Does Maryland's cap on state land purchases in Garrett County also block the state from buying a conservation easement there?

Plain-English summary

A member of the Maryland Senate asked the Attorney General whether the Department of Natural Resources' purchase of a 400-acre conservation easement on a Garrett County peatland known as "the Glades," bought from the Nature Conservancy, was subject to a statutory ceiling that barred DNR from acquiring more "land" in Garrett County beyond what it already owned as of June 30, 1986. The purchase arose out of a contentious multi-year dispute over the property, which a peat-mining company had bought and which environmental groups sued to stop, ultimately resolved through a deal where the Nature Conservancy bought the land and DNR contributed $450,000 for a conservation easement rather than fee simple title.

The Attorney General concluded that the statutory ceiling, which used the phrase "acquire land," did not reach the purchase of a conservation easement, because under well-established property law an easement is an incorporeal interest in land, not an ownership interest in land itself. The opinion reviewed the 1986 legislative history, the structure of related provisions in the Natural Resources Article, and the purpose behind the acquisition ceiling (protecting Garrett County's property tax base from further state land purchases) and found nothing indicating the General Assembly meant "land" to include easements. The opinion noted the conclusion was "not entirely free from doubt" and that the General Assembly remained free to close this gap by amending the statute, which the editor's note confirms happened the very next year.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could Maryland's Department of Natural Resources buy a conservation easement in Garrett County in 1987 even though a law capped how much land DNR could acquire there?
Yes, according to this opinion. The cap in NR §5-207(a)(2) used the word "land," and the Attorney General concluded that word, under its ordinary legal meaning, covers ownership interests like fee simple title but not a nonpossessory interest such as a conservation easement.

Why did buying the Glades through a conservation easement instead of outright purchase matter for Garrett County's tax base, the reason the cap existed in the first place?
The opinion noted this specific transaction did remove the 400 acres from the county's tax rolls, but only because the buyer (the Nature Conservancy) was itself a tax-exempt organization. The opinion pointed out that an easement purchased from a taxable landowner would not have caused that same tax-base effect, which supported reading the "land" cap narrowly.

Did the Attorney General consider this a clear-cut legal question?
No. The opinion explicitly said its conclusion was "not entirely free from doubt," while still landing on the view that the plain meaning of "land" excludes easements and that DNR retained discretion to buy conservation easements unless the General Assembly amended the statute to say otherwise.

Background and statutory framework

Since 1947, Maryland law limited how much land DNR and its predecessors could purchase in Garrett County without county approval, and a series of enactments in 1983 and 1986 tightened that limit further, including NR §5-207(a)(2), which barred DNR after June 30, 1986 from using any funds "to acquire land in Garrett County" beyond what it already owned, while still allowing land-for-land exchanges. The 1986 legislation's preamble and committee reports focused on concern that further state land ownership in the county, which already held roughly 20 percent of Garrett County's land, would erode the county's tax base.

Applying ordinary rules of statutory construction, the opinion explained that Maryland courts read statutory language in its natural and ordinary meaning absent ambiguity, and only look past the literal words when the Legislature could not possibly have meant what it said. Under well-settled property law, the opinion explained, an easement is an incorporeal right or interest in land, not an estate in the land itself and not "land" in the ordinary legal sense, a distinction Maryland's own conservation easement statute in the Real Property Article recognized by separately defining a conservation easement as an "incorporeal property interest." The opinion also found that other provisions of the Natural Resources Article elsewhere distinguish between acquiring land and acquiring an interest in land, and that DNR's own conduct, including a 1984 conservation easement in Garrett County left out of the 1986 preamble's inventory of DNR's fee-simple holdings, supported reading the cap narrowly. Because the purpose of the cap, protecting the tax base, would not generally be undermined by an easement purchased from a taxable owner, the opinion concluded the statutory ceiling did not reach the Glades transaction, while acknowledging the General Assembly could close the gap by amendment, which the opinion's own editor's note records happened the following year.

