials, judges explain the law to juries, which then apply this law to the facts. Issues of fact are normally decided by juries after weighing the evidence presented. Sometimes, however, the parties may agree to a bench (or judge) trial, in which case a judge determines both the relevant facts and the applicable law.

Bench trials are common in conservation easement enforcement cases. The parties frequently stipulate to the facts--for example that timber has been harvested, or that a stream has been dammed--and they ask the judge to determine whether the disputed activity actually violates the terms of a conservation easement. In such cases, judges are normally asked to construe the legal effect of specific terms in conservation easements to further define the respective rights of the parties. This type of conservation easement enforcement case, dealing primarily with issues of law, is the focus of this article. Such cases require the courts to interpret and construe the language used in conservation easements in light of the facts, and thereby, such cases require the courts to determine what the language used in conservation easements means as a matter of law.

In an effort to put flesh on the legal framework discussed below, throughout this article I refer to the following example to illustrate problems of conservation easement interpretation and enforcement.

In 1980, Happy Valley Land Trust (HVLT) obtained a perpetual conservation easement on pasture land adjoining the Smiley River. The pasture has been used for grazing beef cattle for the previous 20 years. The conservation easement provided as follows:

• "The purpose of the conservation easement is to preserve and protect the open space provided by the Grantor's pasture and to foster Happy Valley's traditional agricultural way of life. Therefore,

• "Grantor conveys to HVLT, in perpetuity, the right to prohibit uses of the property that will diminish the pasture's open-space values, which provide significant public benefits to the people of Happy Valley.

• "Grantor specifically retains the right to use the pasture for agricultural purposes, consistent with the historical use that has been made of the pasture."

In 2050, the Grantor's successor can no longer earn a living raising beef cattle and converts to a much more intensive dairy operation, with a new barn, feed bins and a much higher density of cows. The range becomes pulverized, and runoff from the pasture begins to pollute the Smiley River. HVLT sues to enjoin the dairy operation, citing both a loss of open space and use of the property which is inconsistent with historical use. The landowner denies the easement violation, claiming she is engaged in a protected agricultural use and that the new barn does not diminish the open space of the pasture. The court must now decide whether there has been a conservation easement violation,

What will the court do?

Fundamentally, all litigation is a formalized process of boiling disputes down to basic questions of law and those material facts which are relevant to the questions of law at issue. Therefore, the legal system is not designed to examine conservation and environmental questions holistically; that is, in most disputes, courts are not authorized to--and judges do not want to--consider broad societal ramifications of particular land-use practices on easement protected property. Judges decide only the narrow questions presented to them in individual disputes, as framed by the allegations in the lawsuit and by the underlying material facts.

Thus, in the foregoing example, which is an action based on violation of the express terms of HVLT's conservation easement, HVLT probably could not maintain a court action based on the landowner's pollution of the Smiley River. The conservation easement's stated purposes are only to protect open-space values and agricultural lifestyles. A court, in its quest to address only issues that are material to the dispute in this case, would undoubtedly dismiss a water pollution claim as irrelevant to the legal issue of whether the terms of the easement have been violated and whether the rights of HVLT have thereby been abridged.

If a conservation easement enforcement case has reached the courts, it is very likely that the terms of the conservation easement at issue are unclear, ambiguous, contradictory, or impractical--or at least that one party believes these drafting defects exist. In the typical easement enforcement case, the court's duty is to interpret the disputed terms, in the context of the facts presented, and thereby, to resolve the dispute. Litigation over enforcement of conservation easements is, like any other litigation, primarily an exercise in persuasion. The party who prevails in court will be the party who best persuades a judge that easement terms should be interpreted as that party argues. To persuade judges, however, one must consider how judges make decisions. The following section ruminates on the inscrutable process of "judging."

How Do Judges Make Decisions?

Despite many technical rules of legal interpretation (discussed below), there are many ways in which judges may reach their decisions when deciding disputed issues of law. Like everyone else, judges have certain predispositions in the ways they analyze and decide complex problems. Judges have a host of analytical frameworks from which they may draw to decide close cases of conservation easement interpretation. Accordingly, depending on which analytical framework is chosen, the same case could be decided by different judges with entirely different outcomes.2 For example, depending on how a judge conceives of his role in society, a particular judge may approach the HVLT easement enforcement case in the following ways, among a myriad of other approaches.

