2023 Schedule – Pacific Time

Whether and how to allow gravel or other surface mineral extraction on conservation easement properties has long been a difficult challenge for easement drafting, particularly on working lands easements where a small on-ranch gravel source is considered necessary for agricultural and general land management purposes. Federal tax law prohibits “surface mining” of any kind for tax-deductible conservation easements, but whether this overarching statement is broad enough to include limited, localized, small non-commercial gravel extraction has been the source of significant debate in the land trust world. This session will review the available legal authorities, including statutory and regulatory provisions from the conservation easement context; case law on tax-deductible conservation easements from Great Northern Nekoosa through the recent Cattail Holdings, LLC, the varying approaches to minerals and surface interests taken under state laws, the interplay between surface mining and conservation purposes, surface mining as a pre-existing use and the recent IRS Chief Counsel memorandum. The Land Trust Alliance’s’s Practical Pointer on this issue will be explored in depth. With this background established, the session will introduce the broader landscape of land trust practices in this area, both historic and in response to current developments, and help land trust staff and their attorneys consider paths forward in the face of uncertainty.

Land conservation projects are, at their core, sophisticated real estate transactions. This workshop will acquaint participants with basic real estate concepts, legal elements of real estate transactions and outline the acquisition process from property identification through title searches and related due diligence to closing. Emphasis will be placed on basic legal terminology, possible pitfalls, and practical advice. The topics will include: types of ownership and how interests in property can be held by different people; title searches, title insurance and problems; liens and encumbrances; surveys and legal descriptions; due diligence and liability; letters of intent, purchase contracts, options and rights of first refusal; basic information on deeds, conservation easements and other documents; and closing and recording.

This session will explore how different land trusts ensure that mapping programs and title/survey work support their conservation programs. The panelists will discuss different mapping needs during due diligence, acquisition, disposition and stewardship. We’ll invite audience participation as we explore ways to “right-size” mapping and surveying needs, and develop best practices based on the real world experiences of the panel and the audience. Topics will include use of surveyors, development of GIS programs, different maps for different types of projects, addressing errors, inconsistencies and uncertainties, needed levels of specificity and storing information for the long term.

Landowners and land trusts in Oregon and Washington are working with Tribes to expand Indigenous access and ownership of their ancestral lands, and to protect cultural values and resources. This workshop will explore legal tools developed and used by land trusts, landowners and Tribes to provide Tribal access to important lands, facilitate the return of land to Tribal ownership and protect cultural values in conservation easements (held by both Tribes and land trusts if appropriate). Using real world examples, we will review land trust organizational documents such as articles and bylaws to ensure they include protection of cultural values. We will discuss potential approaches to drafting conservation easements that protect and provide Tribal access to cultural resources. We will share examples of land transfers and ongoing co-management frameworks and address unique questions that can arise regarding Tribal ownership of land.

Cases are coming in red hot from the courts and IRS! We’ll bring everyone up to speed on the latest developments in tax-related case law, regulations and actions to curtail conservation easement syndicated deals.

It is understandable that many land trusts are spooked by the IRS in drafting conservation easement restrictions. There are many considerations if the easement is wholly or partially donated, there are estate tax considerations, and, of course, nonprofit rules. In response, some land trusts and attorneys are suggesting tight restrictions on commercial uses, building, renewables and subdivision. While this may seem like a reasonable strategy now, it may not be the best approach for long term conservation and can present stewardship challenges. We will present considerations and tools for crafting easements that protect conservation values keeping in mind long-term stewardship, adaptability and commitment to inclusive conservation.

