Conservation Law, P.C.
Conservation Law, P.C. is a conservation law firm devoted to protecting working landscapes and environmentally significant lands in Colorado and the Rocky Mountain West, and in ensuring the permanence and perpetual nature of this land conservation.
Jessica Jay, the founding partner of Conservation Law, P.C., is devoted to ensuring the permanence of conservation through sound land conservation transactions and the defense and enforcement of perpetual conservation easements. She and Conservation Law, P.C. represent and partner with land trusts, government entities, and landowners to conserve working landscapes and environmentally significant properties in Colorado and the Rocky Mountain West. Conservation Law, P.C. actively engages conservation professionals, land trusts, and landowners in conservation workshops, and Ms. Jay guides the next generation of land conservationists through her Land Conservation Law courses at the Vermont Law School and the University of Denver's Sturm College of Law.
Conservation Law, P.C. collaborates with the conservation community to develop and implement legal defense and enforcement mechanisms for easement holders, to design and protect conservation easement incentives, and to create enforceable perpetual conservation easements that anticipate changing conditions, climate, and public interests.
DISCLAIMER: The information provided here is general in nature and should not be relied upon as legal advice.
Harvard Environmental Law Review:
Understanding When Perpetual Is Not Forever: An Update to the Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, and Response to Ann Taylor Schwing,
By Jessica E. Jay
Rarely in the legal discourse is an author afforded the opportunity to revisit and update a recently published law review article and correct misunderstandings of a response thereto. In the first instance of the Harvard Environmental Law Journal publishing two law review articles by the same author in back to back volumes, Jessica Jay in 2012 authors When Perpetual Is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, which explores the area of law surrounding the amendment and termination of perpetual conservation easements, with specific focus on the existing legal framework, legal regimes, emerging statutory and common law, and states’ approaches to self-guidance. Now, Jay authors Understanding When Perpetual Is Not Forever : An Update to the Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, and Response to Ann Taylor Schwing [The Challenge], which identifies next steps and options for perpetual easement modification and termination guidance, including revisions of the Treasury Regulations § 1.170A-14. The Challenge posits that providing clear, consistent guidance through existing or new legal frameworks ensures that perpetual conservation easements and the purposes they protect will endure over time. This Article informs about developments since the publication of The Challenge and corrects misunderstandings asserted in Ann Taylor Schwing’s article in the same issue of the Harvard Environmental Law Review.
Cite as: Jessica E. Jay, Understanding When Perpetual Is Not Forever : An Update to the Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, and Response to Ann Taylor Schwing, 37 Harv. Envtl. L. Rev. 247 (2013).
By Jessica E. Jay
As the use of perpetual conservation easements to protect private property for the public’s benefit grows in popularity, so grow the challenges associated with these perpetually binding promises. Today’s conservation community faces significant challenges to amending and terminating perpetual conservation easements in the face of changing conditions, landscapes, climate, and public interests. Because of variations among different legal regimes’ guidance for perpetual conservation easements, much remains unsettled regarding perpetual conservation easement amendment and termination. This Article examines inconsistencies in the legal regimes and explores current and emerging common law, legislation, and policies addressing perpetual easement amendment and termination. This Article posits that the conservation community can protect the integrity of perpetual conservation easements by providing clear, consistent guidance through existing or new legal frameworks for state legislatures, courts, landowners, and easement holders, and suggests the means to achieve or craft such guidance.
Cite as: Jessica E. Jay, When Perpetual is Not
Forever: The Challenge of Changing Conditions, Amendment, and
Termination of Perpetual Conservation Easements, 36 Harv. Envtl. L. Rev. 1 (2012).
The birth of Terrafirma is an historic moment for land conservation and
is a creative response to a big national problem. In the late 1990s,
Colorado Open Lands staff starting asking a question that ultimately led
to the creation of a new tool to help land trusts to protect their
conserved lands forever.
How, they wondered, would they handle enforcement actions on their easements? “It wasn’t any particular problem we ran into,” recalls Dan Pike, with Colorado Open Lands. “We just started asking what we would do if we ever had to go to court on our easements. And honestly, we didn’t have a good answer.” Contributing to the sense of urgency was a well-publicized case in which the French and Pickering Conservation Trust had incurred $125,000 in legal fees defending an easement.
“It was scary” said Pike of the French and Pickering case, “Those numbers just shocked everybody.” Pike asked Jessica Jay, then a first-year associate at a Denver law firm, to research easement enforcement options. “I went into it looking for a silver bullet,” recalls Jay. “And I came back to Dan with 18 options, half of which involved insurance.” While Pike was less interested in insurance for Colorado Open Lands, Jay was captivated by the larger possibilities. “I realized that if land trusts approached the issue as a community we’d have a critical mass to create our own insurance - something that worked for land trusts and their unique needs.”
Jay’s report-published in 1999-made the rounds of the land trust community . . . and the rest is history.
“Jessica Jay, a Colorado lawyer who founded the firm Conservation Law PC, explained, ‘It’s just at the point when the easement transfers from the original grantor to a successor that we need to be sure the permanence is there.’”
Environmental Law Institute: Land Conservation Law Reader, 2013
Land Conservation Law Textbook, 2013
Enforcing Perpetual Conservation Easements Against Third Parties, UCLA, 2013
Link to Scholarly Publications
Land Trust Alliance Rally, September 2013:
- Perpetual Easements and Evolving Tax Law
- Do The Right Thing
- State of the State Law and Perpetual Easement Amendment and Termination
- Tackling Trespassers: Enforcement of Easements Against Third Parties
Land Trust Alliance Advanced Legal Symposium, February 2014:
- When Perpetual is Not Forever