Maximize social utility: If a judge believes that the best judicial philosophy is one which maximizes social benefits and minimizes social costs, she may weigh the relative economic impacts of the case before her and shape her decision to provide what she judges to be the greatest aggregate social benefit. Thus, if the landowner's new dairy farm on HVLT-protected property provides a stimulus to the local economy which outweighs social benefits associated with curtailing the dairy's operation, a judge may be inclined to decide that the dairy is consistent with the easement's goal of ' foster[ing] Happy Valley's traditional agricultural way of life" while discounting the land trust's goal of protecting open space. HVLT will lose its en forcement action.4 Protect individual rights: By contrast, if a judge believes that the best judicial philosophy is one which protects the individual rights of parties, no matter if enforcement of individual rights is less obviously beneficial to the public at large, she may shape her decision to uphold rights as a matter of principle, not social utility. Such a judge would be inclined to disregard the economic benefits of the landowner's new dairy and enforce HVLT's specific "right to prohibit uses of the property that will diminish the pasture's open-space values." HVLT would win under this conception of the case.4

Protect social order and predictability: Other judges believe that judges should decide cases according to written rules, despite immediate cost to society or individual parties. This philosophy places a premium on predictable legal outcomes, based on statutes or prior court decisions, which predictability itself yields overall social benefits. Such a judge would carefully scrutinize other conservation easement enforcement cases and decide whether to support HVLT's enforcement action in a manner that best mimics the outcome of those previous cases. Under such an analysis, the "settled legal expectations" of the parties and of the public as a whole are reaffirmed. Society's faith in the soundness of the legal system as a whole is also preserved.'

In short, different judges approach the same cases in different ways. Nevertheless, in any given case, a judge may be entirely unconscious of the precise analytical frameworks she employs. In a classic passage of "purple" prose and remarkable candor, for example, one highly distinguished judge described his method of deciding cases:

I, after canvassing all the available material at my command, and duly cogitating upon it, give my imagination play, and brooding over the cause, wait for the feeling, the hunch--that intuitive flash of understanding which makes the jumpspark connection between question and decision, and at the point where the path is darkest for judicial feet, sheds its light along the way.6

The overall lesson for land trusts is that all litigation is a messy, unpredictable exercise, and therefore, one that should be avoided at almost any cost.

The foregoing discussion also suggests two practical thoughts. First, clearly drafted, unambiguous language in conservation easements will help land trusts avoid court altogether by permitting the parties to understand their rights visa-vis one another, without resorting to the judicial system. Second, clear, unambiguous language in conservation easements reduces the leeway judges have to interpret that easement in ways which are unfavorable to land trusts, according to the judges' personal feelings and whims.

Because conservation easement enforcement law is still virtually nonexistent, future judicial decisions are likely to be as unpredictable as the many analytical frameworks used by judges to decide cases. Perhaps the single most frustrating concept for first-year law students--which land trusts should also take to heart--is the idea that there are no "right" answers to complex issues. Rather, there are a host of conflicting answers and outcomes, all of which may be supported by the facts and by prior legal precedent. Any land trust that engages in litigation of conservation easement terms should understand this risk: No matter how obvious the proper solution to a problem may be to the land trust, a judge may have an entirely different view of the case, based on an equally defensible perspective on the relative rights of the parties.

Litigation is always a gamble, therefore, because the process of decision making and the resolution of the dispute is fundamentally out of the hands of the parties. The best land trusts and their attorneys can do is attempt to persuade judges to reach a favorable outcome in light of their predispositions and in light of the conventions of deed and contract interpretation, as explained below.

Conventions of Deed, Contract and Conservation Easement Interpretation

Despite the random, unpredictable elements of judicial decision-making described above, most judges are highly conservative in the way in which they justify the decisions they ultimately reach. This conservatism stems largely from the traditional legal doctrine of stare decisis, which is defined as follows: After a court has "laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties and property are the same. "'

Therefore, no matter what the outcome of a case--whether based on a judicial philosophy of "rights protection" or "social utility," for example--a court will almost always try to justify its written decision based on previously announced legal doctrine. In a conservation easement enforcement action, a land trust's chances of a favorable outcome are enhanced if a court may interpret the meaning of conservation easement terms according to well-established legal principles. Thus, land trusts' chances of success will be enhanced if land trusts draft their easements so that defenses of their legal rights may be couched in principles familiar to judges. No matter what the court's overall judicial philosophy, a land trust may strongly influence the court's analysis of a case if reasons for enforcing the conservation easement are tied to longstanding legal convention.

Although very little conservation easement case law currently exists, courts have a huge body of legal doctrine to rely upon in deciding conservation easement enforcement cases. Conservation easements are real-estate deeds, among other things, and deeds have an ancient legal history. Therefore, as summarized below, courts have applied, and will apply, legal principles developed to construe and interpret deeds when issues of conservation easement enforcement are raised. Conservation easements should be drafted with these legal conventions and principles in mind to maximize the chances that the courts will decide easement enforcement cases favorably.

