FEATURE ARTICLE Ellen A. Fred is the founding partner at Conservation Partners. She can be reached at efred@conservationpartners.com.
Utilizing Conservation Easements to Protect Land and Create Access to Native American Cultural and Ceremonial Gathering Sites By Ellen Fred The Environmental Law Section hosted Ellen A. Fred, founding partner at Conservation Partners, and Tsnungwe Council representative, Robert Benson. Fred represented the Tsnungwe Council in gaining access to their historic tribal homeland in Northern California. With partner Misti M. Schmidt, Fred and Conservation Partners serve clients by advising, negotiating, and drafting agreements to protect agricultural lands, natural habitats, and open spaces. Members of the Tsnungwe Native American tribe (now known formally as the Tsnungwe Council) have resided along the Trinity River in Northern California for thousands of years. They describe their original ancestral village, Hlel-din (pronounced “clay-el-ting”), located at the confluence of the Trinity River and South Fork Trinity River, as “the place where the rivers come together.” With a mild climate and rich with natural resources, Hleldin became a cultural and economic center for tribes along the Klamath, Trinity, and South Fork Rivers. However, the arrival of white settlers in the mid-1800s led to the Tsnungwe people being pushed from their land and ultimately being fully displaced. On May 19, 2020, after more than 150 years of not having legal access to its homeland, the Tsnungwe Council regained the right to access what was once its ancestral village, Hlel-din, to gather traditional plants and medicines and to perform ceremonies; the Council also gained the right to prevent the land from ever being developed or altered from its natural condition. And yet, these rights were not obtained by the Council through acquiring ownership of the land, but rather through
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the conveyance to the Council of a conservation easement. A conservation easement is a real estate interest that serves to protect the environmental, agricultural, cultural, and/or scenic attributes of a piece of property in perpetuity. The owner of the property continues to own the underlying fee interest, while a nonprofit or governmental entity or Native American tribe holds the conservation easement and sees that its terms are upheld. The holder of the easement will visit the property, typically annually, to confirm that the owner is abiding by
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the easement, and, if a violation is discovered, may pursue legal and equitable remedies to stop the violation and repair any damage. In the Hlel-din conservation easement, the Tsnungwe Council is also granted certain additional rights to undertake cultural activities. Conservation easements are technically considered “easements in gross,” meaning that they are not appurtenant to an adjacent property, and are governed by California Civil Code sections 815 – 816, colloquially known as the “Conservation Easement Enabling Act.” The Act provides the applicable pur-
