Land trusts have had relatively few legal challenges so far. However, conservation easements and lands are increasingly under attack across America. Just because a land trust has never had to face litigation in the past does not mean that they will not in the future. Every land trust has its share of baseline documentation issues or easement drafting that doesn’t address certain activities or rights. Even solid easements with excellent baselines are vulnerable to violations and frivolous law suits. Trespass on land owned by land trusts is increasing both in severity and frequency, and it costs even more to defend those lands than conservation easements. Eventually every land trust, no matter how well-managed, will face a legal challenge. 

Major legal conflicts often arise with no warning and a single protracted lawsuit can be financially devastating for a non-profit organization. In 2008, estimated costs for legal fees were at least $50,000 for trial, $35,000 for summary judgment motions and $50,000 for appeal. Actual costs may be higher depending on the state and the availability of pro bono legal services. Two cases now have each cost over $1,000,000, and at least three other cases cost more than $250,000 to litigate. Few land trusts have the capacity to fund such an expense. Only 19% of land trusts have any other monitoring, stewardship, or defense-related endowments in excess of $70,000 and only 4% of land trusts can fund an appeal in excess of $150,000 from existing funds.

Permanence is an important aspect of the conservation movement. Land trusts often make promises—to their donors, to their communities, and to the government—that land placed in their care will be preserved forever. Addressing threats to the permanence of conservation is an important part of keeping these promises. For answers to frequently asked questions on applications, costs, claims, governance, and more, please see the FAQ page.

Threats to Permanence

  • Trespassers who fail to appreciate the restrictions placed on conservation property
  • Successor owners who do not share the original donor’s vision of conservation
  • Developers who are attracted by rising property values and urban sprawl
  • Extinguishment due to inability to protect conservation values stated in the deed
  • Increasing IRS scrutiny of land trust resources for compliance with the federal tax code perpetuity requirements and mission compliance

Benefits of Pooled Risk

  • Insulates your land trust from draining your endowments to pay legal fees
  • Gives your land trust financial certainty about your exposure to litigation costs
  • Builds confidence with donors, lenders, regulators and legislators in your ability to uphold conservation permanently
  • Demonstrates to the IRS that land trusts are serious about perpetuity and deserve their tax-exempt status
  • Makes available professional help and prevention programs to minimize risk
  • Controls litigation costs and promotes quality in service providers
  • Promotes the development of favorable case law

Heard from Land Trust Members

“This insurance plan is just brilliant.”

- Perry Norris, executive director, Truckee Donner Land Trust (CA)

"We see this program as an essential safety net to our existing stewardship program and defense reserves. It will provide added confidence in our commitments to donors, members and the public that this land trust can back up its obligation to keep conservation permanent.”

- Bob Bugert, executive director, Chelan Douglas Land Trust (WA)

"Having experienced the expensive, unpredictable costs of litigation, I feel easement defense insurance represents an essential safety net for prudent land trusts committed to defending their easements.”

- Dan Pike, president, Colorado Open Lands

“New Mexico Land Conservancy concluded that Terrafirma enhances not only our capacity to defend our conservation easements, but that of the larger land trust community as well. We are very interested in seeing that all land trusts either have or are actively working toward building their resources and capacity to adequately defend their conservation portfolio. Terrafirma increases our ability to legally defend our conservation easements and provide superior stewardship services.”

- Scott Wilber, executive director, New Mexico Land Conservancy

“Our board understands that upholding the terms of our 46 conservation easements is our most fundamental responsibility – no matter what else we have done or may want to do, we have an obligation to landowners and the community to make sure that the conservation values of the land covered by the conservation easements are always protected. We see the proposed insurance program as vital to making that happen.”

- Jim Welsh, executive director, Natural Heritage Land Trust (WI)

"We have never had a threat to one of our 9 conservation easements since our founding in 1999. But it's something we are concerned about. The insurance will protect us from future, unforeseeable threats that would require expensive legal fees. Our stewardship fund could be quickly depleted in a major case. The insurance program would be a great safety net in addition to our existing reserves.”

- Clare Johnson, board member, The Land Conservancy of Hamilton County, Ohio

“We have only three easements so violations are rare but devastating when they occur; it makes sense to have a collective fund and nationwide experts to call on for help.”

- Larry Lunden, land management chairman, Great Meadows Conservation Trust (CT)

“Terrafirma is a huge step forward for land trusts grappling with the overwhelming task of funding future legal defense of easements. North Carolina Coastal Land Trust supports the concept.” 

- Janice Allen, deputy director, North Carolina Coastal Land Trust

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