Citations

Statutes:

• §5-207(a)(2) of the Natural Resources Article (Garrett County land-acquisition ceiling for DNR)
• §5-1222 of the Natural Resources Article (DNR authority to acquire property interests through agreements with the Nature Conservancy)
• §5-1507 of the Natural Resources Article (Heritage Conservation Fund land-acquisition restriction, later repealed)
• §7-218 of the Tax-Property Article (tax exemption for Nature Conservancy conservation property)
• §9-107 of the Tax-Property Article (tax credit for property subject to a conservation easement)
• §2-118(a) of the Real Property Article (statutory definition of a conservation easement)
• Chapter 679, Laws of Maryland 1983 (earlier Garrett County acquisition restriction)
• Chapter 847, Laws of Maryland 1986 (Heritage Conservation Fund acquisition restriction)
• Chapter 848, Laws of Maryland 1986 (enactment of the NR §5-207(a)(2) ceiling at issue)

Cases:

• Md. National Capital Park and Planning Comm. v. Mayor and Council of Rockville, 272 Md. 550, 556 (1974)
• Amalgamated Cas. Ins. Co. v. Helms, 239 Md. 529, 535 (1965)
• Clark v. Tawes, 187 Md. 195, 199 (1946)
• Weinberg v. Baltimore & Annapolis R.R., 200 Md. 160, 165 (1952)
• Henry Bickel Co. v. Texas Gas Transmission Corp., 336 S.W.2d 345, 347 (Ky. 1960)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PUBLIC PROPERTY

Department Of Natural Resources—Land Acquisitions—Application Of Statutory Limit To Conservation Easement Purchased From Nature Conservancy.

February 6, 1987

The Honorable John N. Bambacus
Senate Of Maryland

You have requested our opinion on whether a conservation easement purchased by the Department of Natural Resources ("DNR") from the Nature Conservancy and involving 400 acres of property in Garrett County known as "the Glades" is subject to the ceiling on DNR land acquisitions in the County imposed by §5-207(a)(2) of the Natural Resources Article ("NR" Article) of the Maryland Code.

It is our opinion that §5-207(a)(2) applies only to acquisitions of ownership interests, e.g., fee simple interests, and not to purchases of nonpossessory interests in land or property such as a conservation easement.

I
Statutory Framework

The Department of Natural Resources is subject to various statutory restrictions with respect to its ability to acquire new properties in Garrett County. Since 1947, State law has prevented the agency and its predecessors from purchasing an "individual tract of land in excess of one hundred acres" without the approval of the County Commissioners. NR §5-207(a). In 1983, the General Assembly prohibited the Department from using Program Open Space funds "to acquire land in Garrett County in excess of the total amount of land owned by the Department in that county on June 1, 1983," although DNR was permitted to exchange land "as long as the total acreage does not exceed the amount owned by the Department on June 1, 1983." Chapter 679, Laws of Maryland 1983.

In 1986 similar prohibitions were enacted in two separate measures. An amendment to legislation establishing a Heritage Conservation Fund, Chapter 847 of the Laws of Maryland 1986, prevented DNR from using funds to acquire new land in Garrett County after June 30, 1986. NR §5-1507. And Chapter 848 amended §5-207(a), which sets forth DNR's general authority "to purchase and manage lands" for forest and park reserves, to provide:

"(2) Notwithstanding any other provision of this Code, after June 30, 1986, the Department may not use any funds, whether under Program Open Space or otherwise, to acquire land in Garrett County in excess of the total amount of land owned by the Department in that county on June 30, 1986. This . . . does not prohibit the Department from using any funds to exchange land in Garrett County, as long as the total acreage does not exceed that amount owned by the Department on June 30, 1986." NR §5-207(a)(2).

Significantly, Chapter 848, which took effect July 1, 1986, contained a preamble describing specific DNR fee simple land holdings in the County as of 1980 and noting that the County "has a declining tax base because of the ownership of a large amount of land by the State of Maryland."1 Chapter 848, Laws of Maryland 1986. The Senate Committee Report on the bill stated in relevant part:

"The State owns 82,000 acres of land in Garrett County, or nearly 20% of the entire county. Testimony at the hearing indicated that county residents feel that further land acquisition by the State in Garrett County will reduce the county's tax base and result in a higher tax rate."

