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Real estate, land use and zoning attorney. I use my twenty-five years of experience and bar licenses in CA, NV, OR and WA to assist landowners and land trusts in large-scale conservation easement projects.

Selected Bibliography of Conservation Easement Scholarship by Professor Jessica Owley

This post is a selected bibliography of Professor Jessica Owley’s recent scholarship pertaining to conservation easements, with a focus on exacted conservation easements.  All of the abstracts and links to the articles have been or soon will be distributed on the SSRN eJournal “Protected Lands Law & Policy.”  Clicking on the links below will allow you to download the full text of these articles on Professor Owley’s SSRN website.

“Property Constructs and Nature’s Challenge to Perpetuity”

Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach (Keith Hirokawa ed.) Cambridge University Press, 2013, Forthcoming

JESSICA OWLEY, SUNY Buffalo Law School

Abstract:

Conservation biology and ecology (as well as our eyes and ears) tell us that nature is in a constant state of flux. Yet, models of land conservation focus on preserving the present state of land in perpetuity. Legal concepts that center on the status quo turn a blind eye to the fact that nature is ever-changing. This conflict is illustrated by examining both traditional property servitudes and conservation easements. These restrictions on private land often explicitly state that they are preserving today’s landscape in perpetuity. This chapter explores the inherent conflict between the changing natural world and rigid legal structures, detailing the struggles of applying principles like resiliency thinking and adaptive management to property tools for conservation. It also explores why this disconnect occurs including some discussion of environmental psychology.

“From Citizen Suits to Conservation Easements: The Increasing Private Role in Public Permit Enforcement

43 Envtl L. Rep. News & Analysis 10406 (2013)

SUNY Buffalo Legal Studies Research Paper No. 2013-042

JESSICA OWLEY, SUNY Buffalo Law School

Abstract:

The past 40 years have seen an increase in the involvement of private actors in environmental law. One of the best-known (and arguably best-loved) methods for public involvement is the citizen suit. This popular method of public enforcement of environmental permits (among other things) has been joined by the use ofconservation easements. Conservation easements are increasingly used to meet permit mitigation requirements. When private nonprofits hold the exactedconservation easements, they assume the role of permit enforcers. It is their job to ensure that conservation easement terms are complied with, giving them oversight and control over one of the pivotal components of environmental permitting regimes. Land-trust-held exacted conservation easements privatize enforcement of environmental law, much as citizen suits do. However, exacted conservation easements differ from citizen suits in that they foreclose public enforcement instead of complement it. Use of exacted conservation easements would improve if we apply lessons about public involvement and information from our citizen suit tradition.

“What Exactly are Exactions?”

New York Environmental Lawyer (Spring 2013)

JESSICA OWLEY, SUNY Buffalo Law School

Abstract:

This brief piece for the publication of the Environmental Law Section of the New York Bar Association discusses the potential implications of Koontz v. St. John’s River Water Management District (pending before the U.S. Supreme Court) and its implications for New York law. While all exactions must undergo a Nollan/Dolan level of scrutiny, New York courts have limited the reach of this analysis by narrowly defining what constitutes an exaction. In Smith v. Town of Mendon, the New York Court of Appeals defined exactions strangely. First, it held that conservation restrictions did not qualify as exactions unless they required public access. Second, bound by precedent, the court recognized that in lieu fees are exactions requiring Nollan/Dolan analysis. These holdings seem out of step with Supreme Court jurisprudence and likely to require revisitation after the Court issues its opinion in Koontz. At oral argument, the justices appeared to interpret exactions much more broadly than the New York courts.

“Exacted Conservation Easements: Emerging Concerns with Enforcement”

Probate & Property, Vol. 26, No. 1, p. 51, 2012

Buffalo Legal Studies Research Paper No. 2012-040

JESSICA OWLEY, SUNY Buffalo Law School

Abstract:

Enforceability of exacted conservation easements is uncertain. Legislators, activists, and academics did not contemplate the proliferation of exacted conservation easements when enacting, advocating for, and writing about state conservation easement statutes. Despite this early oversight, exaction has become one of the most common ways that conservation easements come into being. Enforceability of exacted conservation easements is a threshold question of analysis for the continued use of the tool. Assessing the validity, and thus legal enforceability, of the exacted conservation easements involves examining the state’s conservation-easement statutes and state servitude law as well as the underlying permit scheme.

This article presents a roadmap for investigating the enforceability of exacted conservation easements and makes three suggestions for improvement. First, states should address exaction in their state conservation-easement acts. Second, drafters should increase the precision and detail of the agreements, acknowledging and explaining the nature of the exaction and the underlying permitting law. Third, to clarify the elements and uses of exacted conservation easements to both agencies and citizens, government agencies that use exacted conservation easements should promulgate regulations related to their use. Such regulations should include ensuring that permit issuers retain third-party right of enforcements. This will keep the permitting agency involved even if it is not the holder of the exacted conservation easement.

