HomeMy WebLinkAbout20163575.tiffMESA
COUNTY
COLORADO
SCOTT McINNIS
BOARD OF COUNTY COMMISSIONERS
District 2
scott.mcinnis@mesacounty.us
970-244-1604
P.O. Box 20,000
544 Rood Avenue Grand Junction, Colorado 81502-5010 mcbocc@mesacounty.us Fax (970) 244-1639
N ovember 10, 2016
Commissioner Mike Freeman
1150 0 Street
P.O. Box 758
Greeley, CO 80632
Dear Commissioner Freeman,
RECEIVED
NOV21 201
WELD COUNTY
COMMISSIONERS
Enclosed is a letter concerning the balance of land holdings between the Government,
Conservation Easements in perpetuity (forever), and private land in Mesa County. This
may be of interest to you and the future of the balance of land holdings in your county.
Your time and consideration is greatly appreciated concerning this critical issue.
Sincerely,
S cott McInnis
U . S. Congress (Ret.)
Mesa County Commissioner
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2016-3575
MESA
COUNTY
COLORADO
BOARD OF COUNTY COMMISSIONERS
District 1 - John Dustman 970-244-1605
District 2 - Scott McInnis 970-244-1604
District 3 - Rose Pugliese 970-244-1606
P.O. Box 20,000 544 Rood Avenue Grand Junction, Colorado 81502-5010 mcbocc@mesacounty.us Fax (970) 244-1639
November 7, 2016
Board of Trustees of the Great Outdoors Colorado Trust Fund (GOCO)
1900 Grant Street, Suite 725
Denver, CO 80203
RE: Open Space Grant Application for Mesa Land Trust -Glade Park
Dear GOCO Board,
In a letter dated August 29, 2016, my fellow Mesa County Commissioners commented on the Mesa
Land Trust's Glade Park Open Space Grant Application. I, Commissioner Scott McInnis, respectfully
submit this letter with my concerns that have led to my dissenting view. At the onset, be it known I
support conservation easements, but it is the duration (perpetuity) that needs reconsideration. I also
support (and am privileged to live near) public lands.
This objection is not lodged against the Mesa Land Trust (MLT) which, if anything, has been too
successful in obtaining perpetual easements in Mesa County. MLT has cooperated fully with all
questions regarding the proposed Glade Park conservation easement. This is not a local fight between
Mesa County and MLT. The issues are much broader and deeper than an individual conservation
easement, so I am compelled to take the issue to a "higher level" for your consideration.
Land tenure in western Colorado is overwhelmingly dominated by public lands owned and managed by
the federal and state governments (~76% Mesa County). There is no need to add SIGNIFICANTLY to
this de facto conservation -by -ownership through the unchecked growth of PERPETUAL
CONSERVATION EASEMENTS, in part funded by GOCO. Frankly, what gives our generation the right
to tell ALL future generations what the best use of the land is forever, regardless of the needs of those
generations? Had the Palisade pioneers' deeds during Prohibition restricted their grape orchards to
forbid grapes for alcohol production, where would today's successful generation of vintners be? If the
land of 75 years ago were preserved west of Grand Junction, what would exist today west from St.
Mary's Hospital to Utah? What about the fields of Denver International Airport? Are these discussions
ever held by GOCO on each easement grant request? Has the amount of public land that is already in
our county been considered by your assessment? Has the conversation of, 'is enough -ever -enough'
been discussed, or has it been replaced with routine sign off by your Board?
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We are experiencing the dramatic dilution of private landownership in part through acceptance of
significant restrictions from the federal government (if federal money is used). The GOCO Board
should consider funding only 30 -year easements to allow future generations to make their own land use
decisions.
It is also very bothersome that so many conservation easement transactions are driven not by the
land's conservation values, but by generous federal tax credits. In the early days of easements in Mesa
County, not so long ago, the easements were donated or funded locally; managed locally; and kept
local. Today, the typical deed of conservation easement is 30 -plus pages, funded by monies outside of
the county, and often transferred outside the county to third parties with enforcement powers. These tax
credits have become big business (and in most cases, the primary goal, unlike the good old days where
true conservation was the goal), without regard to what we are doing to future private landownership.
Please consider the following points I believe are imperative for your review:
The Open Space Grant Application for Mesa Land Trust -Glade Park
Should this request be a top priority for GOCO conservation funding? The property is hardly under
threat of development. It is very isolated, inaccessible for most of the year, abuts conservation
easements on two sides and federal land on the backside. The land, just by the nature of its location,
will be conserved for a long time to come without the necessity of an easement. It is hard to drive this
request using conservation as the rallying point. Instead, I would suggest it is merely a use of public
funds to allow significant private tax credits.
Let me address the common defense to this criticism, 'This is private property and we can do as we
wish." That is correct until public dollars are used, then the transaction becomes a public transaction,
not private. Very, very few transactions are made using only private funds. In the early days of the
land trust movement, before significant tax benefits, most conservation easements were by donation.
Today easement donations are very uncommon.
Mesa Land Trust has stated that eminent domain will be allowed if the land is restricted by a
conservation easement, which may not be accurate if federal funding is involved in obtaining the
easement. As an example of the eminent domain issue, which clearly impacts local planning (thus your
requirement for local planning and authority to overview as a use of the funds), see the enclosed Deed
of Conservation Easement (CE) between Mesa Land Trust and Mesa County, Colorado. This was
"Acquired in part with funds from The Commodity Credit Corporation through The Farm and Ranch
Lands Protection Program, which is administered by the United States Department of Agriculture -
Natural Resources Conservation Service."
Paragraphs 11, 12, 13, 15 and 27 provide the USA with sole discretion to approve the transfer,
conveyance, amendment or termination of the CE and the property. Specifically, paragraph 15.1 states
in part: "This Easement may only be extinguished with the joint approval of the Conservancy and the
United States, ...," and paragraph 15.2 states in part: "Notwithstanding the foregoing, because the
United States has a vested property interest in this Easement, the United States must consent to any
termination, extinguishment, eminent domain and/or condemnation action involving the Prope►ty."
Please see the analysis enclosed from legal of the Patton & Brennan Deed of Conservation Easement.
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If Mesa County needed to condemn a portion of the property encumbered by the CE for county road
expansion, bridge replacement, etc., we would be required to obtain approval from the United States, a
very likely time-consuming process, assuming it could even be done at all. Many of the right-of-way and
bridge replacement projects depend upon grant funds that must be used within a specific time period,
which may be shorter than the time required obtaining the approval from the United States. Who is to
say what the future holds for planning needs?
When is Enough - Enough?
When does GOCO believe enough land has been conserved in a county that has 76% government
land ownership and approximately one -fifth to one -quarter of the private land already in
conservation? Is the answer, 'There is never enough?" Has the GOCO Board had this discussion
county -by -county? Does GOCO look in detail at the impact of conservation easements on a particular
locale, or has approval become routine?
Please consider that here in the West, where public lands dominate land tenure, perpetual conservation
easements, in part GOCO funded, and incentivized by tax credits, may be driving landownership and
conservation out of balance. In Mesa County, the government owns approximately 75.7% of the land,
most of which is almost entirely undeveloped open space. Government ownership exists, for all
practical purposes, in perpetuity.
MLT conservation easements control 12.5% of the Mesa County remaining private land (100 square
miles). There are other land trust easements held in the county by, but not limited to: Colorado
Cattlemen's Agricultural Land Trust, The Nature Conservancy, Aspen Valley Land Trust, Colorado
Open Lands, and Colorado Parks and Wildlife, etc. We estimate over 20% of private land in Mesa
County is encumbered by conservation easements. The effort to put even more private land under such
perpetual easements continues full steam ahead!
Consider these statistics for Mesa County:
Open Space
• Approximately 98% is "open Space" (unoccupied by structure or road)
Public Lands (see enclosed maps)
•
Federal/some State owned land is -.76%
Statewide average is 40% - MEANING Mesa County has almost twice the
state average
Private Land held under Conservation Easements
•
Approximately 22% OF THE PRIVATE LAND (Mesa Land Trust --12.5
or +1-65,000 acres: other holder's estimated at 9.5% or +1-46,000
acres)
Statewide average is 2% - MEANING Mesa County has over 10 times the
statewide average
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Cons.nration Easontenis
Pubic Lands
Ptivsto Lands
RED AREAS REPRESENT
APPROXIMATELY 66% OF ALL'
CONSERVATION EASEMENT ACREAGE.
Nina County
Consnnntion Easyntnto
IL Public Lands
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Perpetuity Means Forever
For our generation to have the audacity to prohibit the ability of future generations to make their land
use decisions is outrageous. Many of the issues I've enumerated herein would be answered if
conservation easements were simply from generation to generation. For example, a 30 -year term
easement or lease holding would allow the next generation to determine the future of their land while
providing more revenue for today's and tomorrow's landowners.
Local Government Role in LOCO Grants
In my June meeting with GOCO Executive Director Jim Spaanstra and GOCO Board Chairman, Tom
Burke, I expressed my appreciation that GOCO had, as a part of its Open Space grant application
process, the requirement that local governments having land use authority sign letters of support. That
requirement had the result of bringing the requesting parties and the local governing authorities to the
table. I am very disappointed the new 2016 application criteria seems to be diluted to only "seek" such
letters of approval or "non -opposition." Please reconsider reinstating your previous requirement.
