Administration of National Wildlife Refuge System Conservation Easements

TABLE OF CONTENTS

OVERVIEW OF THE POLICY

6.1 What is the purpose of this chapter? This chapter:

A. Provides national policy for planning, acquisition, administration, and enforcement of all conservation easements the U.S. Fish and Wildlife Service (Service) acquires as a part of the National Wildlife Refuge System (NWRS or Refuge System) for conservation purposes.

B. Establishes the Service’s Conservation Easement Handbook (Easement Handbook), which employees and supervisors should review for more detailed information on how to acquire, manage, and enforce easements.

6.2 What is the scope of this chapter? This chapter applies only to easements that we acquire for conservation purposes. It does not apply to easements that we acquire as rights-of-way, such as easements that provide access, utility service, or water conveyance to Service lands, nor does it apply to flowage easements (i.e., where the Service has acquired the rights to overflow or flood private land).

6.3 What are the Service’s authorities for acquiring and administering conservation easements?

A. Alaska National Interest Lands Conservation Act (16 U.S.C. 3101-3233).

B. Consolidated Farmers Home Administration Act of 1961 (also known as the Consolidated Farm and Rural Development Act) (P.L. 87-128, as amended).

C. Emergency Wetlands Resources Act (16 U.S.C. 3901).

D. Endangered Species Act (16 U.S.C. 1531-1543).

E. Fish and Wildlife Act of 1956 (16 U.S.C. 742a-754d).

F. Fish and Wildlife Coordination Act (16 U.S.C. 661-667e).

G. Land and Water Conservation Fund Act of 1965 (54 U.S.C. 200301-200310).

H. Migratory Bird Conservation Act (16 U.S.C. 715-715r).

I. Migratory Bird Hunting and Conservation Stamp Act (16 U.S.C. 718-718j).

J. National Wildlife Refuge System Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997 (Administration Act, as Amended) (16 U.S.C. 668dd-668ee).

K. Refuge Recreation Act (16 U.S.C. 460k-460k-4).

L. Transfer of Certain Real Property and Administrative Services Act (16 U.S.C. 667b-667d, as amended).

6.4 Why does the Service acquire conservation easements, and what is the official Service policy on them?

A. Why we have conservation easements:

(1) Conservation easements offer an alternative to fee acquisition that can be ecologically effective and may be more financially feasible and socially acceptable than fee acquisition.

(2) A significant portion of the wildlife habitat in the continental United States is privately owned. It is essential to achieving our mission and ensuring an enduring wildlife legacy for future generations of Americans to protect wildlife access to, and use of, some private lands.

(3) Acquisition and management of conservation easements is a valuable tool to protect working landscapes and habitat values for our wildlife trust resources. Changes in rural economies, human population demographics, and new technologies for accessing energy sources and producing crops are changing human uses of the land and threatening the wildlife and habitat values of working landscapes.

B. Our policy on acquiring conservation easements: When acquiring real property interests, it is our policy to acquire the minimum interest necessary from willing sellers to reach wildlife conservation objectives. (See 341 FW 1.)

C. Our policy on administering and enforcing conservation easements: Conservation easements encumber private property, are subject to ownership changes, are typically perpetual in nature, and are often dispersed on the landscape. As a result, they are especially vulnerable to activities that violate Refuge System property rights and damage habitat values.

(1) Our priority is to work collaboratively with landowners/operators to implement or maintain beneficial habitat management practices on conservation easement lands. This includes Refuge Managers proactively communicating with landowners about easement restrictions to avoid misunderstandings on permitted land uses.

(2) It is necessary for us to regularly monitor/inspect conservation easements, maintain adequate records, and enforce easement provisions to preserve their value to trust resources and wildlife.

(3) Easement enforcement is a high priority for the Refuge System.

6.5 What terms do you need to know to understand this chapter?

A. Approved acquisition boundary: The boundary within which we have authority to acquire lands or interests in lands. 

B. Compliance management: A process of ensuring parties are following the terms of an easement where a Refuge Manager (or their designee) works with a landowner/operator to develop and implement a plan to restore habitat damaged by an easement violation.

C. Conservation easement: An interest in land that a property owner has voluntarily sold, donated, or otherwise granted to the Service through a legal document. The purpose of a conservation easement is to protect or restore ecologically significant areas. They often include agreements to restrict development or particular uses (see 341 FW 6, Minimally Restrictive Conservation Easement Acquisitions). Our definition includes minimally restrictive conservation easements, such as grassland easements, habitat easements, and wetland easements, and also more extensive conservation easements.

D.  Criminal investigation: In the context of easement violations, a criminal investigation includes gathering facts and evidence that may be tried in a court of law. Investigations can only be performed by Federal Wildlife Officers. Factors influencing whether a violation is referred to a Federal Wildlife Officer for a criminal investigation include previous history of violations, extent of the violation, and level of landowner cooperation.