Uncertainty in enforceability of exacted conservation easements calls into question their use as a method of land conservation. Furthermore, the questionable validity of exacted conservation easements indicates that the permits relying upon such exactions could be ill advised and potentially in jeopardy.

The Enforceability of Exacted Conservation Easements

 Vermont Law Review, Vol. 36, 2011 

Buffalo Legal Studies Research Paper No. 2012-034 

 JESSICA OWLEY, SUNY Buffalo Law School

Abstract:   

The use of exacted conservation easements is widespread. Yet, the study of the implications of their use has been minimal. Conservation easements are nonpossessory interests in land restricting a landowner’s ability to use her land in an otherwise permissible way, with the goal of yielding a conservation benefit. Exacted conservation easements arise in permitting contexts where, in exchange for a government benefit, landowners either create conservation easements on their own property or arrange for conservation easements on other land.

To explore the concern associated with the enforceability of exacted conservation easements in a concrete way, this article examines exacted conservation easements in California, demonstrating that despite their frequent use in the state, their enforceability is uncertain. The three California statutes governing conservation easements limit the ability to exact conservation easements. California caselaw, although thin, indicates that courts may be willing to uphold exacted conservation easements even when they conflict with the state statutes. This examination of the California situation highlights California-specific concerns while providing a framework for examining exacted conservation easements in other states.

This article illustrates not only challenges of enforceability that arise with exacted conservation easements, but uncertainty in their fundamental validity and concerns about public accountability. This exploration illustrates that enforceability is not straightforward. This raises significant concerns about using exacted conservation easements to promote conservation goals, calling into question specifically the use of conservation easements as exactions.

“Exacting Conservation Easements in California”

Environmental Law News, Vol. 21, No. 1, Winter 2012

SUNY Buffalo Legal Studies Research Paper No. 2013-006

JESSICA OWLEY, SUNY Buffalo Law School

Abstract:

The enforceability of exacted conservation easements is a threshold question for their continued use. This brief article, prepared for the publication of the Environmental Law Section of the California Bar Association, builds on earlier work on exacted conservation easement to examine tricky enforceability questions arising in that state. In California, three statutes regulate agreements of this type: the Scenic Easement Deed Act (SEDA), the Open Space Easement Act (OSEA), and the Conservation Easement Act (CEA). It is not clear whether exacted conservation easements are permissible under any of these three statutes and the CEA’s requirement that conservation easements be “voluntary” and complicates matters. With a close look at the CEA and related case law, this article assesses the likelihood of enforcing exacted conservation easements in California.

The California cases present two possibilities. One group of cases indicates that courts might choose to enforce exacted conservation easements based on the underlying law that served as the basis for the exaction. In such cases, it does not appear to matter whether the exacted conservation easements follow the requirements outlined in CEA or other California property law. Other cases, however, hint that courts might refuse to enforce exacted conservation easements that do not follow the requirements of California property law, requiring any created restrictions to adhere to the conservation easement or servitude statutes. The result is a conflicting legal landscape with few published cases and little legislative history to guide courts, local governments, and citizens.

“Neoliberal Land Conservation and Social Justice”

International Union for Conservation of Nature Academy of Environmental Law e-Journal, 2012

SUNY Buffalo Legal Studies Research Paper No. 2013-002

JESSICA OWLEY, SUNY Buffalo Law School

Abstract:

Private land conservation programs in North America tend to convey the greatest benefits to those who are already relatively well off in terms of land, wealth, and quality of life. For example, conservation easements — the fastest growing method of land protection in the United States — reward landowners with cash payments and tax breaks. At the same time, these programs tend to focus protected land in areas with low population densities. These benign sounding programs can hamper social services by reducing tax revenues and preventing the development of socially desirable amenities like affordable housing. This article describes the emergence of conservation easements as a land protection mechanism, situating it within the worldwide trend of neoliberal conservation and emergence of new environmental governance systems dominated by private actors. Specifically, this article examines the social justice concerns of conservation easements including questionable use of public funding, inequitable distribution of environmental amenities, and concerns about democracy and accountability. Rethinking conservation easement placement, use, and enforcement along with reducing or removing the tax breaks associated with them would alleviate, but not erase, some of the environmental justice concerns.

