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2004
Private Lands Conservation in the Republic of the Marshall Private Lands Conservation in the Republic of the Marshall
Islands Islands
Gregg de Bie
University of Colorado Boulder. Natural Resources Law Center
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Citation Information Citation Information
Gregg de Bie, Private Lands Conservation in the Republic of the Marshall Islands (Natural Res. Law Ctr.,
Univ. of Colo. Sch. of Law 2004).
G
REGG DE BIE, PRIVATE LANDS CONSERVATION IN THE REPUBLIC
OF THE
MARSHALL ISLANDS (Natural Res. Law Ctr., Univ. of
Colo. Sch. of Law 2004).
Reproduced with permission of the Getches-Wilkinson
Center for Natural Resources, Energy, and the
Environment (formerly the Natural Resources Law
Center) at the University of Colorado Law School.
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PRIVATE
LANDS
CONSERVATION
IN
THE
REPUBLIC
OF
MARSHALL
ISLANDS
KVS
66
.B54
2004
A
Country
Report
by
the
Natural
Resources Law Center,
University
of
Colorado School
of
Law
September 2004
Sponsored by The Nature Conservancy
Primary Author: Gregg de Bie, NRLC Research Assistant
Private Lands Conservation in the Republic of the
Marshall Islands
A Report by the Natural Resources Law Center
University of Colorado School of Law
September 2004
Primary Author: Gregg de Bie, NRLC Research Assistant
0
E-mail: [email protected]
1
TABLE OF CONTENTS
BRIEF QUESTIONS .............................................................................................................. 1
INTRODUCTION................................................................................................................... 4
I. RELEVANT BACKGROUND.......................................................................................... 5
A. History of land ownership.................................................................................... 5
1. Pre-colonial history........................................................................................... 5
2. Colonial history................................................................................................. 6
3. Post-colonial history.......................................................................................... 9
B. Overview of the land, demographics, and related issues................................. 10
1. Geography and climate................................................................................... 10
2. Population figures........................................................................................... 11
3. Protected areas................................................................................................ 12
C. Government......................................................................................................... 13
1. Executive branch............................................................................................. 13
2. Legislative branch........................................................................................... 14
3. Judicial branch................................................................................................ 14
4. Council of Iroij................................................................................................ 16
D. Legal framework................................................................................................. 17
1. RMI Constitution............................................................................................ 17
2. Legislation........................................................................................................ 18
3. Compact of Free Association and other treaties.......................................... 19
4. Custom............................................................................................................. 20
5. Common law.................................................................................................... 21
II. OWNERSHIP OF PRIVATE PROPERTY................................................................... 22
A. Traditional land tenure ...................................................................................... 23
B. Restrictions and rights pertaining to private land ownership........................ 24
1. Citizenship restriction .................................................................................... 24
2. Alienation restrictions .................................................................................... 24
3. Servitudes and easements............................................................................... 25
4. Leases............................................................................................................... 25
5. Mortgages ........................................................................................................ 26
C. Private land administration............................................................................... 26
1. Institutional framework ................................................................................. 26
2. Land registration ............................................................................................ 28
III. CONSERVATION EASEMENTS ON PRIVATE LANDS.............................................. 30
A. Introduction to conservation easements ........................................................... 30
1. Appurtenant conservation easements........................................................... 32
2. Conservation easements in gross................................................................... 34
3. Tax incentives for conservation easements................................................... 36
4. Uniform Conservation Easement Act ........................................................... 37
B. Conservation easements in the RMI ................................................................. 38
1. Restatement (Third) of Property................................................................... 39
IV. OTHER POTENTIAL LEGAL TOOLS...................................................................... 40
A. Leases, “Leaseback” Agreements, and Reserved Life Interests..................... 40
B. Real covenants..................................................................................................... 41
C. Equitable servitudes............................................................................................ 43
D. Purchased development rights........................................................................... 45
E. Profits à Prendre................................................................................................. 46
V. RMI LEGISLATION RELEVANT TO PRIVATE LANDS CONSERVATION ................... 47
A. National Environmental Protection Act 1984 .................................................. 47
B. Coast Conservation Act 1988............................................................................. 49
C. Land Acquisition Act 1986................................................................................. 51
VI. RECOMMENDED ACTIONS.................................................................................... 52
A. Enact conservation easement legislation........................................................... 52
B. Develop conservation easement precedent ....................................................... 53
C. Acquire a leasehold interest for the purpose of conservation......................... 54
D. Utilize the National Environmental Protection Act......................................... 55
E. Utilize the Coast Conservation Act ................................................................... 55
F. Utilize the Land Acquisition Act ....................................................................... 56
G. Establish “mo” reserves ..................................................................................... 56
CONCLUSION .................................................................................................................... 57
BIBLIOGRAPHY................................................................................................................. 58
T
ABLE OF ACRONYMS
ALI: American Law Institute
EEZ: Exclusive Economic Zone
MIRC: Marshall Islands Revised Code
NGO: non-governmental organization
RMI: Republic of the Marshall Islands
TTC: Trust Territory Code
TTPI: Trust Territory of the Pacific Islands
4
UCEA: Uniform Conservation Easement Act
G
LOSSARY OF TERMS
Alap: the senior member of a lineage who is in immediate charge of a piece of
land and the workers on the land
Bwij: matrilineage members who communally hold land
Dri Jerbal: a worker of a piece of land
Iroij: of a royal or chiefly lineage
Iroijedrik: a lesser chief who is an intermediary between the iroijlaplap and the
lower classes
Iroijlaplap: the paramount chief, or senior member of a royal matrilineage, who
traditionally owns and controls the land
Kajur: of a commoner lineage
Mo: land reserved exclusively for use by the Iroijlaplap; or also, an area of a reef
where fishing was forbidden in order to conserve resources
Nitijela: the legislative body of the Marshall Islands and also a Marshallese term
for a gathering of wise or powerful people
Restatement (American Law Institute): codifications by American legal
scholars of U.S. common law
5
Weto: the standard, narrow parcel of land which runs from lagoon to ocean
B
RIEF QUESTIONS
1. What legal tools are in place for the purpose of achieving private lands
conservation in the RMI?
On paper, the RMI legislature has created two very strong environmental
statements. In reality, however, the RMI has failed to meaningfully implement the
statutes. The strongest such statement is the National Environmental Protection Act,
which authorizes the acquisition of easements for conservation purposes. The Act also
allows the administering agency to consult with foreign organizations and to accept
monetary gifts from outside sources for the purpose of carrying out its duties. Another
law—the Coast Conservation Act—is supposed to control all activities on the coastal
lands, including private, and to provide for a development permit system. Again, though,
these statutes have not been implemented to any significant degree in the RMI.
2. What legal tools are recognized by the RMI legal system and are capable of
being used for private lands conservation?
Easements, servitudes, and rights of way over land are all recognized in the RMI.
One RMI statute defines a servitude as “any” right over land, including a right of way
and a right to draw water. The fact that most land in the RMI is unregistered, however,
indicates that these interests are rarely formalized; and the extent to which they are
enforced is unclear.