"Plain words" and "express intentions of the parties." As mentioned above, the most contentious conservation easement enforcement cases will center on the meaning and scope of specific terms contained in the conservation easement. In general, when called upon to interpret the meaning of conservation easements in the face of allegations of easement violation, the courts will first look to the "plain words" of the easement document itself. "Deeds, like contracts, are construed in accordance with the intention of the parties insofar as it can be discerned from the text of the instrument ... If a deed is unambiguous, the court's role is limited to applying the meaning of the words ...." Foundation for Historic Georgetown v. Arnold, 651 A.2d 794, 796 (D.C.App. 1994)

Courts assume that the express language of conservation easements determines the intentions of the parties. In analyzing the language used in conservation easements, words are "given their ordinary and usual meaning" as judged by a "reasonable person." Sagalyn v. Foundation for Historic Georgetown, 691 A.2d 107, (D.C.App. 1997). If the written words are clear, these terms will govern the rights and liabilities of the parties. French & Pickering Creeks Conservation Trust, Inc. v. Natale, 638 A.2d 273 (Pa.Sup.Ct. 1993) (unpublished opinion, at 2), appeal dismissed as improvidently granted, 654 A.2d 527 (Pa. 1995).

The case Goldmuntz v. Chilmark, 651 N.E.2d 864 (Mass.App.Ct. 1995), represents a fine example of a court which employed the "reasonable person" rule of interpretation of conservation easement restrictions. In Goldmuntz, the court rejected the following tortured, sophistic argument made by a landowner: (a) The conservation easement protects natural values but permits "passive" recreational use, such as swimming in a pond; (b) The conservation easement permits construction of "accessory structures" near the existing residence on the property; and therefore, (c) a swimming pool built near the residence must be a permitted accessory structure. Reading the conservation restrictions as would a "reasonable person," the Court found the proposed pool to be inconsistent with the overall goal of the easement to protect the property's natural amenities.

The doctrine which requires courts to rely on the express words of the conservation easement, whenever possible, underscores the importance of clarity of meaning and purpose in drafting conservation easements. If the words in an easement are clear, the court's discretion to stray from that meaning is severely limited. Clarity in legal drafting results in clarity of the parties' respective rights and liabilities. The lesson for land trusts is simple: If possible, do not use current colloquialisms, abbreviations, terms of art, or technical terms in conservation easements. If use of such terms is absolutely necessary, define the terms so that a "reasonable person" or a layman will understand the terms, precisely as intended. Use terms and language that are likely to be understandable 100 years from now. Otherwise, the prospects for successful conservation easement enforcement darken drastically.

The problem of "ambiguity" in the meaning of conservation easements. Only if a term is found to be ambiguous do courts look beyond the "four corners" of the conservation easement deed to consider other evidence. Sagalyn, at *9, n.8. If a conservation easement term "is reasonably susceptible of different interpretations, the provision is considered ambiguous." Id., at *4. For instance, in the HVLT example noted above, the conservation restrictions are rife with ambiguity. According to the language of the conservation restriction, HVLT has the right to prohibit "diminishment" of "open-space values" on the property. These words, in and of themselves, convey no clear direction to a court which is charged with interpreting them. Similarly, the restriction that the pasture must be used in a manner consistent with "historical use" is open to all sorts of interpretations. Does this term refer to recent history at the time the easement was granted, or are colonial farming practices, when every farm had milk cows, envisioned as an acceptable historical use? Once ambiguity is found in the terms of a conservation easement, "the court must determine the intent of the parties at the time the instrument was drafted, gathered from the language used and the circumstances which existed at its formulation." Thomas v. Campbell, 690 P.2d 333, 339 (Idaho 1984); French & Pickering Creeks Conservation Trust, Inc. v. Natale, 638 A.2d 273 (Pa.Sup.Ct. 1993) (unpublished opinion, at 4), appeal dismissed as improvidently granted, 654 A.2d 527 (Pa. 1995); Smith v. Jack Nicklaus Development Corp., 587 N.E.2d 1243, 1248 (Ill.App.2 Dist. 1992) (McLaren, J., concurring). The foregoing rule poses a major problem for conservation easement enforcement, which may occur 20, 50 or even 100 years in the future. A court's determination of the "circumstances" surrounding the creation of the easement will become more difficult as time passes. Accordingly, courts will have more leeway to impose their own interpretations of the meaning of ambiguous terms, since they will not be constrained by any credible evidence of the original parties' intentions.

If neither the easement's express language nor the circumstances of the easement's creation shed light on the meaning of ambiguous terms, courts will turn to "rules of construction" to ascertain the meaning of the easement and the relative rights of the parties. Arnold, 651 A.2d at 796. These rules of construction are varied, but generally include the following elements: 1. Deeds must be interpreted as a whole and all terms given an integrated interpretation. 2. Specific terms are given greater weight than general statements. 3. The parties' actual conduct may be relevant evidence as to how they intended ambiguous provisions to be interpreted (but conduct may never override clear terms in deeds). 4. Separately negotiated terms are given greater weight than standardized or "boilerplate" terms.

