Ducks Unlimited, Virginia winery face off in court over land-use restrictions

Elitists do not want the people enjoying the American countryside

chrysalisfunA conflict between a small Virginia winery and a high-powered national land trust is headed back to court, where the outcome may well determine how much conservation easements can restrict commercial activities on rural properties.

The case involves a dispute between Wetlands America Trust, a supporting entity to Ducks Unlimited (DU), and White Cloud Nine, which operates Chrysalis Vineyards in Middleburg, Virginia, 42 miles west of Washington, DC.  Wetlands America Trust holds a conservation easement for DU on a roughly 200-acre property, where Chrysalis Vineyards planned to construct a farm building housing a creamery, a bakery, and a tasting room.  Plans also included constructing a small bridge and roads leading to the farm building and putting in a parking lot in front of the structure to accommodate the winery’s customers.

Jennifer McCloud, Chrysalis’s manager, also planned to plant grapes on the property and to have dairy cows graze on the land.  In mccloudkeeping with the agricultural character of her business, the grapes would be made into wine, and the cows would produce milk for the creamery.

By the fall of 2010, however, Piedmont Environmental Council (PEC), a Warrenton, Virginia-based land trust, expressed concerns to DU that Chrysalis’s plans violated the conservation easement on the property, and DU responded by questioning McCloud about her intentions.

Convinced that her activities in no way conflicted with the terms of the conservation easement, McCloud went ahead with the expansion of her business.  For its part, Wetlands America Trust, acting on behalf of DU, charged White Cloud Nine with 14 violations of the conservation easement.

Court sides with winery

In a 29-page decision handed down by the Twentieth Circuit Court of Virginia on June 19, 2014, Judge Burke McCahill ruled overwhelmingly in favor of the winery.  Judge McCahill determined that nothing in the easement prohibited a farm building on the property from being used as a creamery, bakery, and tasting room.  Citing case law, he also found that the bridge, roads, and parking lot did not violate the easement.  The judge also emphasized the agricultural nature of the business and found it compatible with the easement and with McCloud’s plans for the property:

“The Court also recognizes, and the parties do not dispute, that Section 3.1 of the Conservation Easement allows for ‘[i]ndustrial and commercial activities,’ including agriculture and viticulture.  The focus is not just on agriculture but also on the commercial aspect that is allowed.  Inherent in the concept of farming and agriculture is the creation of products, which may be sold through commerce…The Court finds that retail is permitted within the permitted commerce under the Easement.” 

Counterattack by land trusts

grapevinesChrysalis’s victory in court is now under challenge by six regional and national land trusts: The Nature Conservancy, The Virginia Conservancy, The Civil War Trust, The Land Trust Alliance, The National Trust for Historic Preservation, and The Piedmont Environmental Council.  In April 2015, the groups petitioned the Virginia Supreme Court to allow them to weigh in on the case and they have filed an Amicus Brief in support of Wetlands America Trust/Ducks Unlimited.  The land trusts claim that Judge McCahill’s ruling dismisses the requirements of the Virginia Constitution, the Virginia Conservation Easement Act, and the Open Space Lands Act in favor of common law standards of restrictive covenants.  In addition, they assert that the court’s application of common law standards would:

  • Cause considerable harm to Virginia’s efforts to conserve open spaces, natural resources, battlefields, and historic sites;
  • Embolden landowners to challenge easement terms and likely lead to increased litigation;
  • Undermine the donative intent of conservation easements; and
  • Set precedents that could adversely affect land conservation not only in Virginia but throughout the United States

Legal precedent

People familiar with environmental groups’ affinity for lawsuits might find the land trusts’ warning about “increased litigation” Boneta2somewhat amusing.  But their fear that the court’s ruling could encourage landowners to challenge the terms of conservation easements is genuine, as is their concern that the case could set a nationwide legal precedent.  By the same token, if the Virginia Supreme Court strikes down the lower court’s ruling, it would be a significant setback for landowners with conservation easements.  The stakes are high.

Only recently have conservation easements, and the land trusts that enforce them, come under scrutiny.  Earlier this year, Virginia became the first state in the union to enact a law that holds land trusts publicly accountable for the way they enforce conservation easements.   The new law is in response to the case of farmer Martha Boneta, who was subjected to years of harassment by the Piedmont Environmental Council.  This is the same PEC that joined forces with Ducks Unlimited in the latter’s dispute with Chrysalis Vineyards.

Ducks Unlimited’s broader agenda

With its headquarters in a high-rent Washington, DC, commercial district just three blocks from the White House, Ducks Unlimited has resources that dwarf those of the small rural winery it opposes.  A visit to DU’s website also reveals an organization whose agenda goes far beyond its stated interest of preserving habitat for waterfowl.  For example, DU has tied its interests in wetlands to the global warming/climate change issue.  In doing so, DU makes use of the same scare tactics that are commonplace throughout the environmental movement.  ”Projections for the next 100 years,” DU says, “indicate an acceleration of ongoing impacts, including extensive warming in many areas, shifting patterns of precipitation, sea level rise, changes in the timing and length of seasons, declining mountain snow packs, and increased frequency and intensity of severe weather events.”

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About the Author: Bonner Cohen, Ph. D.

Bonner Cohen, Ph. D.

Bonner R. Cohen, Ph. D., is a senior policy analyst with CFACT.

  • northern vigor

    Rule #1…Never give anyone an easement on your land…never.
    If in doubt someday…look up rule #1.
    I have had experience with Ducks Unlimited over 20 years with turning farmland into wetland in our municipality. Times change, people come and go. What someone honestly promises twenty years ago, can go sour quickly when new people come in.

    • David Kledzik

      One only needs to look at where most waterfowl reproduce and that is in Canada, hence the term migratory bird. So unless this so called land easement has several hundred acres of wetlands around it, it wont have any impact on the bird or widlife population. DU is going to lose alot of support, I dropped my membership five years ago when this all started, and I’m a duck and goose hunter. Shame on them.