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Summary
The underlying basis for this objection rises above this particular request for the Glade Park
conservation easement. I write this dissent in an effort to have the GOCO Board consider the long term
impact of perpetual conservation easements (remember, that means forever). Conservation easement
restrictions allow the hand to reach from the grave, without any knowledge of the needs of future
generations. This is especially detrimental for counties with large public landownership. These land
restrictions are substantial, remove much local control, and beg the question- Has the original intent of
conservation easements to protect the land been eclipsed by the significant drive to obtain tax credits
without regard to impacts of perpetual restrictions on land use?
I implore the GOCO Board to take a careful look at these issues and thoroughly revise the criteria for
granting conservations easement applications. You must ensure G0CO funding does not unwittingly
drive landownership further out of balance in western Colorado.
Finally, I would appreciate at least some of you will take the time to consider with forward thinking about
the points raised. Unfortunately, my personal correspondence of April 14, 2015, sent to individual Board
members through G0CO staff, never even received the courtesy of a response to a most critical issue.
Thank you for your time and serious consideration.
Sincerely,
Ises"'s
Scott McInnis
Mesa County Commissioner
I.I.S. Congress (Ret.)
End: Deed of Conservation Easement - Mesa Land Trust, Glade Park Property, Mesa County, CO
(without signature pages)
Analysis from Mesa County Legal
Map - BLM and USES lands in the Lower 48 States (Mesa County GIS)
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PAGE DOCUMENT
DEED OF CONSERVATION EASEMENT
Mesa Land Trust
Patton & Brennan Property, Mesa County, CO
RECEPTION #: 2688'476%K 5594
PG 817 04/30/2014 at 09:33:49 AM, ¶
OF 31, R $160 00 S $1.00 EXEMPT
Sheila Feiner, Mesa County, CO
CLERK AND RECORDER
NOTICE: THIS CONSERVATION EASEMENT HAS BEEN ACQUIRED IN PART
WITH FUNDS FROM THE COMMODITY CREDIT CORPORATION THROUGH THE
FARM AND RANCH LANDS PROTECTION PROGRAM WHICH IS ADMINISTERED
BY THE UNITED STATES DEPARTMENT OF AGRICULTURE - NATURAL
RESOURCES CONSERVATION SERVICE ("NRCS" or "UNITED STATES"). THIS
EASEMENT CONTAINS RESTRICTIONS ON THE USE AND DEVELOPMENT OF
THE PROPERTY WHICH ARE INTENDED TO PROTECT ITS OPEN SPACE,
AGRICULTURAL, AND CONSERVATION VALUES. THE UNITED STATES HAS
FOUND THAT THE ADOPTION OF THESE RESTRICTIONS IS IN THE PUBLIC
INTEREST.
THIS DEED OF CONSERVATION EASEMENT is granted thij day of April,
2014, by Philip W. Patton and Susan B. Patton, as joint tenants as to an undivided '/2
interest, and Patrick L. Brennan and Susan W. Brennan, as joint tenants as to an
undivided '/s interest, the collective address of which is 281 33 Road, Palisade, Colorado
81526 (collectively the "Grantor") to and for the benefit of the MESA COUNTY LAND
CONSERVANCY, a Colorado nonprofit corporation, doing business as MESA LAND TRUST,
1006 Main Street, Grand Junction, Colorado 81501 (the "Conservancy") as grantee, for the
purpose of forever conserving the agricultural productivity, open space character, wildlife habitat,
and scenic qualities of the subject property. The United States of America (the "United States")
acting by and through the United States Department of Agriculture, Natural Resources
Conservation Service ("NRCS") acting on behalf of the Commodity Credit Corporation, as its
interest appears herein, by virtue of its funding of the Conservancy's acquisition of this Deed, has
acquired a third party right of enforcement in this conservation easement, including certain rights
and assurances specifically set forth herein, for the purpose of forever conserving the agricultural
productivity of the Protected Property and its value for resource preservation and as open space
and by virtue of its funding of the Conservancy's acquisition of this Deed, has acquired a right of
enforcement and those certain other rights and assurances specifically set forth in this Deed. The
Grantor and the Conservancy are individually referred to as a "Party" and are collectively
referred to as "Parties", herein.
The following Exhibits are attached hereto and made a part of this Conservation
Easement:
A)
...17
Exhibit A
Exhibit A -I
Exhibit B
Exhibit C
Exhibit D
- Description of Property
- Description of Additional Building Area and Agricultural Operations
Building Area
- Map of Property
- Water Rights
- Exceptions to Title
RECITALS:
Grantor is the sole owner in fee simple of certain real property located in Mesa County,
Colorado, consisting of approximately 32.32 acres of land, more or less, together with
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agricultural improvements more particularly described in Exhibit A and depicted in
Exhibit B, attached hereto and incorporated herein by this reference, and the water rights
described in. Exhibit C (together, the "Property").
B) The agricultural and other characteristics of the Property, its current use and state of
improvement, are described in a Baseline Documentation Report (also referred to as a
Present Conditions Report) dated April, 25 2014, and has been acknowledged in writing
by the Parties to be complete and accurate as of the date of this Easement. Both the
Grantor and the Conservancy shall keep signed copies of this report. It will be used by
the Conservancy to assure that any future changes in the use of the Property will be
consistent with the terms of this Easement. However, this report is not intended to
preclude the use of other evidence to establish the present condition of the Property if
there is a controversy over its use. The Baseline Documentation Report is incorporated
into this Conservation Easement by reference.
C) The conservation purposes described in these Recitals are part of the Conservation
Values of the Property. The Property possesses agricultural, including soils classified by
NRCS as being Prime Farmland Soils of National Significance, natural, scenic, open
space, and wildlife habitat values (collectively, the "Conservation Values") of great
importance to the Conservancy, the people of Mesa County, the people of the State of
Colorado, and the people of the United States of America, which are worthy of
protection. The conservation purposes described in these Recitals are part of the
Conservation Values of the Property.
D) The following conservation purpose, in accordance with Treasury Regulations §1.170A-
14(dX4) is furthered by this Easement, "The preservation of certain open space
(including farmland and forest land) for the scenic enjoyment of the general public and
will yield a significant public benefit." The Property can be seen from Mesa County 33
Road and from the nearby land administered by the United States Department of the
Interior, Bureau of Land Management (BLM). Among the Conservation Values, which
are more fully described in the Baseline Documentation Report, are the following:
1) The Property contains soils designated as Prime Farmland Soils of National
Significance by the Natural Resource Conservation Service. The Property's
agricultural values are further evidenced by its inclusion in the Grand Valley
viticulture area, as designated by the United States Congress. The Property is
irrigated by a Federal Reclamation project that requires that the water and the
land be tied together.
2) The Property is an important orchard and viticulture property and is part of the
significant orchard and viticulture areas of Mesa County, which provide fruits,
wine and food products to consumers throughout the United States.
3) The Property is situated proximate to major growth corridors, and increasing
development pressures in the area have resulted in a rapid recent influx of new
homes situated on small lots, and a concomitant disruption and diminishment of
existing farming practices and irrigation patterns, coupled with the division of
"prime and unique" irrigated farmland into non-productive, non-agricultural uses
such as subdivisions.
E) The conservation purposes of this Easement are recognized by, and the grant of this
Easement will serve, the clearly delineated governmental conservation policies:
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1) The Farm and Ranch Lands Protection Program (16 U.S.C. 3838h and 38381)
under which the Secretary of Agriculture, acting through the Natural Resources
Conservation Service, provides funding for the purchase of conservation
easements for the purpose of protecting agricultural use and related conservation
values of eligible land by limiting nonagricultural uses of that land.
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The Colorado Department of Agriculture statutes, Colorado Revised Statutes
Sec. 35-1-101, et seq., which provide in part that "it is the declared policy of the
State of Colorado to conserve, protect, and encourage the development and
improvement of its agricultural land for the production of food and other
agricultural products."
3) Colorado Revised Statutes Sec. 38-30.5-101, et seq., providing for the
establishment of conservation easements to maintain land "in a natural, scenic or
open condition, or for wildlife habitat, or for agricultural ... or other use or
condition consistent with the protection of open land, environmental quality or
life -sustaining ecological diversity."
4) The Colorado Wildlife and Parks and Outdoor Recreation statutes, Colorado
Revised. Statutes Sec. 33-1-101, et seq., which provide that "it is the policy of the
state of Colorado that the wildlife and their environment are to be protected,
preserved, enhanced, and managed for the use, benefit and enjoyment of the
people of this state and its visitors," and that it is the policy of the state of
Colorado that the natural, scenic, scientific, and outdoor recreation areas, of this
state are to be protected, preserved, enhanced, and managed for the use, benefit,
and enjoyment of the people of this state and visitors of this state."
5) The Colorado Department of Transportation statutes, Colorado Revised Statutes
§43-1-401, et seq., provide that the preservation and enhancement of the natural
and scenic beauty of this state is a matter of substantial state interest.