Other statutory provisions relevant to our inquiry are NR §5-1222 and §7-218 of the Tax-Property Article (the "TP" Article). NR §5-1222 authorizes the Secretary of DNR to "enter into agreements with the Nature Conservancy for the State to acquire title to or an interest in property owned by the Nature Conservancy or property on which the Nature Conservancy holds an option or a contract to purchase." TP §7-218 exempts from tax property that is owned by the Nature Conservancy and is used to assist in the preservation of a wild nature area, to establish a nature reserve or other protected area, or to promote conservation.

II
Factual Background

The Glades is a 400-acre peatland area considered of unique importance by environmentalists. In 1982, the Nature Conservancy attempted to purchase the property but was outbid by the Garrett County Processing and Packaging Corporation ("GCPPC"), a business interested in mining peat in the area. What followed was an extended period of disagreement among environmental groups, GCPPC and State agencies that culminated in the filing of two lawsuits in 1985 by the Sierra Club: a federal suit against GCPPC alleging violations of the federal Water Pollution Control Act and seeking an injunction requiring the first to cease operations in the Glades; and a State court action against State environmental officials to require them to enforce certain State permit and licensing statutes against GCPPC.

Even before the onset of this litigation, DNR began negotiations to acquire title to the Glades. In November, 1984, the agency requested the Department of General Services to obtain two appraisals of the property. One appraisal valued the land at $400,000; the other at $467,700. These figures were substantially lower than GCPPC's final asking price of $650,000. And as of July 1, 1986, the date the new ceiling on DNR land acquisitions took effect, the agency and the company were still approximately $200,000 apart in their negotiations. In addition, we are advised that DNR was not in a position to offer 400 acres of its existing holdings in the County to offset acquisition of the Glades in accordance with NR §5-207(a)(2).

Early in 1986, DNR had contacted the Nature Conservancy, a non-profit environmental preservation organization, to interest the group in contributing towards the State purchase of the Glades. After July 1, 1986, the Nature Conservancy indicated a willingness to acquire and own the property if DNR would contribute to the acquisition price by purchasing from the organization a conservation easement under NR §5-1222. The parties then agreed upon a $650,000 purchase price, $450,000 of which was to eventually come from DNR. On September 16, 1986, GCPPC and the Nature Conservancy executed an option contract to purchase the property. The company's willingness to sell was conditioned upon all suits by the Sierra Club being dismissed, with no attorney's fees. The Sierra Club agreed to that condition.

Acting upon advice of counsel that the 1986 Garrett County statutory ceiling did not apply to such transactions, DNR presented to the Board of Public Works the question of DNR's purchase of the conservation easement for $450,000.

The Board met on October 8, 1986, to consider the matter. According to the transcript of that meeting, members of the Board were very much aware of the 1986 acquisition ceiling in Garrett County and concerned that DNR eventually acquire title to the property at a future time:

"GOVERNOR HUGHES: If you cannot work out an exchange, I suppose, of land in Garrett County, in other words, reduce some existing owned state property of equal size to this, then this is the only way to do it. If you do this, then this is the only way to do it. If you do this, and in the future you can work out some swap, this isn't preventing it; it's just setting the stage for it, it seems to me.

MR. JAMES: That's right.

GOVERNOR HUGHES: Otherwise, we're going to hold the thing up.

MR. GOLDSTEIN: I don't want to hold it up. I want to be sure what we do here today, that we can go ahead and to make a swap in the future, and that the Nature Conservancy will go along with it.

GOVERNOR HUGHES: Would the Nature Conservancy be willing at some time in the future, if we repaid them the $200,000, to deed the property to the state in fee simple?

MR. NELSON: I believe that to be the case, but we have a representative of the Nature Conservancy here who would probably be willing, if you want to address this.

