Conservation Law, P.C.
Jessica E. Jay, Attorney at Law
Conservation Law, P.C. is a land conservation law firm devoted to protecting working landscapes and environmentally significant lands in Colorado and the Rocky Mountain West through the use of perpetual conservation easements.
Jessica Jay, the founder and principal attorney of Conservation Law, P.C., represents landowners and easement holders to conserve land using durable, enforceable, and flexible perpetual conservation easements drafted to anticipate changes over time. Ms. Jay is dedicated to ensuring the permanence of such land conservation through sound conservation transactions and the defense and enforcement of perpetual conservation easements. The first consultation is free; please feel free to contact Jessica Jay at Conservation Law, P.C. by phone at 303-674-3709, or by email by clicking this link.
In addition to the practical work of assisting landowners and easement holders to protect land through the use of perpetual conservation easements, Ms. Jay also collaborates with the conservation community over the enforcement, defense, and permanence of perpetual conservation easements. She assists the conservation community to develop and implement legal defense and enforcement mechanisms for perpetual easement holders, and to design new conservation easement incentives. Ms. Jay guides conservation professionals, easement holders, and landowners in national educational workshops, and the next generation of land conservationists through land conservation law courses, which she teaches at the Vermont Law School and the University of Denver's Sturm College of Law, for which courses she was invited to author a textbook.
Ms. Jay’s expertise and perspective, shaped by years of research, publication, teaching, and practice of land conservation law, informs courts, legislatures, regulators, and policymakers. Ms. Jay is a member of the Land Trust Alliance’s Conservation Defense Network, and serves on the Land Trust Alliance Conservation Defense Advisory Council, which advises the Alliance on matters involving the enforcement, defense, and permanence of perpetual conservation easements. She publishes extensively on land conservation law topics, and her seminal research and publication of approaches to land trust risk management over a decade ago provided the model for the newly created Terrafirma Risk Retention Group LLC insurance service, led and designed by the Alliance to provide defense and enforcement resources for land trusts owning land and holding perpetual conservation easements.
Jessica Jay's Upcoming Presentations:
•Land Conservation Transactions, Law
•Stewarding Ambiguous Mineral Language in Conservation Easements •Conservation Case-law Update
Idaho Coalition of Land Trusts, Conservation Conference, Boise, Spring 2015•Amending Perpetual Conservation Easements
Colorado Rural Electric Association Conference, Denver, Spring 2015
•Land Conservation Law 101
•Enforcing Conservation Easements Against Third Party Trespassers, Workshop
Jessica Jay's Recent Publications about Land Conservation Law:
UCLA Journal of Environmental Law & Policy 2014
Enforcing Perpetual Conservation Easements Against Third-Party Violators
Among the most daunting challenges the holder of a perpetual conservation easement faces is the enforcement of the easements it holds, for all time, and against all violators. National organizations estimate that at least forty million acres of land in the United States are protected with perpetual conservation easements. Each of these conservation easements is held by an entity, either a government agency or a tax-exempt, non-profit land trust, charged with the responsibility of enforcing easement violations against any and all violators. Holders must contend with violations caused by landowners and third parties. In the latter instance, someone who is not the owner of the easement-protected property enters the land by trespass without the knowledge or permission of the landowner or the easement holder, and violates the conservation easement. A Land Trust Alliance (Alliance) survey, specifically designed to gather information on conservation easement violations, reveals that behind successor-generation landowners, third parties are the most frequent class of easement violators. The findings of this survey track those of an earlier Alliance survey and are consistent with violation reporting in the most recent Alliance census. Further, anecdotal reporting of conservation easement violations indicates that many violations are caused by third parties—possibly as much as forty percent.
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 [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).
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).
Link to Jessica Jay's Scholarly Publications
Forthcoming Publications by Jessica Jay about Land Conservation Law:
Environmental Law Institute: Land Conservation Law Reader, 2015
Vermont Law School and Land Trust Alliance: Land Conservation Law Textbook, 2015
Jessica Jay's Notable Quotes about Land Conservation Law:
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.’”