Exclusions

This Policy does not apply to any Claim, set of Interrelated Claims, or to that portion of any Claim or set of Interrelated Claims that concern or allege:

 

3.1 any obligation to pay Damages to anyone, except that this exclusion shall not apply to the Litigation Expense incurred with respect to a request or demand by the Named Insured seeking Damages from third parties for violations of Conservation Rights;

3.2 any Condemnation Action, except that this exclusion shall not apply to actions, proceedings or disputes where the only contested matter is:  

3.2.1 as between the Named Insured and the owner of the conserved property, solely to allocate or recover the award of compensation for or settlement proceeds paid for the taking of the conserved property as a result of a Condemnation Action where such award or settlement proceeds, or a portion thereof, are to compensate the Named Insured for the loss of Conservation Rights; or

3.2.2 to contest transfers of property interests to any person or organization that may seek but has not yet commenced a Condemnation Action where such transfer would result in the loss of the Named Insured’s Conservation Rights.

 

3.3 criminal proceedings, including all government investigations or government prosecutions seeking to obtain evidence to use in any criminal proceedings and all grand jury proceedings;

 

3.4 fraudulent or criminal acts or omissions by an Insured;

 

3.5 bodily injury, mental or emotional distress, sickness, disease or death of any person;

 

3.6 damage to or destruction of tangible property except that this exclusion shall not apply to the Litigation Expense incurred with respect to a request or demand by the Named Insured seeking Damages from third parties for violations of Conservation Rights;

 

3.7 costs incurred by any Insured to reconstruct or reclaim damaged real or personal property of third parties or to compensate third parties for the loss of use thereof except that this exclusion also will not apply to Litigation Expense incurred in seeking Damages against third parties for violations of Conservation Rights;

 

3.8 libel or slander, including slander of title, except where the legal validity of Conservation Rights of the Insured are challenged;

 

3.9 any Claim for which a defense or reimbursement of Litigation Expense is provided, in whole or part, under any other valid insurance or agreement of indemnity benefiting or covering the Insured including, without limitation, any Directors and Officers, General, Umbrella or excess liability or title insurance policy, any defense obligations contained in any deeds or other conveyances to any Insured, or any other agreement that pays for all or any part of the Litigation Expense also covered under this Policy, in whole or part,  unless the coverage of the insurance, agreement of indemnity, or other agreement has been exhausted through payment, and regardless of  whether such other insurance or agreement or obligation is stated to be primary, contributory, excess, contingent or otherwise with respect to this Policy, and regardless of whether this Policy and the other insurance or agreement or obligation provide concurrent or non-concurrent  coverage and regardless of whether such policy, agreement or obligation is entirely congruent with, or only partially congruent with, the coverage provided under this Policy;

 

3.10 any Claim by an Insured against any other Insured, or between an Insured and any other party that is insured under any other policy issued by the Company, or between an Insured and any uninsured, tax-exempt organization with a primary purpose of land conservation or recreation that is not a government organization;

 

3.11 discrimination based upon age, gender, race, color, national origin, religion, sexual orientation or preference, pregnancy or disability, genetic information or other attributes of persons;
 

3.12 any Claim, or facts, circumstances, situations, acts or omissions likely to result in a Claim, that:

 

3.12.1 have been the subject of any notice given prior to the Policy Period to the Company or any other insurer under any other policy; or

 

3.12.2 together with the subject of any notice given the Company or another insurer prior to the Policy Period, constitute Interrelated Claims; or

 

3.12.3 are not reported in the Application for this policy, yet are known by the Insured to have been asserted or to have occurred prior to the Policy Period; or

 

3.12.4 should have been apparent to any Insured (other than a voluntary worker) prior to the Policy Period through the exercise of reasonable diligence in monitoring compliance with Conservation Rights; or

 

3.12.5 are not reported in the Application, and the Insured did not conduct or failed to document a visit to monitor compliance with the Conservation Rights at issue at any time during the calendar year immediately prior to the inception date of the Policy Period;