Leaseholds are also recognized in the RMI and recent legislation suggests that this
interest will be strictly enforced. By law, however, no lease agreement may exceed a
term of fifty years.
1
3. Given the legal authorities governing land tenure, what novel legal tools
could be introduced to achieve the goal of private lands conservation in the
RMI?
Although the enactment of conservation easement legislation and the
development of such precedent in the RMI courts might not be impossible, the
importance placed on custom in matters involving land would make these endeavors very
difficult in the RMI—especially at the enforcement level.
Perhaps the surest way to conserve private lands in the RMI, at least temporarily,
is through a leasehold agreement. Recent legislation has established a database of private
lands that are eligible to be leased, and that are in compliance with all of the customary
requirements for such a transaction. For security purposes, strict enforcement measures
are supposed to be taken to ensure the terms of the lease are followed. However, while it
is not entirely clear by the terms of the statute whether land may be leased for
conservation purposes, it is not expressly disallowed. Therefore, it might be possible to
acquire a lease with land use restrictions.
Second, the Land Acquisition Act authorizes the RMI government to acquire
“servitudes” over private land if it would serve a public purpose. The Act does not define
“public purpose” but does prohibit land from being acquired to primarily generate
income. Clearly, conservation meets this standard.
Lastly, the traditional practice of the chiefs creating “mo” reserves—to restore
overused areas to better health—is also a potential tool for private lands conservation. It
appears that two mo protected areas still continue in the RMI today, but it might be
possible to work with the appropriate authorities to have more lands given mo status. An
2
added benefit to such a conservation method is that it does not conflict with the RMI
Constitution’s requirement of non-interference with traditional land tenure practices.
3
I
NTRODUCTION
This report seeks to provide a basic description of the legal instruments,
processes, and institutions relevant to private lands conservation that are currently in
place in the Republic of the Marshall Islands (RMI). It also assesses the feasibility of
introducing certain legal tools into the RMI legal system for the purpose of achieving
private lands conservation, with particular emphasis given to the potential use of
conservation easements. Section I of the report provides a contextual overview of the
RMI by discussing relevant aspects—i.e., those pertaining to land—of its history, culture,
geography, demographics, government and legal framework. Section II is a brief
overview of the several rights and restrictions on land use and land alienation that are
legally recognized in the RMI. It also describes the RMI’s institutional framework for
the administration of private lands, and details the various laws and procedures relevant
to this administration. Section III details the legal instrument of a conservation easement
in general and describes the applicability of this instrument to the RMI. The next section
describes several other tools that have the potential to facilitate the goal of private lands
conservation within the RMI—most notably lease agreements. Section V provides an
account of existing RMI legislation that is relevant to the conservation of private lands.
Where possible, a brief description of the actual application of these statutes is provided.
The last section of the report suggests certain steps that might be taken in order to
introduce conservation easements, or similar concepts, in the RMI; and concludes that
because of a strong adherence to traditional land ownership practices, these steps do not
guarantee that the conservation easement will be recognized in the RMI. This section
4
offers several other strategies for conserving private lands as well—including the
“conservation leasehold” and a type of land preserve recognized at tradition.
I. RELEVANT BACKGROUND
A. History of land ownership
1. Pre-colonial history
The original inhabitants of the RMI were Micronesians who arrived between 3000
B.C. and 500 B.C.
1
Traditional Marshallese society was organized around matrilineal kin
groups, with the ultimate control of land being held by chiefs.
2
The society was also
stratified, with individual rights and responsibilities differing based on whether one was
of a royal or commoner lineage.
3
The senior ranking member of a royal matrilineage was
the paramount chief, or iroijlaplap, and this person was considered the owner of the land
and all the fixed and mobile property upon the land.
4
In a system roughly analogous to
the feudal system of medieval Europe, the iroijlaplap oversaw the commoners, or the
kajur, who resided on the land and used them for labor and defense purposes.
5
During
this time, all land in the Marshall Islands was controlled by only eighteen to twenty
1
Jean G. Zorn, The Republic of the Marshall Islands, in South Pacific Islands Legal Systems, p. 100
(Michael A. Ntumey ed. 1993) (hereinafter Zorn).
2
Stanley K. Laughlin, Jr., The Law of the United States Territories and Affiliated Jurisdictions, p. 479
(Lawyers Cooperative Publishing, 1995) (hereinafter Laughlin, Jr.).
3
Zorn at 102.
4
J.A. Tobin, Land Tenure in the Marshall Islands, p. 4 (Pacific Science Board, revised ed. 1956)
(hereinafter Tobin) (Tobin actually uses the term “iroij lablab,” but most subsequent sources use
“iroijlaplap” so this term will be used throughout this report for the sake of consistency.).
5
Id.
5
Iroijlaplap.
6
Gradually, some lesser land interests developed in addition to the
Iroijlaplap—mainly the Iroijedrik, Alap and Dri Jerbal.
7
2. Colonial history
As with most of the original inhabitants of Micronesia, the Marshallese endured a
long period of colonization by Spain, Germany, Japan, and the United States. Spain was
the first outside nation to claim the islands in 1565,
8
but due to the hostility of the
Marshallese towards strangers it basically ignored the region for three hundred years
9
—
leaving the traditional islands culture unchanged. In the 1800s, however, Spanish
missionaries were successful in converting a large number of Marshallese to
Christianity.
10
Also during this time, traders and whalers from Europe, the United States,
Japan, and Russia began to occasionally visit the islands.
11
The relative lack of action in the area by Spain, however, caused Germany to
dispute Spain’s territorial claim to the Marshall Islands.
12
In 1885, the dispute was
submitted to Pope Leo XIII, who gave administrative control of the region to Germany.
13
The next year, Germany purchased the islands outright from Spain and declared them a
protectorate.
14
The Germans, unlike the Spanish, were very active on the islands,
focusing their attention on trade, copra production, and phosphate mining; and
6
Leonard Mason, Tenures from Subsistence to Star Wars, in Land Tenure in the Atolls: Cook Islands,
Kiribati, Marshall Islands, Tokelau, Tuvalu, p. 11 (R.G. Crocombe ed., Institute of Pacific Studies of the
University of the South Pacific: Suva, Fiji, 1987) (hereinafter Mason).
7
These classes of land interests are described in Section II(A) of this report.
8
Zorn at 100.
9
Laughlin, Jr. at 481.
10
Id.
11
Zorn at 100.
12
Id.
13
Id.
14
Yolisaguyau Tom’tavala, Marshall Islands, in Legal Systems of the World: A Political, Social and
Cultural Encyclopedia, vol. III, p. 980 (Herbert M. Kritzer ed., ABC-CLIO, 2002) (hereinafter
Tom’tavala).
6
Micronesian laborers were paid very low wages to work the plantations and mines.
15
Germany attempted to supplant the chiefs as the paramount authorities and to introduce
western land ownership practices,
16
but had relatively little success in this area.
17
In 1914 during the First World War, Japan displaced Germany from the Marshall
Islands; and in 1920, the League of Nations granted a mandate over the islands to
Japan.
