Notable Quotes and Publications

Vermont Law Review

Opportunities for Reform and Reimagining in Conservation Easement and Land Use Law: A To-Do List for Sustainable, Perpetual Land Conservation, 46 Vt. L. Rev. 387, July 2022

From the most urgent and obtainable in the short term to the most sea-changing and aspirational in the long term, presented here is a view of the immediate, ongoing, and future needs for reform or reimagining in land conservation law. These reforms and reimagining include bolstering and expanding conservation incentives in the face of extensive abuse, integrating private land protection within communities, adjusting land monetization and valuation approaches, unbundling land ownership notions, and re-democratizing and restoring land access and use. Such reforms and reimagining are intended to sustain and secure perpetual land conservation as a continuing, dynamic, and flexible source for critical resource management and protection at the local, state, federal, and global levels, while ensuring equitable, inclusive, diverse, and just land protection in the context of past, current, and future generations of land use and users.

 

Environmental Law Reporter

Down the Rabbit Hole with the IRS’ Challenge to Perpetual Conservation Easements, Part One  February 1, 2021

When the Internal Revenue Service began disallowing gifts of perpetual conservation easements for claimed failures of perpetuity requirements, it tumbled land trusts, landowners, and the U.S. Tax Court down the rabbit hole to a baffling land below. The Service’s drop into matters beyond valuation and into elements intended and necessary for easement durability and flexibility has caused a confusing array of Tax Court decisions. Part One of this two-part Article examines how the Service lures the land conservation community and the
Tax Court into Wonderland distortions, and the precarious tower of cards upon which its legal theories rest.

Down the Rabbit Hole with the IRS’ Challenge to Perpetual Conservation Easements, Part Two  March 1, 2021

Part Two of this two-part Article identifies the fundamental elements of law and the process of law to topple the Service’s card construct, and awaken and return everyone to the world above ground. 

Mansion Global

What Are the Tax Perks of Donating Land in the U.S.?  January 3, 2019

Q: Are there any tax benefits to donating some of my land in the U.S.?

A: Tax benefits are available to those who opt to donate land to a private land conservation organization, aka a land trust, or to a government entity, according to Jessica E. Jay, the founder and principal attorney at Conservation Law, based in Colorado. ...

“Conservation easements allow a landowner to stay on the land, but he or she agrees not to further develop it or sell off its resources, such as water or minerals,” Ms. Jay said. “The agreement is usually made between the landowner and a land trust or a government body.”

“In exchange for that, the federal government provides income tax benefits,” Ms. Jay said.

“If you grant a perpetual conservation easement on your land, you can gain up to, at the federal level, a 50% income tax deduction against your adjusted gross income with a carry-forward of 15 years,” according to Ms. Jay. “That’s a total of 16 years,” she added; "the year of the gift and 15 additional years.”

“For those who own agricultural land, used for farming or other related purposes, a similar benefit exists. Those owners can get a 100% income tax deduction,” Ms. Jay said, “and it is also for 16 years.”

These tax benefits are offered as incentives for landowners to agree not to develop the land now or anytime in the future, according to Ms. Jay. That’s the nature of the “perpetual” easement; it extends past the life of the owner who donated and is overseen by the land trust or government forever.

“This is something that people with lots of land and either a high income they would like to offset or not a lot of income but a very valuable land base...both those types of individuals have seen a lot of advantage in taking these type of benefits,” she said.

New York Times

Insurance Firm is Set Up for Land Trusts, Which See Legal Costs Soaring

“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

A Changing Landscape: The Conservation Easement Reader

West Academic is pleased to announce the publication of the Environmental Law Institute's new title, A Changing Landscape: The Conservation Easement Reader

by Laurie Ristino and Jessica E. Jay.  For a copy of the book, please click this link.

Featuring excerpts of leading articles and reports in law and in the natural and social sciences, The Conservation Reader illuminates various aspects of conservation easements. The book opens with background concepts in real property law, a history of the legal development and use of conservation easements, and examples of how these tools are used to achieve various environmental, conservation, and business goals. The Conservation Reader also examines the limitations and critiques of conservation easements, their tax treatment, and how they can be used in strategic resources planning and protection. The book closes with a forward-looking discussion of the evolving use of conservation easements in other countries, touching upon the promise and challenge of adapting this instrument internationally. Throughout, The Conservation Reader arms readers with the information they need in determining when and how the use of conservation easements is appropriate to achieve their strategic conservation goals.

UCLA Journal of Environmental Law & Policy

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.


Harvard Environmental Law Review

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.


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.

 

Links to Other Scholarly Publications

Books and Publications

  • Conservation Easements in the West
    This user-friendly guide analyzes conservation easements under both state and federal law. It includes descriptions of the authorizing legislation in most of the Rocky Mountain states, a discussion of the federal and state income tax benefits available to donors of conservation easements, and some of the practical issues in preparing conservation easements that comply with those requirements.
  • Managing Conservation Easements in Perpetuity
    Learn how to manage change more effectively so your conservation easements will still be here tomorrow. You will learn to distinguish between easement defense and enforcement, develop a system to educate landowners and take the first steps in drafting an enforcement policy to safeguard what you have worked so hard to protect.
  • Mineral Development and Land Conservation: A Handbook for Conservation Professionals
    The best way to reduce conflicts between land conservation and mineral development is to make sure everyone operates, from the beginning, with the best possible information. The impressive team of experts who contributed to this handbook did exactly that--they compiled a state-of-the-art guide that will be a well-used resource for every land conservation professional in Colorado and beyond.