 

3.13 any Claim arising from or based upon facts, circumstances, situations, acts or omissions leading to the Claim, or that are alleged in the Claim, that first happened before the Retroactive Date;

 

3.14 affirmative rights in property not directly related to Conservation Rights including, but not limited to, rights of first refusal, options to purchase or other rights, profits or servitudes and rights of active land management, except that this exclusion shall not apply:

 

3.14.1 if it is necessary to address such rights in the defense or enforcement of the Insured’s Conservation Rights and such defense or enforcement is otherwise within the scope of the coverage provided by this Policy;

 

3.14.2 to the exercise of rights by the Named Insured only in land owned in fee by the Named Insured; or

 

3.14.3 to affirmative rights of public access for conservation-related recreation or education contained in a conservation easement, trail easement or deed covenant;

 

3.15 business, institutional or other disputes not directly and causally related to the defense or enforcement of Conservation Rights or that do not impair such rights;

 

3.16 actions by any state, local, county, regional or other government or any subdivision thereof or the United States government alleging violation of any law (whether grounded in statute, regulation, ordinance, code, common law, constitution or other source of applicable law), except that this exclusion does not apply to any Claim concerning Conservation Rights in property owned by any state, local or federal government organization;

 

3.17 tax audits, investigations, inquiries or tax-related matters, whether state, local or federal, except that this exclusion does not apply to challenges by private persons or private organizations to the validity of Conservation Rights alleging tax-related matters

 

3.18 obligations with respect to, or  restrictions concerning, historic structures on land except that this exclusion does not apply to any Claim concerning restrictions on the excavation or other disturbance of land;

 

3.19 Conservation Rights asserted by Back-Up Holders, Third-Party Enforcers or Co-Holders that are not Named Insureds under a separate Policy issued by the Company;

 

3.20 services provided by government attorneys or other government employees;

 

3.21 any Claim that an Insured has trespassed, except where access is permitted pursuant to the Conservation Rights;

 

3.22 willful or grossly negligent acts or omissions of any Insured;

 

3.23 actions, efforts or offers by an Insured to amend, terminate or extinguish Conservation Rights, in whole or part, and whether or not challenged by any third party, except (1) the Policy shall provide subsequent coverage of the Conservation Rights as amended or partially terminated, and (2) this exclusion shall not apply to efforts to settle Claims if the Company has accepted coverage of the Claim;

 

3.24 any Claim of liability under, for the breach or termination of or concerning obligations arising out of, or assumed under or in any contract, license, agreement or commitment, whether written or oral, except this exclusion shall not apply:

 

3.24.1 to any liability or obligation under contract or agreement, license or commitment that establishes or that directly applies to Conservation Rights of the Insured;

 

3.24.2 to any liability or obligation with respect to Conservation Rights that the Insured would have in the absence of the contract, license, commitment or agreement;

 

3.25 any Claim arising out of or as a result of the Insured’s failure to timely report any Claim or to cooperate with the Company in the Company’s defense or prosecution of any Claim;

 

3.26 actual or proposed acts or omissions or failures to act with respect to any real property over which the Named Insured does not have Conservation Rights, except this exclusion shall not apply to physical activities on an immediately adjacent or contiguous parcel that present an immediate and direct, significant threat of or actual interference with Conservation Rights within the geographical limits of property burdened by the Conservation Rights held or owned by the Named Insured, which threat or interference the Company may require, in cases concerning Sensory Effects, to be established in a signed written report by an appropriately credentialed expert witness retained and paid for by the Named Insured;

 

3.27 any Claim arising out of, based upon or relating to in any way the insolvency, financial impairment or bankruptcy of any person or organization, except this exclusion shall not apply to any Claim that would extinguish the Conservation Rights;

 