See RESTATEMENT OF CONTRACTS, SECOND §§ 202, 203. Deeds are also interpreted so that all terms are given meaning and effect if possible; that is, courts should not overlook or ignore some easement terms and give preference to others. See Racine v. United States, 858 F.2d 506, 509 (9th Cir. 1988).

like conservation easements were not favored, so the courts developed a doctrine providing that, whenever possible, ambiguously worded landuse restrictions "will be resolved in favor of the free use of land." Thomas v. Campbell, 690 P.2d 333, 339 (Idaho 1984); Arnold, 651 A.2d at 797; see generally Dana & Ramsey, "Conservation Easements and the Common Law" S STAN.ENV.L.J. 2 (1989) (discussing biases in the common law against enforcement of conservation easements). While this doctrine has been replaced in some states by statute, this rule of deed and contract construction favoring free use of land--not permanent conservation restrictions--should not be discounted by land trusts. Free use of property is a deeply ingrained principle in the legal system with which judges may skewer land trusts. Furthermore, ambiguous terms in deeds, contracts and conservation easements are generally construed against the primary drafter of the conservation easement. Arnold, 651 A.2d at 797. Thus, if a land trust uses a standard, model conservation easement, including boilerplate language, courts will have strong grounds to construe that language against the land trust, whenever possible.

Applying these rules of construction to the ambiguous terms of HVLT's conservation easement along the Smiley River, a court will reach a decision that addresses everyone's interests--at least on paper. Thus, in the blackest hypothetical scenario, a judge considering this example might cite the mutual intentions of the parties to "foster" agricultural lifestyles and issue a ruling upholding the landowner's new dairy operation. The restriction against interfering with openspace values could be rationalized with findings of fact that a dairy feedlot and the new barn are consistent with open-space protection because most of the pasture remains intact (if degraded). Furthermore, the judge might rationalize that dairy cows have been kept, in greater or lesser numbers, throughout the history of the area, so dairy farming is a traditional agricultural lifestyle contemplated by the easement. Finally, the court might consider (but perhaps would not state in writing) that a conservation easement which deprives the landowner of the right to engage in economically rewarding uses of her land is simply too great a burden to be countenanced.

Substantially brighter alternative analyses of HVLT's case also exist, but the fundamental point is that the law is not necessarily friendly to imprecise drafting of conservation easements, and, in the hands of an unfriendly judge, such drafting can be disastrous.

Practical Implications for Conservation Easement Drafting

All of the foregoing principles of deed construction have been employed by the courts at one time or another to justify decisions in conservation easement cases. Although the legal doctrines are complicated, an understanding of these fundamental principles is vitally important to conservation easement drafters. These principles will be applied by the courts, so drafters should be aware of them, and where appropriate, take full advantage of them.

For example, because the meaning of conservation easement terms will be determined by the intentions of the parties at the time of the creation of the casement, land trusts should thoroughly document their own specific reasons for obtaining conservation easements and grantors' reasons for donating the easements. As the Land Trust Alliance's Standards and Practices Manual states: "Memoranda of understanding, letters of agreement, and/or correspondence, signed by the appropriate people, ... should be kept as part of every project file. Fifty or 100 years from now, that record will be the only voice left."8

Overall, the vital need for clarity in the language used in conservation casements stands as the mostt important lesson for land trusts de= rived from a review of legal principles of deed and contract interpretation. The more precise and clear the language in conservation easements, the less discretion courts (and hostile landowners) have to challenge the conservation restrictions in those easements.

Clarity of intent. Conservation easements that incorporate detailed and precise statements of the Grantors' and Grantees' mutual goals and intentions deprive judges of an avenue to impose their own interpretations of the scope and purpose of casements. As noted above, conservation easements "are construed in accordance with the intention of the parties insofar as it can be discerned from the text of the instrument ... If a deed is unambiguous, the court's role is limited to applying the meaning of the words

Arnold, 651 A.2d at 796; accord Natale, 638 A.2d 273 (Pa.Sup.Ct. 1993) (unpublished opinion, at 2). The commentary to the Land Trust Alliance's 1996 Model Conservation Easement rings particularly true: "As critical for an easement's long-term enforceability as its express restrictions ... is the clarity with which its protective purpose and intent are set out. "9

Thus, in the HVLT example, if the land trust intended its conservation easement to prevent additional structures in the pasture, including new barns and other agricultural buildings, the easement should have said so. The stated goal of preserving "open space" is so ambiguous that a judge could construe this expression of intent to mean virtually anything--or to mean nothing--in light of other stated conservation easement goals.

