Law Commons^™

Keeping The Perpetual In Florida's Conservation Easements, Nancy Mclaughlin

Utah Law Faculty Scholarship

Hundreds of millions of dollars are being invested in the protection of the Florida Wildlife Corridor and other environmentally sensitive lands. One of the primary tools being used to accomplish this protection is the perpetual conservation easement, which is touted to landowners and the public as providing a permanent guarantee that the subject lands will never be developed. There is a very real danger, however, that perpetual conservation easements in Florida may not, in fact, be perpetual, and that the protections put in place today will vanish over time—along with the public funds invested therein—as government and nonprofit holders “release” …

Enforcing Conservation Easements: The Through Line, Nancy Mclaughlin

Utah Law Faculty Scholarship

In enforcement cases, courts tend to treat conservation easements as if they were traditional servitudes. This poses a major risk to the effectiveness of conservation easements as land protection tools. If, for example, courts extinguish conservation easements via merger, or bar holders from enforcing them on laches or estoppel grounds, or interpret them in favor of free use of property, many of the conservation gains made in the United States over the last three decades could end up being ephemeral.

This article tackles this problem by providing a solid foundation for the next chapter in conservation easement enforcement. It clearly …

Building Better Conservation Easements For America The Beautiful, K. King Burnett, John D. Leshy, Nancy Mclaughlin

Utah Law Faculty Scholarship

In January 2021, the Biden Administration endorsed the goal of protecting 30% of the nation’s lands and waters by 2030 to conserve biodiversity and help curb greenhouse gas emissions. The Administration’s initial report on this “America the Beautiful” initiative, issued in May, indicates that federally-deductible conservation easements are likely to play an important role in its implementation. This essay addresses whether and how such easements should be counted in this process.

This matter is of great importance. Donations of conservation easements, by which landowners receive generous federal tax deductions if they restrict the use of their properties in perpetuity in …

Charting A “Substantially Different” Approach To Land Management Planning Following A Congressional Review Act Joint Resolution Of Disapproval, John C. Ruple, Devin Stelter

Utah Law Faculty Scholarship

Congress enacted the Congressional Review Act (“CRA”) in 1996 as part of the Gingrich Revolution. The CRA creates an expedited path for Congress to repeal agency rules. It also prohibits an agency from reissuing a new rule that is “substantially the same” as a repealed rule. But the CRA fails to define “substantially the same” and does not require Congress to identify its objections to a repealed rule. The uncertainty that results has a chilling effect on federal agencies. Indeed, Congress has struck down twenty rules using the CRA, and just two of those rules have been replaced. We use …

Americans For Prosperity Foundation V. Matthew Rodriquez, Nancy Mclaughlin

Utah Law Faculty Scholarship

The twelve individuals filing this amicus brief are professors and scholars of the law of nonprofit organizations. No party in this case represents all three of charity’s key stakeholders: charities, states, and taxpayers who underwrite the charities’ funding. Amici are participating in this litigation in order to aid the Court in understanding how these three interests depend on one another. They also attempt to provide a clearer understanding of state supervision of charities and how that supervision related to federal tax law.

Using Current Legal Tools To Achieve Net Zero Greenhouse Gas Emissions From New And Existing Federal Oil And Gas Leases, Jamie Gibbs Pleune, Nada Wolff Culver, John C. Ruple

Utah Law Faculty Scholarship

Fossil fuel development on federal lands accounts for 24% of all U.S. carbon dioxide (CO2) emissions. These emissions can be reduced significantly by requiring federal oil and gas development activity to mitigate greenhouse gas (GHG) emissions. The Bureau of Land Management (BLM) has authority to define the terms and conditions of new oil and gas leases and to impose conditions of approval on existing leases at the drilling stage. Using this authority, the BLM could require net zero emissions on some existing and all new oil and gas leases without waiting for congressional action or regulatory changes. Applying existing legal …