3.28 any Claim arising out of, based upon or relating to in any way any act of war, invasion, hostile action of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military power, confiscation, nationalization, requisition, destruction of or damage to property by or under the order of any governmental, public or local authority;

 

3.29 any Claim in which the Insured fails or refuses to assist or cooperate with the Company as required under this Policy or to comply with the Insured’s reporting duties including, but not limited to, any failure or refusal to submit for any requested examination under oath, to produce any reasonably requested information or to grant permission to secure reasonably necessary information from third parties, unless such action is prohibited by law or regulation;

 

3.30 any Claim arising out of any act of terrorism including, but not limited to, acts certified by government officials as acts of terrorism, except coverage for any certified Act of Terrorism as defined under the federal Terrorism Risk Insurance Act of 2002, as amended by the Terrorism Risk Insurance Extension Act of 2005 and the Terrorism Risk Insurance Program Reauthorization Act of 2007, and as implemented by the regulations and guidance promulgated by the U.S. Department of Treasury; provided, however, that coverage for such Claims is available and may be purchased for an additional premium paid by the Named Insured under an endorsement to this Policy;

 

3.31 any Claim arising out of any nuclear reaction, radiation, radioactive contamination or the radioactive, toxic, explosive or other hazardous properties of radioactive materials regardless of how it was caused. “Radioactive materials” include all radioactive elements and their derivatives and compounds, isotopes of other elements and any other substances that may be designated by or pursuant to any law, act or statute as substances capable of releasing atomic energy or that are used for the production or application, or resulting as a byproduct, of atomic energy;

 

3.32 any Claim arising out of or for the actual, alleged or threatened discharge, dispersal, release or escape of Pollutants, or any direction or request to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize Pollutants. This exclusion will not apply, however, to Claims seeking to compel persons or organizations, other than the Insured or its agents, subcontractors or persons or organizations for whom or which the Insured is legally responsible, to remove, or to pay for or pay the costs to remove, nonhazardous, solid waste from property burdened by Conservation Rights of the Insured. Nonhazardous solid waste is solid waste that is not defined or listed as hazardous under any applicable local, state or federal law or by any governmental authority having jurisdiction, and that is not subject to regulation or enforcement action by governmental authority, due to its hazardous properties or nature, and includes, but is not limited to, materials not classified as hazardous under the Resource Conservation and Recovery Act (RCRA) or that do not constitute regulated hazardous household waste under applicable law;

 

3.33 any Claim, or that portion of any Claim, based upon events, facts, circumstances, situations, acts or omissions leading to the Claim, or that are alleged in the Claim, that first happened after the effective date that the Named Insured ceases to be a Member of the Company for any reason, as set forth in the Company’s Limited Liability Operating Agreement; including, but not limited to any events occurring on or after the date of the Internal Revenue Service official notice of revocation of the Named Insured’s Internal Revenue Code section 501c(3) tax exempt status;

 

3.34 any Claim, or that portion of any Claim, arising from administrative, governmental, regulatory, private land development, or construction approvals, permits or related proceedings for real property subject to Conservation Rights except this exclusion shall not apply where such approval or permits are directly and causally related to the defense or enforcement of Conservation Rights;

 

3.35 any Claim arising from the ownership, operation, maintenance or use, or changes in such ownership, operation, maintenance or use, of offices and other buildings that are owned, occupied or leased by any Insured, except this exclusion shall not apply where such mode of operation, maintenance or use, or changes are directly and causally related to the defense or enforcement of Conservation Rights;

 

3.36 any Claim concerning the impact on owners or tenants of any life estate, leasehold or other determinable interest in real property arising from the defense, enforcement or maintenance of Conservation Rights; and

 

3.37 Conservation Rights of a Co-Holder that is an Insured under this Policy when another Co-Holder is covered for those same Conservation Rights under another Policy issued by the Company, unless and until all Co-Holders of such Conservation Rights designate, in a signed agreement approved by the Company, one Co-Holder to be vested with all and the sole authority to make Claims-related decisions.