TerraBites

A short newsletter of bite-size ideas to chew on for Terrafirma owner-member land trusts, released March, May, July, and September.

 

Avoid granting rights of way

Access and right of way (“ROW”) demands are still increasing in both claim volume and severity. Please file a placeholder claim with Terrafirma at the first instance of learning about an issue. Overly broad ROWs increase litigation risk for your land trust. While a ROW might seem benign, especially if there is an existing dirt track or even a road, the problems associated with ROWs are numerous and serious not the least of which are adverse conservation impact, unexpected expansion of use and impermissible private benefit. There is no requirement to agree to a ROW. Prescriptive easements are difficult to prove and at most only permit the existing use not expanded uses. Due diligence and documentation is critical. ROWs should be a last resort when there are no other options and the likelihood of losing a court challenge is high. Any ROW must be strictly limited. Please reach out to Leslie Ratley-Beach with questions.

 

We’re here to help! If you have any questions, please let us know.

 

Access and rights of way demands increasing

Terrafirma is seeing more right of way (ROW) disputes. Here are some things to keep in mind:

  • Increasingly third parties are unilaterally expanding and creating ROWs without discussing it first with land trusts and landowners. These uses can have adverse conservation consequences. Here are some examples: improving old grassy track ROWs into paved roads; creating brand new ROWs and allowing third parties to use the ROWs, sometimes for unenumerated purposes.  
  • More challenges by third parties who may have intermittently used an existing dirt road to obtain legal prescriptive access rights also are on the increase. Don’t assume that silence by these parties to your cease and desist equates to acquiescence. It usually indicates that they are preparing litigation.
  • Be sure to timely file claims regarding any demands regarding access.
  • Increasingly third parties usually seeking to develop adjacent land are demanding access across conservation land. While this might seem benign especially if there is an existing dirt track or even a road, the problems associated with ROWs are numerous and serious not the least of which is adverse conservation impact and impermissible private benefit.
  • ROW litigation is steadily on the rise to expand existing ROW that have vague or nonexistent written agreements.
  • Land trusts need to do their due diligence and investigate if ROWs legally exist and under what terms. Historical or currently unused ROWs could still be used at any time.
  • Remember, it is the land trust’s responsibility to include ROW locations in easement documents so that they can be identified in the field per Standard 9D.      

 

We’re here to help! If you have any questions, please let us know.

 

Supporting your stewardship team

Stewardship volunteers and staff are responsible for upholding lasting conservation. That is a big job.

 

Terrafirma wanted to share some resources and ideas to assist you:

  • Be sure that all of your stewardship staff and volunteers sign up for TerraBites if they haven’t already. It is free.
  • You might consider including procedures to timely file Terrafirma claims in your land trust’s stewardship policies, as well as quarterly claim updates.
  • Your stewardship team might devote time in their meetings to Terrafirma claims matters.
  • Your stewardship volunteers and staff should watch Terrafirma’s “Timely Claim Filing” video.
  • Check out the Land Trust Alliance’s Practical Pointer Series, which has practical tips to help land trusts navigate the risks associated with stewardship administration and conundrums. 

  

We’re here to help! If you have any questions, please let us know.

 

Thanks,

 

Tom Kester
Operations Manager and Secretary
Alliance Risk Management Services LLC
Manager for Terrafirma Risk Retention Group LLC

 

P.S., did you know our partners at the Nonprofit Risk Management Center have created a website to help nonprofit organizations manage the HR and risk issues they face? The website, https://www.risk-resources.org, includes more than 75 factsheets, infographics, worksheets, and templates that nonprofit organizations can view and download.

 

File all your 2023 policy year claims now!

Terrafirma wants to cover claims but needs you to file the claims on time. Sometimes it seems different from how stewardship staff approach problem resolution. You can think of it as a separate track from your resolution process that requires immediate notification to Terrafirma at the first indication of a possible problem, even if trivial, uncertain or just barely amiss, in the policy year in which you knew or should have known of the possible problem.

The policy year is not the same as the calendar year — it is March 1 to March 1, plus a 61-day grace period that ends April 30. All claims must be filed within the policy year in which the problem first started (even if it’s trivial or uncertain) or coverage for the claim is jeopardized.

Terrafirma recently created a timely claim filing video explaining why it’s important to file claims on time. After a land trust files a placeholder claim, you continue to work with your landowner or neighbor to find an amicable resolution without any involvement from Terrafirma (unless the land trust asks). Filing claims with Terrafirma does not affect your premium, coverage, cost sharing or your ability to renew your policy, nor does it obligate you to proceed with the claim! If in doubt, please file a claim or contact us at help@terrafirma.org.