18
In 1934, Japan withdrew from the League but retained possession of the islands
and strategically fortified them for military purposes.
19
In addition, the economic
development of the Marshall Islands was a primary focus for Japan, including the
resettlement of significant numbers of Japanese and Okinawans on the islands.
20
Japan,
in order to facilitate the acquisition of land needed for military bases, introduced to the
Marshallese the foreign concept of divisions in land ownership—i.e., the chiefs own the
land but the commoners own the trees on the land.
21
This strict division was an artificial
one, however, and did not last beyond Japan’s control of the Marshalls.
22
In 1944 during World War II, the United States won a battle with Japan and took
military control of the Marshall Islands.
23
Due to the damage caused by fighting and the
subsequent neglect of the groves, copra production was virtually nonexistent after the
war.
24
The U.S., however, viewed the islands mostly as a strategic military location and
it wasted no time in evacuating the residents of Bikini and Enewetak Atolls—and
15
Zorn at 102.
16
Tobin at 5.
17
Land Issues in the Pacific, p. 58 (Suva, Fiji: Forum Secretariat 2001) (hereinafter Land Issues in the
Pacific).
18
Tom’tavala at 980.
19
Id.
20
Zorn at 102.
21
Tobin at 5.
22
Id.
23
Laughlin, Jr. at 481-482.
24
The United States claimed to make the revival of the copra industry a top priority, but not until 1975
did copra production in the Marshall Islands exceed pre-war levels. Id. at 482.
7
eventually other islands as well—so that they could be used as nuclear weapons testing
sites.
25
The weapons testing program continued for twelve years until 1958, and included
the first detonation of a hydrogen bomb in 1954 at Bikini.
26
Almost fifty years later,
some of the land is so badly polluted that it is still unfit for human use.
27
In 1947, the United Nations created a Trusteeship Agreement which designated
the Marshall Islands and the rest of Micronesia—except for Guam—as the Trust
Territory of the Pacific Islands (TTPI), to be under the administration of the United States
Navy.
28
The U.S. view of the region as mainly a military location did not change after
the establishment of the TTPI, and economic development of the Marshall Islands—when
it occurred at all—was usually a byproduct of U.S. military needs.
29
During the 1960s
the U.S. began to encourage political developments based on the American model and
contributed significant amounts of money to the TTPI to make this happen—but still little
was done to develop the economy.
30
Significantly, the Marshall Islands were closed to
U.S. private investment until the mid-1960s and to private investment from other
countries until the mid-1970s.
31
Regarding land ownership, the Navy civil administration completed a cadastral
survey of most of the Marshall Islands in 1949 and 1950.
32
The approximate locations
(no surveying was done) of every land parcel, or weto, was recorded, along with the
25
Zorn at 100, 102; Mason at 3-4.
26
The radioactive fallout from the hydrogen bomb required the evacuation of certain populations, but in
later years many residents still developed thyroid and other serious disabilities. The U.S. government has
since paid huge settlements to the affected communities as “compensation” for their forced resettlement
and for the negative social and physical consequences. Mason at 3-4.
27
Laughlin, Jr. at 484.
28
The administrative authority over the TTPI was transferred to the Department of Interior in 1951. Id. at
100.
29
Id. at 102.
30
Id.
31
Id.
32
Mason at 20.
8
names of the associated Iroijlaplap, Iroijedrik, Alap, and Senior Dri Jerbal.
33
The
information was mimeographed for each atoll, but due to a lack of preservation measures
only five or six of these atoll reports are still available today.
34
3. Post-colonial history
In 1973, the Marshall Islands district legislature established a Political Status
Commission to negotiate with the U.S. for its independence.
35
As a result, the Marshall
Islands Constitutional Convention was convened in 1977 and the Constitution of the
Republic of the Marshall Islands was ratified in 1979—whereby the RMI became self-
governing.
36
In order to gain true independence, however, the RMI and other Trust
Territory nations signed Compacts of Free Association with the U.S. in 1982.
37
In the
following year, the people of the RMI approved their Compact of Free Association
(Compact) by a majority vote; and in 1986 the U.S. and the United Nations approved the
Compact as well—which recognized the RMI as a sovereign nation.
38
In 1990, the United Nations Security Council belatedly approved the termination
of the Trusteeship Agreement with respect to the RMI, so the RMI was at last
internationally recognized as an independent nation.
39
The RMI was given a seat in the
United Nations in 1991.
40
33
Id.; These classes of land interests are described in Section II(A) of this report.
34
Id.
35
Id.
36
Id. at 102-103.
37
Id. at 101.
38
Id.
39
Due to the fact that the TTPI was held as a “strategic trust,” some nations would not recognize the RMI
as independent until the Security Council approved the termination of the trusteeship. Laughlin, Jr. at 483.
40
Elizabeth Harding, Republic of the Marshall Islands, in Environmental Law in the South Pacific:
Consolidated Report of the Reviews of Environmental Law in the Cook Islands, Federated States of
Micronesia, Kingdom of Tonga, Republic of the Marshall Islands, p.158 (Ben Boer ed., International Union
for Conservation of Nature & Natural Resources, 1996) (hereinafter Harding).
9
During the long colonial period of the Marshall Islands, each successive
occupying nation attempted—to some extent—to convert the land ownership practices of
the Marshallese from customary group rights to individual freeholds; but because these
attempts were never very advanced, most of the land owned by Marshallese today
remains under customary tenure.
41
B. Overview of the land, demographics, and related issues
1. Geography and climate
The RMI consists of two almost parallel archipelagic chains of islands, the Ratak
(Sunrise) group and Ralik (Sunset) group.
42
Together, the chains comprise 29 coral atolls
and five low-elevation islands—with a land area of just under seventy square miles
(181.3 square kilometers) spread out over 750,000 square miles of the Pacific Ocean.
43
The atolls comprise over 1,225 islets and 870 reef systems.
44
Most of the islands are very
narrow
45
and the mean elevation is only 6.6 feet (two meters), so the RMI is ecologically
vulnerable to any future change in sea level.
46
It is estimated that only 16.7 percent of the
land in the RMI is arable
47
or suitable for cultivation. Aside from a few tropical crops,
41
Zorn at 126.
42
Pacific Economic Report: Republic of the Marshall Islands Economic and Policy Update, p. 1 (Bank of
Hawaii, April 1998) (hereinafter Pacific Economic Report).
43
This area is known as the RMI Exclusive Economic Zone (EEZ). Harding at 157.
44
Republic of the Marshall Islands: National Report to the World Summit on Sustainable Development,
p. 6 (August/September 2002), available at
http://www.pacificwssd.org/html/documents/WSSD/Documents/WSSD%20NAs/RMI%20WSSD%20Draft
%20National%20Assessment%20Report.doc (last visited July 14, 2004) (hereinafter RMI National
Report).
45
Some islands extend a couple of miles in length, but they rarely reach a thousand feet in width.
Marshall Islands Reports on the Implementation of the UNCCD (2002), available at
http://www.pacificwssd.org/html/documents/WSSD/Documents/UNCCD/marshal_island-eng.pdf (last
visited July 14, 2004) (hereinafter RMI UNCCD Report).