Clarity of meaning. Technical terms, jargon, colloquialisms, abbreviations or informal terms are unacceptable in conservation easements because the meaning of such terms is unclear. In fifty years, for example, neither the courts, nor land trusts, nor successor landowners will understand a restriction in a conservation easement, which limits timber harvests to "sustainable yield." As noted by Laurie Wayburn of the Pacific Forest Trust, the term "sustainable yield" is inherently ambiguous, even today. 10 As a result, a judge interpreting the meaning of this restriction, after a landowner has clearcut all of his virgin western red cedar, has virtually unlimited discretion to impose his or her own interpretation of the term- to follow his or her "hunch" about the best way to interpret the phrase. As noted above, rules of legal construction are likely to turn such ambiguity in conservation easements against land trusts and in favor of free use of property. The trees, after all, will grow back after a few centuries.

Simple, precise, straightforward, timeless language is the only acceptable language in conservation easements. Clarity of meaning may also be derived from reference to specific definitions printed elsewhere. If state law, for instance, has a definition of "sustainable yield" that is precise and scientific, express reference to the statutory definition may be appropriate to incorporate into the easement.

Clarity of expression. Conservation easements, more than any other legal document, are written for the ages. Therefore, clear sentence and paragraph structure and logical organization of conservation easement terms, conditions and restrictions are important. Easement drafters must be able to write grammatically, as well. Errors in grammar and sentence structure may change the entire meaning and interpretation of conservation easements, resulting in enforcement disasters. Consider the difference in meaning between the following two phrases, drawn from the HVLT example above:

Grantor conveys to HVLT, in perpetu the right to prohibit uses of the property that will diminish the pasture's open-space values, which provide significant public benefits to the people of Happy Valley. "

Grantor conveys to HVLT the right to prohibit uses of the property that will diminish the pasture's open-space values in perpetuity, which provide significant public benefits to the people of Happy Valley. "

In the first example, the Grantor has made a grant of a perpetual conservation right to HVLT. In the second example, the meaning of the grant is less clear, and easily could be interpreted to permit the Grantor to engage in activities that do diminish open-space values, as long as the loss of such values does not last forever.

Every draft conservation easement should be reviewed, over and over again, preferably by several different people, before it is finalized to ensure that the easement says exactly what the parties intend it to say. In my own work, I try to write my conservation easements as if the total strangers who walk by my office door could read, understand and apply every term of the easement. I invariably fail this test--having been initiated into the weird and abstruse vocabulary of the legal profession and having been thoroughly scarred thereby--but at least I try to meet the "total stranger" test.

Institutional Obstacles to Conservation Easement Enforcement

Fundamentally, conservation easements are highly complex legal documents that are extremely difficult to draft well, even for the most experienced and intelligent lawyers and land trust professionals. Easements are simultaneously real property deeds and perpetual contracts governing land management. Easements also create a land management "partnership" between land trusts and landowners. Thus, the language used in conservation easements must be balanced and precise to ensure that the appropriate rights are conveyed, that the contract achieves its conservation purposes, and that the land trust/landowner partnership remains viable for the life of the easement.

Individuals who draft conservation easements are likely to emphasize their own priorities. Easements drafted by attorneys tend to be more "legalistic," emphasizing the transfer of property rights, than easements drafted by natural resource professionals employed by land trusts, which tend to focus on land management criteria. Judges, for their part, will certainly focus on the legal import of every phrase of conservation easements which are in dispute, but, frequently, they will be called upon to decide resource and land-management disputes.

Because judges are lawyers, they will need to be educated about proper resource management in conservation easement disputes. A conservation easement which contains complex land management criteria, therefore, will place enormous demands on the legal system. Consider, for example, a conservation easement that requires a landowner to implement "range management in accordance with the latest scientific principles of range husbandry." A judge who is asked to determine whether a landowner is complying with this mandate faces an extraordinarily difficult task. Judging is hard work. Substantial data will need to be gathered and introduced in court about the landowner's actual range management practices, and the land trust will have to show why these practices are not consistent with the conservation easement. The land trust will next have to educate the judge about the latest principles in range science, as applied to the site in question. This process of education will require that a land trust present testimony from expert witnesses. For her part, the landowner will probably have her own experts to refute the land trust's experts. The judge will be caught in the middle of this torrent of data and "battle of the experts," forced to choose between one outcome and another with only a layman's knowledge of ecology and science."

