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Perpetual Conservation Easementsin The 21st Century: What Have We Learned And Where Should We Go From Here?, Nancy A. Mclaughlin

Utah Law Review

The public is investing billions of dollars in conservation easements, which now protect an estimated 40 million acres throughout the United States. But all is not well. Uncertainties in the law and abusive practices threaten to undermine public confidence in and the effectiveness of the conservation easement as a land protection tool. On February 15, 2013, the Wallace Stegner Center at the University of Utah S.J. Quinney College of Law sponsored a conference at which these issues were explored, with the goal of helping to minimize abuses and ensure that conservation easements will actually provide the promised conservation benefits to …

The Uniform Conservation Easement Act: Reflections Of A Member Of The Drafting Committee, K. King Burnett

Utah Law Review

The UCEA has a relatively narrow purpose—to sweep away common law impediments to the validity of conservation easements—and it has very successfully accomplished that goal. It also provides parties with the flexibility to create easements of various durations and in a variety of circumstances. The Act’s simplicity may be both its strength and its weakness, depending upon how the courts interpret its provisions. Hopefully courts will look to the comments of the Drafting Committee as a useful guide.

Conservation Easements And The “Term Creep” Problem, Michael Allan Wolf

Utah Law Review

It has become apparent over the past several years that the decision to assign the label “easement” to conservation restrictions—designed to preserve and protect environmentally sensitive and productive agricultural lands, precious open space, and historically and architecturally significant lands and structures—has caused problems that most likely were not anticipated by those responsible for conceptualizing and popularizing this important and ubiquitous tool. Judges and commentators have wrestled with important questions concerning the application of common law concepts such as merger and cy pres to the statutory creation we know as “conservation easements.” There is also serious concern that other traditional principles …

Conservation Easements As Charitable Property: Fiduciary Duties And The Limits Of Charitable Self-Regulation, Melanie B. Leslie

Utah Law Review

Charitable organizations may occasionally be tempted to terminate conservation easements to appease donors, landowners, or prominent members of the community. Directors may rubber-stamp termination proposals out of a desire to be cooperative and supportive team players. This tendency to abdicate the monitoring role becomes more pronounced if board members lack full information about the terms of the transaction, especially if conflicts of interest are involved. Boards that take governance seriously will understand that termination decisions must be consistent with state law fiduciary duties of care, obedience, and loyalty. Because it is quite possible that a state court will determine that …

Amending Or Terminating Conservation Easements: The New Hampshire Experience, Terry M. Knowles

Utah Law Review

As explained in the Guidelines: “It is impossible to predict all the circumstances that may arise in the future. Even the most well-drafted conservation easement may need to be amended at some point, for example, to clarify terms, add land, improve enforceability, resolve disputes, or address unanticipated land uses.” Since their release in 2010, the Guidelines have been useful to the land trust community and to the New Hampshire Attorney General in facilitating a thorough and efficient review of proposed amendments to, as well as partial extinguishments of, conservation easements. This review has helped to ensure that both the public …

Conservation Easement Enabling Statutes: Perspectives On Reform, Nancy A. Mclaughlin

Utah Law Review

All states have enacted some form of legislation that facilitates the creation of conservation easements. However, these state enabling statutes do not always contain the safeguards necessary to protect the public interest and investment in the easements. This short Article suggests a variety of reforms intended to build needed protections into state law. No longer should the public be willing to invest in conservation easements without assurance that the protected lands have high conservation value, the easements are accurately valued, and the easements will not erode or be lost over time due to, for example, inadequate recordkeeping, holder incapacity or …

A Therapeutic Jurisprudence Analysis Of The Use Of Eminent Domain To Create A Leasehold, Carol L. Zeiner

Utah Law Review

Therapeutic jurisprudence provides an excellent tool to analyze and guide the development of the law on the use of eminent domain to create leaseholds. The objective of these takings is for the condemnor to become a tenant under a “lease,” rather than the fee simple owner. I am perhaps the only scholar who has written extensively on the topic of takings to create a leasehold. In a previous work, I provided an exhaustive analysis of the conclusion that government can use eminent domain to create a leasehold. That work went on to conclude that there are circumstances in which government …

Ppl Montana: The Supreme Court’S Modern Day City Slicker Approach For Determining The Navigability For Title Test, Landon Newell

Utah Law Review

The river thunders in perpetual roar, swelling in floods of music when the storm gods play upon the rocks and fading away in soft and low murmurs when the infinite blue of heaven is unveiled. With the melody of the great tide rising and falling, swelling and vanishing forever, other melodies are heard in the gorges of the lateral canyons, while the waters plunge in the rapids among the rocks or leap in great cataracts.

