Van Hollen Issues Formal Opinion Addressing Conservation Easements on County Forest Lands

MADISON — Attorney General J.B. Van Hollen today issued a formal opinion addressing whether the Department of Natural Resources (DNR) has the authority to approve county forest plans that allow for conservation easements and restrictive covenants in county forests acquired and managed under the county forest law.

The Attorney General concluded that "conservation easements and restrictive covenants are permissible in county forests as long as they are consistent with and do not interfere with the purposes of county forests and the management plans properly developed for them under the county forest law."

A conservation easement or restrictive covenant is a transfer of property rights short of ownership that creates a legally enforceable land preservation agreement between a landowner and an easement holder for the purpose of conservation. Typically, such easements restrict real estate development, commercial and industrial uses, and certain other activities on a property. Quoting from the DNR Forest Legacy Program website, "Landowners place conservation easements on their property because they want to protect it beyond their lifetimes. Easements help them fulfill their vision for the future of their lands and waters."

Because such easements often are permanent and "run with the land" after it is sold, a county should take this into account when acquiring land for county forest purposes that may have a perpetual conservation easement impressed on it, Van Hollen said.

Van Hollen found that conservation easements can be consistent with the legislatively established purposes of the county forest system and DNR-approved plans for the forests which often include land use designations, forest protection, recreational developments, fish and wildlife management activities. "These land uses can be served by and consistent with conservation easements," Van Hollen observed.

Van Hollen also found that a section of the county forest law that provides for county "special-use lands" within a county forest that are "suitable for scenic, outdoor recreation, public hunting and fishing, water conservation and other multiple-use purposes" are "fully compatible with conservation easements."

Van Hollen cautioned that an easement must be consistent with and not interfere or conflict with county forest law provisions, including with the county forest management plan developed by a county and approved by DNR.

The opinion was requested by Wisconsin Department of Natural Resources Secretary Matt Frank.

Formal and informal opinions issued by Attorney General Van Hollen are available at
http://www.doj.state.wi.us/ag/opinions/opinions.asp