E. Easement acquisition area: An area of the Refuge System where the Service plans to primarily acquire conservation easements. This may, but will not always, include conservation areas, limited-interest refuges, Waterfowl Production Areas (WPA), Wildlife Management Areas (WMA), and units within a national wildlife refuge national wildlife refuge
A national wildlife refuge is typically a contiguous area of land and water managed by the U.S. Fish and Wildlife Service  for the conservation and, where appropriate, restoration of fish, wildlife and plant resources and their habitats for the benefit of present and future generations of Americans.

Learn more about national wildlife refuge . This term does not encompass individual conservation easements unless the individual easement will encompass the entire unit.

F. Easement document: The legal document used to convey a conservation easement or right of use from a landowner to the Service and that describes the exact provisions of the conservation easement. The document often contains restrictions on the use or development of the land to protect its conservation values.

G. Easement tract: The land covered by the easement, as described by the legal description in the easement document.

H. Federal Wildlife Officer: Commissioned, uniformed law enforcement officer of the U.S. Fish and Wildlife Service.

I. Ground check: An onsite visit of the easement tract to inspect for suspected violations or collect evidence that violations have occurred. Some Service staff use the term “ground check” informally to refer to pre-acquisition site inspections to delineate wetlands, conduct realty due diligence, etc. For the purposes of this chapter, “ground check” refers to visits related to criminal investigations.

J. Inspection: In the context of easement administration and compliance management, an inspection includes file reviews, photo interpretation, aerial reconnaissance, and onsite visits to determine whether the conservation easement is in compliance and, if not in compliance, what actions must occur to bring the conservation easement back into compliance. Both Refuge Managers and Federal Wildlife Officers can perform inspections.

K. Landowner: The owner of the land upon which the Service holds an easement.

L. Land Protection Plan (LPP): A document that we develop to evaluate project proposals to create new refuges or expand existing refuges. These project proposals are initially identified through the landscape planning and design process. LPPs include details about the project proposal and inform the public and landowners within the project proposal area about our plans. LPPs either incorporate a National Environmental Policy Act (NEPA) document or include evidence of NEPA compliance and compliance with other applicable laws, regulations, policies, and Executive Orders. See Part 602 of the Service Manual for more information on LPPs and the planning process.

M. Law enforcement case file: A file Federal Wildlife Officers develop from pertinent documents in the easement file. We give it to the U.S. Attorney’s office for criminal prosecution.

N. Law enforcement database: The approved, secure, web-based database that Federal Wildlife Officers use to track, store, and manage case file information.

O. Operator: A person who farms or ranches land. The operator may be the landowner or a lessee.

P. Realty acquisition case file: Where the Division of Realty stores all the documents related to a single acquisition. The Regional Realty Officer must preserve acquisition case files in accordance with Service policy. The realty acquisition case file is sometimes referred to as the title file or tract file.

Q. Right-of-way permit: A permit we use to authorize the use of or grant access over, across, upon, through, or under any areas within the Refuge System. Before we grant a permit, we must determine that such uses are compatible with the purposes for which the areas were established. See 340 FW 3 and 50 CFR 29.21 for more information on rights-of-way.

R. Service-initiated contact: Used in context of easement violations, the first formal contact by the Service with the responsible landowner/operator confirming that a conservation easement exists on the landowner/operator’s property and that the Service has noted a potential violation of the easement agreement.

S. Special Use Permit (SUP): A permit that enables the public to engage in activities on a national wildlife refuge. There are three types of SUPs—those for commercial activities, research and monitoring activities, or general activities.

T. Station file: The file kept at the field station in perpetuity, which includes material pertaining to the acquisition, administration, and enforcement of the easement. This may also be referred to as an easement file or management file.

U. Violation: An activity that has occurred on a conservation easement that is restricted or prohibited by the easement’s terms/provisions. A violation is also referred to as noncompliance.

6.6 Who is responsible for administering Refuge System conservation easements? See Table 6-1.

Table 6-1: Responsibilities for Refuge System Conservation Easements

PLANNING AND ACQUISITION

6.7 What are the steps the Service must take when planning a new easement acquisition area?

A. As is the case when developing new fee acquisition programs, the planning team must implement Refuge System land protection planning consistent with the Service’s Strategic Growth Policy (602 FW 5), and develop Land Protection Plans (LPPs) that articulate clear and concise goals for new easement programs (see 341 FW 1, 341 FW 2, and Part 602 of the Service Manual).

B. During the planning process, the planning team should consider the totality of resources in the planning area and analyze which resources the Refuge System must protect to accomplish our conservation goals. Rights we should consider encumbering and resources we should consider protecting with conservation easements include, but are not limited to:

(1) Surface resources, including:

     (a) Habitat,

     (b) Vegetation,

     (c) Wetlands,

     (d) Surface waters (e.g., water rights, water quality, and water quantity),

     (e) Development rights,

     (f) Subdivision rights,

     (g) Structures,

     (h) Agricultural practices (e.g., animal confinement facilities, manure handling, seasonality of haying and grazing, and planting of wildlife-friendly crops), and

     (i) Silvicultural practices.