46
Id.
47
CIA-The World Factbook: Marshall Islands (Central Intelligence Agency, July 2004), available at
http://www.odci.gov/cia/publications/factbook/print/rm.html (last visited July 14, 2004) (hereinafter CIA-
The World Factbook).
10
the sandy soil and high salt content renders most of the land unsuitable for agriculture.
48
Interestingly, a recent report produced by the RMI claimed that land disputes and the
migration of Marshallese to urban areas have caused a significant amount of the land that
is fertile to be “underutilized.”
49
To illustrate this, over 25 percent of the land used to
grow copra was not productive in 1991 and nearly 70 percent of the productive land was
under senile trees.
50
The climate in the RMI is tropical (hot and humid)
51
with temperatures ranging
from 81°F to 89°F.
52
Average monthly rainfall is between twelve to fifteen inches.
53
2. Population figures
The 1999 census put the total population of the RMI at 50,840, with about 68
percent—or 34,578—of the people residing in the urban areas of the Majuro and
Kwajalein Atolls.
54
In 2004 the population was estimated to be 57,738.
55
These figures
are considerably lower than initially expected, but the census revealed that the RMI’s
growth rate had slowed to 1.5 percent annually during the period of 1988 to 1999
56
—a
sharp drop from the approximately 3.9 percent annual growth that the RMI had
experienced from 1958 to 1988.
57
This decline has been attributed primarily to the
48
Pacific Economic Report at 2.
49
RMI UNCCD Report.
50
Harding at 180.
51
CIA-The World Factbook.
52
RMI UNCCD Report.
53
Id.
54
RMI UNCCD Report. The Kwajalein atoll is a reserved U.S. military area and site of the Kwajalein
Missile Range. Pacific Economic Report at 2.
55
CIA-The World Factbook (the 2004 growth rate is estimated at 2.29 percent).
56
Republic of the Marshall Islands Economic Report, p. 2 (Bank of Hawaii, April 2001) (hereinafter
RMI Economic Report). From 1980 to 1988, the RMI experienced an explosive growth rate of 4.1 percent
annually—one of the world’s highest—so using this rate, the RMI’s population in 1998 was incorrectly
estimated at 62,924. See Pacific Economic Report at 1-2.
57
RMI UNCCD Report.
11
“large-scale” exodus of Marshallese to the United States during the 1990s; and to a lesser
extent the decrease in fertility rates over the same period of time.
58
The RMI still has Micronesia’s second highest population density—behind only
Guam—at 726 people per square mile.
59
The urban centers on the atolls of Majuro (3.75
square miles) and Ebeye (located in the southeast corner of the 6.3 square miles of the
Kwajalein Atoll) have population densities that rank among the highest in the world.
60
Overcrowding has become “so severe [in these areas] that additional land simply is no
longer available.”
61
3. Protected areas
No legally established nature preserves or protected areas currently exist in the
RMI.
62
Two nature reserves in the northern Marshall Islands—on the Bokak (Taongi)
and Bikar (Pikaar) Atolls—were designated by the District Administrator while under the
TTPI, but they have not been recognized or enforced since the RMI gained its
independence.
63
Several field surveys of the northern Marshall Islands ecosystems have
illustrated the special conservation value of this area
64
—especially the Ailingae Atoll
which received consideration for World Heritage status in 2002
65
—but no preserve has
yet been established.
58
Id.
59
RMI Economic Report at 2.
60
Pacific Economic Report at 2.
61
David N. Zurick, Preserving Paradise, Geographical Review, Vol. 85:2 (April 1995). In addition,
household waste that is drained into the Majuro Lagoon has essentially destroyed the reef stock.
62
Harding at 175.
63
Protected Areas Programme: Republic of the Marshall Islands (UNEP-WCMC), available at
http://www.unep-wcmc.org/sites/wetlands/mhl_int.htm (last visited July 14, 2004).
64
Harding at 175.
65
Peter Rejcek, Rongelapese Pushing for World Heritage Status for Atoll, Kwajalein Hourglass, p. 4
(July 12, 2002), available at
http://www.smdc.army.mil/KWAJ/Hourglass/issues/02Issues/hourglass7_12_02.pdf (last visited July 14,
2004).
12
At tradition, however, certain land or reef areas were classified as mo, or kotra.
Mo land was reserved exclusively for use by the Iroijlaplap—who personally held all
interests in this land.
66
Trespassing was strictly forbidden on these lands.
67
In addition,
heavily fished reef areas were classified as mo, or essentially as “no-take” areas, so that
the reef could be replenished and conserved.
68
The World Database on Protected Areas
currently lists two atolls, Borak and Jemo, as “mo” protected areas, and cites “cultural
and religious reasons” for their protection.
69
No other information could be found on
these areas, however.
C. Government
The RMI has adopted a “quasi-parliamentary” form of government,
70
and its
unitary structure is dictated by the Constitution of the RMI.
1. Executive branch
The executive powers are vested in a Cabinet, whose members are collectively
responsible to the Nitijela—the legislative branch of the RMI.
71
The Cabinet consists of
a President
72
—who is Head of State and elected by a majority of the Nitijela after each
general election
73
—and between six to ten other members who are nominated by the
President and appointed by the Speaker.
74
All members of the Cabinet, including the
66
Harding at 161.
67
Mason at 13.
68
Id.
69
World Database on Protected Areas (UNEP-WCPC and World Commission on Protected Areas),
available at http://sea.unep-wcmc.org/wdbpa/designation2.cfm?Desig=300252&country=MHL (last visited
July 14, 2004) (hereinafter World Database).
70
Zorn at 107.
71
Constitution of the Marshall Islands, Article V, § 1(1) (hereinafter RMI Constitution).
72
Id. at Article V, § 2(1).
73
Id. at Article V, § 3(1)-(3).
74
Id. at Article V, § 4(1)-(2).
13
President, are also members of the Nitijela.
75
The Head of State is a mostly honorary
position,
76
with responsibility for foreign affairs and national security resting with the
entire Cabinet.
77
2. Legislative branch
The legislative branch of the RMI is called the Nitijela—a Marshallese term for a
gathering of wise or powerful people.
78
Under the RMI Constitution, the Nitijela has the
power to enact, repeal, revoke, or amend all laws in force in the RMI.
79
The Nitijela
consists of thirty-three members
80
who are elected by the citizens of the RMI.
81
Being a
member of the Nitijela is a prerequisite for becoming Head of State or a Cabinet
member.
82
3. Judicial branch
The judicial branch of the RMI—which is independent of the executive and
legislative branches—has its powers vested in a Supreme Court, High Court, Traditional
Rights Court, and such other courts as are created by law.
83
The Supreme Court is a “superior court of record” and, as of right, appeals lie in
the Supreme Court from any decision of the High Court.
84
At its discretion, the Supreme
Court may take appeals from the final decisions of other courts as well.
85
The Supreme
75
Id. at Article V, § 2(1).
76
Zorn at 107.
77
RMI Constitution, Article V, § 1(3).