6) The Western Governors' Association Policy Resolution 08-21 supports
"voluntary incentive -based methods for preserving open space, maintaining land
and water for agricultural and timber production, wildlife, and other values."
7) Mesa Countywide Land Use Plan - Land Use Goal: "to protect ... the
agricultural economy of Mesa County."
8) Mesa Countywide Land Use Plan - Agricultural Goal: "to encourage the
conservation of agricultural and range lands capable of productive use."
9) Mesa Countywide Land Use Plan - Conservation Goal: "to encourage
preservation of sustainable ecosystems."
10) Mesa Countywide Land Use Plan - Open Lands and Trails Goals: "to protect
important open lands", "new development should accommodate and protect
wildlife habitats", and "to assure that open land is recognized as a limited and
valuable resource which must be conserved whenever possible."
F) The Mesa County Land Conservancy is a charitable organization as described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code") and is a
"qualified organization" as defined in Section 170(h)(3) of the Code, and a charitable
organization as defined and authorized in C.R.S. Section 38-30.5-104(2) to acquire and
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hold conservation easements.
G) The Grantor desires to protect the Conservation Values of. the Property in perpetuity by
creation of a conservation easement in gross under Article 30.5 of Title 38, Colorado
Revised Statutes.
H)
The Board of Directors of the Mesa County Land Conservancy accepts the responsibility
of enforcing the terms of this Easement and upholding its conservation purpose forever.
NOW, THEREFORE, for reasons given, and in consideration of payment of
$ 164,900.00, and in consideration of the above and mutual covenants, terms, conditions, and
restrictions contained herein, and pursuant to the laws of the State of Colorado, and in particular
C.R.S. Sec. 38-30.5-101, et seq., Grantor hereby voluntarily grants and conveys to the
Conservancy, its successors and assigns a Conservation Easement in perpetuity, together with a
third party right of enforcement to the United States, consisting of the rights and restrictions
enumerated herein, over and across the Property (the "Easement" or the "Deed"), exclusively for
the purpose of conserving andforever maintaining the open space character, agricultural
productivity, wildlife habitat, and scenic qualities of the Property.
1. Purpose.. The purpose of this Easement is to protect agricultural use and ensure that the
Conservation Values are preserved and protected in perpetuity ("Purpose"). This
Purpose is in accordance with §170(h) of the Internal Revenue Code of 1986, as
amended, and the Treasury Regulations adopted pursuant thereto. To effectuate the
Purpose of this Easement, Grantor and Conservancy intend to permit only uses of the
Property that do not substantially diminish or impair the Conservation Values and to
prevent any use of the Property that will substantially diminish or impair the
Conservation Values by limiting non- agricultural uses of the protected Property.
Notwithstanding the foregoing, nothing in this Easement is intended to compel a specific
use of the Property, such as agriculture, other than the preservation and protection of the
Conservation Values. The provisions and restrictions contained in this Easement are
intended to insure that the Property remain available for agricultural and/or livestock
production in accordance with Section 1 70(b)(1)(E)(iv) of the Internal Revenue Code,
2. Permitted Uses of Property. The following uses and practices by Grantor, though not an
exhaustive recital, are consistent with this Easement. Certain of these consistent uses and
practices are identified as being subject to specified conditions or to the requirement of
and procedures for prior approval by the Conservancy. Procedures for prior approval are
listed below. The remainder of these consistent uses shall not be precluded, prevented, or
limited by this Easement. Notwithstanding any terms to the contrary in this Deed of
Conservation Easement, there is a 4% limit on the percentage of the total area covered by
this Property that may be devoted to impervious surfaces, which includes areas that are
paved, covered by concrete, areas occupied by buildings (with or without walls or floors),
including all improvements permitted under this Paragraph 2. Conservation practices
listed in the NRCS Field Office Technical Guide ("FOTG") are exempt from this
provision. The 4% limitation on impervious surfaces on the Property is 56,314 square
feet.
2.1. Additional Building Area. The Grantor has identified a one-half (0.5) acre, more
or less, building area (the "Additional Building Area") in the southerly portion
of the Property, which is described on the attached Exhibit A-1 and depicted on
the attached Exhibit B. The Grantor may construct a single residence, garage and
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accessory structures in the Additional Building Area, or alternatively, the Grantor
may construct one or more structures for commercial activities related to
agricultural operations (including without limitation the activities described in
subparagraph 2.3.3 below) ("Commercial Agricultural Structures") in the
Additional Building Area. At no time shall there be both Commercial
Agricultural Structures and a residence located in the Additional Building Area.
There are currently no structures in the Additional Building Area. Once
constructed, the Grantor may maintain, repair, remodel, enlarge, replace, remove
or relocate the structures within the Additional Building Area and may construct
additional accessory and agricultural structures within the Additional Building
Area. Prior to any permitted construction within the Additional Building Area,
the Grantor shall (I) provide written notice to the Conservancy designating
whether the Additional Building Area will be used for Commercial Agricultural
Structures or a single residence, together with a surveyed description of the
Additional Building Area; (2) pin the corners of the Additional Building Area;
and (3) at the request of the Conservancy, record a notice executed by the Parties
in the real property records which describes and depicts the designated
Additional Building Area, and provide a recorded copy of the notice to the
NRCS. Thereafter, the Grantor shall maintain monuments or pins at the corners
of the designated Additional Building Area. With the prior approval of the
Conservancy as provided in Paragraph 18 below, and after compliance with items
(1), (2) and (3) of this Paragraph 2.1, Grantor may expand the Additional
Building Area to not more than one (1) acre in size upon execution of
amendment of the Easement as provided in Paragraph 13 below.
2.2. Agricultural Operations Building Area. The Grantor has identified one
agricultural building area which is approximately one (1) acre in size (the
"Agricultural Operations Building Area"), on the Property, which is described
and depicted on the attached Exhibit B. The Agricultural Operations Building
Area includes the existing shop, agricultural help house, trailer, barn and storage
shed (the "Existing Agricultural Structures"). The Grantor may maintain,
repair, remodel, enlarge, replace, remove or relocate the Existing Agricultural
Structures within the Agricultural Operations Building Area and construct,
maintain, repair, remodel, enlarge, replace, remove or relocate additional
accessory and agricultural structures within the Agricultural Operations Building
Area. Prior to any permitted construction within the Agricultural Operations
Building Area, the Grantor shall (1) provide written notice to the Conservancy
together with a surveyed description of the Agricultural Operations Building
Area; (2) pin the corners of the Agricultural Operations Building Area; and (3) at
the request of the Conservancy, record a notice executed by the Parties in the real
property records which describes and depicts the designated Agricultural
Operations Building Area and provide a recorded copy of the notice to the
NRCS. Thereafter, the Grantor shall maintain monuments or pins at the corners
of the designated Agricultural Operations Building Area. With the prior approval
of the Conservancy as provided in Paragraph 18 below, and after compliance
with items (1), (2) and (3) of this Paragraph 2.2, Grantor may expand the
Agricultural Operations Building Area to not more than one and one-half (1.5)
acres in size upon execution of amendment of the Easement as provided in
Paragraph 13 below.
2.3. Agriculture and Other Activities. It is the intention of the Parties to preserve the
open space character and scenic qualities of the Property, and the ability of the
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Property to be agriculturally productive and to permit all agricultural uses
(including the "Agricultu rai Uses" described in subparagraphs 2.3.1 through
2.3.4), unless otherwise prohibited herein. In addition, certain commercial uses
are allowed as described below, as long as they are conducted in a manner that is
consistent with § 170(h) of the United States Internal Revenue Code of 1986, as
amended, and the Treasury Regulations adopted pursuant thereto, in a manner
that is consistent with the Purpose of this Easement, and in a manner that is not
inconsistent with the preservation and protection of the Conservation Values and
as long as they remain subordinate to the agricultural uses of the Property. The
following uses are allowed:
2.3.1. Producing, processing or selling plants, animals, or other farm or ranch
products that are grown or raised outdoors predominately on the Property
or on adjoining or nearby properties owned, managed or leased by
Grantor, including forages, grains, feed crops, field crops, berries, herbs,
flowers, seeds, grasses, nursery stock, tree farms, fruits, vegetables,
aquaculture, trees, orchard and vineyard activities, and other similar uses
and activities, with the choice of crops being in the discretion of the
Grantor. Notwithstanding the foregoing, any use that removes soil with
the harvested material (e.g. grass sod for lawns, ball -&-burlap nursery
stock) is prohibited.
2.3.2. Breeding and grazing livestock, such as cattle, horses, sheep, swine,
goats, llamas, poultry, elk and similar animals, including seasonally
confining livestock into a corral or other small area for feeding, and/or
leasing pasture to third parties for grazing livestock.
2.3.3. Small scale commercial activities compatible with agricultural
operations and the Purpose of this Easement, including, but not limited
to, operation and maintenance of a commercial winery, fruit stand,
packing and processing facilities for agricultural products produced
predominately on the Property or on adjoining or nearby properties
owned, managed or leased by Grantor, provided structures for such
activities shall be limited to buildings constructed and maintained for
agricultural use as an integral part of agricultural operations on the
Property and shall be constructed only within the Additional Building
Area or the Agricultural Operations Building Area (collectively referred
to as the "Building Areas").