(2) Subsurface resources, including:

     (a) Groundwater, and

     (b) The mineral estate.

State laws defining subsurface rights vary greatly, and we should make sure our easement documents reflect those requirements accurately. For example, in some States, sand, gravel, clay, and soil are part of the mineral estate, while in other States, those resources are included in the estate of the surface owner.

(3) Overhead rights, including:

     (a) Overhead transmission lines,

     (b) Overhang from wind turbines, and

     (c) The view shed.

C. The planning team may share the easement document with the public as appropriate.

D. Once the planning team has determined which rights to acquire in the new easement acquisition area, Regional Realty staff will coordinate with the planning team, Regional Refuge System management, the Solicitor, and others with easement expertise to develop the easement document we will use in the easement acquisition area.

6.8 What must the planning team do when developing an easement document for use in a new or existing easement acquisition area?

A. To develop a model easement document that other teams can use for the easement acquisition area in the future, the planning team must:

(1) Consider the resources we want to conserve and protect (see section 6.7B) and the threats to those resources. Examples of potential threats to resources include, but are not limited to:

     (a) Changes in land use patterns, such as conversion of range land to crop land;

     (b) Subdivision for housing development;

     (c) Transfer of surface water or groundwater resources to another watershed or from traditional agricultural use to municipal use; and

     (d) Subsurface mineral rights that allow resource extraction activities.

(2) Work closely with Regional Realty staff, Regional Refuge System management, and others with easement expertise to carefully select the language to include in the document. This process should include:

     (a) Reviewing existing easement documents and other resources at Regional and Headquarters offices and examining examples of easement language that have been both helpful and problematic to Refuge Managers so you know what to include and avoid in the easement document.

     (b) Consulting with Realty staff, Refuge Managers, Federal Wildlife Officers, and, where appropriate, other Federal agencies (such as the U.S. Department of Agriculture’s (USDA) Natural Resources Conservation Service), and non-governmental organizations that have experience developing, administering, and enforcing easements. These consultations will help the planning team make more informed decisions about what resources to protect, what rights to encumber, and how to craft the easement document.

B. Although it is our policy to acquire only the minimum real property interest necessary to achieve our conservation goals (see section 6.4B and 341 FW 1), nothing in this or any other section restricts Regions from acquiring easements that facilitate priority public uses of the Refuge System.

6.9 Is there a requirement to use a standard easement document? Although it is not a requirement, whenever possible we use a standard easement document within easement acquisition areas. Standardization of easement documents, especially within a project area, leads to:

A. Better public understanding of our conservation goals, which helps us to more easily achieve those conservation goals and attract new landowners to the program;

B. The landowners’ better understanding of the terms and conditions of easement documents, which subsequently improves landowner satisfaction with and trust in our conservation easement program and leads to easement compliance and the long-term protection of the habitats that conservation easements are intended to safeguard; and

C. More effective monitoring of, enforcement of, and compliance with our conservation easements.

6.10 What must easement documents include, and what is their duration?

A. Content: All easement documents must contain certain content, including legal authorities, goals, a legal description, allowed uses and retained rights, prohibited activities, the rights acquired by the Service, and access for monitoring and inspection. See Section V of the Easement Handbook for more details.

B. Duration: The easement document must explain that the easement will exist in perpetuity. We may only acquire perpetual conservation easements for conservation purposes. If meeting our conservation goals requires less than perpetual land protection, we must use other methods for protection, such as leases, cooperative agreements, or overlay refuges.

C. Subsurface minerals: To ensure the greatest possible protection of trust resources, we should, whenever possible, include in the easement document authority for the Service to require and approve a permit to access any associated subsurface minerals. (See section 6.21 for more information on administering subsurface mineral rights on conservation easements.)

6.11 Does the Service ever acquire public access rights in conservation easements? The Service is not required to acquire public access rights to private lands in our conservation easement programs. Generally, the landowner retains the right to determine who may enter the property for wildlife-dependent recreation or other recreational uses.

A. To provide public access rights to private lands, we should:

(1) Use our fee simple acquisition programs to acquire lands and waters for public access on national wildlife refuges;

(2) Work with State fish and wildlife agencies (many of whom have less-than-perpetual programs), land trusts, and other conservation organizations/agencies, that can purchase, lease, or provide incentives for public hunting, fishing, or other recreational access to private property;

(3) When it meets our needs and the needs of the State and the landowner, look for opportunities to combine our easement acquisition with shorter term, State-owned access leases onto the underlying fee; and

(4) Coordinate, when feasible, with other Federal agency access programs (such as USDA’s Natural Resources Conservation Service).

B. When public access is necessary to meet landscape-scale conservation goals:

(1) If we are partnering with States, Tribes, local governments, or non-government organizations to conserve landscapes and provide, for example, regional multi-jurisdictional trail systems, there may be a valid need to provide some public access across our conservation easements.