78
Zorn at 102.
79
RMI Constitution, Article IV, § 1(1)-(2).
80
All twenty-four electoral districts elect members to the Nitijela, with Majuro (five members) and
Kwajalein (three members) receiving the most representation. Id. at Article IV, § 2(1).
81
Id. at Article IV, § 3.
82
Id. at Article V, § 2(1).
83
Id. at Article VI, § 1(1).
84
Id. at Article VI, § 2(1)-(2).
85
Id. at Article VI, § 2(2)(c).
14
Court consists of three members—a Chief Justice and two associate judges
86
—who are
each appointed by the Cabinet and approved by the Nitijela.
87
The High Court is a “superior court of record” with original jurisdiction over
controversies of law and fact in the RMI.
88
It also has appellate jurisdiction over the
decisions of subordinate courts.
89
The Nitijela, as authorized by the Constitution,
90
established a system of District
and Community Courts through the Judiciary Act.
91
The District Court has original
jurisdiction—concurrent with the High Court—in all civil cases involving property of
less than five thousand dollars, except for “cases of adjudication of title to land or interest
in land (other than the right to immediate possession).”
92
The Community Court has
original jurisdiction—concurrent with the High Court and the District Court—in its local
government area in all civil cases involving property of less than one hundred dollars,
except for “cases of adjudication of title to land or interest in land (other than the right to
immediate possession).”
93
The jurisdiction of the Traditional Rights Court is “limited to the determination of
questions relating to titles or to land rights or to other legal interests depending wholly
or partly on customary law and traditional practice in the Marshall Islands.”
94
This
jurisdiction is ancillary to proceedings pending in other courts, and it may be invoked “as
of right” by parties to other judicial proceedings if a “substantial question [arises] within
86
Judiciary Act 1983, 27 M.I.R.C., Ch. 2, § 206(2) (1988).
87
RMI Constitution, Article VI, § 1(4).
88
Id at Article VI, § 3(1).
89
Id.
90
Id. at Article VI, § 1(1).
91
27 M.I.R.C., Ch. 2, §§ 226, 232.
92
Id. at § 228(1).
93
Id. at § 234(1)-(2).
94
RMI Constitution, Article VI, § 4(3) (emphasis added).
15
the jurisdiction of the Traditional Rights Court.”
95
Decisions of the Traditional Rights
Court must be given “substantial weight” by the certifying court and be deemed
“binding” unless justice requires otherwise.
96
However, in cases where the RMI
government exercises its right of eminent domain, the decisions of the Traditional Rights
Court are merely advisory to the certifying court—although they must still be given
“substantial weight.”
97
The RMI Constitution requires that the panel of Traditional Rights Court judges
comprise a “fair representation of all classes of land rights, including, where applicable,
the Iroijlaplap, Iroijedrik, Alap and Dri Jerbal;”
98
and that the panel be chosen on such a
geographical basis as to ensure fairness and expertise.
99
The High Court requires that the
Traditional Rights Court panel consist of twelve judges—four Iroij, four Alap and four
Dri Jerbal—and consist of five members from the Ralik chain and seven from the Ratak
chain.
100
They are not required to have legal degrees but must be knowledgeable in
Marshallese customs and traditions.
101
4. Council of Iroij
The Council of Iroij (Council) allows traditional leaders and chiefs, or Iroij, to
participate in government. The Council’s functions include expressing its opinion to the
Cabinet on “any matter of concern to the Marshall Islands;” and requiring the
“reconsideration of any Bill affecting customary law, or any traditional practice, or land
95
Id. at Article VI, § 4(4).
96
Id. at Article VI, § 4(5).
97
Id. at Article II, § 5(7); see also Zorn at 113.
98
These classes of land interests are described in Section II(A) of this report.
99
RMI Constitution, Article VI, § 4(1).
100
Zorn at 113. The High Court was given its authority to make these requirements by the RMI
Constitution, Article VI, § 4(2).
101
Zorn at 113.
16
tenure, or any related matter, which has been adopted . . . by the Nitijela.”
102
With the
first function, the Cabinet must hear—but is not required to follow—the Council’s
advice.
103
With the second function, a copy of every Bill passed by the Nitijela must be
given to the Council for review; and every Bill that concerns the Council must be
reconsidered.
104
The Nitijela is not required to change reconsidered Bills to the liking of
the Council,
105
but the Council’s power to require reconsideration can be “quite
sweeping” because “every [Bill] affects custom in some way”
106
and the Council has the
discretion to decide which Bills do affect custom.
107
D. Legal framework
108
The RMI Constitution is the controlling authority in the RMI, but additional
authority is recognized in the laws passed by the legislature, the Compact of Free
Association, custom and tradition, and the common law. The extent that U.S. common
law—i.e., the ALI Restatements—is relevant in the RMI is not perfectly clear but it has
had an unquestionable influence in certain areas.
1. RMI Constitution
The RMI Constitution is the “supreme law of the Marshall Islands” and all judges
and other public officers are bound by its provisions.
109
The judiciary branch is
responsible for interpreting and applying the RMI Constitution.
110
102
RMI Constitution, Article III, § 2(a)-(b) (emphasis added).
103
Zorn at 110.
104
RMI Constitution, Article III, § 3.
105
Id. at Article III, § 3(7).
106
Zorn at 110.
107
RMI Constitution, Article III, § 3(2).
108
This section is organized similarly to Zorn at 103-105.
109
RMI Constitution, Article I, § 1(1).
110
Id. at Article I, § 3.
17
Several provisions of the RMI Constitution are applicable to the administration of
land in the RMI:
Article II, § 5 – requires “just compensation” for the taking of land
rights from any interest holder;
Article X, § 1 – states that “[n]othing in Article II [of the RMI
Constitution]
111
shall be construed to invalidate the customary law or
traditional practice concerning land tenure or any related matter . . .,
including, where applicable, the rights and obligations of the
Iroijlaplap, Iroijedrik, Alap and Dri Jerbal;”
112
and
Article X, § 2 – prohibits any interest holder in land “under the
customary law or any traditional practice to make any alienation or
disposition of that land, whether by way of sale, mortgage, lease,
license or otherwise, without the approval of the Iroijlaplap, Iroijedrik
where necessary, Alap and the Senior Dri Jerbal of such land.”
113
2. Legislation
Three types of legislation have force in the RMI: (1) provisions of the Trust
Territory Code (TTC); (2) laws passed by the Nitijela prior to the RMI Constitution; and
(3) laws passed by the Nitijela subsequent to the RMI Constitution.
114
The first two types
of legislation remain viable because the RMI Constitution, after its ratification, kept in
force all existing laws until either their repeal or revocation.
115
The Marshall Islands
Revised Code (MIRC) contains all prior legislation that is still in effect, as well as the
laws subsequently enacted by the Nitijela.
116
111
This Article is the RMI’s “Bill of Rights.”
112
These classes of land interests are described in Section II(A) of this report.
113
Id.
114
Zorn at 104.
115
RMI Constitution, Article XIII, § 1(1)(a).
116
Zorn at 104.