What happens when the perpetual nature of the conservation easement tool is threatened by changes in landscapes due to climate change? Bringing together research completed by Clemson University and real-life examples of conservation easements faced with the impacts of climate change, this presentation will discuss how land trusts can address climate change in conservation easements. Presenters will share the results of a research project that surveyed land trusts and landowners from 6 states, to assess how conservation easements can be adapted to address climate change. In one test case, The Nature Conservancy (TNC) encountered a significant habitat change due to sea level rise and shoreline change, due to climate change, on an existing conservation easement. TNC will discuss how the landowner and the land trust worked together to assess the changes in conservation values and how to adapt in the face of change. A second test case, brought by Pee Dee Land Trust, considers a new easement project with a landowner and attorney who are concerned about drafting an easement that will adjust to a dynamic coastal environment. The panel will bring these test cases and the study conducted by Dr. Dyckman together to discuss how land trusts can address easement amendments to address climate change and integrate flexibility to adjust to changing habitats and property conditions for new conservation easement projects.

This session will provide some basics about reviewing a preliminary title insurance commitment and related documents during a conservation easement transaction. It will focus on a number of real-life title issues the presenter has experienced and will include some pointers on how to identify and resolve such title issues

Correctly completing Form 8283 can make or break a conservation easement deduction and the IRS issued a new version of this form in November 2022. The IRS has fully denied deductions because of improperly completed forms or the lack of required documentation. A contemporaneous written acknowledgement is required to be received by the donor for the donation to be deductible. Knowing what transaction expenses are deductible is also critical, as many are unaware that reimbursing a landowner for such expenses could render the donation a "bargain sale." While donors are legally responsible for substantiating donations, land trusts may assist donors to understand the forms, so long as they don't provide legal advice. The session will also discuss how a donee organization should review a donor's appraisal, what to do if the claimed value is so high as to "shock the conscience," and recent changes to Land Trust Standards and Practices and recent court cases related to Form 8283 and gift letters.

Land trusts touch appraisal process and procedure by evaluating Form 8283 whether there are concerns with the appraisal or value opinion. Appraisal review has increased in importance for land trust staff and board members. At the same time, land trusts have a perpetual need to find qualified appraisers who perform conservation valuation services. Appraisers face increased audit and litigation risk, causing some to turn away from conservation work altogether. This includes new penalty regimes by the Internal Revenue Service. This session will attempt to improve the awareness and understanding of appraisal and appraisal review process and procedure and to understand and improve the climate for conducting conservation appraisal to attract a greater number of appraisers to conservation easement practice.

Save the Redwoods League purchased redwood forestland with mitigation funding from PGandE, then conveyed title to the InterTribal Sinkyone Wilderness Council, a consortium of ten Tribes. The Council then conveyed a conservation easement to the League. Completing the transaction required reconciling competing legal interests, navigating differing timeframes, decision-making approaches and elevating the importance of restoring the land to native ownership over alternate paths to preserving the land. The session will focus on: Tribal sovereign immunity and tools to consider a limited waiver in connection with a conservation easement; Tribal processes and considerations in a limited waiver; drafting an enforceable limited waiver including additional instruments to language in the conservation easement; and addressing the interests of third-party funders, whether agencies or other entities, in satisfying a mitigation requirement.

This session will cover a number of questions, including: what should land trusts think about when considering litigation; pros, cons and alternatives to litigation such as mediation; how does Terrafirma factor into your decision; and how to minimize the likelihood that you’ll need to engage in litigation?

The year is 2053, and land trusts everywhere are grappling with the legacy of conservation easements negotiated in 2023 when our grantor-landowners lived on ranches and farms that had been handed down through the generations. They trusted us to help them steward their lands and we counted on their support of our shared vision. In 2053, we now have a new generation of landowners who live in Los Angeles or New York City. They are smart, savvy, know their way around legal documents and are used to getting what they want. Their only exposure to conservation easements was a passing reference in some random streaming western called “Yellowstone.” The Rally Players will take you back in time to when the tax deductions flowed, the ranchers did business with a handshake and a promise and we could get away with vaguely worded conservation easements because we knew our landowner was “conservation-minded.” We’ll show you how, as people and conditions change, conservation easement language gets interpreted, misinterpreted, ignored and even litigated, to create unintended legacies for land trusts. If we knew then what we know now, could we set history/events/the future on a different path?