The owners of land with conservation easements sometimes go to court seeking to have those easements weakened or invalidated so they can do things that the easement prohibits.[559] In some cases, interpretations diverge regarding the intent of the easement, and the owner's primary objective is to manage the land according to his own interpretation.[560] But in other cases, the owner does not want to comply with the easement at all and seeks to have it invalidated, arguing that circumstances have changed,[561] the easement holder has abandoned the easement,[562] or the easement was never valid under state law. [563]

Much of the literature on managing conservation easements focuses on enforcement and defending against attacks on an easement's validity.[564] We briefly examine some of the reasons that standard conservation easements are sometimes challenged long after they are negotiated, and apply those general considerations to the specific challenges of a rolling easement. Many possible legal arguments for invalidating the standard conservation easement would not apply to a shoreline migration conservation easement—but the motivation for challenging a rolling easement would be the same if not greater.

1. The land—and perhaps the conservation easement as well—has been purchased or inherited by people who did not participate in the original easement conveyance. New owners of the land may not even be sympathetic to the restrictions of the easement.[565]

Given the very long-term nature of rolling easements, the people who own the land when it is finally submerged will rarely be the owners who negotiate the rolling easements. If there are comparable properties nearby that are not subject to a rolling easement, then as the submerge date approaches (e.g., appears to be 10–20 years away), economists would expect the property with the rolling easement to sell at a substantial discount compared with the other property. Such a discount should logically attract potential buyers who are willing to abide by the restriction, such as people who intend to rent the property and view it as a pure investment, or elderly people who do not expect to live past the submerge date and want an affordable coastal home. The greater the discount, the less likely a given owner will feel cheated by the restrictions in the rolling easement. Thus, the holder (and governmental entities that want to see an orderly retreat) have a substantial incentive to publicize the implications of the rolling easement. This publicity encourages those who do not wish to give their home up to the sea to buy other land not subject to a rolling easement.

Yet the discount may tempt some investors to purchase the property and then try to remove the restriction and thereby make a profit. Some owners have sought to invalidate the restrictions from rolling easements even though the reason they had valuable waterfront property was that (formerly) seaward neighbors had yielded homes to the sea.[566] Because some people will challenge the restrictions, those designing a rolling easement must consider measures to reduce the likelihood that a challenge will succeed.

2. The new landowners and easement holders agree with the restrictions of the easement but interpret the words differently from the original parties, and thus no longer have a meeting of the minds.

It should not be difficult to draft the easement conveyance so that it leaves no doubt that the rolling easement prohibits any activity that tends to slow the natural shoreline processes that erode or submerge the dry land. Nevertheless, rolling easements tailored to address only the problems of today could lead to a divergence of expectations later. For example, if the purpose is to allow marshes to migrate inland, and global warming allows mangroves to displace the marsh, a landowner may argue that circumstances have changed to the point of invalidating the easement. A showing that marsh is unlikely to “migrate” onto the property (either because marsh vegetation takes hold via processes other than migration, or because the land is likely to subside into open water before marsh vegetation takes over) may also be used to attack a rolling easement with the stated purpose of allowing marsh migration. Thus, the easement's statement of purpose should be written to broadly address the inland migration of some form of intertidal or shallow-water system, or emphasize preservation of the natural shoreline process. (Failure to do so, however, would not always be fatal due to the doctrine of cy pres.[567])

Misunderstandings may also arise regarding the type of shore protection that is prohibited. The rolling easement in Texas was intended to ensure an open beach, not to ensure that the barrier islands migrate inland. Thus, as sea level rises, all dry land on a barrier island could be elevated with beach-quality sand without undermining the purpose of the Texas Open Beaches Act.[568] But consider a sandy beach below a 5- to-10-foot bluff with a flat plateau along an estuarine shore. If a land trust accepts a rolling easement that prohibits shore protection structures but allows beach nourishment and/or living shoreline approaches to shore protection, the easement may preserve the existing habitat for many decades. Yet once sea level rises enough to submerge the entire bluff, landowners behind the bluff would usually want to prevent their lands from becoming tidal wetland, by elevating the grade of the land. Under the terms of the easement, they can do so unless the easement also includes a provision that prevents grade elevation of the land behind the bluff. Those drafting the rolling easement should thus decide at the outset whether the intention is to allow the bluff to eventually become submerged, or merely to retain a beach along the shore.

