By Glen C. Hansen

In Wooster v. Department of Fish & Game (2012) 211Cal.App.4th 1020, 2012 Cal. App. LEXIS 1250, the Court of Appeal for the Third Appellate District, held that a conservation easement recorded over 30 years ago is not extinguished or rescinded because the California Department of Fish and Game (“Department”) failed to post no hunting and no trespassing signs on the property as required by the conservation easement; nor is the grant of hunting rights to the Department (which allowed the Department to prohibit all hunting in the easement area) inconsistent with the statutes governing conservation easements.

In 1981, the prior owners of 4,535 acres of property in Calaveras County, which included the Ranch Mine, entered into a written and recorded conservation easement deed and agreement with the Department. The declarations in the deed specified that the owners and the Department “desire[d] to preserve and protect [the property], for wildlife conservation purposes … and to prevent, in accordance with the terms contained [in the deed], said property from degradation of fish and wildlife habitat due to residential, industrial or other uses detrimental to such purposes.” The declarations further specified that the owners would be able to continue using the land for grazing livestock, which was compatible with wildlife preservation, and would be able to develop the mineral rights on the property in the future. The deed granted to the Department “full development and hunting rights in the form of a conservation easement over the … property subject to [certain] conditions” thereafter set forth. The deed also specified that the Department “shall post the property at all points of entry to inform the public that said property is a State wildlife area and that no trespassing or hunting is allowed.” The Department did not keep the property posted as required by the deed. In the absence of the required signs, people trespassed on the Ranch Mine, and it appeared that a marijuana growing operation was set up there.

In May 2009, the plaintiff acquired the Ranch Mine portion of the property. In January 2010, the plaintiff commenced this action against the Department by filing a complaint to quiet title, for rescission and cancellation of the deed, and for declaratory relief, on the bases that the Department did not comply with the posting requirement, and that the Department was “not authorized to accept a grant of ‘full hunting rights’” and such a grant was “inconsistent with the purposes of a conservation easement.” During the litigation, the plaintiff acquired the rest of the property. The trial court eventually sustained a demurrer to the quiet title claim without leave to amend, struck the declaratory relief claim, and dismissed the action. The plaintiff appealed.

The Court of Appeal affirmed. The court disagreed with the plaintiff’s argument that the posting requirement was a condition subsequent to the granting of the conservation easement, such that the Department’s failure to comply with that requirement resulted in the Department’s forfeiture of the easement. The posting requirement was merely a covenant, despite the use of the word “condition” in the deed. The court also held that the complaint did not state a valid cause of action for rescission based on the Department’s breach of the posting requirement. The conservation easement was not subject to rescission based on failure of consideration. 

The plaintiff also argued that, to the extent the deed granted the hunting rights on the property to the Department so that the Department could prevent those rights from being exercised by others, the grant was illegal, unenforceable, and violates the policies of the law to provide for hunting opportunities and conservation easements. The court disagreed. The court explained that acquiring conservation easements for the purpose of creating areas where no hunting is allowed is an authorized purpose (Fish & G. Code, §§ 1301, 1346) and is consistent with California’s public policy of providing both wildlife preservation and recreation (Fish & G. Code, §§ 314, 1801). The court explained that “in no way does the Fish and Game Code establish a public policy that forbids the department from accepting a conservation easement for the purpose of creating an area, comparable to a game refuge, in which no hunting is allowed.” Furthermore, the court held that a conservation easement that extinguishes hunting rights is not inconsistent with the rights of ownership (Civ. Code, §§ 656, 669), and helps retain land in an unspoiled condition. “[A] hunting ban is unquestionably a legitimate aspect and aim of a conservation easement.”

Glen Hansen is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.