MR. KLOCKNER: And the scenario that the Governor described is something that we've done with the Department of Natural Resources many times in the past; and, in fact, it would be an ideal situation, as far as the Nature Conservancy is concerned. Unfortunately, we have a special case in Garrett County with this law on the books that makes it difficult for the state to acquire land there, and we see this, because of the law, as a situation where the Conservancy would come in and help acquire this important natural area the way that it's described before you, but I see no problem in the future, if the situation changes, of some sort of buy out, or swap couldn't be done. In fact, that's what we would prefer." Transcript at pp. 63-66.

After discussion, the Board members unanimously voted to approve purchase of the easement.

Thereafter, a deed of conservation easement was duly prepared, granting the State a permanent easement on the Glades to preserve the property and prevent future mining or development. In December, 1986, settlement of all the transactions occurred, with a deed passing from GCPPC to the Nature Conservancy and $650,000 being paid to the company. The Nature Conservancy received a check from the State for $450,000, and executed the deed granting a conservation easement to the State. The Sierra Club suits were settled. And, because property owned by the Nature Conservancy is exempt from property tax if used to preserve the environment and promote conservation, the 400-acre tract was removed from the tax rolls of the County.

III
Principles of Statutory Construction

The precise legal question raised by these facts is whether DNR's purchase of a conservation easement is subject to the 1986 ceiling on "land" acquisition in Garrett County. The answer to that question turns on the intent of the General Assembly.

The Court of Appeals has said that in ascertaining legislative intent the Court "considers the language of an enactment in its natural and ordinary signification." Md. National Capital Park and Planning Comm. v. Mayor and Council of Rockville, 272 Md. 550, 556 (1974). If there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the legislative intent. Id. It is proper to look to the spirit and purpose of an enactment to determine legislative intent "only when the literal words of a statute say something that the Legislature could not possibly have meant." Amalgamated Cas. Ins. Co. v. Helms, 239 Md. 529, 535 (1965).2 In other words, in the absence of ambiguity, the courts "confine themselves to a construction of a statute as written, and [do] not attempt, under the guise of construction to supply omissions or remedy possible defects in the statute, or to insert exceptions not made by the Legislature." Amalgamated Cas. Ins. Co. v. Helms, 239 Md. at 535-36.

IV
Legal Analysis

"The word 'land' has in law a well settled meaning. It includes the surface of the ground, and everything that is on it and under it, but does not comprehend incorporeal hereditaments." Whitlock v. Greacen, 21 A. 944, 944 (N.J. Ch. 1891).3 When land is "acquired," it means that one "'become[s] the owner of the property,'" because "[i]n the final analysis 'acquire' imports 'ownership'." Weinberg v. Baltimore & Annapolis R.R., 200 Md. 160, 165 (1952).

As a general proposition, an easement is an "incorporeal right or hereditament to which corporeal property is rendered subject." 25 Am. Jur. 2d Easements and Licenses §2. It is property or an "interest in land," but it gives no title to the land on which it is imposed and confers no right to participate in the profits arising from the land. Id. More importantly, "[i]t is not an estate in land, nor is it 'land' itself." Id. See also Chicago R. I. and P. R.R. Co. v. Ottumwa, 83 N.W. 1074, 1078 (Iowa 1900) ("A mere easement is 'neither a lot nor a parcel of land' [within the meaning of the statute in question], ... It will hardly be claimed that, according to the approved usage of language, the owner of an easement is the owner of a lot or parcel of land."); Henry Bickel Co. v. Texas Gas Transmission Corp., 336 S.W.2d 345, 347 (Ky. 1960) ("While an easement is property in the nature of land it is an incorporeal right, separate and distinct from the right to occupy and enjoy the land itself. ... An easement is a right distinguished from ownership. ... It is not a normal incident of a possessory land interest. ... It is a privilege or an interest in land ..., but it is not an estate in land nor is it 'land' itself. . . .") (emphasis in original).4 In particular, the General Assembly has specifically defined a conservation easement as "an incorporeal property interest in . . . water or land areas, or the improvement or appurtenance thereto" to which it applies. Md. Code, Real Property Article, §2-118(a).

This does not mean that the General Assembly could not define the word "land" or the phrase "to acquire land" to include an "easement" or an "interest in property." See, e.g., Transportation Article, §§8-301(c) and 8-314 (acquisition of scenic easements by State Highway Administration); NR §7-601(d) (abandoned mines); NR §7-901(d) (abandoned mine reclamation). However, the literal, ordinary and natural meaning of the phrase, excludes an easement.

