Conservation Easements vs. Fee Simple Acquisitions: Part 3 (Liability)
This is Part 3 of a series of blog entries that focuses on conservation easements and fee simple acquisitions. Part 1 provides an overview of the debate over the use of conservation easements vs. fee simple acquisitions. Part 2 takes an in-depth look at conservation easements through the lens of a recent report to the Washington Legislature, entitled “Conservation Tools.”
Conservation practitioners often assume that, by using conservation easements instead of fee simple acquisitions, they can avoid the many liabilities associated with fee simple ownership of land.
Owners of fee simple land are certainly exposed to more liability than most conservation easement holders. For example, under typical conservation easement language, the burden of cleaning up a newly-discovered meth lab (as described in a recent article by Michael Nesteroff) would fall on the landowner and not the easement holder.
Regardless of how the easement is drafted, however, conservation easement holders are never totally insulated from liability. William Silberstein and Ellis Rosenzweig have written that, when land is open to public access, “the question of whether an easement holder is liable as a landowner is determined by how much the easement holder exercises ‘control and possession’ of the land.” Similarly, there is greater potential for liability under CERCLA, MTCA, and other environmental laws for easement holders actively involved in managing the land. The need for active management often relates to a particular conservation goal, such as public recreation, invasive species management, or wetland mitigation banking. In such cases, a conservation easement might still be the appropriate choice for other reasons, but practitioners should be aware that they won’t necessarily avoid the liability associated with fee simple acquisitions.