We’re here to help! If you have any questions, please let us know.

 

Thanks,

Tom Kester
Operations Manager and Secretary
Alliance Risk Management Services LLC
Manager for Terrafirma Risk Retention Group LLC

PS: If you loved the stewardship breakfast and roundtable at Rally in Portland, then you will want to attend the new follow-up online discussion on March 21. Join us to discuss the most pressing stewardship issues for lasting conservation facing you and your peers.

 

Nontraditional attempts to extinguish conservation easements

Successor owners of conserved land may be reaching for more non-traditional causes of action to defeat conservation easements. Land trusts need to be prepared for the unusual challenge and respond accordingly.  Excellent comprehensive timely records are the key to defeating this increasing trend of fabricating reasons to extinguish conservation easements.   

 

For example, in Leone v. Howell Twp., the easement prohibited structures “of any kind whatsoever” and required maintaining the protected property in its “natural state.” A successor landowner installed an underground irrigation system and a swing set on the protected property and converted natural vegetation to a mowed lawn. He cited his asthma as a disability that required accommodation under the Americans with Disabilities Act. He contended that keeping the area as a mowed lawn helped with his breathing. The trial court dismissed all claims for failure to state a cause of action under the state equivalent of a 12(b)(6) motion. The appellate court affirmed, finding that a municipality’s denial of a variance application was not grounds for a discrimination suit.

 

In McCulloch v. Town of Milan, a dispute arose over forest management activities on the protected property and the Town sought to enforce the easement. In an attempt to avoid the easement, the landowner filed a federal Fair Housing Act suit. An appellate court held for the defendant municipality finding no evidence of discrimination.

 

In Radtke v. Chester Twp, a new member of the Township Board filed suit against two other members, the Township and the land trust, alleging violations of state’s Open Meetings law, which requires notice and an opportunity to be heard for any meetings of public agencies. In particular, the plaintiff claimed that the one-on-one meetings and the e-mail communications between the land trust representatives and Township Board members and staff violated the law. The suit sought the rescission of the conservation easement. The trial court dismissed the suit, holding that there was no violation of the Open Meetings law because the meeting between the land trust’s representative and the Township Board members was for information gathering purposes, and there was no intent to deliberate on the easement. The appellate court agreed and the state supreme court declined to hear any further appeal.

 

These are just a few examples of new easement challenges that have recently gone to court but were successfully defended by a strong legal team and excellent records. As a risk management step, your land trust might engage your board in a conversation about full funding of conservation stewardship and also review your implementation of your recordkeeping policy.

  

We’re here to help! If you have any questions, please let us know.

 

Thanks,

 

Tom Kester
Operations Manager and Secretary
Alliance Risk Management Services LLC
Manager for Terrafirma Risk Retention Group LLC

 

Timber theft that takes more than trees

Timber theft on conserved land can be disastrous and involve expensive legal costs for land trusts, but some inflict an extra emotional toll as well. Delaware Highlands Conservancy, a Terrafirma member based in Pennsylvania and New York, recently settled a timber theft claim that involved a logger crossing into a landowner’s conserved property and illegally removing 120 mature white oak trees as well as destroying a memorial site dedicated to the original property owner and donor. You can read Delaware Highlands Conservancy’s press release here.

Terrafirma covered the Conservancy’s claim, and they were able to reach a settlement requiring the defendants to pay for remediation and restoration of the trees and repay the Conservancy’s legal expenses. While the money pays for restoration and all costs and fees for the landowner and the Conservancy, it cannot heal the emotional damage that such an extensive and deliberate trespass caused.

 

We’re here to help! If you have any questions, please let us know.

 

Thanks,

 

Tom Kester
Operations Manager and Secretary
Alliance Risk Management Services LLC
Manager for Terrafirma Risk Retention Group LLC

 

P.S. To receive the Terrafirma risk management discount on your 2024 Policy, one member of your land trust will need to attend an approved risk management course. The following upcoming risk management webinars are free and online (each webinar is scheduled for 3-4 p.m. Eastern):

The following upcoming risk management webinar costs $70 and held online:

Registration is open and you can register by clicking on the above hyperlinks.   

 

Interested in a Terrafirma Update for your Board?

Terrafirma’s Members Committee representatives are offering 30-minute video conference presentations to land trust boards interested in a Terrafirma update. Your land trust’s staff and board members can hear from your regional representative about the latest trends, Terrafirma coverage, how Terrafirma supplements your risk management plan and how the process works. You will also have the opportunity to ask questions. Presentations will be offered from October 2023 through January 2024.

