Maine Land Conservation Law E-Bulletin – August 2011

In this Issue:

• Introduction
• Outcome of Conservation-Related Bills Before Maine Legislature and Congress
• Case Law Update:  Maine Supreme Court Case
• Upcoming Event – Rally Seminar Featuring Prominent Maine Case

Introduction

Welcome to this issue of the Maine Land Conservation Law E-Bulletin!  I send E-Bulletins 3 or 4 times per year to provide updates and analyses on legal and policy matters respecting Maine land conservation.  I do my best to keep my messages brief, timely, and useful to conservation-minded landowners, as well as land trust professionals and volunteers.  At the same time, no one should rely on these E-Bulletins as legal advice, and I encourage you to consult a qualified attorney for advice on any particular situation.

If you find this free E-Bulletin to be valuable and interesting, please forward it to a friend or colleague.  Subscriptions remain free, and I respect my subscribers’ privacy.  Anyone who would like to receive this E-Bulletin or the Maine Nonprofit Law E-Bulletin can e-mail me at rob@roblevin.net.  If you’d like to be removed from my list, simply drop me a line at that same address.

Outcome of Conservation-Related Bills Before Maine Legislature and Congress

In the April Maine Land Conservation Law E-Bulletin, I warned about a range of proposed Maine and federal bills that would harm Maine’s environment.  The good news is that most of the state-level bills went down in defeat, thanks to an outcry from the conservation community.  In particular, efforts to dramatically scale back the shoreland zoning and vernal pool buffer areas failed.  However, attempts to increase development in the Unorganized Territories continue, as the Republicans seem intent on abolishing the Land Use Regulation Commission and devolving zoning and land use authority to the counties, which are generally seen to favor more development.  The Legislature voted to proceed with a study commission that appears stacked in favor of pro-development forces, and the issue will return for a vote in next year’s session.  Meanwhile, the Legislature, following Governor LePage’s lead, rejected all bond measures and vows to do so next year as well.  Thus, renewed funding for the depleted Land for Maine’s Future Program appears nowhere in sight.  For a full rundown of how environment-related bills fared in the recent session, and how your representatives and senators voted, see http://www.nrcm.org/2011.legislature.results.asp.

At the federal level, looming threats to funding of numerous conservation programs remain, especially in the wake of the debt ceiling deal.  This budgetary framework will create enormous pressure to cut (and perhaps even gut) a variety of programs, including the Land and Water Conservation Fund, the North American Wetlands Conservation Act, the Forest Legacy Program, and Farm Bill programs such as the Farm and Ranchlands Protection Program, all of which send millions of dollars to Maine each year to purchase conservation lands and easements.  Meanwhile, the land trust community continues to push for an extension of the enhanced conservation easement income tax incentives beyond the current expiration date of December 31, 2011.  For more on these threats and opportunities, visit http://www.landtrustalliance.org/policy/public-funding.

Case Law Update:  Maine Supreme Court Case

Under contract with the Land Trust Alliance, I research and compile a comprehensive database of land conservation-related court opinions.  The current edition of Land Conservation Case Law Summaries includes 243 cases and is available to Alliance members at http://learningcenter.lta.org.  Occasionally, I discuss particularly important or interesting cases in this E-Bulletin.

Recently, the Maine Supreme Court dismissed a suit in which an individual attempted to rescind a conservation easement.  Huber v. Dept. of Transportation, Mem 11-67, 2011 Me. Unpub. LEXIS 67 (Me. 2011)(Unpublished).  Although the opinion is only one paragraph and is unpublished (meaning that it carries no precedential value), it is still instructive of how Maine courts address the issue of standing to enforce or oppose a conservation easement.  The case involved Sears Island, a 936-acre State-owned island located in Penobscot Bay, connected to the mainland by a causeway.  For decades, the Island has been the site of various industrial development proposals, none of which have come to fruition.  In 2009, after an extensive planning process, the State, a legislative committee and other interested parties came up with a plan to preserve approximately 2/3 of the Island while allowing for development on the remaining 1/3.  As part of this resolution, pursuant to an executive order of the governor, the Department of Transportation conveyed a conservation easement to Maine Coast Heritage Trust on 601 of the 936 acres.  The remaining 335 acres are reserved for future transportation-related projects.

Most local conservationists supported the 2009 conservation easement.  But a few individuals objected, and three of them filed separate suits against the State to challenge the executive order and the conservation easement.  The suits were consolidated into one action, and the State moved to dismiss for lack of standing.  The trial court granted this dismissal, finding no injury to the plaintiffs because no development on the 335 acres was pending.  One of the plaintiffs appealed.  In a one-paragraph unpublished opinion, the Maine Supreme Court affirmed the dismissal for lack of any particularized injury to the plaintiff.

Curiously, Maine’s conservation easement enabling statute was not referenced in either the trial court or the Supreme Court’s opinions.  Perhaps this is due to the fact that the plaintiffs were challenging both the conservation easement and the executive order that gave rise to the easement.  This case is certainly not precedential, but it is mentioned here as another instance in which third-party standing to challenge or enforce a conservation easement has been denied.  A similar unpublished result was reached in another Maine case in Cluff  Miller v. Gallop, No. RE-03-022 (York Cty. Super. Ct. July 8, 2003)(Order Granting Rule 12(b)(6) Dismissal)(UNPUBLISHED), in which York Land Trust had been sued by a neighbor who claimed that it was not enforcing a conservation easement.

Upcoming Event: Rally Seminar Featuring Prominent Maine Case

 What:  Based on a True Story: The Life Cycle of a Conservation Easement

Where:  Land Trust Alliance Rally, Milwaukee, Wisconsin

When: Thursday, October 13, 2011, 9:00am – 5:00pm

Rob Levin and Karin Marchetti Ponte will lead this new Rally seminar that features the prominent Maine case of Windham Land Trust v. Jeffords, a conservation easement violation lawsuit that went all the way to the Maine Supreme Court.  Take a wild ride as we re-enact the life cycle of the famous conservation easement that led to the lawsuit, and gain a deeper understanding of the project-to-stewardship connection. Starting with planning, negotiation, drafting and deal closing, the seminar will proceed to stewardship, reflecting on issues such as landowner relations and monitoring protocol.   We will cover amendment scenarios, and then go down the log flume of a threatened violation that leads to a full-blown lawsuit.  The seminar is instructive for project managers, stewardship staff, administrators, board members and attorneys.

To register for this seminar and/or Rally, visit http://www.landtrustalliance.org/training/rally.

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              CIRCULAR 230 DISCLOSURE: Any federal tax advice contained in this communication or attachment is not to be used for the purpose of avoiding penalties under the Internal Revenue Code or promoting, marketing or recommending any transaction or matter addressed in this communication.

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94 Beckett St., 2nd Floor

Portland, ME 04101

207-774-8026

rob(at)roblevin.net

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