The courts, with overburdened dockets and limited time, will become impatient with the resource management seminars that land trusts may need to present to explain why easements have been violated and why the violations are significant. Any judge who becomes impatient with the process is no friend of land trusts which try to protect subtle degradation of natural resources, and an adverse decision may be the consequence. In response to the litigation flood, some judges place arbitrary time limits on testimony and legal arguments, simply to ensure that all cases move expeditiously through the system. Such time limits may not permit land trusts to offer adequate proof or argument to explain the importance of subtle violations.

Because of the need to educate the courts-and the courts' institutional resistance to being educated about complex land management issues--land trusts will have a much easier time enforcing relatively simple easements, rather than complex, multifaceted documents. As a result, I believe land trusts should strive for simplicity in every conservation easement project taken on. Given the varied purposes served by many conservation easements, such simplicity may be difficult or impossible to achieve, but the exercise of trying to pare the purposes of, and restrictions contained in, conservation easements to their barest essence undoubtedly pays long-term enforcement dividends.

In Pursuit of Simplicity

In my experience, land trusts like to have one model conservation easement that contains almost every conceivable justification for land protection, including protection for open space, fish and wildlife habitat, viewsheds, agriculture, timberlands, and range resources. Once such land trusts have these easements on file, they may modify them a little, but the standard format remains the same. Thus, essentially the same conservation easement is frequently applied to 20-acre parcels adjacent to a city and 10,000 acre ranches in the Missouri Breaks or Snake River Valley, although the conservation values associated with each property are very different.

Using a standard conservation easement certainly allows land trusts to streamline their easement acquisition programs, but I believe that such practice may pose serious enforcement problems in the future, because the "boilerplate easements" are not crafted carefully to protect goals which are specific to the property protected. To ensure that conservation easements are enforceable in the future, land trusts must articulate exactly why they are taking the easements today, and the easements themselves should specify the precise conservation value of the property to the public. It is not enough for a land trust to rely on a "gut" feeling that one piece of property is important to conserve and to recite a litany of public values that the land trust believes are provided, in greater of lesser degree, by the'land protection project. The actual and precise public benefits provided by each conservation easement should be verbalized and expressly incorporated into the terms of the easement.

Furthermore, if there is only one defensible reason for accepting a conservation easement, the land trust should state only that reason as the purpose of the easement, and it should delete irrelevant boilerplate language." Otherwise, when an enforcement action arises, the land trust will not be able to demonstrate that many of the stated purposes of the easement have any meaning or validity, and the land trust's credibility in the litigation will be seriously undermined. Unless a land trust identifies and articulates exactly why it takes an easement in the first place, long-term enforcement (and monitoring) of the easement with any sort of coherence will be nearly impossible."

Once a land trust identifies the specific public values which will be protected by a conservation easement, it should clearly set forth measurable criteria against which landowner acts of non-compliance may be evaluated. When feasible, land trusts should set permissible "threshold" levels of activity and communicate such thresholds to landowners. Actions within a particular threshold do not violate the easement; actions beyond the threshold are considered in violation. For example, if HVLT intended to protect open space by precluding construction of any new buildings, the easement should have prohibited all future construction, even construction of an additional barn. Such a restriction is easy for a judge to interpret and apply. To paraphrase Charles Dickens: "If a new building is constructed--easement violation; if a new building is not constructed--case dismissed." Judges appreciate "black-and-white" enforcement criteria, not "fuzzy" resource management goals. It is easier for judges to determine when a line of unacceptable behavior is crossed if that line is a bright one. In this regard, the Pacific Forest Trust's approach to conservation easement drafting for productive forestlands is instructive. Instead of inserting vague, ambiguous language in its easements, the Pacific Forest Trust sets out "performance goals" concerning forest management and allows landowners flexibility in meeting these goals: "We ... mix... prescription and performance goals: a short list of very clear enforceable and easily monitored prescriptions -- such as no commercial harvest or no harvest in stream zones and then identification of long-term performance goals, such as achievement of old-growth conditions or the establishment and maintenance of a mix of several sera] stages, over the landscape. As to these identified goals, we do not say how they must be achieved, but rather that they must be achieved for harvest or other management activities to occur." These proscriptions and goals give judges relatively clear guidelines by which to decide-yes or no--whether there has been an easement violation. There is no muddied middle ground in which an indecisive judge can wallow. The importance of incorporating in conservation easements simple, clear goals, and specific measurements of whether those goals have or have not been met, cannot be overemphasized. Without clear goals and simple measurable criteria, judges are likely to consider conservation easements ambiguous, applying all the unpredictable legal doctrines discussed above. Clearly stated goals, and simple criteria by which to measure performance, will mean the difference between a conservation easement enforcement case decided according to a judge's "hunch" and a conservation easement case decided according to precise land management criteria.

