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DNE
    STATE OF WISCONSIN
    DEPARTMENT OF JUSTICE
J.B. VAN HOLLEN
ATTORNEY GENERAL
Raymond P. Taffora
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
608/266-1221
TTY 1-800-947-3529
            December 22, 2010     OAG—08—10  
oag8-10,AddressMatthew Frank
Secretary
Wisconsin Department of Natural Resources

101 South Webster Street
Post Office Box 7921
Madison, Wisconsin 53707-7921
oag8-10,ReStartRe:   County Forest Statute - Wis. Stat. § 28.11 - Conservation Easements
oag8-10,SalutationDear Mr. Frank:
oag8-10,BodyStart¶ 1. The Wisconsin Public Forests law in part seeks "to enable and encourage the planned development and management of the county forests for optimum production of forest products together with recreational opportunities, wildlife, watershed protection and stabilization of stream flow, giving full recognition to the concept of multiple-use to assure maximum public benefits; to protect the public rights, interests and investments in such lands . . . ." Wis. Stat. § 28.11(1). To help assure these policies are carried out, counties must apply for and obtain Wisconsin Department of Natural Resources (DNR) approval for entry of county lands into county forests and obtain forest management plan approvals from their county boards and the DNR. Wis. Stat. § 28.11(4)(a) and (b), (5)(a).
¶ 2. In your May 6, 2010, letter to me, you ask for an opinion relating to the authority of the DNR to allow for conservation easements and restrictive covenants in county forests under the county forest law. Specifically, you ask whether Wisconsin county forests registered under Wis. Stat. §§ 28.10 and 28.11 can allow conservation easements and restrictive covenants where such easements or covenants would not interfere with the purposes of the county forest system. For the following reasons, I believe the answer is that such easements are permitted as long as they are consistent with and do not interfere with the purposes of county forests and the management plans developed for them under the county forest law.
¶ 3. You do not define "conservation easements" or "restrictive covenants" and these terms are not used in Wis. Stat. ch. 28. Wisconsin Stat. § 700.40(1)(a) of the Uniform Conservation Easement Act defines the first term as follows:
"Conservation easement" means a holder's nonpossessory interest in real property imposing any limitation or affirmative obligation the purpose of which includes retaining or protecting natural, scenic or open space values of real property, assuring the availability of real property for agricultural, forest, recreational or open space use, protecting natural resources, maintaining or enhancing air or water quality, preserving a burial site, as defined in s. 157.70 (1) (b), or preserving the historical, architectural, archaeological or cultural aspects of real property.
As explained at the DNR website, WDNR-Forest Legacy Program, (last revised Friday April 24, 2009), http://dnr.wi.gov/forestry/legacy/conservation_easements.htm:
Landowners place conservation easements on their property because they want to protect it beyond their lifetimes. Easements help them fulfill their vision for the future of their lands and waters.
A conservation easement is a transfer of usage rights which creates a legally enforceable land preservation agreement between a landowner and an easement holder for the purpose of conservation. It can restrict real estate development, commercial and industrial uses, and certain other activities on a property to a mutually agreed upon level. Conservation easements selectively target only those rights necessary to protect specific conservation values.
Such easements are mutually agreed by both seller and purchaser.
¶ 4. Although the term "restrictive covenant" is used in Wisconsin statutes in the real property context [e.g., see Wis. Stat. §§ 92.03(4), 236.42(2)(b), 706.11(1m)(b)2., 847.03(3), 847.10)], the term is not defined there. Black's Law Dictionary 392 (8th ed. 2004), defines "covenant" in the property context as a "promise made in a deed or implied by law; esp., an obligation in a deed burdening . . . a landowner." A "restrictive covenant" is defined as a "private agreement, usu. in a deed or lease, that restricts the use or occupancy of real property, esp. by specifying lot sizes, building lines, architectural styles, and the uses to which the property may be put." Id. at 393.
¶ 5. Both conservation easements and restrictive covenants often are intended to "run with the land," are permanent, and are binding on all future owners. They are filed with the local register of deeds with the transaction and deed documents. E.g., see Wis. Stat. § 59.43(1)(a). As mentioned above, a conservation easement or restrictive covenant may limit future uses of the land to any combination of forest, water or resource conservation, game or endangered species habitat, scenic, recreation, hunting, fishing or other similar purposes. These limits on land use can affect the value of the land for future sale and tax purposes.
¶ 6. Because easements and restrictive covenants serve the same purpose of limiting uses of land, I will use the term "conservation easement" to include both. Also, I will assume for the purposes of your question that either the conservation easements or restrictive covenants in question would be for conservation purposes. I will also assume that the conservation easements or restrictive covenants that are the subject of this opinion are otherwise valid, comply with applicable laws, and were entered and duly recorded in compliance with applicable law.
¶ 7. The easements about which you ask would be encumbrances or limitations on county and public uses of county forests. They can accompany mutually agreed transactions of either land acquisition or sale. For example, a landowner or land trust may wish to donate or sell to a county for county forest purposes land that is impressed by a conservation easement previously purchased with Warren Knowles-Gaylord Nelson stewardship program funds. See Wis. Stat. § 23.0915; The Knowles-Nelson Stewardship Program, Guidelines for Nonprofit Conservation Organization, (Rev. 11/05), http://dnr.wi.gov/org/caer/cfa/Grants/Forms/ NCOGuidlines.pdf. Or, the state or federal government may wish to purchase from a county an easement restricting uses of certain county forest land parcels for forest preservation, habitat, or conservation purposes.
¶ 8. In County of Milwaukee v. Williams, 2007 WI 69, ¶ 24, 301 Wis. 2d 134, 732 N.W.2d 770, the Wisconsin Supreme Court stated, "A county has only such powers as are expressly conferred upon it or necessarily implied from the powers expressly given or from the nature of the grant of power. As a creature of the legislature, a county must exercise its powers within the scope of authority that the State confers upon it." (Internal quotation marks and citations omitted.)
¶ 9. In Jackson County v. State, 2006 WI 96, ¶ 16, 293 Wis. 2d 497, 717 N.W.2d 713, the court delineated the nature of the authority possessed by counties:
  A county is a creature of the legislature and as such, it has only those powers that the legislature by statute provided. Wis. Const. art. IV, § 22. For more than a century, Wisconsin courts consistently have interpreted counties' powers as arising solely from the statutes[.]
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