3. The passage of time may change the context and function of the easement. Species migration or development may radically alter the benefits of preserving a given parcel. Is the new function covered by the easement?

Traditionally, courts of equity have refused to enforce equitable servitudes (equitable covenants) when circumstances have changed to the point where enforcement is unreasonable or impracticable.[569] Several scholars have objected to this “doctrine of changed circumstances” because it promotes uncertainty about the stability of agreements;[570] but courts have continued to use the doctrine for equitable servitudes in general.[571] Under the doctrine of cy pres, however, if circumstances change when charities are the beneficiary, courts have long tried to reformulate the original terms to serve a similar purpose rather than invalidate the agreement, and that approach is generally followed with conservation easements.[572] Nevertheless, changed circumstances may be a justification to void a conservation easement[573] unless a statute says otherwise.[574] Although habitat fragmentation can occur in the coastal zone, there is a general recognition that even relatively small areas of tidal wetlands, mudflats, beaches, or shallow water have ecological value. Similarly, although a changing climate can alter a habitat and the species that inhabit it, the general need for tidal habitat is recognized at all latitudes and for both pristine and polluted environments. Therefore, continued development or changing climate need not fundamentally undermine the validity of the rolling easement drafted to preserve the natural shore. But if the rolling easement is drafted to focus too narrowly on today's environment, the landowner and easement holder may gradually develop different opinions about what is restricted.

4. The owner may have stopped complying with the requirements without being challenged by the holder for such a long time that, for all practical purposes, the holder has abandoned the easement.

Although the statutes that authorize conservation easements generally allow them to have whatever duration the parties choose,[575] the Internal Revenue Code only allows tax deductions if the easements are in perpetuity.[576] To preserve the tax status of easements, land trusts generally draft conservation easements so that a landowner and holder cannot terminate the easement by mutual consent without obtaining a court order.[577] Nevertheless, the common law of property has long recognized that just as an easement can be obtained through prescription,[578] it can be lost through abandonment. The test is generally a clear indication of intent to no longer use the easement, or conduct inconsistent with continuing the easement,[579] such as tolerating construction by the landowner that blocks use, over a sufficiently long period.[580] “Acts evincing an intention to abandon must be unequivocal.” [581] A statement that there is no intention to abandon the easement may be sufficient to defeat a claim of abandonment.[582]

For a standard conservation easement, the annual inspection provides very strong evidence that the easement has not been abandoned. Conversely, because the easement conveyance documents often provide for an annual inspection, the failure to inspect would be evidence that the easement has been abandoned. As discussed in the previous section, annual inspections are unnecessary for rolling easements on property not yet threatened by rising sea level; so failure to inspect would not be strong evidence of an intention to abandon. As long as the holder does what a reasonable holder of a rolling easement would do, it will be difficult to show that the rolling easement has been abandoned. As with all conservation easements, carefully drafting what is expected is important. A land trust might—at first glance—prefer to have the right to an annual on-site inspection in the decades before submergence becomes imminent. But including such a right in the conveyance could be risky if there is no plan to actually make those visits. Less costly means of reminding owners of their obligations under the rolling easement should be sufficient to show that the easement has not been abandoned.

5. Other Doctrines

The legal and planning literature addresses other ways that conservation easements can be attacked. The common law has long disfavored conveyances that restrict the use of land—especially long-term restrictions. The conservation easement enabling acts were designed to reverse those common law tendencies so that the free market can put land into permanent conservation status. But those statutes generally leave an opening for courts to intervene where necessary.[583]