18
3. Compact of Free Association and other treaties
Foreign affairs are the responsibility of the Cabinet, but all treaties must be
approved by the Nitijela.
117
At the current time, the Compact of Free Association with
the U.S. is the RMI’s primary international agreement. Under the terms of the Compact,
which became effective in 1986, the RMI government is required to “develop standards
and procedures to protect their environment” that are “substantively similar to those
required of the government of the United States.”
118
In addition, under the Compact the U.S. has full responsibility for defense matters
relating to the RMI—meaning it must defend the RMI and its people as if it were a part
of the United States.
119
This responsibility includes the right of the U.S. to operate
military bases in the RMI,
120
primarily on the Kwajalein Atoll. The Compact also
guaranteed, until 2001, a significant amount of financial assistance for the purpose of
developing the RMI economy.
121
Including land rents and nuclear claims compensation,
the U.S. had given the RMI over one billion dollars by 2001.
122
Upon expiration of the
Compact’s original financial assistance package, the terms were extended for two years
so that the U.S. and RMI could negotiate a new package.
123
A new financial assistance
package was agreed to in 2003 that will be in force until 2023.
124
117
RMI Constitution, Article V, § 1(3)(d).
118
Compact of Free Association, Title 1, Article VI, § 161(b) (hereinafter Compact).
119
Compact at Title 3, Article I, § 311(a)-(b)(1).
120
Id. at Title 3, Article II, § 321(a). The U.S. and RMI recently negotiated to allow the U.S. to operate
the Kwajalein Missile Range until 2066, available at
http://www.yokwe.net/modules.php?op=modload&name=News&file=article&sid=660 (last visited July 15,
2004).
121
Compact, Title 2, Articles I and II.
122
Of the one billion dollars, four hundred million went to land rents and compensating nuclear claims;
three hundred million was basic grant assistance; and three hundred million was agency- and program-
specific. RMI Economic Report at 3, citing “President Kessai Note’s Key Goal: Confidence in
Government,” The Marshall Islands Journal, pp. 16-17 (Jan. 12, 2001).
123
“Secretary Norton Applauds President's Signing of Compact Legislation,” Department of Interior
Release, available at
19
In other foreign affairs, the RMI participates in or is a member of the United
Nations, the South Pacific Forum, the Asian Development Bank, the International Atomic
Energy Agency, and the World Health Organization, among others.
125
4. Custom
The immense importance of custom in the RMI is illustrated in several ways.
First, the RMI Constitution provides that all existing law—including custom—on the
effective date is to remain in force until it is repealed or revoked.
126
In essence, this
means that the courts are required to apply custom whenever it is applicable.
127
If a
contrary statute to custom exists, however, the RMI Constitution suggests that custom
might not apply since repeal can occur implicitly.
128
It also suggests that custom
becomes “frozen” at the effective date of the Constitution, but the High Court has held
that new custom may be judicially recognized when it is firmly established, generally
known, and acquiesced in by those whose rights are affected.
129
Second, the RMI Constitution provides that the Nitijela is responsible for
declaring, by Act, the customary laws of the RMI and any parts thereof.
130
To date, the
Nitijela has never exercised this authority;
131
but in 1989 it created the Customary Law
Commission—whose duty it is to declare the customary law of the land.
132
As of 2002,
http://www.yokwe.net/modules.php?op=modload&name=News&file=article&sid=660 (last visited July 22,
2004).
124
Id.
125
Zorn at 119; CIA-The World Factbook.
126
RMI Constitution, Articles X and XIII.
127
Zorn at 105.
128
Id.
129
Id., citing Jacklick v. Jejo, Civ. Act. No. 1983-42 (1983).
130
RMI Constitution, Article X, § 2(1).
131
Jean G. Zorn and Jennifer Corrin Care, Proving Customary Law in the Common Law Courts of the
South Pacific, p. 10 (London: British Institute of International and Comparative Law, 2002) (hereinafter
Zorn and Care).
132
Id. at 10-11, citing Customary Law Commission Act 1989.
20
the Commission had not completed its work;
133
and it does not appear to be completed in
2004.
5. Common law
Little guidance is available—in either the RMI Constitution or the MIRC—on
how the common law is to be developed in the RMI.
134
By analogy, it could be argued
that the method for interpreting the RMI Constitution—“a court shall look to the
decisions of the courts of other countries having constitutions similar . . . to the [RMI]
Constitution, but shall not be bound thereby”
135
—should be used to develop the RMI
common law.
136
The TTC provided that U.S. Common law, as expressed in the
American Law Institute (ALI) Restatements or as generally understood and applied in the
U.S., would be the common law of the TTPI;
137
so the RMI Constitution, which
continued in force all existing laws,
138
could suggest that the RMI courts look to the ALI
Restatements for guidance.
139
The TTC provision that requires courts to look at the
Restatements does not appear in the MIRC, however, so it is at least arguable that it has
been repealed by implication.
140
In fact, though, the RMI Supreme Court has cited to
U.S. common law in certain situations;
141
and one opinion, Likinbod v. Kejlat, interpreted
the RMI Constitution as continuing “the [U.S.] common law in effect [in the RMI] as the
governing law, in the absence of customary law, traditional practice or constitutional or
133
Id. at 11.
134
Zorn at 105.
135
It continues, “and in following any such decision, a court shall adapt it to the needs of the [RMI],
taking into account this Constitution as a whole and the circumstances in the [RMI] from time to time.”
RMI Constitution, Article I, § 3(1).
136
Zorn at 105.
137
1980 1 TTC 103.
138
RMI Constitution, Article XIII, § 1.
139
Zorn at 105.
140
In this case, the RMI would then be free to develop an indigenous common law. See id.
141
See e.g., Elmo v. Kabua, 1 M.I.R.L.R. 450 (1999) (citing U.S. Supreme Court opinion on clearly
erroneous standard for findings of fact); Langijota v. Alex, 1 M.I.L.R. 164 (1990) (citing 9th Circuit
opinion on doctrine of laches).
21
statutory provisions to the contrary.”
142
So where custom or statutes are absent, it
appears that the RMI courts might look to the U.S. common law, or ALI Restatements,
for guidance.
Lastly, the RMI Supreme Court has held that decisions of the TTPI courts do not
have stare decisis effect in the RMI courts, but “in some circumstances, the value of
[TTPI] court decisions as precedent will exceed the precedential value of cases from non-
Pacific Islands jurisdictions.”
143
The RMI Supreme Court did not clarify “some
circumstances,” but it has cited to TTPI court decisions on numerous occasions.
144
II. O
WNERSHIP OF PRIVATE PROPERTY
Land is the “fundamental basis” of Marshallese culture and society.
145
At
tradition, every person had certain rights and obligations to the land—which he or she
acquired at birth by virtue of lineage
146
—and these rights and obligations have been
mostly preserved in modern times by the RMI Constitution.
147
As a result, most of the
privately owned land in the RMI is still held under customary tenure.
148
Some additional
rights and restrictions are also discussed below.