2.3.4. Home occupations or similar customary rural enterprises conducted by
and in the home of a person residing on the Property.
2.4. Minor Agricultural Structures. Outside of the Building Areas minor agricultural
structures less than 500 square feet (such as corrals, small sheds, and similar
structures for agricultural use), may be constructed as long as they are temporary
(covering the soil for less than 6 months); if such structures are not temporary,
they must be approved in writing by the Conservancy, located so as to minimize
impacts on protected soils, consistent with the preservation and protection of the
Conservation Values of the Property, and clustered together on the periphery of
the Property insofar as possible. The new structures, improvements and
buildings must be constructed solely for agricultural purposes that are not
inconsistent with the preservation and protection of the Conservation Values.
The square footage of the aforementioned structures that are deemed to be
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permanent by the Conservancy will be allocated against the permissible
impervious surface limit of four percent (4%). The total cumulative impervious
surface of such permanent structures located outside of the Building Areas may
not exceed 2000 square feet.. Grantor shall notify the Conservancy for approval
in advance of any construction or reconstruction of such permanent structures
and so that the Conservancy may update its records if approval is granted.
Grantor may maintain, repair and replace the existing agricultural fencing on the
Property. Grantor may install and relocate fencing provided that the fencing is
not inconsistent with the preservation and protection of the Conservation Values
of the Property.
2.5. Urazin . Grantor may graze livestock on the Property provided that at all times
Grantor shall utilize good grazing and range management practices that prevent
pasture deterioration and over -grazing and which protect the Conservation
Values of the Property. In the event the Conservancy determines that the range is
deteriorating, that overgrazing is occurring, or that the Conservation Values of
the Property are not being protected, the Grantor and the Conservancy shall
promptly enter into an Agricultural Management Plan for the Property with the
NRCS or other resource management agency or consultant mutually agreed upon
by Grantor and Conservancy. Thereafter, grazing and other agricultural activities
on the Property shall be conducted only in accordance with the Management Plan
until Grantor and Conservancy mutually agree to modify or terminate the plan.
2.6. Agricultural Practices. The Grantor may utilize normal or acceptable practices
required for agricultural production in the area, including the use of pesticides,
herbicides and agricultural sprays and fertilizers considered appropriate for
raising quality crops, provided such use is in accordance with applicable laws
and regulations and the manufacturers specifications and limitations for such use.
2.7. Utilities and Roads. Upon fifteen (15) days prior notice to the Conservancy,
Grantor may install, construct and maintain utilities (including above -ground
utilities) to serve the permitted structures and uses (including agricultural uses)
on the Property so long as the proposed utility does not adversely impact the
Purpose of the Easement. Grantor may also construct unpaved roads as needed
for agricultural operations on the Property.
2.8. Hunting. Hunting, hunting leases, guiding, outfitting, trapping and wildlife
viewing are permitted on the Property in accordance with applicable laws and
regulations. All such activities must not require impervious surfaces and shall be
undeveloped, passive and consistent with the Purpose of this Easement.
2.9. Rights held by Third Parties Unaffected. The pre-existing rights held by third
parties pursuant to the recorded documents listed in the attached Exhibit D, are
not affected by the Easement and are permitted uses of the Property.
3. Prohibited or Restricted Uses. Any activity on or use of the Property inconsistent with the
Purpose of this Easement is prohibited. In addition to the above statement, the following
uses and activities are restricted or expressly prohibited.
3.1. Development Rights. To fulfill the Purpose of this Easement, Grantor hereby
conveys to Conservancy all development rights deriving from, based upon or
attributable to the Property in any way ("Conservancy's Development Rights"),
except those expressly reserved by Grantor herein, and the Parties agree that
Conservancy's Development Rights shall be held by Conservancy in perpetuity
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in order to fulfill the Purpose of this Easement, and to ensure that such rights are
forever released, terminated and extinguished as to Grantor, and may not be used
on or transferred off of the Property to any other property or used for the purpose
of calculating permissible lot yield of or density credits for the Property or any
other property.
3.2. Subdivision. The Property may be comprised of more than one Assessor's
parcel; nonetheless, for purposes of this Easement the entire Property (including
all legally described Assessor's parcels) is a single parcel that shall at all times
remain in the same ownership. The partition, division or subdivision of the
Property, by physical or legal process is prohibited. At all times the Property
shall remain as a single parcel which is subject to the terms of this Easement.
This does not preclude sale of undivided interests in the Property; however, all
co -owners are subject to the prohibition of subdivision in this Easement. The
right to have the Property or any portion of it, partitioned in kind is waived; the
only relief available in a partition action shall be the sale of the co -owned
Property, subject to the terms of this Easement, and division of the proceeds.
3.3. Commercial and Industrial Activities. The Property may not be used for
industrial activities, or for commercial activities other than the Agriculture Uses,
but may be used for other activities which are consistent with preservation of the
Property, including agri-tourism and special events, which do not diminish or
impair the Conservation Values of the Property, and which are not prohibited by
the terms of this Deed.
3.4. Boundary Line Adjustments. No boundary line adjustment shall be allowed
which results in any increased density of development on or off the Property, nor
shall this Property be used for calculating density of development or permitted
uses on any other property or for the purpose of increasing the density of
development or uses that might be permitted on any other property. Boundary
line adjustments are only permitted in the case of technical errors made in the
legal description attached hereto. In such cases, the adjustment of the boundary
cannot exceed 2 acres for the entire Property.
3.5. Buildings or Other Structures. No buildings or other similar structures shall be
erected or placed on the Property, except as provided in the Permitted Uses of
Property Paragraph, above.
3.6. Paving. No portion of the Property, other than within the Building Areas, shall
be paved or otherwise covered with concrete, asphalt, or other impervious paving
materials.
3.7. Signs and Billboards. With the exception of the Conservancy's right to place a
sign on the perimeter of the Property as described in Paragraph 4.4 below, no
commercial signs, billboards, awnings, or advertisements shall be displayed or
placed on the Property, except for an appropriate and customary identification
sign, signs for the business uses permitted on the Property, including product
promotional signs, "for sale" or "for lease" signs alerting the public to the
availability of the Property for purchase or for lease, "no trespassing" signs,
political signs and signs regarding the private leasing of the Property for
recreational use. No signs shall diminish, impair or interfere with the
Conservation Values of the Property.
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3.8. No Mining. The drilling, exploration by geophysical and other methods, mining,
extraction and operating for and producing from the Property, including the
construction of any and all roads, pipelines, structures, equipment, tanks, storage
facilities, ponds, evaporation pools or pits, utility lines, of any kind or
description, and including all activities described as "oil and gas operations" in
C.R.S. Sec. 34-60-103, as amended (collectively referred to as "mining"), of
soil, sand, gravel, rock, stone, decorative stone, oil, natural gas, coalbed methane
(including any and all substances produced in association therewith from
coalbearing formations), hydrocarbon, fuel, or any other mineral substance, of
any kind or description (collectively referred to as "minerals"), is prohibited on
the Property. Notwithstanding the foregoing, Grantor may conduct or allow
subsurface mining underlying the surface of the Property provided that such
subsurface mining is conducted in a manner that does not occur on, disturb,
remove support for or otherwise impact the surface of the Property or the Water
Rights or the Conservation Values (collectively, "Non -Subsurface
Disturbance").
3.9. Trash. The dumping or uncontained accumulation of trash or refuse on the
Property is prohibited.
3.10. Hazardous Materials. The storage, dumping or other disposal of "Hazardous or
Toxic Materials" or of non-compostable refuse on the Property is prohibited.
For the purpose of this Easement "Hazardous or Toxic Materials" shall be taken
in its broadest legal context and shall include any petroleum products as defined
and any hazardous or toxic substance, material or
waste that is regulated under any federal, state or local law. Notwithstanding
anything in this Easement to the contrary, the prohibitions in this Easement do
not make or allow the Conservancy or the United States to become an owner or
operator of the Property, nor does it permit the Conservancy or the United States
to exercise physical or managerial control over the day-to-day operations of the
Grantor or control any use of the Property by the Grantor which may result in the
storage, dumping or disposal of hazardous or toxic materials; provided, however,
that the Conservancy may bring an action to protect the Conservation Values of
the Property, as described in this Easement. (The prohibitions in this Easement
do not impose liability on the Conservancy for Hazardous or Toxic Materials, nor
shall the Conservancy be construed as having liability as a "responsible party"
under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 ("CERCLA") as amended, or similar federal or state statutes.)
Nothing in this paragraph shall prohibit the use of chemicals and products in
accordance with applicable laws and manufacturer's instructions.
3.1 1 . Fences. Grantor may maintain, repair and replace the existing agricultural
fencing, build new fences for purposes of reasonable and customary management
of livestock and wildlife, or build new fences for separation of ownership and
uses on the Property. Grantor may install and relocate fencing provided that the
fencing is not inconsistent with the preservation and protection of the
Conservation Values of the Property.