As an additional benefit, clear, measurable criteria in conservation easements also vastly simplify conservation easement monitoring. Land stewards can quickly identify whether the conservation easement's criteria have been met and will not have to determine for themselves the meaning of ambiguous conservation easement terms. Furthermore, with clearly defined criteria, land stewards may gather "black-and-white" evidence of the violation which may expedite a judicial decision if the violation ever goes to court. Simple Conservation Easements; Complex Conservation Goals

I recognize that some properties are so significant that many reasons may exist for placing them under conservation easements, and, therefore, the foregoing goal of simplicity will be nearly impossible to achieve. In such circumstances, I agree that land trusts should include every important justification for land protection possible, even if the easements become highly complex. In short, my plea for simple, precisely targeted easements set forth above, is not appropriate for all projects.

As a practical matter, for easments intended to produce tax deductions, the more justifications under the tax code for making a gift, the more secure a donor's deduction will be against IRS challenge. A distinct disadvantage of targeted, single-purpose easements, for example, is that such easements leave no margin for error with the IRS If an easement is taken solely to protect open space, for example, but, if for some reason does not qualify undcr the tax code, the entire deduction will be disallowed. By contrast, if an easement deduction is taken for two or more permitted purposes, one basis for a claimed deduction may fail but the -other basis may preserve the deduction in full. Moreover, for conservation easement enforcement, it is sometimes helpful to have numerous examples of landowner easement violations to win a major litigation victory. A series or pattern of violations may be taken more seriously by a court than violation of a single restriction on a single occasion.

Just because a property provides many public values, however, does not suggest that land trusts should be less vigilant about documenting detailed purposes behind easement acceptance, or about establishing precise criteria for measuring when a violation occurs. A "big" conservation project naturally demands more attention to such detail, no matter whether that project draws resources away from other potential projects. Because enforcement of a complex conservation easement is likely to be very expensive anyway, detailed and precise measurements of all easement violation criteria may be particularly important as potential litigation cost containment measures. From a long-term, easement enforcement perspective, it is better to document one easement correctly, with clearly articulated goals and criteria for every conservation valueprotected by the easement, than to accept ten easements without clear reasons and justifications for doing so.

Other properties may require intensive resource management activity to protect resources, and therefore such properties will require complex, demanding conservation easements. In my opinion, land trusts in these circumstances should carefully evaluate whether conservation easements are appropriate land protection instruments. Conservation easements were originally conceived as legal vehicles to prevent property from being used in certain ways; they were not devised to force landowners to engage in particular management strategies. Conservation casements are essentially "negative" property interests; they do not comfortably confer to land trusts extensive affirmative property rights in land.

If an easement conveys to a land trust the right to micromanage property, for example, judges will become very nervous about enforcement; they will be reluctant to strip the nominal owners of fee title of their ability to use their property as they see fit. Under general property law principles, "easements" of any type, including conservation easements, are not stretched too far by judges. Otherwise, easements would overwhelm the benefits of ownership associated with fee title to property.

Many land trusts recognize this line between negative and affirmative rights and have developed strategies outside of the conservation easement framework by which they try to obtain greater management control and authority over protected properties. One such strategy is to insert a clause in conservation easements requiring landowners to enter into separate land management agreements every 5 to 10 years. The legal efficacy of such provisions in easements is questionable, however. What if a landowner, two or three generations in the future, refuses to sign such a contract? What options does a land trust have then? In my view, courts will be very reluctant to require landowners to sign and abide by land management agreements to which they object in principle. The legal system is adverse to forcing individuals into contractual arrangements that they have not personally countenanced. While the original grantor of the easement may be bound, because the original grantor and the land trust have "privity of contract," the courts may consider such an obligation too vague and too burdensome to be enforceable against successor landowners.

Accordingly, properties which need intensive management to provide significant public values are probably better candidates for acquisition in fee than for conservation easements. Fundamentally, I believe that conservation easements are not suited to encourage substantial proactive management; they better preserve the status quo. For this reason, courts will do their best to invalidate conservation easements, in whole or in part, that try too impose too many restrictions and affirmative requirements on landowners.

Conclusion

As the land trust movement matures and ownership of land protected by conservation easements changes hands, the number of conservation easement enforcement actions will grow from today's trickle to tomorrow's deluge. Land trusts would be wise to prepare.

One way to prepare is for land trusts to conduct thorough reviews of their internal procedures for accepting, drafting and documenting their conservation easements. All stages of the conservation easement creation process should manifest clarity of purpose for accepting easements and clarity of expression in documenting those purposes. With clear goals for each conservation project, and measurable criteria to determine whether those goals have been met, easement monitoring will be simplified and the probability of successful easement enforcement will be enhanced.

