Costs to resolve disputes about water rights surpassed topography and vegetation cutting. Water rights covered claim numbers are small compared to topography and vegetation cutting which remain the most frequent covered claim types followed closely by land division, boundary disputes and neighbor access demands. But they are very expensive. Covered claims currently run on average from $40,000 per claim for the most frequent types to $20,000 for others. The $5,000 deductible and staff time are additional costs.

What can stewardship folks do to mitigate these risks?

• Violation documentation: Understanding what thorough and complete violation documentation is so that it withstands disputes is essential. This entails a photo, description and map of every single tree cut, of every inch of a linear violation, every rut and water erosion pool or stream, every side of a structure or improvement and the full extent and dimensions of grading or other topography change. This is not an exhaustive list but should be enough to guide violation documentation. If a land trust feels a violation is resolved then land trusts need to show their work and their conclusions. Document how the resolution is consistent with the conservation values and will not result in impermissible private benefit. See Practice Element 11E. Additional resource: Alliance webinar "Advanced Risk Management: Great Land Trust Case Study"

• Rights of way: Demands for legal access are increasing quickly. A methodical investigation of the legitimacy of the demand, litigation risk, avoiding impermissible private benefit, alternative routes and minimizing any unavoidable intrusion are essential. Amendments to existing conservation easements to permit a new right of way outside of building areas may be contrary to conservation purposes and may be too high risk to undertake. Use the 2017 edition of the Amendment Report to assess any such requests for existing conservation easements including full due diligence. For Preserves, the Amendment Report is also the best guide for evaluation and due diligence. It is also critical to consult with an attorney, preferably a real estate trial attorney who is not on your board, so that you understand fully the laws in your state regarding prescriptive easements, implied easements by necessity, adverse possession, declaratory judgement to establish easement and quiet title. Additional resources: past TerraBites discussing access and right of ways.

• Approvals: Limit any approval to the specifics of the request. Do not give broad approval to a narrow request. Use specific criteria, conditions and limitations. Be certain to specify in every approval the criteria and limits on scope and scale for the exact use, its time duration, eliminate impermissible private benefit, size, extent, numbers of cars, people, structures, ancillary improvements like roads and utilities, eliminate preferential treatment for insiders, address vegetation removal and topography changes, identify the type of approval and if it is discretionary use the Amendment Report as guidance. Be sure that you know what the precise nature of the request is, and if necessary, ask for it in writing with whatever supporting documentation. may help in understanding what you are being asked to do. Gather facts to understand the request/violation as fully as possible. Additional resources: (1) Sample for Practice 11F: Reserved Right Approval Procedures (2) Practical Pointer: Drafting Approval Standards in Conservation Easements

• Water rights: Stewardship of water rights requires complete and consistent documentation to protect the conserved water ownership. Water rights are often tracked in a separate registry. This requires two searches. It is prudent to update title of both land and water (and minerals) annually. That is not a Standards requirement but a lesson learned from numerous division challenges including water severance. The two other examples reflect on careful drafting in concert with stewardship staff and point to a thorough understanding of water law in your state. Additional resource: Alliance webinar “Is Your Land Trust Ready to Protect Water?”

• Boundaries: Monitor every boundary every year (unless the steepness of topography or size of parcel necessitates a rotating schedule) and identify and resolve every encroachment, trespass or possible issue. Land Trust Standards and Practices specifies that you be able to ascertain and enforce all property boundaries. Check land records annually if at all possible. If cost or time is prohibitive, then check all available online records or tax assessors, realtors, auctioneers, land records if available, newspaper notices, transfer tax database, zoning records and probate records including death and divorce. Ask landowners at t he annual visit if they have given any deed, easement or signed any agreement of any type that divides, affects or gives rights in the conserved land. See Practice Elements 9D, 9F, 9G, 11B, 11C, 11D, 11E, 12B and 12C. Additional resources: past TerraBites discussing division. 

• Drafting: Work with acquisitions to ensure that they address all of the basic drafting points outlined in the Practical Pointer: Drafting Pointers for Risk Balancing in Conservation.

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

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.

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.

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.

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.

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 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):

• Conservation Foundation of the Gulf Coast Case Study| Nov. 16
• Basic Risk Management: Insurance 101 | Dec. 7
• Basic Risk Management: Tips from Terrafirma | Jan. 4
• Convert Information to Data to Streamline Monitoring | Jan. 11

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

• Preparing for Natural Disasters Part 1: Fire and Smoke | Oct. 26

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

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):

• AR, AZ, CO, ID, IA, KS, MO, MT, NV, NE, NM, ND, OK, SD, TX, UT, WY: James E. Rogers (sdfishlaw@gmail.com) and Meghann McKenna (meghann@mckenna-financial.com)
• CA, HI, OR, WA: Meghann McKenna (meghann@mckenna-financial.com)
• AK: Ellen Kazary (ellen@greatlandtrust.org)
• IL, IN, MI, MN, OH, WI: Robert Owen (rowen@wrlandconservancy.org)
• DC, DE, MD, NJ, PA, VA, WV: Jeff Swinehart (jswinehart@lancasterfarmlandtrust.org)
• ME, NH, VT: Jane Arbuckle (jarbuckle@mcht.org)
• CT, MA, NY, RI: Brendan Annett (annett@savebuzzardsbay.org)
• AL, FL, GA, KY, LA, MS, NC, SC, TN: Emily Parish (eparish@landtrusttn.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

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

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