3.12. Motorized Vehicles. Use of snowmobiles, all -terrain vehicles, motorcycles, or
other motorized vehicles outside of the Building Areas, or off of roads or
travelways, except for agricultural or property -maintenance purposes, is
prohibited.
in ASTM Standard E 1527-05
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3.13. Water. The Property includes any and all water and water rights appurtenant to,
associated with or beneficially used on the land that are owned by the Grantor,
and all ditches, headgates, springs, reservoirs, water allotments, water shares and
stock certificates, contracts, units, wells, easements and rights of way associated
therewith (collectively, the "Water Rights"). Specifically, the Grantor owns
water right acres through the Orchard Mesa Irrigation District for the Property.
These Water Rights are tied to the land through the Orchard Mesa Irrigation
District. The Water Rights include surface water rights and groundwater rights,
whether tributary, nontributary or not-nontributary, decreed or undecreed,
including, but not limited to, those water rights or interests specifically described
as follows or in the attached Exhibit C. Grantor may maintain, repair or improve
the existing water delivery systems to carry out the purposes permitted under this
Easement. Grantor shall retain and reserve ownership and the right to use all
Water Rights on the Property for agricultural production, irrigation and other
decreed uses. The Grantor shall not transfer, sell or otherwise separate the Water
Rights, as defined above, from the Property and shall maintain sufficient Water
Rights on the Property to ensure that the Conservation Values of the Property are
preserved. The Parties intend and desire that obligations and restrictions set forth
in this Section be enforceable pursuant to Colo. Rev. Stat. §38-30.5-101, et. seq.
Alternatively, the Parties intend and desire that the obligations and restrictions set
forth in this Section be enforceable as a restrictive covenant, or that such
obligations and restrictions be enforceable as an equitable servitude.
3.14. Excavation; Topographical Changes. No excavating, grading, cutting and filling,
berming or other similar topographical changes shall occur on the Property,
except as reasonably necessary in connection with the (1) construction,
maintenance and repair of those structures permitted in the Building Areas as
provided in Paragraphs 2.1 and 2.2; (2) the Agricultural Uses allowed on the
Property as described in Paragraph 2.3; and (3) the minor agricultural structures
permitted on the Property in Paragraph 2.4.
4. Rights to the Conservancy. To accomplish the Purpose of this Easement in addition to
the rights described in C.R.S. Sec. 38-30.5-101, et seq., as amended from time to time,
the following rights are granted to the Conservancy:
4.1. To preserve and protect the Conservation Values of the Property;
4.2. To enter upon the Property ordinarily not more than two inspection periods
annually, at reasonable times and upon 48 hours' notice to Grantor, in order to
monitor compliance with and otherwise enforce the terms of this Easement. The
Conservancy may utilize vehicles and other reasonable modes of transportation
for access purposes. The access routes to the Property shall be designated by the
Grantor so as to minimize damage to farm operations;
4.3. To prevent any activity on or use of the Property that is inconsistent with the
Purpose of this Easement, or which may be reasonably expected to have material
adverse impact on the Conservation Values of the Property, and to require the
restoration of such areas or features of the Property that are materially damaged
by any inconsistent activity or use; and
4.4. To place and maintain on the perimeter of the Property a sign or signs indicating
that a conservation easement is held by the Conservancy on the Property. The
size of the sign and the location, design and content of such signs shall be
determined through mutual agreement of the Grantor and the Conservancy.
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5 Rights Retained by Grantor. Grantor reserves to Grantor and to Grantor's personal
representatives, heirs, successors, and assigns, all rights accruing from their ownership of
the Property, including the right to engage in or permit or invite others to engage in all
uses of the Property that are not expressly prohibited herein and are consistent with the
Purpose of this Easement as determined by the Conservancy in its discretion.
6. Responsibilities of the Grantor and the Conservancy Not Affected. Other than as
specified herein, this Easement is not intended to impose any legal or other responsibility
on the Conservancy, or in any way to affect any existing obligation of the Grantor as
owner of the Property. Among other things, this shall apply to:
6.1. Taxes. The Grantor shall continue to be solely responsible for payment of all
taxes and assessments levied against the Property, including any taxes imposed
upon, or incurred as a result of, this Easement. If the Conservancy is ever
required to pay any taxes or assessments on its interest in the Property, Grantor
will reimburse the Conservancy for the same.
6.2. Upkeep and Maintenance. The Grantor shall continue to be solely responsible for
the upkeep and maintenance of the Property, including weed control and
eradication, to the extent it may be required by law and shall bear all costs and
liabilities of any kind related to the ownership, operation, upkeep and
maintenance of the Property. The Conservancy shall have no obligation for the
upkeep or maintenance of the Property.
6.3. Insurance; Mortgages. The Grantor shall be responsible for the maintenance of
reasonable comprehensive general liability insurance coverage on the Property.
Grantor shall name the Conservancy as an additional insured on such
comprehensive general liability insurance coverage and shall provide a certificate
of such insurance to the Conservancy upon the request of the Conservancy. Any
mortgage or deed of trust which encumbers all or a portion of the Property shall
be subordinate to the terms of this Easement and the foreclosure of any such
mortgage or deed of trust shall not adversely affect the existence or continuing
validity of this Easement.
6.4. Baseline Report. The Grantor and the Conservancy agree that the natural
characteristics, ecological features, physical and man-made conditions of the
Property on the date of this Easement are documented in the Baseline
Documentation Report referenced in Recital B, above, which has been signed
and acknowledged by the Grantor and the Conservancy as establishing the
condition of the Property on the date of this Easement, which includes reports,
maps, photographs, and other documentation. The Conservancy shall maintain
the Baseline Documentation Report and may use the Baseline Documentation
Report in enforcing provisions of this Easement, but is not limited to the use of
the Baseline Documentation Report to show a change of conditions.
6.5. Responsibilities of the Conservancy. Responsibilities of the Conservancy
include, but are not limited to:
6.5.1. Annually monitoring the Property in accordance with applicable policies
and guidelines.
6.5.2. Ensuring active farm operations are in compliance with the Conservation
Plan for the Property.
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6.5.3. Investigating potential violations of this Easement, informing NRCS or
successor agency of any violations, taking appropriate enforcement
action, and providing an annual monitoring report to NRCS or successor
including any follow-up or actions necessary to maintain compliance
with the terms of this Easement.
6.5.4. The Conservancy shall resolve violations within sixty (60) days of
receipt of notice from the United States in accordance with 7 CFR §
1491.30(e). Failure to resolve the violation may result in enforcement of
the terms of the Easement by the United States pursuant to its Right of
Enforcement as delineated in Paragraph 7.4.
7. Enforcement.
7.1. The Conservancy shall have the right to prevent and correct violations of the
terms of this Easement. If the Conservancy finds what it believes is a violation,
it shall immediately notify Grantor in writing of the nature of the alleged
violation and it may at its discretion take appropriate legal action. Except when
an ongoing or imminent violation could irreversibly diminish or impair the open
space character, agricultural productivity, wildlife habitat or scenic qualities of
the Property, the Conservancy will give the Grantor sixty (60) days to correct the
violation before filing any legal action and the Parties shall pursue resolution of
the dispute through the mediation process ("Mediation Process") described in
this paragraph. The United States shall in no event be required to participate in
meditation. For purposes of this Easement the Mediation Process is as follows:
(a) Upon notice from the Conservancy to the Grantor of a potential violation of
the Easement, both Parties agree to meet as soon as possible to resolve this
difference; (b) If a resolution of this difference cannot be achieved at the
meeting, both Parties agree promptly to meet with a mutually acceptable
mediator to attempt to resolve the dispute as early in the sixty (60) day period as
possible; (c) Grantor shall discontinue any activity causing, related to, and/or
resulting in the alleged violation during the mediation process; and (d) Should
mediation fail to resolve the dispute, the Conservancy may, in its sole discretion,
take appropriate legal action. If a court with jurisdiction determines that a
violation may exist or has occurred, the Conservancy may obtain a temporary or
permanent injunction to stop the violation. The Conservancy may also request a
court of competent jurisdiction to issue an order requiring the Grantor to restore
the Property to its condition prior to the violation. In any case where a court
finds that a violation has occurred, the Grantor shall reimburse the Conservancy
for all its expenses incurred in stopping and correcting the violation, including
but not limited to reasonable attorney's fees. These rights are in addition to any
rights as described in C.R.S. Sec. 38-30.5-101, et seq., as amended from time to
time. An action for injunction (including mandatory injunction) under this
Easement shall be governed by the provisions of C.R.S. Section 38-30.5-108.
7.2. The Conservancy will enforce the terms of this Easement to protect the
Conservation Value of the Property, provided, however, that the Conservancy
shall have the right to determine in its sole discretion what enforcement action, if
any, is necessary, subject to the United States Right of Enforcement. Any
forbearance by the Conservancy to exercise its rights under this Easement shall
not be deemed or construed to be a waiver by the Conservancy of any term of
this Easement or of any of the Conservancy's rights under this Easement. No
delay or omission by the Conservancy in the exercise of any right or remedy
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upon any breach by the Grantor shall impair such right or remedy or be construed
as a waiver. Grantor hereby waives the defenses of laches, estoppel and
prescription in any action brought by the Conservancy to enforce this Easement;
notwithstanding the foregoing, the Grantor shall be entitled to rely upon any
written approval from the Conservancy that is given pursuant to Paragraph 18,
herein. Grantor hereby waives any defense available to Grantor pursuant to
C.R.S. Section 38-41-.119.