(2) In these instances, the planning team should consider other options during the LPP/NEPA analysis process. For instance:

     (a) Recommending acquisition of a right-of-way, held by the Service or others, to provide connectivity.

     (b) Providing for a small degree of fee acquisition authority within the project area. This might include specific acreage limits or acreage percentages of the total easement acquisition area. We encourage the planning team to involve the public so that we can make a more informed decision about whether or not to include fee acquisition authority.

6.12 From which types of landowners can the Service acquire conservation easements?

A. Private ownership: In most circumstances we only acquire conservation easements from willing landowners on property that either an individual or private entity owns.

B. Units of local government: We may acquire conservation easements on lands that units of local government own, but any decision to do so must be thoroughly vetted through the public planning process that establishes the easement acquisition area.

C. State and Tribal lands: We may only acquire or attempt to acquire conservation easements on lands owned by States or Tribes with the Director’s approval. Some State and Tribal constitutions prohibit selling perpetual easements. If they do not prohibit it and we plan to include State or Tribal lands in the Refuge System, we should consider leases, cooperative agreements, or other tools.

D. Federal lands: We cannot acquire conservation easements on other Federal lands. There are other ways, such as through cooperative agreements or permits, to protect resources owned by other Federal agencies.

6.13 Can the Service accept donations of conservation easements? Yes, we may accept donations of conservation easements under certain conditions. When determining whether or not to accept a donation of a conservation easement, we must consider:

A. Whether the proposed donation is within an approved acquisition boundary.

B. What rights the landowner is willing to donate. Typically, we may only accept donations of conservation easements that include the same rights we would seek to acquire if we were purchasing the easement from a willing seller. We should not accept a donation if it does not include all of the rights necessary to achieve our conservation goals.

C. The enforcement and administration concerns associated with accepting the proposed donation.

D. Whether the donation meets Departmental donation guidelines (see 374 DM 6) and Service donation guidelines (212 FW 8 and 342 FW 5).

6.14 Can the Service acquire conservation easements through statutorily required compensatory mitigation plans or mitigation banks?

A. Yes, but only if:

(1) The property lies within an approved acquisition boundary, and the acquisition is in compliance with existing acquisition and mitigation policies (see 501 FW 2); or

(2) The acquisition is specifically authorized by statute.

B. We cannot establish authority to acquire conservation easements through:

(1) An Endangered Species Recovery Plan,

(2) A Clean Water Act permitting process, or

(3) A memorandum of understanding or a memorandum of agreement.

6.15 Can the Service modify, amend, or exchange a conservation easement? 

A. The National Wildlife Refuge System Administration Act (Administration Act), as amended, generally prohibits the Service from divesting real property interests that are part of the Refuge System, including those the Service has acquired through a conservation easement. The Administration Act allows the Service to divest of real property interests that are part of the Refuge System through an equal value land exchange, though the Service may pursue such exchanges only where we determine  they will better contribute to, and not diminish, achievement of the conservation purposes for which the unit was established or the Refuge System’s conservation mission (see 342 FW 5).

B. To modify or amend provisions of a conservation easement document, we must complete the full land acquisition or land exchange process (whichever is appropriate) established in Service policy, which is extensive (see Service Manual, Parts 341 and 342). We may pursue a modification or amendment to a conservation easement only when it will better support habitat conservation in furtherance of the Refuge System’s conservation mission.

C. To exchange a conservation easement for another real property interest, we must complete the full land exchange process established in Service policy, which is extensive (see 342 FW 3, 342 FW 4, 342 FW 5, and Section VI of the Easement Handbook).

D. There are very limited circumstances when we may exchange a conservation easement for another real property interest to address a use that would not pass the Service’s appropriateness or compatibility standards or to bring an easement violation into compliance.

(1) We must not use an exchange to address a use that would not pass the Service’s appropriateness or compatibility standards, or that would otherwise not be permissible, except as follows:

     (a) Regional Refuge Chief’s pre-approval to initiate work on the exchange. The Division of Realty may not initiate work on such an exchange until written approval to do so is received from the Regional Refuge Chief.

     (b) Refuge Manager’s written finding and Regional Refuge Chief’s concurrence. Before finalizing an exchange, a written finding must be made, at the Refuge Manager’s discretion, that the exchange will better contribute to, and not diminish, achievement of the conservation purposes for which the unit was established or the Refuge System’s conservation mission. The exchange agreement must not be presented to the Regional Director for signature unless the Regional Refuge Chief concurs in writing with the Refuge Manager’s written finding.

     (c) Regional Director acceptance of the exchange agreement. The exchange agreement may be signed only by the Regional Director.

(2) We must not use an exchange to bring an easement violation into compliance, except as follows:

     (a) Regional Refuge Chief’s pre-approval to initiate work on the exchange. The Division of Realty may not initiate work on such an exchange until written approval to do so is received from the Regional Refuge Chief.

