Conservation Easements
in Wyoming –
An Overview
Robert G. Berger
University of Wyoming College of Law
Rural Law Center – June 2, 2011
Definition
“Conservation easements are
voluntary agreements that
protect resources by limiting
development of the land.”
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.”
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.”
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Conservation Easement
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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
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
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Wyoming Case Law
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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 modernday society
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”
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Easement Holders
Governmental body - not Wyoming
board of land commissioners
 Charitable entity with specified
purposes
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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
Easement Holders in
Wyoming
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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
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
Income Tax Deduction
Must
(1)
(2)
(3)
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have:
Qualified real property interest
Qualified organization
Conservation purpose
Must be perpetual
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
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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
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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
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Monitoring & Enforcement
Land trust agrees to monitor and
enforce
 Stewardship donation requested
 Expect annual monitoring visits
 Enforcement letters sent
 Litigation – rare but possible
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Case Law
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Lamb v. Wyoming Game and Fish
Comm’n
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Holder of the easement has right to prohibit
structures and objects within the easement
boundary
Salzburg v. Dowd
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Individual citizen has no standing - Hicks v.
Dowd
Case settled (2010) – easement remains in
effect
Case Law Continued
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Desert Foothills Land Trust, Inc. v. Olsen
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Land trust had standing to contest road
construction
Granara v. Stetson Kindred of America,
Inc.
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Neighbors objected to moving historic
house onto land protected by conservation
easement
Held: neighbors have no standing
Case Law Continued
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Zagrans v. Elek
Neighbors challenged an easement
amendment that substituted additional
land
 Held: neighbors have no standing
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Gresczyk v. Landis
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Golf course is not an agricultural
operation
Case Law Continued
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Weston Forest & Trail Ass’n. v.
Fishman
Easement prohibited construction
 Barn to be removed
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Duffy v. Milder
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Easement permitted only grazing, not
additional equestrian uses
Case Law Continued
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United States v. Blackman
Renovating historic house without
approval
 Easement enforceable
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Ephrata Area School District v.
County of Lancaster
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Road right-of-way would not interfere
with conservation easement
Case Law Continued
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Fenster v. Tiburon Town Council
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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
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Case Law Continued
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Parker v. Grand River Partners, Inc.
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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
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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
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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.