Protecting the Public Interest and Investment in Conservation: A Response to Professor Korngold's Critique of Conservation Easements

Abstract

Many who have questioned the use of conservation easements as a land protection tool view such easements primarily through the prism of real property law and as “private” arrangements. This perspective is perhaps understandable given that conservation easements are partial interests in real property and the land protected by conservation easements continues to be owned by private persons. But conservation easements are not simply interests in real property, nor are they accurately described as private. Rather, they are public or charitable assets and their status as such has important legal and policy implications that are often misunderstood or overlooked by critics and would-be reformers. This article discusses five misconceptions that tend to pervade the criticism of conservation easements and result in proposals for reform that would be contrary to the public interest. This article also discusses three of the primary reforms suggested by Professor Korngold in his article, "Solving the Contentious Issues of Private Conservation Easements: Promoting Flexibility for the Future and Engaging the Public Land Use Process," 2007 Utah L. Rev. 1039, and why those reforms would be both unnecessary and inadvisable.

Keywords: conservation easement, conservation servitude, servitude interpretation, free use of land, cy pres

JEL Classification: K11, K32, L30, Q15, Q24