     (b) Refuge Manager’s written finding and Regional Refuge Chief’s concurrence. Before finalizing an exchange, a written finding must be made, at the Refuge Manager’s discretion, that the exchange is the only way to make the Service’s interests whole. The exchange agreement must not be presented to the Regional Director for signature unless the Regional Refuge Chief concurs in writing with the Refuge Manager’s written finding.

     (c) Regional Director acceptance of the exchange agreement. The exchange agreement may be signed only by the Regional Director.

6.16 What areas should be excluded from the easement document? As noted in section 6.15, modifying, amending, or exchanging a conservation easement are time intensive processes. Thus, if the landowner has plans to construct a structure structure
Something temporarily or permanently constructed, built, or placed; and constructed of natural or manufactured parts including, but not limited to, a building, shed, cabin, porch, bridge, walkway, stair steps, sign, landing, platform, dock, rack, fence, telecommunication device, antennae, fish cleaning table, satellite dish/mount, or well head.

Learn more about structure on any portion of the land subject to the conservation easement, that area should be excluded from the easement document before the easement is appraised or should be allowed for in the easement document before it is appraised. The Regional Division of Realty must be informed of the landowner’s plans as early in the acquisition process as possible.

MANAGING EASEMENTS AND USES

6.17 What are the requirements for posting the boundaries of conservation easements? See 343 FW 1 for the current boundary posting requirements for less than fee boundaries. There is no restriction against posting if the easement document gives us the right to do so, and we determine it is necessary.

6.18 How does the Refuge System conduct refuge management activities on conservation easement lands?

A. When we acquire management rights (e.g., the right to restore wetlands or grasslands, to inventory or monitor biological resources), those management activities are Federal actions or Federal undertakings. As a result, the Refuge Manager responsible for the conservation easement must ensure compliance with NEPA, Section 7 Section 7
Section 7 Consultation The Endangered Species Act (ESA) directs all Federal agencies to work to conserve endangered and threatened species and to use their authorities to further the purposes of the Act. Section 7 of the Act, called "Interagency Cooperation," is the mechanism by which Federal agencies ensure the actions they take, including those they fund or authorize, do not jeopardize the existence of any listed species.

Learn more about Section 7 of the Endangered Species Act, Section 106 of the National Historic Preservation Act, and all other applicable laws and regulations in the same way that they would for Refuge System lands held in fee simple.

B. Refuge Managers also must proactively notify and collaborate with the landowner and any operators in advance of our proposed management activities. For large or complex projects, Refuge Managers should maintain frequent communications and provide them with regular progress updates.

C. Activities on conservation easement lands must be consistent with the vision and goals in an associated and approved Comprehensive Conservation Plan (CCP) (16 U.S.C. 668dd(e)(1)(E)).

6.19 How does a Refuge Manager determine what uses are allowed on easements?

A. Because easement interests are part of the Refuge System, Service policy and regulations (e.g., appropriateness and compatibility) apply to the real property interests that we acquire through the easement document. To determine what uses are allowed on easement lands, first we have to determine if the requested use affects the interests that we acquired in the easement document, or if it is a retained right of the landowner.

(1) Any land interests the landowner retains as a real property right, and that we do not purchase, acquire, or otherwise limit in the easement document, are not refuge uses and are outside our jurisdiction. These uses are allowed as retained rights of the landowner.

(2) Any land interests the landowner does not retain as a real property right, or that we purchase, acquire, or otherwise limit in the easement document, are refuge uses and are within our jurisdiction.

B. Then, if the landowner or a third-party applicant requests a particular temporary use that is not within the retained rights of the landowner, we apply existing policy, including our Appropriate Refuge Uses policy (603 FW 1), our Compatibility policy (603 FW 2), and associated regulations (50 CFR 25.21) to determine if we can authorize the requested use. The following rules apply:  

(1) The Refuge Manager may issue a permit for the addition of portable, temporary structures on a conservation easement if the structure is found to be appropriate and compatible according to existing regulations (see 50 CFR 25.21) and policy (see 603 FW 1 and 603 FW 2).

(2) We will not allow (by permit or other authorization) construction of any permanent alterations on a conservation easement. Permanent alterations include the addition of a residence or other permanent structure. If the landowner expressly reserves the right in the easement document to construct a permanent structure, it is allowable. This section in no way affects our administration of rights-of-way under 50 CFR 29.21.

C. If the landowner requests a refuge use that falls within our jurisdiction, but that does not or would not pass the appropriateness finding or compatibility determination or is otherwise not permissible, there are very limited circumstances in which a land exchange may be approved. See section 6.15 for the guidance on exchanges of conservation easements.

D. See section 6.21 for the requirements related to mineral rights.

6.20 How does a Refuge Manager allow a use when they find it compatible?

A. When a Refuge Manager finds a use appropriate and compatible and decides to authorize it on conservation easement lands, they must use or seek the appropriate permit. The only types of permits available for authorizing compatible uses of conservation easements are:

(1) A right-of-way permit (see 340 FW 3 and 50 CFR 29.21), or

(2) A refuge Special Use Permit (SUP) (see 50 CFR 25.44).

