Authority to Grant Conservation Easements under 40 U.S.C. § 319: Memorandum for the General Counsel Department of Commerce [January 19, 1993]   [open pdf - 52KB]

"You have requested the opinion of the Department of Justice on whether the Secretary of Commerce has authority under 40 U.S.C. § 319 to convey to the City of Boulder, Colorado, a 'conservation easement' in federal property under the control of the Department of Commerce. The grant of this property interest would guarantee 'the perpetual preservation of open space . . . and maximum aesthetic and environmental limitations on future construction' on the site. We understand that your Office has tentatively concluded that the Department of Commerce 'may not possess such authority' and has notified the city attorney for Boulder of that view. Consistent with the tentative opinion of your office, we conclude that § 319 does not provide authority to grant a conservation easement. We believe that § 319 authorizes only the conveyance of property interests that were recognized by courts as valid and customary easements under the common law existing when the statute was enacted. Although the so-called scenic or conservation easement first developed as a land use device prior to enactment of § 319, it was not then recognized as a valid or customary easement in the vast majority of jurisdictions. In the absence of any indication that Congress intended § 319 to include conservation easements, we conclude that the Department of Commerce is not authorized under § 319 to convey such an easement."

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