“Use of Conservation Easements by Local Governments”

 GREENING LOCAL GOVERNMENT, Patricia Salkin and Keith Hirokawa, eds., A.B.A. Publishing, 2011 

Buffalo Legal Studies Research Paper No. 1698109 

JESSICA OWLEY, SUNY Buffalo Law School

Abstract: 
This chapter (which will be included in the forthcoming Greening Local Government book published by ABA Publishing and edited by Patty Salkin and Keith Hirokawa) briefly introduces conservation easements, explains how local governments can use them, and discusses the appropriate role and extent of their use.

Conservation easements are nonpossessory interests in land restricting a landowner’s activities in a way that yields a conservation benefit. Local governments have been on the cutting edge of using conservation easements, engaging with them on multiple fronts. First, local governments hold conservation easements. This enables local governments to enforce individual agreements and prevent landowners from engaging in environmentally destructive practices. Second, as landowners, local governments encumber public land with conservation easements – affirming their commitments to land conservation. Finally, local governments promote conservation easements. By passing laws supporting and funding conservation easements as well as requiring exacted conservation easements for land-use permits, local governments employ mechanisms that increase the number of conservation easements in their communities.

Conservation easements can protect environmental amenities and deserve praise for their individual nature and ease of establishment. However, conservation easements are static agreements locking in today’s land use preferences and understandings of the natural environment to the potential detriment of future generations with different goals or understandings of the natural world. Furthermore, although praised as an inexpensive method for governments to obtain land conservation, funding necessary for stewardship and enforcement could be significant. As development pressures and understandings of environmental degradation increase, the use of conservation easements by local governments is likely to continue to grow. Local governments should make use of this tool cautiously.

 “Tribes as Conservation Easement Holders: Is a Partial Property Interest Better than None?”

TRIBES, LAND, AND THE ENVIRONMENT, Ezra Rosser and Sarah Krakoff, eds., Ashgate Press, 2011

Buffalo Legal Studies Research Paper No. 2012-004

JESSICA OWLEY, SUNY Buffalo Law School

Abstract:

Conservation easement use is growing rapidly, as is the number of organizations looking to the tool to meet land conservation needs. Until recently, tribes had not been involved in conservation easement transactions. This book chapter examines the most common way tribes have become involved in conservation easement transactions — tribes as conservation easement holders.

The chapter examines why tribes decide to hold conservation easements, looking at the choice to use conservation easements generally and then situating the decision in the evolution of property law in the United States both on and off tribal land. Conservation easements are a uniquely American form of property that emerge from Lockean roots and embrace a libertarian notion of property rights. In that light, tribal embrace of the tool may seem surprising as these notions of property have done harm to tribal sovereignty and may be at odds with some traditional tribal practices.

The chapter concludes by asking whether tribes should use conservation easements. Wrapped up in this question is an assessment of the conservation easement tool generally as a vehicle for long-term land protection. The strength of the conservation easement tool is that it gives government entities the ability to extend their land conservation and environmental stewardship roles beyond their jurisdictional boundaries. Tribes may not have the power to regulate land use in nearby communities, but they can acquire conservation easements over such land and obtain similar results. Thus, despite some discordance due to the anticommunitarian sentiments at the heart of conservation easements, the conservation easement tool may provide tribes with an avenue for furthering tribal goals of conservation and intergenerational equity.

“Who Should Protect the Forest?: Conservation Easements in the Forest Legacy Program”

33 Public Land and Resources Law Review 2012, Forthcoming

SUNY Buffalo Legal Studies Research Paper No. 2013-003

JESSICA OWLEY, SUNY Buffalo Law School

STEPHEN J. TULOWIECKI, SUNY Buffalo Law School

Abstract:

Increasingly, governments are turning to nongovernemental actors to carry out environmental protection goals. This has been particularly prevalent in the realm of land conservation. Government programs often draw upon the power of nonprofit conservation organizations known as land trusts to monitor, manage, and enforce land protection goals. Reliance on land trusts has created both philosophical and practical conundrums. These concerns also stem in part from the chief land protection tool used by land trusts: conservation easements. This article examines these concerns by a close look at the role of land trusts and conservation easements in the Forest Legacy Program.

Administered by the U.S. Forest Service, the Forest Legacy Program seeks to slow conversion of private forestlands to nonforest uses. Conservation easements form a key element of the Program, but their use is complicated. In creating the Program, Congress seemed to both want to encourage the involvement of land trusts and to curb their reach. The Program draws upon the power of private organizations, and increasingly calls upon land trusts to carry out the duty of protecting forestlands and yet stops short of enabling these organizations to receive Program funds or to enforce conservation easements purchased with Program funds. Thus, in the FLP, Congress inches toward privatization of forestland conservation, but holds back. This stance is bewildering. If Congress was concerned with the involvement of land trusts in forestland conservation, it seems to give them too much power. If Congress wanted to encourage greater land trust involvement, it seems to stop too short.

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