B. For all existing conservation easements that include language that requires “written authorization” from the Service to allow a use, the written authorization must be in the form of a permit. This requirement does not nullify previously issued letters of authorization; it just replaces that requirement with a permit.

C. We will administer the use of conservation easement lands with SUPs of up to 5 years duration.

(1) In limited circumstances, we can authorize temporary uses for longer than 5 years. For example:

     (a) To deal with health and safety issues, such as rising water levels in an easement-protected wetland that is flooding basements or driveways at home sites in areas unencumbered by our conservation easements; or

     (b) To authorize activities that we would consider a refuge management activity if we conducted them on lands held in fee simple, such as installing fencing or water tanks to implement an improved grazing system.

In these situations, the Refuge Manager may issue an SUP for a period of no more than 10 years.

(2) The SUP must include a provision that its continued validity is contingent on meeting permit conditions and compatibility of use over the life of the permit.

6.21 How does the Refuge System administer subsurface mineral rights on conservation easements?

A. Because acquisition of mineral rights is typically cost prohibitive, we rarely acquire the mineral estate on units of the Refuge System. On many conservation easements, the underlying fee owner or one or multiple third parties own the mineral estate. Subsurface minerals may include oil and gas, hard rock minerals, coal, sand/gravel/clay, or rock/mineral materials.

B. We must not deny the mineral estate owner access to their property. When the Service’s surface interests could be impacted by subsurface mineral access, the Refuge Manager should work with the subsurface mineral rights owner to outline conditions for access. Access to the mineral estate should avoid impacts to the easement interest wherever possible. If impacts are unavoidable, the Refuge Manager should use an SUP that sets restrictions, minimizes impacts, and administers full restoration efforts.

C. The extent of input into the exploration for and extraction of subsurface minerals on a conservation easement depends on the language in the easement document. (See section 6.10 for information on developing an easement document.)

D. It is important for the Refuge Manager to engage with the mineral owner/lessee and encourage them to use best management practices to avoid or minimize impacts to our portion of the surface estate and to return the surface back to the condition it was in when we acquired the conservation easement. The Refuge Manager should seek mitigation (e.g., land exchange) for impacts to our easement interest if State or Federal law allows it.

E. If an easement document gives us approval authority or states or implies that we have some discretion in allowing the owner/lessee to exploit the mineral estate, the Refuge Manager must consult with the Office of the Solicitor. If the Office of the Solicitor advises us that we have discretion, or if there is any permit contemplated, this is a Federal action and requires us to comply with NEPA, Section 7 of the Endangered Species Act, Section 106 of the National Historic Preservation Act, and all other applicable laws and regulations.

F. See the Management of Non-Federal Oil and Gas Rights regulation (50 CFR 28 and 29) for more information.

6.22 What are the Service’s responsibilities for documenting and recordkeeping at the field, Regional, and national levels?

A. Realty acquisition case files (see also policy at Part 342 of the Service Manual and the Easement Handbook, Section VI): These files are managed by the Division of Realty at the Regional office and include original versions of documents generated during the acquisition process. 

B. Station files: These files are kept in perpetuity at the field station responsible for managing the easement area and should include material pertaining to the acquisition, administration, and enforcement of the easement. A list of documents that the station file should include can be found in the Easement Handbook, Section X. Documenting and Recordkeeping.

C. Digital spatial information: We maintain digital spatial records in the cadastral geodatabase, and other authoritative digital data in a land record database (such as the Land Record System (LRS) or Financial and Business Management System (FBMS), or both) as follows:

(1) The Cadastral Data Working Group (CDWG) creates and manages spatial data representing boundary and tract information for all our real property interests, including conservation easements, as spatial data in our cadastral geodatabase. The CDWG is comprised primarily of cartographers from Regional Divisions of Realty. The Service’s Chief Cartographer (in the Headquarters Division of Realty) is the team lead and data steward and is responsible for maintaining the cadastral geodatabase, which is available to anyone in the Service who needs to access it.

(2) Regional Realty Specialists are responsible for recording, updating, and retaining the appropriate data for each real property interest in the land record database.

MONITORING AND INSPECTIONS

6.23 What is the purpose and priority of conservation easement monitoring and inspection?

A. We complete easement monitoring and inspections to ensure that the United States’ interests in these lands are protected and that we and the landowner are following the Refuge Administration Act (16 U.S.C. 668dd, as amended).

B. Proactive communication with landowners about conservation easement restrictions, monitoring easements for compliance, and the prompt investigation and restoration of easement violations is one of the highest priorities for the Service. These lands are especially vulnerable because:

(1) They remain privately owned and often support traditional economic land uses, which may accidently or intentionally degrade and threaten the conservation value and the habitat and wildlife protection interests of the United States in these lands;

(2) They are perpetual and therefore ownership of the underlying property will likely change many times. With passage of time and ownership changes, future landowners are more likely to misunderstand their easement obligations and, subsequently, there likely will be more violations; and

(3) They are often distant from the Refuge System field station responsible for their administration, limiting the ease of inspection and management and opportunities for frequent communication with landowners/operators.