7.3. United States Right of Enforcement.
United States is granted the right of enforcement in order to protect the public
investment. The Secretary of the United States Department of Agriculture (the
Secretary), on behalf of the United States, will exercise these rights under the
following circumstances: In the event that the Conservancy fails to enforce any
of the terms of this Conservation Easement, as determined in the sole discretion
of the Secretary, the Secretary and his or her successors or assigns may exercise
the United States' rights to enforce the terms of this Conservation Easement
through any and all authorities available under Federal or State law.
8. Agricultural Practices. The following language applies to properties with cropland that is
designated as being `Highly Erodible Land' ("HEL"). By definition, HEL is limited to
fields devoted to cultivated crops and composed of soils that NRCS has determined to be
inherently vulnerable to excessive erosion by wind or water. This provision does not
currently apply to the Property and no Conservation Plan is required. The language is
included, however, to address unforeseeable changes in land use or changes NRCS may
make as a result of an act of Congress.
8.1. As required by section 12381 of the Food Security Act of 1985, as amended, the
Grantor, its heirs, successors, or assigns, shall conduct agricultural operations on
highly erodible land on the Property in a manner consistent with a Conservation
Plan prepared in consultation with NRCS and the Conservation District. This
conservation plan shall be developed using the standards and specifications of the
NRCS Field Office Technical Guide and 7 CFR Part 12 that are in effect on the
date of this Deed. However, the Grantor may develop and implement a
conservation plan that proposes a higher level of conservation and is consistent
with the NRCS Field Office Technical Guide standards and specifications.
NRCS shall have the right to enter upon the Property, with advance notice to the
Grantor, in order to monitor compliance with the conservation plan.
8.2. In the event of noncompliance with the conservation plan, NRCS shall work with
the Grantor to explore methods of compliance and give the Grantor a reasonable
amount of time, not to exceed twelve months, to take corrective action. If the
Grantor does not comply with the conservation plan, NRCS will inform the
Conservancy of the Grantor's noncompliance. The Conservancy shall take all
reasonable steps (including efforts at securing voluntary compliance and, if
necessary, appropriate legal action) to secure compliance with the conservation
plan following written notification from NRCS that (a) there is a substantial,
ongoing event or circumstance of non-compliance with the conservation plan, (b)
NRCS has worked with the Grantor to correct such noncompliance, and (c)
Grantor has exhausted its appeal rights under applicable NRCS regulations.
8.3. If the NRCS standards and specifications for highly erodible land are revised
after the date of this Conservation Easement Deed based on an Act of Congress,
NRCS will work cooperatively with the Grantor to develop and implement a
Under this Conservation Easement, the
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revised conservation plan. The provisions of this section apply to the highly
erodible land conservation requirements of the Farm and Ranch Lands Protection
Program and are not intended to affect any other natural resources conservation
requirements to which the Grantor may be or become subject
9. Public Access. No right of access by the general public to any portion of the Property is
conveyed by this Easement.
I o. Acts Beyond Grantor's Control. Nothing contained in this Easement shall be construed
to entitle the Conservancy to bring any action against the Grantor for any injury or
change to the Property resulting from causes beyond Grantor's control, including, but not
limited to, fire, flood, storm, and earth movement, or from any prudent action taken by
Grantor under emergency conditions to prevent, abate, or mitigate significant injury to
the Property resulting from such natural events. For purposes of this Easement, "natural
event" shall not include acts of third parties. The Grantor shall take reasonable efforts to
prevent third parties from performing, and shall not knowingly allow third parties to
perform, any act on or affecting the Property that is inconsistent with the Purpose of this
Easement. Grantor understands that nothing in this Easement relieves the Grantor of any
obligation or restriction on the use of the Property imposed by law.
1 1 . Transfer of Easement. This Easement is transferable by the Conservancy, but the
Conservancy may assign its rights and obligations under this Easement only to an
organization that (a) is a qualified organization at the time of transfer under Section
170(h) of the Internal Revenue Code of 1986, as amended (or any successor provision
ision
then applicable), and the applicable regulation promulgated thereunder; (b) is authorized
to acquire and hold conservation easements under Colorado law; (c) agrees in writing to
assume the responsibility imposed on the Conservancy by this Easement; and (d) is
approved in writing as a transferee by the United States in its sole discretion. As a
condition of such transfer, the Conservancy shall require that the conservation Purpose
that this grant is intended to advance continues to be carried out.
12. Transfer of Property. Any time the Property itself, or any interest in it, is transferred by
the Grantor to any third party, the Grantor shall notify the Conservancy in writing at least
twenty-one (21) days prior to the transfer of the Property. The document of conveyance
shall expressly refer to this Easement. Upon any transfer of the Property, or any portion
thereof, Grantor shall have no further liability or obligations under this Easement with
respect to the portion of the Property which is transferred, except to the extent such
liability arises from acts or omissions occurring prior to the date of transfer.
13. Amendment of Easement. If circumstances arise under which an amendment to or
modification of this Easement or any of its exhibits would be appropriate, the Grantor,
the Conservancy and The 'United States may jointly amend this Easement so long as the
amendment (a) is consistent with the Conservation Values and Purpose of. this Easement,
(b) does not affect the perpetual duration of the restrictions contained in this Easement,
(c) does not affect the qualifications of this Easement under any applicable laws, (d)
complies with the Conservancy's procedures and standards for amendments (as such
procedures and standards may be amended from time to time) and (e) receives prior
written approval from the United States, in its sole discretion. Any amendment must be in
writing, signed by the Grantor and the Conservancy, and recorded in the records of the
Clerk and Recorder of Mesa County. Nothing in this paragraph shall be construed as
requiring the Conservancy or the United States to agree to any particular proposed
amendment.
14. Hold Harmless.
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14.1.
Grantor shall hold harmless, indemnify, and defend the Conservancy and the
members, directors, officers, employees, agents, and contractors and their heirs,
personal representatives, successor and assigns of each of them (collectively,
"Indemnified Parties") from and against all liabilities, penalties, costs, losses,
damages, expenses, causes of action, claims, demands, or judgments, including,
without limitation, reasonable attorney's fees, arising from or in any way
connected with (1) injury or death of any person, or physical damage to any
property, resulting from any act, omission, condition, or other matter related to or
occurring on or about the Property, regardless of cause, unless due to the
negligence (in which case liability shall be apportioned in accordance with
Colorado law) or intentional acts or omissions of any of the Indemnified Parties;
(2) the obligations of Grantor specified herein; and (3) the presence or release of
Hazardous Materials on, under or about the Property. Without limiting the
foregoing, nothing in this Easement shall be construed as giving rise to any right
or ability the Conservancy or the United States, nor shall the Conservancy or the
United States have any right or ability to exercise physical or managerial control
over the day-to-day operations of the Property, or otherwise to become an
operator with respect to the Property' within the meaning of The Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
14.2. Grantor shall indemnify and hold harmless the United States, its employees,
agents, and assigns for any and all liabilities, claims, demands, losses, expenses,
damages, fines, fees, penalties, suits, proceedings, actions, and costs of actions,
sanctions asserted by or on behalf of any person or governmental authority, and
other liabilities (whether legal or equitable in nature and including, without
limitation, court costs, and reasonable attorneys' fees and attorneys' fees on
appeal) to which the United States may be subject or incur that both relate to the
Property and arise from Grantor's negligent acts or omissions, Grantor's breach
of any representation, warranty, covenant, or agreements contained in this
Easement, or Grantor's violations of any Federal, State, or local laws, including
all Environmental Laws.
15. Termination of Easement.
15.1. This Easement constitutes a real property interest immediately vested in the
Conservancy. This Easement may only be extinguished with the joint approval
of the Conservancy and the United States, and only if a court with competent
jurisdiction determines that conditions on or around the Property have changed
so much that none of the conservation purposes of the easement created by this
Deed can continue to be fulfilled. The Grantor, the Conservancy and United
States stipulate that the Easement has a fair market value which is 44% of the fair
market value of the Property unencumbered by this Easement (the
"Proportionate Share"). The Proportionate Share has been determined at the
time of conveyance of this Easement by dividing the fair market value of this
Easement by the fair market value of the Property unencumbered by this
Easement. The Proportionate Share will remain constant over time
15.2. In the event the Easement is extinguished, condemned or terminated and the
Property is sold or taken for public or permitted use in whole or in part, then,
Grantor and the Conservancy shall act jointly to recover the fair market value of
the affected portion of the Property valued as unencumbered by this Easement
and all damages resulting from the extinguishment, condemnation or termination
and as required by Treasury Regulation Sec. 1.170A -14(g)(6), the Conservancy
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shalt, be entitled to receive the Proportionate Share of the gross sate proceeds or
condemnation award (the "Conservancy's Proceeds"). In the event of
extinguishment, condemnation or termination, the United States shall be entitled
to receive its share based on the appraised fair market value of the conservation
easement at the time the easement is extinguished or terminated in proportion to
its percentage of original investment. The Conservancy shall use its portion of
the Conservancy's Proceeds consistently with the conservation Purpose of this
Deed. All expenses reasonably incurred by the Grantor and the Conservancy in
connection with condemnation shall be paid out of the total amount recovered
prior to the allocation of such damages award between Grantor and the
Conservancy, as described in this Paragraph. Notwithstanding the foregoing,
because the United States has a vested property interest in this Easement, the
United States must consent to any termination, extinguishment, eminent domain
and/or condemnation action involving the Property.