Thus, in our opinion the language of the 1986 statutory ceiling on DNR land acquisition does not include the purchase of conservation easements pursuant to NR §5-1222. Nonetheless, we have examined the legislative history of §5-207(a)(2) as well as contemporaneous enactments and similar provisions of the Natural Resources Article, to determine whether, in the literal words of the 1986 law, the General Assembly has said something that it "could not possibly have meant." Amalgamated Cas. Ins. Co. v. Helms, 239 Md. at 535.

First, we note that both the preamble of the 1986 statute and materials in the committee file reveal a concern with property "owned" by DNR in fee simple. However, in the detailed list of holdings contained in those documents, no mention is made of DNR's interest in a 151-acre conservation easement obtained in Garrett County in 1984, notwithstanding that a contemporaneous enactment created a 100 percent tax credit for unimproved property subject to such an easement. Tax-Property Article, §9-107 (enacted by Chapter 621, Laws of Maryland 1986).5

Second, other 1986 legislation, the Heritage Conservation Fund statute, authorizes DNR to manage "land or interests in land acquired" for purposes of the program. NR §5-1504(a). Nevertheless, an amendment to the legislation prohibits the Department from using funds only "to acquire land" in Garrett County. NR §5-1507.

Third, in various places in the Natural Resources Article, the General Assembly has recognized the distinction between acquiring land or property and acquiring an incorporeal interest in land or property such as an easement. See e.g., NR §§3-104(h), 3-208, 3-905(i), 5-1202(a), 5-1504(a), and 8-904. Thus, the General Assembly's omission of incorporeal property interests from §5-207(a)(2) is not "something it could not possibly have meant."

Fourth, the purpose of the 1986 ceiling, to prevent property from being removed from the tax rolls, would not necessarily be frustrated by DNR purchases of property easements. The only reason such a result occurred here was because of the Nature Conservancy's tax exempt status. An easement purchase from a taxable entity would not cause the property's removal from the tax rolls.

V
Conclusion

In summary, although the matter is not entirely free from doubt, it is our opinion that the phrase "to acquire land" in NR §5-207(a)(2) does not apply to incorporeal interests such as a conservation easement, and the Department continues to have the discretion to obtain conservation easements beyond the limits of the cap established by NR §5-207(a)(2). However, it is certainly within the power of the General Assembly to curb that discretion by amending the law.

J. Joseph Curran, Jr., Attorney General
Judson P. Garrett, Jr., Deputy Attorney General
Robert A. Zarnoch, Assistant Attorney General

Editor's Note: In Chapter 50 (Senate Bill 1036) of the Laws of Maryland 1987, the General Assembly amended NR §5-207(a) extensively and repealed NR §5-1507.

1 An updated listing of these fee simple holdings was contained in a February 4, 1986, DNR Bill Report on Senate Bill 362, which was enacted as Chapter 848. See File of Senate Economic and Environmental Affairs Committee.

2 The "spirit of the law" certainly does not override the plain language of a statute "when the only bases for a construction other than a literal one are either that the Legislature should not have said what it did, or that it would not have said it, had it been in possession of all the facts." Clark v. Tawes, 187 Md. 195, 199 (1946).

3 Whitlock notes that at common law the word "land" did not include incorporeal property interests. 21 A. at 944.

4 According to 3 Powell, Real Property, §405, the definition of an easement stresses six factors; an easement (1) is an interest in land in the possession of another; (2) is an interest of a limited use or enjoyment of the land in which the interest exists; (3) can be protected against interference by third persons; (4) cannot be terminated at the will of the possessor of the servient land; (5) is not a normal incident of a possessory land interest; (6) is capable of creation by conveyance.

5 NR §5-207(a) requires County Commissioner approval for DNR "purchase" of individual tracts of land in excess of 100 acres. For purposes of this provision, DNR also apparently viewed an easement as not constituting a purchase and did not seek approval prior to accepting the 1984 easement.