Another way to address the impending flood of enforcement actions is for land trusts to thoroughly review their existing conservation easements to identify potentially ambiguous provisions. Ultimately, land trusts should consider taking steps to eliminate or reduce such ambiguity. If the easement donors are still alive, for example, affidavits clarifying the meaning and intention of ambiguous terms in easements could be obtained at little cost, and easement monitoring practices could be changed ensure the parties' intentions are actually being diet. In some cases, wholesale revision of old conservation easements to conform with new drafting practices might be possible and advisable. Although easement revision may be costly in the short term, the long-term benefits from an easement enforcement perspective should not be discounted.

In any case, land trusts must be aware of the consequences of poor easement drafting. Easements that do not adequately define the respective rights of land trusts and landowners are legal "time bombs." Unfortunately, when one or more of these bombs explodes and the courts decide against conservation easement enforcement, the entire private land conservation movement may be injured, especially in the states where the decisions are rendered. The stakes are high. Now is the time to act to anticipate future legal problems and implement appropriate remedial measures.

ENDNOTES

See, e.g., Sagalyn v. Foundation for Preservation of Historic Georgetown, 691 A.2d 107, 1997 WL 123735 (D.C. App., Mar. 20, 1997) (for an example of how historic preservation easement enforcement may turn on a court's interpretation of the meaning of only one word). 2 One study concluded that differences in judicial approaches to the same problems depended on (1) how comfortable the judges were with strict reliance on settled law, (2) how comfortable the judges were applying their own values, consciences and sense of justice to particular cases, and (3) how they perceived the consequences of their decisions on the "broader public interest." Linder, "How Judges Judge: A Study of Disagreement on the United States Court of Appeals for the Eighth Circuit," 38 ARKANSAS L. REV. _479, 490 (1985). 3 A judge using this analytical framework is a devotee of the "law and economics" school of legal analysis. See, e.g. Michelman, "Ethics, Economics, and the Law of Property," in NoMos XXIV: ETHICS, ECONOMICS AND THE LAW 3 (1982); C. Veljanovski, THENEwLAw-ANDECONOMICS: A RFsEARcH REviEw 37 (1982). 4 A judge who renders such a decision probably believes in the primacy of "moral rights;" that is, the rights of individuals have primacy over purely efficient outcomes or outcomes based on settled rules. See R. Dworkin, A MATTER OF PRINCIPLE (1985). s A judge who decides cases primarily on the basis, of settled rules of law uses a "rule utilitarian" approach to legal decision making. See, e.g., K. Llewellyn, THE BRAMBLE BUSH 71-72 (1960) (even if past decisions have been ignorant, foolish or biased, there is at least merit in predictability when today's races are decided on the basis of past decisions). 6 Hutcheson, "The Judgement Intuitive: The Function of the Hunch in Judicial Decision," 14 CORN. L. Q. 274, _ (1929). Judge Hutcheson actually identified four judicial decisionmaking techniques: the "cogitative" which depends on logical deduction and reflection; the "aleatory" which depends on a roll of the dice; the "intuitive" which depends on hunches; and the "asinine, of and by an ass." Id. ' BLACK'S LAw DICTIONARY, at 1261 (5th Ed. 1979). ' Land Trust Alliance, STANDARDS AND PRACTICES MANUAL, Practice 11E, at 11-19 (1993). ' MODEL. CONSERVATION EASEMENT & HISTORIC PRESERVATION EASEMENT, 1996, at 4. 10 See L. Wayburn, "Saving the Forests for the Trees, and Other Values," THE BACK FORTY ANTHoLOGY at 3.46 (1995). " This scenario also highlights the frightening expense of conservation easement enforcement cases. Expert witnesses, for example, typically charge hourly fees. They often prepare written reports in advance of testifying in court, and they are needed to review and respond to the opposing side's expert opinions. Experts must also be prepared for the court experience by the land trust's counsel, with the attorney's meter running all the time. Such costs may be reduced, although not eliminated, if land trusts are diligent about (a) identifying precise conditions under which a violation will be found and (b) developing appropriate resource data measuring whether a landowner remains in compliance. '2 If a land trust accepts an easement to protect only one public value, it should be careful to document, thoroughly, the specific public benefits provided by that easement and how the easement provides such benefits to the public. Unlike single purpose conservation easements, multifaceted easements provide land trusts will more margin for error in enforcement actions; alternative enforcement arguments are available if one fails. Single purpose easements do not provide such comfort. " See Land Trust Alliance, STANDARDS AND PRAC. TILES MANUAL, Chapter 8 (1993). 14 L. Waybum, "Saving the Forests for the Trees, and Other Values," THE BACK FORTY ANTHOLOGY at 3.45 (1995) (emphasis in original).

Andrew Dana, a member of The Back Forty's Advisory Committee, is an attorney who practices real estate law in Bozeman, Montana.