15.3. Grantor, upon receipt of notification of any pending condemnation action
brought by any government entity affecting and/or relating to the Protected
Property shall notify the Conservancy and the United States of America, in
wilting, within fifteen (15) days of receipt of said notification.
15.4. In making this Grant the Grantor has considered the possibility that uses
prohibited by the terms of this Easement may become more economically
valuable than permitted uses, and that neighboring properties may in the future
be put entirely to such prohibited uses. It is the intent of both the Grantor and the
Conservancy that any such changes shall not be deemed to be circumstances
justifying the termination or extinguishment of this Easement in whole or in part.
In addition, the inability of the Grantor, or Grantor's heirs, successors, or assigns,
to conduct or implement any or all of the uses permitted under the terms of this
Easement, or the unprofitability of doing so, shall not impair the validity of this
Easement or be considered grounds for termination of this Easement in whole or
in part.
16. Interpretation. This Easement must be interpreted under the laws of the State of
Colorado, and of the United States, resolving any ambiguities and questions of the
validity of specific provisions so as to give maximum effect to its conservation Purpose
and protection of the Conservation Values. Grantor intends the bargain sale of the
Conservation Easement to qualify for a deduction under Section 170(h) of the Code and
for the credit under Section 39-22-522, C.R.S.; all provisions of this Easement shall be
interpreted to effectuate that intent, anda court may reform this Easement with the prior
approval of FRCS as necessary to effectuate such intent so long as such reformation is
consistent with the Purpose of this Easement and the protection of the Conservation
Values of the Property.
17. Perpetual Duration. The easement created by this Easement shall be a servitude running
with the land in perpetuity. Every provision of this Easement that applies to the Grantor
or the Conservancy shall also apply to their respective agents, heirs, executors,
administrators, assigns, and all other successors as their interests may appear. A Party's
rights and obligations under this Easement terminate upon transfer of the Party's interest
in this Easement or the Property, except that liability for acts or omissions occurring prior
to transfer shall survive transfer.
18. Approvals. Certain activities herein are allowed only if the permission of the
Conservancy is first obtained. When approval of the Conservancy is required, the Grantor
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must give notice to the Conservancy of the intention to undertake any activity which
requires approval but is otherwise permitted herein. The notice shall inform the
Conservancy of all aspects of the proposed activity, including location, design, materials
or equipment to be used, dates and duration, and any other relevant information and must
be deemed sufficient by the Conservancy in its discretion for review of the proposed
activity to constitute proper notice. The Conservancy shall have forty-five (45) days
from the receipt of the notice to review the proposed activity and to notify the Grantor of
any objections thereto. Except as provided herein where the Conservancy's approval
may be withheld in its discretion, the approval may be withheld only upon a reasonable
determination by the Conservancy that the action as proposed would be inconsistent with
the Purpose of this Easement and materially adversely impact the Conservation Values of
the Property; the reason(s) for such determination shall be set forth with specificity by the
Conservancy in such written notice to Grantor. Where the Conservancy's approval is
required, Grantor shall not undertake the requested activity until Grantor has received the
Conservancy's approval in writing. The Grantor shall be responsible for all costs of the
Conservancy associated with the approval, including the Conservancy's attorney fees,
unless the Parties agree otherwise.
19. Notices. Any notices required by this Easement shall be in writing and shall be
personally delivered or sent by Federal Express or other similar courier service specifying
the earliest available delivery, or by certified mail, return receipt requested, to the Parties
and the United States at the following addresses, or to a new address if the Parties and the
United States are notified as provided in this Paragraph 19, of a changed address of
another addressee:
To the Grantor:
at the address shown above:
To the Conservancy:
The Mesa County Land Conservancy
1006 Main Street
Grand Junction, Colorado 81501
To the United States:
State Conservationist
USDA Natural Resources Conservation Service
Denver Federal Center
DFC Building 56, Room 2604
P.O. Box 25426
Denver, CO 80225-0426
20. Grantor's Title Warranty: Access. The Grantor warrants that it has good and sufficient
title and legal and physical access to the Property subject to and except those matters
described in the attached Exhibit D, that the Conservancy and the United States has
access to the Property for the Purposes described in this Easement, that any mortgages,
deeds of trust or monetary liens encumbering the Property are subordinate to all of the
terms of this Easement, and hereby promises to defend the same against all claims from
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any persons except those listed in Exhibit D and their successors and assigns. Grantor
hereby grants to the Conservancy and the United States the right to access the Property for
the Purpose described herein, across any property owned by the Grantor, including this
Property, or across any easements, rights of way or routes of access of any kind or
description, now owned or later acquired by the Grantor, and to ensure that at all times the
Conservancy and the United States has full right of access to the Property for the Purpose
described in this Easement. The Parties intend that this Easement encumber the Property,
including any and all soil, sand, gravel, fuel, rock, stone or any other minerals of any type
or character on or thereunder that is necessary for Non -Surface Disturbance of the
Property, and the Water Rights described herein, whether any such interest is now owned
or is later acquired by the Grantor. Nothing herein shall encumber nor give the
Conservancy any right, title or interest in any oil, gas, coalbed methane or other minerals
that are mined from underneath the surface of the Property using Non -Surface
Disturbance methods, as provided in Paragraph 3.8.
21. Grantor's Environmental Warranty.
21.1.
21.2.
21.3.
21.4.
,.17
Grantor warrants that it is in compliance with, and shall remain in compliance
with, all applicable Environmental Laws. Grantor warrants that there are no
notices by any governmental authority of any violation or alleged violation of,
non-compliance or alleged non-compliance with or any liability under any
Environmental Law relating to the operations or conditions of the Property.
Grantor further warrants that it has no actual knowledge of a release or
threatened release of Hazardous Materials, as such substances and wastes are
defined by applicable federal and state law.
Moreover, Grantor hereby promises to hold harmless and indemnify the
Conservancy and the United States against all litigation, claims, demands,
penalties and damages, including reasonable attorneys' fees, arising from or
connected with the release or threatened release of any Hazardous Materials on,
at, beneath or from the Property, or arising from or connected with a violation of
any Environmental Laws by Grantor or any other prior owner of the Property.
Grantor's indemnification obligation shall not be affected by any authorizations
provided by the Conservancy or the United States to Grantor with respect to the
Property or any restoration activities carried out by the Conservancy at the
Property; provided, however, that the Conservancy shall be responsible for any
Hazardous Materials contributed after this date to the Property by the
Conservancy.
"Environmental Law" or "Environmental Laws" means any and all Federal,
state, local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, guidelines, policies or requirements of any governmental authority
regulating or imposing standards of liability or standards of conduct (including
common law) concerning air, water, solid waste, hazardous materials, worker and
community right -to -know, hazard communication, noise, radioactive material,
resource protection, subdivision, inland wetlands and watercourses, health
protection and similar environmental health, safety, building and land use as may
now or at any time hereafter be in effect.
"Hazardous Materials" means any petroleum, petroleum products, fuel oil,
waste oils, explosives, reactive materials, ignitable materials, corrosive materials,
hazardous chemicals, hazardous wastes, hazardous substances, extremely
hazardous substances, toxic substances, toxic chemicals, radioactive materials,
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infectious materials and any other element, compound, mixture, solution or
substance which may pose a present or potential hazard to human health or the
environment.
22. Grantor's Other Warranties. Grantor is duly authorized to execute this Easement and this
Easement is enforceable against Grantor in accordance with its terms. Grantor is in
substantial compliance with the laws, orders, and regulations of each governmental
department, commission, board, or agency having jurisdiction over the Property in those
cases where noncompliance would have a materialadverse effect on the Property or this
Easement.
23. No Grant of Access Easements. Grantor shall not grant access across the Property to or
for the benefit of any other Property without the prior written permission of the
Conservancy which permission it may withhold in its discretion.
24. Acceptance. As attested by the signature of the Conservancy's President and NRCS
affixed hereto, the Conservancy and the United States hereby accepts without reservation
the rights and responsibilities conveyed by this Easement.
25. Recording. The Conservancy shall record this instrument in timely fashion in the official
records of Mesa County, Colorado, and may re-record it at any time as may be required
to preserve its rights in this Easement.
26. Liberal Construction. Any general rule of construction to the contrary notwithstanding,
this Easement shall be liberally construed in favor of the grant to effect th.e Purpose of
this Easement and the policy and purpose of C.R.S. §38-30.5-101, et seq. If any provision
in this instrument is found to be ambiguous, an interpretation consistent with the Purpose
of this Easement that would render the provision valid shall be favored over any
interpretation that would render it invalid.
27. Non -Merger. If the Conservancy wishes to acquire fee title to the Property or any
additional interest in the Property (such as a leasehold), the Conservancy must first obtain
the written approval of the United States. As a condition of such approval, the United
States may require that the Conservancy first transfer the Easement to another qualified
organization consistent with Paragraph 11 above, such that the Easement continues to
encumber the Property. Notwithstanding C.R.S. §38-30.5-107, under no circumstances,
including the acquisition of the fee title to the Property by the Conservancy or the United
States, shall this Easement merge into the fee interest.