If you are interested in having your elected Members Committee Representative discuss Terrafirma with your board, please send an email to your region’s representative(s):

We’re here to help! If you have any questions, please let us know.

Thanks,

Tom Kester
Operations Manager and Secretary
Alliance Risk Management Services LLC
Manager for Terrafirma Risk Retention Group LLC

 

Insurance is Complicated

Understanding what Terrafirma covers is important to know but equally important is knowing what Terrafirma doesn’t cover. To ensure you can have sufficient insurance protection, we wanted to highlight a few things that Terrafirma doesn’t cover:

  • Terrafirma doesn’t cover bodily injuries or property damage suffered by your staff, visitors or others while at any of your properties or when you are out monitoring. That is generally what general liability insurance covers.
  • Terrafirma doesn’t cover wrongful management decisions by your board, volunteers or staff, even if that management decision adversely affects your properties’ conservation purposes. That is generally what directors and officers (aka “D&O”) insurance covers.
  • Terrafirma doesn’t cover property damage caused by natural disasters or catastrophic events. That is generally what property insurance covers or other special property insurance policies (like flood insurance).
  • Having a Conserve-A-Nation® policy through Alliant or any other insurance policy from any other carrier does not include Terrafirma coverage.
  • The Land Trust Alliance does not have a policy to cover those organizations that do not enroll in Terrafirma.

 And finally, your land trust is only insured by Terrafirma if – and only if – your land trust applies for membership through Terrafirma’s website and meets eligibility requirements.

Looking for insurance that covers these things? Check out this handy guide to common types of insurance coverage.
 

We’re here to help! If you have any questions, please let us know. I know that insurance is complicated so please ask questions.

Thanks,
 

Tom Kester 
Operations Manager and Secretary
Alliance Risk Management Services LLC 
Manager for Terrafirma Risk Retention Group LLC

 

Avoid on the ground pitfalls

Your land trust may be planning to acquire new conservation interests this spring. Initial inspections can be tricky.             

Here are some things to keep in mind when inspecting and investigating properties:

  • Compare surveys, plats and maps with on-the-ground findings and photos. Take note of where property boundaries are and any structures and activities (like mowing lines and debris piles) that are occurring near or on the boundary line. In one Terrafirma claim, a fence encroached a couple feet over the property boundary for 60 years unnoticed by the land trust, despite a survey showing the encroachment.
  • Bring something to measure areas with distances restrictions. Terrafirma has seen violations of square footage limitations missed by staff, or staff assuming the landowner’s measurements are correct. Land trust staff need to independently confirm measurement restrictions.   
  • Investigate any lease and license arrangements to understand the arrangement’s duration and renewability, and the parties’ current understanding of the arrangement. A party may still be using the property even though the arrangement ended, which may effectively renew the arrangement. Such continued use potentially opens the door to adverse possession challenges and could result in a loss of legal title or having to acquiesce to activities that may frustrate conservation purposes.
  • Don’t assume that a structure or use is permitted merely because it existed the first time you visit a property. Because of the elapsed time between the last inspection and the closing date, and a land trust’s relative unfamiliarity with the new property, landowners or neighbors may make last-minute changes.

We’re here to help! If you have any questions, please let us know.

Thanks,
 

Tom Kester
Operations Manager and Secretary
Alliance Risk Management Services LLC
Manager for Terrafirma Risk Retention Group LLC
 
 

Celebrating Ten Years of Terrafirma

No one knew if Terrafirma would succeed when it issued its first policies on March 1, 2013. Now, almost ten years later, Terrafirma has helped land trusts defend perpetual land conservation across America. During these past ten years, Terrafirma:

  • insured over 10.2 million acres, an increase of almost 4 million acres from 2013; 
  • grew to 545 land trusts member from 48 U.S. states;
  • covered 36,000+ parcels, almost doubling the number of parcels it originally insured;
  • paid over $5.6 million to help land trusts uphold lasting conservation on easements, trails, preserves and owned land on over 200 covered claims;
  • provided over $3.1 million in premium discounts to members;
  • achieved a 98% membership retention rate;
  • helped establish favorable case law across the United States; and
  • remained 100% owned and governed by its land trust members.

Terrafirma would have never happened without the dedicated and tireless efforts of many. The greatest thanks go to Terrafirma’s member land trusts as they are the ones that have made Terrafirma successful. Terrafirma wouldn’t be what it is without their continued commitment.

With a solid footing from ten years of Terrafirma, land trusts can continue to steadfastly tackle the biggest challenges of the day.

With gratitude and thanks,

Tom Kester
Operations Manager and Secretary
Alliance Risk Management Services LLC
Manager for Terrafirma Risk Retention Group LLC
 
 

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