Easements and their Role in Expanding Tribal Ecological Mitigation Opportunities
Protecting the land for future generations is nothing new to tribes as exhibited through the seventh-generation way of thinking. The impacts of the decisions tribes make today will be felt generations down the line. The broad question is, how can tribes utilize this way of thinking to further the environmental protection while maintaining their sovereignty over tribal land and natural resources? Narrowly and discussed in this blog is the real estate instruments used for site protection on mitigation banking, particularly a conservation easement, appropriate for tribes?
As a quick overview, Federal Indian law is very complex, especially with regard to tribal land ownership and power of authority in Indian Country. Environmental regulation in Indian Country stems from two powers, Congressional power through the U.S. Environmental Protection Agency (EPA) and tribal inherent authority. It follows then that tribes are subject to federal laws, instead of state (exception is Oklahoma where the state has authority to regulate environmental issues in Indian Country) such as the federal 2008 mitigation rule and the Clean Water Act. Moreover, tribal treaty rights extend to both on and beyond the reservation boundaries, meaning the tribes do not have to own title to the underlying land to enforce the treaty rights. Let’s also not forget, the ownership status of the land (fee or trust) matters.
A conservation easement is a voluntary and perpetual legal agreement between a landowner and either a land trust or government agency that limits the uses of the land to protect the property for future generations. Importantly, conservation easements are one of the real estate instrument options for securing site protection for establishing a compensatory mitigation bank.
Conservation easements present a few unique tribal considerations in the use and design of the easement. Not all conservation easements are created with boilerplate terms, at least not from a tribal perspective. A conservation easement requires third party long-term monitoring, this applies to a tribe as well and potentially brings out some distrust tribes may have with the federal government and states. For example, if the tribe lacks trust in the federal government or state to be on the enforcement end of the conservation easement, who then may be the enforcing party? One possibility is for tribes to create their own land trust or tribal commissions that meet the site protection requirements in the 2008 mitigation rule. It is not unusual for tribes to create an all-tribal commission. One similar example is the Lummi Nation’s Wetland and Habitat mitigation bank and the Northwest Indian Fisheries Commission, a commission not specifically created to be the enforcing party but met the requirements under the 2008 mitigation rule.
Furthermore, there are some interesting perspectives on tribes being a partner to a conservation easement. One is tribes are able to insert their tribal considerations, such as treaty rights within the express provisions of the agreement. Such as Lummi Nation did in establishing the first ever tribal wetland mitigation bank.. Another is conservations easements may allow a tribe to hold “a stick in the bundle” of property rights in their original trust land territories (most reservations today are much smaller) that were ceded to the federal government. Moreover, there are some examples where tribes are sought out specifically to be the holder of a conservation easement. Particularly because tribes are the original stewards of the land and possess the knowledge and drive for protection that contributes to conservation objectives.
But does a conservation easement truly respect the sovereignty of a tribe? My broader perspective is that if a conservation easement doesn’t work for a tribe, there should be options under the Clean Water Act, the Fish and Wildlife Service or 2008 mitigation rule on banking policies for tribes because they are unique sovereign nations. The mitigation rule recognizes that there are situations where it may not be permissible to require a real estate instrument to secure site protection for long-term management monitoring. With that in mind, paired with the fact that tribes are sovereign nations, instead of using a real estate instrument such as a conservation easement, transfer of title on the land or restrictive covenant, the tribe should be allowed to develop its own management plan or long-term protection instrument pursuant to tribal code. Especially if the tribe has put or in the seeking to put the land for the mitigation bank in trust status with the federal government because that triggers the guardian/ward responsibility, lessening the need for another layer of enforcement and encumbrance. Tribes deserve equality in the requirements for mitigation banking, including the faith that comes with managing that type of endeavor. More to come in my next post!