Language Access Laws And Legal Issues: A Local Official's Guide, David Jung, Noemí O. Gallardo

Faculty Scholarship

No abstract provided.

Once Born, Twice Orphaned: Children’S Constitutional Case Against Same-Sex Adoption Bans, Tanya M. Washinton

Utah Law Review

The gay adoption debate has been focused on how placement bans deprive qualified gay and lesbian prospective parents of the opportunity to adopt children who are not likely to be permanently placed. Litigants challenging placement bans have focused primarily on the rights of prospective parents. States have defended these bans in ways that obscure the fact that they violate children’s rights by depriving them of the placement option that best serves their interests. Supply and demand realities, the best-interests-of-the-child standard, and the documented harms associated with non-placement demand state action that facilitates rather than frustrates the possibility of adoption. Confining …

The Oncoming Storm: State Indian Child Welfare Act Laws And The Clash Of Tribal, Parental, And Child Rights, Philip Jay Mccarthy Jr.

Utah Law Review

State ICWA laws may not grant Indian tribes greater rights “at the expense of the parents’ or children’s rights.”84 It is incumbent upon child advocates and counsel for parents to protect the rights of their clients and to challenge these laws.

The Corrupting Influence Of The United States On A Vulnerable Intercountry Adoption System: A Guide For Stakeholders, Hague And Non-Hague Nations, Ngos, And Concerned Parties, David M. Smolin

Utah Law Review

If the proportion of adoptions to the United States continues to fall, it is possible that the real result of the failures of the United States in regard to intercountry adoption will be the decreasing significance of the United States to the intercountry adoption system. The assumption that the United States is the central actor in the intercountry adoption system may in the future prove false, as the pathways of intercountry adoption change over time. Thus, the failure of the United States to sufficiently reform may also lead to an intercountry adoption system which increasingly bypasses the United States. From …

A Remedy To Fit The Crime: A Call For The Recognition Of The Unreasonable Rejection Of A Parent By A Child As Tortious Conduct, Bruce L. Beverly

Utah Law Review

The reluctance of courts to provide a tortious remedy for PA is not supported by the recognition of the fundamental rights of parents to be involved in the upbringing of their children. The courts should keep in mind that within the definition of the family comes not only the State’s obligation to do what is in the best interests of the child, but also what is in the best interests of the family. The relationship between children and their parents is beneficial not only to the child at the center of the alienation controversy, but also to each parent, who …

State Courts And Transitory Torts In Transnational Human Rights Cases, Chimène Keitner

Faculty Scholarship

No abstract provided.

Extending Positive Identification From Persons To Places: Terrorism, Armed Conflict, And The Identification Of Military Objectives, Laurie R. Blank

Utah Law Review

In January 2013, French forces combating rebel forces in Mali attacked "Islamic targets" in northern Mali and French fighter planes "hit rebel targets in the northern cities of Gao and Kidal" Turkish forces frequently attack "rebel positions," fighting the Kurdistan Workers Party (PKK) in Iraq's Kurdistan region, and the Sri Lankan Army targeted "terroris stronghold[s]" during the conflict with the Tamil Tigers. The Israel Defense Forces contend with "rocket villages" in Hezbollah-dominated areas in southern Lebanon and with the complexities of a periodically intensifying conflict with a terroris entity governing the Gaza Strip. In Afghanistan, U.S. and multinational forces seek …

Future Technology And Ethics In War, James J. Carafano

Utah Law Review

The influence of technology on war is overrated. Technology does not win wars. It does not lose wars. It does not even fight wars. People do. New technology is the handmaiden of change, but even technologies that take the human "out of the loop" have a hand behind the handmaiden. New technologies pose far fewer new ethical challenges to warfare than is often supposed. The current wave of technological innovation, which is largely derivative of innovations in data processing and transmission, will not change the traditional relationship between technology and ethics in war very much.

Roundtable Discussion Transcript, Amos N. Guiora

Utah Law Review

Roundtable Moderator:

Amos Guiora, Professor of Law, Co-Director of the Center for Global Justice, University of Utah S.J. Quinney College of Law.

Roundtable Participants:

Harry Soyster, United States Army Lieutenant General (Ret.); former Director, Defense Intelligence Agency;

David Irvine, United States Army Brigadier General (Ret.); former Deputy Commander for the 96th Regional Rediness Command;

Geoffrey S. Corn, Professor of Law; Presidnetial Research Professor, South Texas College of Law;

James Carafano, Vice President, Foreign and Defense Policy Studies; E.W. Richardson Fellow; and Director of the Kathryn and Shelby Cullom Davis Institute for International Studies, The Heritage Foundation;

Claire Finkelstein, Algernon Biddle …