28. No Third -Party Beneficiary. This Easement is entered into by and between the Grantor
and the Conservancy, and except as provided herein, is solely for the benefit of the
Grantor, the Conservancy and the United States and their respective successors in interest
and assigns and does not create rights or responsibilities in any third parties.
29. Severability. If any provision of this Easement, or the application thereof to any person or
circumstance, is found to be invalid, the remainder of the provisions of this Easement, or
the application of such provision to persons or circumstances other than those as to which
it is found to be invalid, as the case may be, shall not be affected thereby.
30. Successors. The covenants, terms, conditions, and restrictions of this Easement shall be
binding upon, and inure to the benefit of, the Parties hereto and their respective personal
representatives, heirs, successors, and assigns and shall continue as a servitude running in
perpetuity with the Property.
31. Termination of Rights and Obligations of Conservancy. The Conservancy's rights and
obligations under this Easement shall terminate upon transfer of the Conservancy's
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interest in the Easement or Property, except that liability for acts or omissions occurring
prior to the transfer shall survive the transfer.
32. Joint Obligation. In the event the Property is owned by more than one owner, all such
owners shall be jointly and severally liable for the obligations imposed by this Deed upon
Grantor.
33. Controlling Law. The interpretation and performance of this Easement shall be governed
by the laws of the State of Colorado and the laws of the United States. Venue for any
dispute concerning this Easement shall be Mesa County, Colorado, unless the United
States has exercised its right of enforcement as described in Paragraph 7.4.
34. Entire Agreement. This instrument sets forth the entire agreement of the Parties with
respect to the Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged herein.
35. Captions. The captions in this instrument have been inserted solely for convenience of
reference and are not a part of this instrument and shall have no effect upon construction
or interpretation.
36. Conservancy Acknowledgement of Donation O.R.C. 170(0(8)). The Conservancy
acknowledges receipt and acceptance of this Easement encumbering the Property
described herein, for which no goods or services were provided, except for the
consideration, if any, recited above.
TO HAVE AND TO HOLD this Deed of Conservation Easement unto the Conservancy,
the United States of America, their successors and assigns forever.
20
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Signature pages not attached as they are not pertinent to the
issue at hand. Available upon request.
MESA COUNTY ATTORNEY'S OFFICE
Mailing Address: P.O. Box 20,000, Dept. 5004, Grand Junction, Colorado 81502
Physical Address: 544 Rood Ave., 2" Floor Annex, Grand Junction, Colorado 81501
Telephone: (970) 244-1612 Facsimile: (970) 255-7196
April 18, 2016
ANALYSIS FROM MESA COUNTY ATTORNEY PATRICK COLEMAN
The following is an analysis of the Patton & Brennan Deed of Conservation Easement (the "CE") that I
believe was provided to Commissioner McInnis by Mesa Land Trust ("MLT") as an example of the type
of conservation easements that MLT holds. I specifically focused on the Federal Government's involvement in
the CE.
The CE is entered into by the owners (Pattons and Brennans) as Grantor, and MLT as the Grantee.
However, there is a bold, all caps notice at the very top of the CE that states that the the CE is funded in part
with funds administered by the NRCS or the United States. In the Premises or Granting Clause, the CE states
that the United States, acting through the NRCS, has acquired a third party right of enforcement in the CE.
In Paragraph 28 on page 19 of the CE, the CE states that there are no third party beneficiaries "except
as provided herein," and that the CE is "solely for the benefit of the Conservancy and the United States..."
The involvement of the United States can be classified into nine categories:
1. USA has a right of enforcement of the CE.
2. The use of the property is restricted by the impact from other USA lands (BLM), and USA regulated soils and
water.
3. USA has control over the CE through the various IRS code sections and Treasury Regulations that regulate
the MLT and the conveyance of the CE.
4. USA has control over the CE and the uses of the property through various federal environmental regulations.
5. USA's involvement in CE results in the applicability of federal law that might not otherwise be applicable to
the property.
6. USA restricts use of the property through NRCS restrictions and requirements.
7. USA obtained sole discretion over any transfer, conveyance, amendment or termination of the CE.
8. Grantor has an obligation to indemnify the USA that did not exist prior to the CE.
9. USA obtained access across the CE property and "any property owned by the Grantor."
The following is a more detailed analysis of the nine categories:
1. USA has a right of enforcement of the CE. The right of enforcement is the key right obtained by the USA
in the CE. The right of enforcement is clearly stated in the Premises and the Granting Clause, and is
referenced many times throughout the CE, including Paragraph 7.1 (USA exempt from mediation requirement
that applies to Grantor and MLT), 7.2 (MLT's discretion to determine type of enforcement action is subject to
USA's right of enforcement - thus USA has ultimate authority for determining type of enforcement), and 7.3
(USA and its successors or assigns may exercise the USA's rights to enforce the CE through any and all
authorities available under Federal or State law - this paragraph opens the Grantor up to the possibility that it
may not be the NRCS that is enforcing the CE, but a successor or assign).
2. The use of the property is restricted by the impact from other USA lands (BLM), and USA regulated
soils and water. Part of the Treasury Regulations applicable to the CE reference that a purpose of a
conservation easement is for the preservation of the scenic enjoyment of the general public. In Recital
Paragraph D, the CE states that the property can be seen from Mesa County 33 Road and from the nearby
land administered by the BLM, and in Paragraph D(1), the CE mentions that the property contains soils
designated as Prime Farmland Soils of National Significance by the NRCS, that the property's agricultural
values are further evidenced by its inclusion in the Grand Valley viticulture area, "as designated by the United
States Congress," and that the property is irrigated by a Federal Reclamation project that requires the land and
the water to be tied together. Each of these references indicate additional federal involvement that will further
limit the potential uses of the property.
3. USA has control over the CE through the various IRS code sections and Treasury Regulations that
regulate the MLT and the conveyance of the CE. Various Treasury Regulations determine whether or not
the property qualifies as a CE (see Recital Paragraph D), and the IRS Code regulates the qualification of MLT
as a holder of the CE (see Recital Paragraph F and Paragraph 36), the purpose of the CE (see Paragraph 1),
and the future uses of the property (see Paragraph 2.3).
4. USA has control over the CE and the uses of the property through various federal environmental
regulations. The CE contractually obligates the Grantor to comply with various federal environmental
regulations, including CERCLA (see Paragraphs 3.10 and 21.3)
5. USA's involvement in CE results in the applicability of federal law that might not otherwise be
applicable to the property. By entering into the CE, the Grantor has involved itself in numerous federal laws
that may not have otherwise been applicable to the use of the property, as evidenced by the numerous
citations throughout the CE of federal laws that only apply to conservation easements. Specifically, Paragraph
33 requires the interpretation and performance of the CE to be governed by the laws of the State of Colorado
and the laws of the United States, and places venue for any legal action possibly outside of Mesa County if the
USA is involved in exercising its right of enforcement. Generally, the enforcement and interpretation of
contracts involving real property between private entities or local governments apply state law and venue is
where the property is located.
6. USA restricts use of the property through NRCS restrictions and requirements. Paragraph 8 of the CE
discusses numerous limitations on Grantor's use of the property pursuant to various federal laws applicable to
the NRCS.
7. USA obtained sole discretion over any transfer, conveyance, amendment or termination of the CE.
Paragraphs 11, 12, 13, 15 and 27 provide the USA with sole discretion to approve the transfer, conveyance,
amendment or termination of the CE and the property. For example, paragraph 15.1 states in part: "This
Easement may only be extinguished with the joint approval of the Conservancy and the United States, ...,"
and paragraph 15.2 states in part: "Notwithstanding the foregoing, because the United States has a vested
property interest in this Easement, the United States must consent to any termination, extinguishment, eminent
domain and/or condemnation action involving the Property." (Emphasis added) If Mesa County needed to
condemn a portion of the property encumbered by the CE for county road expansion, bridge replacement, etc.,
Mesa County would be required to obtain approval from the United States, which approval may be a very time
consuming process. Many of the right of way and bridge replacement projects depend upon grant funds that
must be used within a specific time period, which time period may be shorter than the time required to obtain
the approval from the United States.
8. Grantor has an obligation to indemnify the USA that did not exist prior to the CE. Paragraphs 14 and
21 of the CE require the Grantor to indemnify the USA both generally and specifically regarding the violation of
any environmental laws. This indemnification clause exposes the Grantor to significant liability to the USA.
9. USA obtained access across the CE property and "any property owned by the Grantor." While the CE
does not provide the general public access to the property (see Paragraph 9), and the CE prevents the Grantor
from granting access across the property to anyone else without the MLT's permission, Paragraph 20 of the CE
grants the USA access not only across the property that is encumbered by the CE, but "across any property
owned by the Grantor. . ." It is not clear if this grant of access to the United States applies only to other
property owned by the Grantor that is contiguous to the property that is encumbered by the CE, or if it applies
to all property owned by the Grantor anywhere. In either case, this is a clause that may be open to potential
abuse by the United States.
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