142
The court emphasized that the RMI Constitution established a “parliamentary-style Nitijela and
Cabinet, a Bill of Rights modeled on the United States Bill of Rights and a Judiciary Article continuing the
U.S.-style court system that operated during the period when the Marshall Islands were a part of the
[TTPI].” 1 M.I.R.L.R. 366 (1995).
143
Langijota v. Alex, 1 M.I.L.R. 164 (1990).
144
See e.g., Bulale v. Reimers, 1 M.I.L.R. 200 (1992) (regarding succession to land rights); Lobo v. Jejo,
M.I.L.R. 172 (1991) (regarding appropriate standard of review for errors of law).
145
Mason at 4.
146
Id.
147
RMI Constitution, Article X.
148
Land Issues in the Pacific at 45, Table A2.1.
22
A. Traditional land tenure
The typical Marshallese land parcel, the weto, averages two to five acres (one to
two hectares) and extends across the islet from the lagoon to the ocean.
149
In this way,
each parcel provides the resident lineage and associated members, the bwij, with all the
resources available in a coral atoll environment
150
—including farmland, forage land and
fishing access.
151
Boundary markers were not necessary in pre-contact times, but today,
owing to the increased value of land, a bwij will plant distinctive shrubs or cut marks into
coconut trees growing along the boundary.
152
Each bwij is headed by the Alap—usually the oldest male—who is in immediate
charge of the land and the Dri Jerbal (the workers) on the land.
153
The Alap represents
his or her lineage in community affairs and inter-lineage dealings,
154
as well in relations
with the Iroijedrik (sub-chief), if any, and the Iroijlaplap who is associated with their land
parcel.
155
The Iroijlaplap (paramount chief) is the Alap, or senior ranking member, of a
royal matrilineage
156
and is the acknowledged final distributor of all land interests in his
jurisdiction.
157
However, the Iroijlaplap and Iroijedrik are not necessarily members of the
bwij that inhabit their land, as many Iroij holdings are traced to centuries-old war
victories and promises of protection.
158
In theory, the Iroijlaplap could redistribute land
149
Mason at 5.
150
Id.
151
Zorn at 128.
152
Mason at 8.
153
Tobin at 10. The Dri Jerbal—or working class of people—plant, clear, and make improvements on the
land in return for a place to live and a portion of land proceeds. Harding at 160.
154
Mason at 9.
155
Tobin at 10.
156
Id. at 65.
157
Harding at 160.
158
Id.
23
rights and interests at will;
159
but in practice and in law—as discussed below—this is not
really the case today.
B. Restrictions and rights pertaining to private land ownership
1. Citizenship restriction
As put forth by the Nitijela, only citizens of the RMI or corporations wholly
owned by citizens of the RMI may own land in the RMI.
160
This restriction does not
apply to some lesser interests such as a leasehold.
161
The statute does not provide a
reason for this restriction on ownership, but as with another South Pacific nation with a
similar provision, presumably it is intended to prevent the exploitation of the
Marshallese, to promote their economic advancement, and to preserve their culture.
162
2. Alienation restrictions
As discussed earlier, the RMI Constitution prohibits the “alienation or disposition
of [any land interest], whether by way of sale, mortgage, lease, license or otherwise,
without the approval of the Iroijlaplap, Iroijedrik where necessary, Alap and the Senior
Dri Jerbal of such land.”
163
These four classes represent “all persons having an interest in
that land,”
164
so approval is required from each before any land interest is alienated.
Such agreement is oftentimes hard to obtain.
165
159
Zorn at 128.
160
Real and Personal Property Act, 24 M.I.R.C., Ch. 1, § 13.
161
See Marshall Islands Development Land Registration Authority Act 2000, P.L. 2001-26.
162
See Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with
the United States of America, Article VIII, § 805 (1975).
163
RMI Constitution, Article X, § 1(2).
164
Id.
165
Land Issues in the Pacific at 58-59.
24
Also, the ultimate power of the Iroijlaplap has been limited by the RMI courts.
For instance, the High Court has ruled that an Iroijlaplap may not terminate one’s right of
inheritance without good cause shown by clear and convincing evidence.
166
3. Servitudes and easements
The RMI, at least on paper, recognizes servitudes, easements and rights of way
over land. The Land Acquisition Act 1986 provides that a “servitude” may be acquired
over land for a public use,
167
and defines a “servitude” as “any right over any land,”
including “a right of way, right to draw water and similar rights over any land.”
168
The
National Environmental Protection Act 1984 defines “land” as including “easements
relating thereto;”
169
and it delegates the authority to “acquire by purchase, lease, sublease,
easement or otherwise, any land or interest in land.”
170
4. Leases
Lease agreements may be entered into only if they are executed by each senior
land interest holder—the Iroijlaplap, Iroijedrik where necessary, Alap, and Senior Dri
Jerbal.
171
The Marshall Islands Development Land Registration Authority Act 2000
172
establishes the legal requirements and procedures for valid land leases:
no lease may exceed a term of fifty years;
173
leases are binding on a senior interest holder’s heirs, successors,
assigns, or any one claiming an interest;
174
and
166
Zorn at 128, citing Limet Mojilong v. Atol, Civ. Act. No. 1982-76 (1982).
167
Land Acquisition Act 1986, 9 M.I.R.C., Ch. 2, § 5(1).
168
Id. at § 2(h).
169
National Environmental Protection Act 1984, 35 M.I.R.C., Ch. 1, § 3(g).
170
Id. at § 21(3)(a).
171
RMI Constitution, Article X, § 1(2).
172
See Section II(C)(1).
173
P.L. 2001-26, § 33.
174
Id. at § 31.
25
a copy of the lease agreement instrument must be filed with the Clerk
of Court.
175
5. Mortgages
The power to mortgage land in the RMI is very limited.
176
The Nitijela has made
it difficult by only permitting mortgages of leaseholds, and not of ownership or other
traditional land rights.
177
Mortgaged property may be sold off upon foreclosure, but only
the lease interest may be purchased.
178
C. Private land administration
1. Institutional framework
The RMI does not have a strong institutional framework in place for the recording
and enforcement of property rights—and major problems have been documented by
various economic and research institutes.
179
First, there is “unclear” ownership and boundaries in the RMI due to lack of
recording.
180
The Real and Personal Property Act briefly requires that the Clerk of Court
“keep in a permanent record a copy of all documents submitted to him for recording
which relate to title to real estate” and makes invalid any “transfer of or encumbrance
upon title to” land if the parties in the transaction fail to record the related documents
175
Id. at § 32.
176
Zorn at 127.
177
Real Property Mortgage Act 1987, 24 M.I.R.C., Ch. 3, § 2(a).
178
Id. at §§ 8-11.
179
See e.g., Land Issues in the Pacific at 58-59; Republic of the Marshall Islands Private Sector
Assessment, pp. 13-14, 47-52 (Enterprise Research Institute, May 2003) (hereinafter RMI Private Sector
Assessment).
180
RMI Private Sector Assessment at 49.
26
with the Clerk,
181
but little land has actually been recorded.
182
When land rights are
recorded, it can be a “cumbersome and difficult” process.
