1. Conservation Easements in Wyoming – An Overview
Robert G. Berger
University of Wyoming College of Law
Rural Law Center – June 2, 2011

2. Definition
“Conservation easements are voluntary agreements that protect resources by limiting development of the land.”

3. Alternative Explanation
“Simply put, a conservation easement is a recorded restriction on what you and any future landowner can do with your land. A conservation easement is an agreement… It spells out what activities are prohibited on the property in the future and what activities are permitted on the property in the future. The easement is enforceable against you and any future owner of your land.”

4. Wyoming Law
“‘Conservation easement’ means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations the purposes of which include retaining or protecting natural, scenic, or open-space values of real property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural, archeological or cultural aspects of real property.”

6. Conservation Easement
Created in a contract or deed
Landowner gives up rights
Easement holder has rights to enforce
Protects conservation values
Prohibits most commercial/industrial uses
Retain rights to agricultural, residential uses

7. Uniform Conservation Easement Act
Adopted in 2005
Previously adopted in most states
Allows easements “in gross”
Easement may be created, modified
Interest in minerals not impaired

9. Wyoming Case Law
Restrictions construed in favor of the free use of the land
An easement entitles the easement holder to a limited use
Holder of a negative easement can insist that the burdened party refrain from certain uses
Negative easement does affect the title… it has increasing importance in modern-day society

10. Perpetuity Easement deemed perpetual
Easement must be perpetual for federal tax deduction
Certain interests that vest in the future are void
Conservation easements vest immediately and do not violate the “Rule Against Perpetuities”

11. Easement Holders
Governmental body - not Wyoming board of land commissioners
Charitable entity with specified purposes

12. Charitable Corporation
Primary purpose must include:
Protecting open space values
Assuring agricultural, forest, recreational or open space use
Protecting natural resources
Maintaining air or water quality
Preserving historical, cultural aspects

13. Easement Holders in Wyoming
The Nature Conservancy
Wyoming Stock Growers Agricultural Land Trust
Wyoming Land Trust
Jackson Hole Land Trust
Sheridan Community Land Trust
Rocky Mountain Elk Foundation
Wyoming Game and Fish Commission

14. Landowner Benefits Land Preservation Seeing the land preserved
Maintaining open spaces
Preventing future owners from changing the character
Protecting scenic views, historical areas or wildlife habitat

16. Income Tax Deduction Must have: (1) Qualified real property interest
(2) Qualified organization
(3) Conservation purpose
Must be perpetual

17. Income Tax Savings Deduct up to 50% of adjusted gross income
Based on charitable donation rules
Special provisions in 2011
100% for farmers / ranchers in 2011
5 year carryover (15 years in 2011)
Based on appraised value before and after easement

18. Estate Tax Savings Lower appraised value
Additional estate tax savings under the American Farm and Ranch Protection Act
Deduction of up to 40% of the remaining land value (after the easement value is deducted
$500,000 limitation

19. Cash Payments Land trusts may buy conservation easement
Sale proceeds justify restrictions
More available in recent years
Farm and Ranch Protection Program; Wyoming Wildlife and Natural Resources Trust fund

21. Monitoring & Enforcement
Land trust agrees to monitor and enforce
Stewardship donation requested
Expect annual monitoring visits
Enforcement letters sent
Litigation – rare but possible

23. Case Law Lamb v. Wyoming Game and Fish Comm’n Salzburg v. Dowd
Holder of the easement has right to prohibit structures and objects within the easement boundary
Salzburg v. Dowd
Individual citizen has no standing - Hicks v. Dowd
Case settled (2010) – easement remains in effect

24. Case Law Continued Desert Foothills Land Trust, Inc. v. Olsen
Land trust had standing to contest road construction
Granara v. Stetson Kindred of America, Inc.
Neighbors objected to moving historic house onto land protected by conservation easement
Held: neighbors have no standing

25. Case Law Continued Zagrans v. Elek Gresczyk v. Landis
Neighbors challenged an easement amendment that substituted additional land
Held: neighbors have no standing
Gresczyk v. Landis
Golf course is not an agricultural operation

26. Case Law Continued Weston Forest & Trail Ass’n. v. Fishman
Easement prohibited construction
Barn to be removed
Duffy v. Milder
Easement permitted only grazing, not additional equestrian uses

27. Case Law Continued United States v. Blackman
Renovating historic house without approval
Easement enforceable
Ephrata Area School District v. County of Lancaster
Road right-of-way would not interfere with conservation easement

28. Case Law Continued Fenster v. Tiburon Town Council
Library use is a recreational use
Stitzel v. State of Maryland
Conservation easement prohibited any subdivision; landowners then sold a small parcel
Held: the sale of the separate parcel is void

29. Case Law Continued Parker v. Grand River Partners, Inc.
Held: barn is not permitted outside of building envelope
Turner v. Comm’r
Conservation easement limited development to 30 residential lots
Did not meet the open space conservation purpose test

31. Conclusion Useful tool for preserving open space
More are recorded every year
Easements will be enforced
Important part of Wyoming property law and land use

32. This presentation is not prepared for the purpose of giving legal advice and does not constitute legal advice. It includes legal references, concepts and ideas, intended to provide a general overview of the topic and to assist with discussion of the topic. It may not be relied upon as legal advice by any person. All persons should rely on the advice of their individual attorneys and other personal advisors in implementing any legal plan.