6.24 How does the Service proactively protect its easement interests?

A. To help minimize the types of misunderstandings that often lead to conservation easement violations, Refuge Managers and Federal Wildlife Officers should communicate with landowners frequently.

B. Refuge Managers and Federal Wildlife Officers may also work with other Federal and State agencies by:

(1) Regularly providing conservation easement location information to the appropriate USDA agency (such as the Natural Resources Conservation Service).

(2) Establishing memorandums of understanding with USDA offices to share information when:

     (a) Landowners or operators express interest in modifications to the land/operations that may affect our easement interests,

     (b) Landowners express interest in other conservation programs that will be beneficial to the habitat,

     (c) Land uses are observed that may affect a landowner’s eligibility for Farm Bill benefits, and

     (d) Violations of State law are suspected.

C. Federal Wildlife Officers will work with the appropriate U.S. Attorneys to:

(1) Regularly evaluate the forfeiture of collateral schedule amounts (the amount of the fine as established by the local Federal District Court) for balance, fairness, and effectiveness; and

(2) Modify, when necessary, the fines or penalties for easement violations.

6.25 How often should conservation easements be monitored/inspected? Refuge Managers must monitor/inspect (or assign staff to do so) conservation easements for compliance at appropriate intervals. Regions must develop their specific monitoring documentation guidelines, which might include requirements for documentation in annual reports and other local databases, and a process to record and recall easement monitoring activities. Typically, Refuge Managers arrange for monitoring/inspection at the time of year when violations most commonly occur or are most easily detected (e.g., during the State’s hunting season, in mid-winter when there’s little foliage). The Refuge Manager needs to monitor/inspect many conservation easements annually, and all conservation easements must be monitored/inspected at least every 3 years.

6.26 How do Refuge Managers monitor/inspect conservation easements for compliance? Refuge Managers, their employees, or Federal Wildlife Officers should look for any irregularities or activity that may be a violation of the provisions in the easement document by:

A. Performing onsite visits,

B. Using aerial reconnaissance,

C. Reviewing current year aerial imagery, or

D. Using other remote sensing technology as allowed by Service policy (e.g., satellite imagery, trail cameras, environmental sensors, unmanned aerial systems).

VIOLATIONS

6.27 What is the process by which easement violations are addressed?

A. When Refuge System Management, Refuge Law Enforcement, or a third party report identifies a potential violation of a conservation easement through routine monitoring or other observations, Refuge System Management and Refuge Law Enforcement will discuss three areas they need to consider and agree upon:

(1) Assessment of any safety risks as employee safety is the most important consideration in deciding how to resolve an easement violation,

(2) Review of landowner/operator past acts, and

(3) Assessment of the extent and potential degradation of the interest protected by the conservation easement.

B. Once monitoring/inspection is completed and a violation has been confirmed, the Refuge Manager and Federal Wildlife Officer will determine the best way to work with the landowner to achieve voluntary compliance and restore the interests of the United States, which is always our intent.

C. The Service will then initiate contact with the landowner/operator to:

(1) Identify the United States’ real property interest;

(2) Ensure that the landowner/operator is aware of the easement interest on the identified property;

(3) Advise the landowner/operator that there is a violation of the easement agreement between the Service and the landowner/operator; and

(4) Assess the landowner/operator’s intention regarding the violation.

D. The Refuge Manager makes this formal contact after the initial discussion, review, and assessment (section 6.27A) of the violation. There may be instances where the Refuge Manager and Federal Wildlife Officer agree that the Federal Wildlife Officer should assist with compliance management by making the first contact with the landowner/operator (e.g., for safety reasons).

E. As compliance with the terms of the conservation easement is sought, law enforcement activities will be led by law enforcement personnel, and management activities will be led by Refuge Managers.

COMPLIANCE MANAGEMENT

6.28 What is the purpose of compliance management for an easement violation? We use compliance management for easement violations to allow/encourage Refuge Managers to work with landowners to address violations collaboratively and manage easement interests to the greatest extent that is safe and practicable. Voluntary compliance is the intent of the Service, but criminal investigation can be triggered at any time during compliance management. See section 6.32.

6.29 How does compliance management work? The Refuge Manager (or their designee) develops a restoration plan and works with the landowner/operator to implement the plan to restore a violation and bring the property back into compliance with the terms of the easement document. This could include a physical restoration plan or be as simple as informing the landowner/operator that their activities violated the provisions of the conservation easement and are prohibited unless permitted by the Service. When the Refuge Manager, in consultation with a Federal Wildlife Officer, identifies an elevated safety risk, the Federal Wildlife Officer must assist the Refuge Manager with compliance management (this does not, however, trigger a criminal investigation).

