Tuesday, August 26, 2014

Maryland Land Trust and Attorney General Enforce a Conservation Easement

MET Tanager copyMaryland Environmental Trust (MET), one of the oldest and largest land trusts in the country, with the assistance of the Maryland Attorney General’s Office, recently settled a suit enforcing a conservation easement that protects a 31-acre parcel near the Chesapeake Bay. Created by statute in 1967, MET is affiliated with the Maryland Department of Natural Resources and is represented by the Maryland AG’s Office. The easement, among other things, prohibits timbering of the forestland on 13 of the 31 acres to protect the habitat of forest interior dwelling bird species, such as the scarlet tanager (pictured above). These birds, the populations of which are declining in Maryland, live in tall mature trees and need a closed forest canopy. 

Mr. and Mrs. Hooper granted the conservation easement to MET in 1999. Five years later they sold the property to a new owner but moved only a short distance away. In early 2012, the Hoopers became aware that the new owner was timbering within the 13-acre restricted area. Deeply concerned, the Hoopers contacted MET and MET confirmed that over 200 mature large girth hardwood trees had been removed from the restricted area. The removal of large portions of the forest canopy had destroyed the bird habitat and permitted invasive Japanese stiltgrass to flourish on the property. 

Representatives from MET and Maryland AG’s Office met with the new owner to attempt to resolve the issues, but MET eventually had to file suit against the new owner for both the timber violation and a dumping violation (the new owner had also buried debris from a demolished garage on the property in violation of the easement). MET asked the trial court to require a remediation plan developed by the Maryland Department of Natural Resources that would eradicate the invasive stiltgrass and, over time, reestablish the hardwood trees. The plan indicated that it would take at least 50 years to reestablish the tree canopy needed by the forest interior dwelling bird species. MET also sought the $24,000 the new owner had earned from the sale of the timber on the ground of unjust enrichment. 

MET purl timber copyMET, the Maryland AG’s Office, and the new owner discussed a possible settlement until the eve of trial but were unable to come to agreement. The one-day trial took place in July 2014. MET entered numerous exhibits, including its investigation report; photos of the destruction in the timbered area; photos of the site of the dumping and burial of the garage debris; and resumes of expert witnesses from the Maryland Department of Natural Resources who were prepared to testify, including a forestry expert, an invasive plant ecologist, and the state zoologist. MET’s stewardship manager was also in the courtroom and prepared to testify about the damage to the property. 

After MET entered its exhibits, the new owner, who had no expert witnesses, offered to sign MET’s settlement agreement. MET’s Director accepted the offer and the trial court judge’s order approving the settlement requires, at the new owner’s expense and within specified time periods: (i) implementation of the Maryland Department of Natural Resources’ recommended reforestation and stiltgrass eradication plans (at an estimated cost of close to $30,000) and (ii) removal of the buried debris. The new owner is also required to pay MET $7,500 for the unjust enrichment claim and a $1,000 penalty for any payment or deadline with which he fails to comply. 

After settling with MET, the new owner, a former attorney, proceeded with his third party claim against the lumber company that had timbered the property. He claimed that it was the lumber company’s responsibility to determine which trees could be cut on the property. He also testified that, before purchasing the property he had spoken with Mr. Hooper about some of the easement restrictions and obtained title insurance, but he had not read the conservation easement in full. In fact, he testified that the first time he read the conservation easement was after MET contacted him about the timber violation. The trial court judge was unsympathetic, stating that the conservation easement, which had been properly recorded in the land records, "stood squarely in the way” of the new owner’s plans to timber the property and the new owner, not the lumber company, was responsible for determining whether the conservation easement prohibited timbering in the restricted area.           

MET attributes its success in this case to a collaborative effort. Its stewardship staff carefully documented the conservation easement violations and assisted the Maryland AG’s Office in preparing and presenting the case. The Maryland AG’s Office brought the suit, developed trial strategy, and prepared for and presented at trial. Scientists from the Maryland Department of Natural Resources served as key expert witnesses and prepared the reforestation and stiltgrass eradication plans. Finally, the Hoopers—the donors of the easement—were observant neighbors and alerted MET to the timbering violation and other neighbors were prepared to testify as to the dumping violation. 

The result in this case is consistent with the approach of § 8.5 of Restatement (Third) of Property: Servitudes, which provides that a “conservation servitude held by a governmental body or a conservation organization is enforceable by coercive remedies and other relief designed to give full effect to the purpose of the servitude.” The drafters of the Restatement explain:

There is a strong public interest in conservation servitudes. Statutes have been enacted to eliminate questions about their enforceability…; they are often purchased with public funds or money raised from the public; they are often subsidized with tax benefits and other governmental benefits. The resources protected by conservation servitudes provide important public benefits, but are often fragile and vulnerable to degradation or loss by actions of the holder of the servient estate....

To give full effect to the purposes of the servitude, it may be necessary to order maintenance and restoration of the protected property to the condition contemplated by the servitude. In appropriate cases, additional remedies may be needed to compensate the public for irreplaceable losses in the value of the property protected by the servitude and other damages flowing from violation of the servitude. Remedies should also be designed to deter servient owners from conduct that threatens the interests protected by the servitude. In addition to punitive damages, which may be awarded in appropriate cases, remedies may also include restitution and disgorgement. 

Connecticut has a particularly progressive statute addressing damages for "encroachment" on open space land and land encumbered by a conservation easement. The statute authorizes a court to award, among other things, "damages of up to five times the cost of restoration." 

Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law (thanks to Kristen Maneval,
 Assistant Attorney General in the Maryland AG’s Office and Counsel to Maryland Environmental Trust, for her help with this description).


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