Conservation Easements And The Proceeds Regulation, Nancy Mclaughlin

Utah Law Faculty Scholarship

This article provides an in-depth look at Treasury Regulation § 1.170A-14(g)(6)(ii), known as the proceeds regulation. The proceeds regulation is intended to protect the public investment in conservation if a perpetual conservation easement that was the subject of a charitable deduction under Internal Revenue Code § 170(h) is later extinguished. A proper understanding of the proceeds regulation is critical because the public investment in deductible easements is significant—billions of dollars are being invested in such easements annually—and the regulation has recently been subject to challenges regarding its interpretation and validity. This article examines the history and operation of the proceeds …

The Tribal Right To Exclude Non-Tribal Members From Indian-Owned Lands, Alexander Tallchief Skibine

Utah Law Faculty Scholarship

In 1981, the Supreme Court issued its decision in Montana v. United States, severely restricting the ability of Indian Tribes to assume civil regulatory and adjudicatory jurisdiction over non-tribal members for activities taking place on non-Indian lands within Indian reservations. The Court in Montana stated that “it could readily agree” with the Court of Appeals’ holding that the tribe could regulate the conduct of non-member on tribal lands. Yet, twenty years later, the Court issued its opinion in Nevada v. Hicks holding that in certain circumstances, the jurisdiction of Indian tribes could also be limited even if the activities of …

Amendment Clauses In Easements: Ensuring Protection In Perpetuity, Nancy Mclaughlin

Utah Law Faculty Scholarship

Internal Revenue Code § 170(h)(5)(A) requires that the conservation purpose of a deductible conservation easement be “protected in perpetuity.” This article explains how the protected-in-perpetuity requirement should limit the parties’ ability to reserve the right to make post-donation changes to the terms of a deductible easement.

Chapter 2: Western Public Land Law And The Evolving Management Landscape, John C. Ruple

Wallace Stegner Center for Land, Resources, and the Environment publications

Our nation’s history, and the history of the lands that we inhabit, are inextricably intertwined. Ranchers, miners, loggers, and intrepid homesteaders of the Old West embodies manifest destiny era ideals that set our nation on a trajectory which continues to shape the choices we make today. Laws enacted to speed westward expansion and resolve land ownership indelibly marked the Western landscape, where the vast majority of our public lands are found today.

The US government acquired the Western frontier with federal blood and treasure, and then enacted laws conveying much of that landscape to states, railroads, and the indomitable men …

A Response To Dismantling Monuments, John C. Ruple

Utah Law Faculty Scholarship

This article refutes the main arguments made in Dismantling Monuments, which recently appeared in the Florida Law Review. It shows that national monument designations have been used to protect large landscapes for more than a century, and that no legal challenge to a monument’s size has ever succeeded. It then explains why the weight of evidence suggests that Congress, in passing the Antiquities Act, intended to endow the President with the power to designate national monuments; but that Congress did not intend to vest the President with the power to dramatically reduce them. It also dispels notions that in reducing …

When Winning Means Losing: Why A State Takeover Of Public Lands May Leave States Without The Minerals They Covet, Robert B. Keiter, John C. Ruple

Wallace Stegner Center for Land, Resources, and the Environment publications

This White Paper, the third in a series assessing state efforts to take over federal public lands, addresses state claims to the minerals underlying those lands. Using Utah as an example, we argue here that even if states overcome extremely long odds to convince a court that the federal government is obligated to dispose of more public land, and that such a disposal obligation necessitates giving the public domain to the states, well established legal principles would prevent grants of most mineral lands to the states. Moreover, any mineral rights that states did obtain would be realized only after years …

The Future Of Federal-State Land Exchanges, John C. Ruple, Robert B. Keiter

Wallace Stegner Center for Land, Resources, and the Environment publications

Today, the land ownership map of the West in many places resembles a crazy quilt, without reason or coherent pattern. Often no single owner (states, private entities, or the Federal government) owns enough contiguous land to allow effective management of land holdings, and fragmented ownership patterns generate a plethora of disputes over access and similar problems.

While this paper focuses on examples from Utah, the challenges posed by a fragmented landscape and conflicting management objectives are much broader. Across the 11 contiguous Western states, state trust lands account for twice the acreage of National Parks and trust lands are often …