6.30 How is the compliance management process documented? The Refuge Manager provides information to the Federal Wildlife Officer for input into the Service’s approved law enforcement database. The field station that is responsible for administering the conservation easement must maintain all paper copies in the local easement files.

6.31 How does a Refuge Manager close an easement violation processed through compliance management? Once a Refuge Manager makes the landowner/operator aware of actions necessary to correct the violation and bring the conservation easement into compliance, they must also establish a compliance date and complete a followup inspection to ensure that restoration requirements are met. The Refuge Manager must notify the landowner/operator that either:

A. The restoration(s) is satisfactory, and the case will be closed by the Service, or

B. The restoration is not satisfactory and additional work is needed to address the violation.

6.32 What happens if compliance management is unsuccessful?

A. The Refuge Manager may contact the landowner/operator to negotiate compliance, or

B. The conservation easement violation may be referred to Refuge Law Enforcement for criminal investigation.

CRIMINAL INVESTIGATION

6.33 What is the purpose of a criminal investigation for easement violations?  A criminal investigation is conducted to gather facts and evidence that can be used in a court of law to support criminal charges against someone who violates the provisions of an easement. We use criminal investigations for easement violations when:

A. The landowner/operator is unwilling to work with the Refuge Manager or fails to complete the required restoration as agreed upon during compliance management; or

B. The violation is particularly egregious or the Service has documented/communicated with the landowner/operator on a prior violation that was also egregious, or both.

6.34 How is a criminal investigation different from compliance management? Compliance management is a process where a Refuge Manager (or their designee) works with a landowner/operator to address a non-compliant activity that occurs on an easement and may include the development and implementation of a restoration plan. At the Refuge Manager’s discretion, a Federal Wildlife Officer may assist with compliance management (for example, when an elevated safety risk exists); however, the participation of a Federal Wildlife Officer does not change compliance management into a criminal investigation. Criminal investigations are the gathering of facts and evidence to be used in a court of law and are used as a last resort to gain compliance.

6.35 Who may conduct criminal investigations of easement violations?

A. Only Service Federal Wildlife Officers (and rarely, if necessary, Office of Law Enforcement Special Agents) may conduct criminal investigations of easement violations.

B. Non-commissioned employees may accompany and assist Federal Wildlife Officers during investigations.

C. Only Federal Wildlife Officers (and, if necessary, Special Agents) may lead site visits for enforcement purposes and make investigatory contacts with landowners and operators.

6.36 What does a criminal investigation include? The requirements for an investigation depend on the nature of the violation and development of the case. As the investigation proceeds, it typically includes the following actions:

A. Review the easement document and station file,

B. Ground check with photo documentation of any violations,

C. Identify and interview people involved in the violations (these interviews must be documented in writing),

D. Determine damages and document the restoration requirements needed to bring the conservation easement back into compliance, as determined by the Refuge Manager or designee,

E. Document restoration with photos or, if restoration is not achieved, consider referring the case to the Department of Justice, and

F. Document the case disposition in the Service’s law enforcement database.

6.37 How is a criminal investigation documented?   

A. Collection of information and documentation must meet Refuge Law Enforcement standards for use as evidence.

B. Federal Wildlife Officers record easement investigations through the Service’s approved law enforcement records management system. The field station that is responsible for administering the conservation easement must maintain all paper copies in the local easement files.

6.38 When may a criminal violation be closed? Once a Refuge Manager or Federal Wildlife Officer makes the landowner/operator aware of actions necessary to correct the violation and bring them into compliance, they must also establish a compliance date and complete a followup inspection to ensure that restoration requirements are met. The Refuge Manager or Federal Wildlife Officer must notify the landowner/operator that either:

A. The restoration(s) is satisfactory, and the case is closed, or

B. The restoration is not satisfactory and additional work is needed to close the case.

6.39 What is the procedure for investigations that require criminal prosecution or civil action?

A. Refuge Managers or Federal Wildlife Officers should contact the appropriate Patrol Captain to determine procedures for having easement cases criminally prosecuted. Civil cases must be discussed with the Regional Solicitor. Procedures will vary among different U.S. District Courts.

B. Each U.S. Attorney handles cases differently. It is important that we follow the appropriate U.S. Attorney’s recommendations when planning to request criminal or civil prosecution and when issuing a violation notice for easement violations.

C. Although a Federal Wildlife Officer has discretion about issuing violation notices for easement violations, they must not issue one until:

(1) Restoration requirements are satisfied,

(2) They have conducted a complete review of the easement file, and

(3) They have coordinated with the Patrol Captain for consistency and to determine if it is necessary to coordinate with the U.S. Attorney’s office.

D. Factors to consider when issuing violation notices for easement violations include:

(1) The landowner’s/operator’s knowledge of the conservation easement and its provisions,

(2) Whether or not the violation is a repeat offense, and

(3) The severity of the violation and amount of damage to the interests of the United States.