183
Second, the principles of customary land ownership in the RMI are often not
publicly known to all interested parties in a land transaction.
184
This causes a cloud of
uncertainty to surround many land transactions, and the parties involved often wind up
disputing the legal effects of such transactions.
185
As a result, the RMI courts have been
“overloaded” with cases regarding disputed land titles and rights.
186
Third, dispute resolution methods regarding land in the RMI are “weak” and
unrecorded.
187
The Real and Personal Property Act is completely silent on this matter.
Partly in response to these criticisms, the Marshall Islands Development Land
Registration Authority Act 2000 was enacted by the Nitijela.
188
The Act, however, is
primarily geared to promote economic activity—particularly lease agreements—and not
for the purpose of land registration in general.
The Act establishes the Marshall Islands Development Land Registration
Authority (Authority),
189
the purposes of which are to:
“provide a legal framework for the people of the [RMI] to register
their interests in land in order to promote investment and
development;”
“provide a legal regime satisfactory to investors and lending
institutions in order to encourage investment;”
181
24 M.I.R.C. Ch. 1, §§ 17-18.
182
Land Issues in the Pacific at 45; RMI Private Sector Assessment at 49.
183
RMI Private Sector Assessment at 50.
184
Id. at 51.
185
Id.;
186
Mason at 26.
187
RMI Private Sector Assessment at 49.
188
See Land Issues in the Pacific at 58-59.
189
P.L. 2001-26, § 3. The Authority is a Corporation that may sue and be sued in its corporate name. Id. at
§ 4(1)(a) and (f).
27
“provide for standards and criteria for land leases . . . to protect land
interest holders and investors;” and
“maintain and keep records of land and land transactions open to the
public” and “bring land into the economic marketplace” in the RMI.
190
In order to accomplish these purposes, the Authority is vested with “any powers
as are necessary and convenient for carrying out [the Act’s] purposes,”
191
including, but
not limited to:
accepting applications from senior land interest holders to register, or
classify, their land as “available for lease by investors;”
providing for the land “registration process” and settling related
disputes;
issuing “Certificates of Registration to senior land interest holders;”
establishing a “land database,” with contact information for registered
senior land interest holders, for use by potential investors;
guaranteeing and underwriting lease agreements “with respect to
assuring the uninterrupted use of leased land;”
providing “mediation assistance between senior land interest holders
and investors when requested;” and
maintaining “on file copies of all leases in the [RMI] to ascertain the
prevailing market values of land.”
192
2. Land registration
As mentioned above, the Real and Personal Property Act requires that land and
land transactions in general be recorded with the Clerk of Court.
193
Only leases of less
than one year are not required to be recorded with the Clerk.
194
190
Id. at § 16.
191
Id. at § 17(1).
192
Id. at § 17(2).
193
24 M.I.R.C. Ch.1, §§ 17-18.
194
Id. at § 18.
28
If senior land interest holders are interested in leasing their land to investors, the
Marshall Islands Development Land Registration Authority Act 2000 is controlling. To
register their land as available for lease, an Application for Registration of Land must be
submitted to the Authority, containing:
a description of the land to be registered, including the name of the
weto, island and atoll;
a survey map of the land;
the names and addresses of the applicable senior land interest
holders—the Iroijlaplap, Iroijedrik where necessary, Alap, and Senior
Dri Jerbal;
the names and addresses of all successors in interest to the senior land
interest holders;
copies of any final court decisions or title determinations relating to
the land; and
the signatures of each senior land interest holder and of any successors
in interest.
195
As with all other land transactions, the Authority will not accept for registration
any application that is not agreed to by each senior land interest holder.
196
Upon receipt
of a duly executed application, however, the Authority is required to issue public notice
and afford an opportunity for interested parties to object for a period of at least 180
days.
197
Objections may only be made by individuals who claim they are the respective
senior land interest holder(s) and that the individual(s) seeking registration are not.
198
195
P.L. 2001-26, § 2.
196
Id. at § 19.
197
Id. at § 20(1).
198
Id. at § 21(1). Objections based on other grounds are null and void. Id. at § 21(2).
29
If an objection is made, the parties are encouraged “to resolve their differences
amicably in accordance with Marshallese custom and tradition;”
199
but if this is not
possible, the objectors have forty-five days to bring an action in the High Court to resolve
the dispute.
200
In this case, the registration process is suspended until a decision is made
by the High Court.
201
Upon a decision by the High Court, or upon 180 days passing without an
objection, “a Certificate of Registration shall be issued by the Authority in the names of
the senior land interest holders and successors in interest for the parcels of land subject to
the registration.”
202
The Certificate constitutes “a presumption of good and marketable
land interests in and to the land registered,”
203
and “[l]and leases made by holders of a
Certificate . . . shall be deemed conclusively valid and enforceable in accordance with the
terms of the lease.”
204
Finally, all of the documents or instruments affecting land that are
created under this Act must be recorded with the Clerk of Court.
205
III. C
ONSERVATION EASEMENTS ON PRIVATE LANDS
A. Introduction to conservation easements
Easements have been recognized as legitimate interests in land for centuries. An
easement is a limited right, granted by an owner of real property, to use all or part of his
or her property for specific purposes.
206
Where this purpose is to achieve the goal of
199
Id. at § 21(4).
200
Id. at § 21(5).
201
Id. at § 21(6).
202
Id. at § 22(1).
203
Id. at § 22(2).
204
Id. at § 23(1).
205
Id. at §§ 25 and 32 (in accordance with the Real and Personal Property Act).
206
Black’s Law Dictionary, Seventh Edition (Bryan A. Garner ed. 1999).
30
conservation, the easement is frequently referred to as a conservation easement.
207
A
conservation easement is thus a voluntary, legally enforceable agreement in which a
landowner agrees (usually with a governmental entity or NGO) to limit the type and
amount of development that may occur on his or her property in order to achieve the goal
of conservation. They are legally recorded deed restrictions that “run with the land” and
can be obtained voluntarily through donation or purchase from the landowner.
Traditionally, an easement was “affirmative” (carrying rights to specified actions)
and “appurtenant” (attached to a neighboring parcel of land). For example, one
landowner might hold an easement in the land of a neighbor, allowing him or her to cross
the neighbor’s property or draw water from the neighbor’s well. In contrast to
conventional easements, conservation easements are generally “negative” (prohibiting
specified actions) and “in gross” (that is, they may be held by someone other than the
owner of a neighboring property). While a conventional easement involves the
conveyance of certain affirmative rights to the easement holder, an easement for
conservation purposes involves the relinquishment of some of these rights and a conferral
of power in the new holder of the rights to enforce the restrictions on the use of the
property. This is a critical distinction—the landowner relinquishes the right to develop
the land, but that right is not conveyed to the easement holder. That particular right (to
develop the land) is extinguished.
208
What the easement holder does acquire is the right
to enforce the land-use restrictions.
207
Depending on the type of resource they protect, easements are frequently referred to by different
names—e.g., historic preservation easements, agricultural preservation easements, scenic easements, and so
on.
208
Conservation easements generally extinguish development rights. However, with certain types of
agreements—such as those involving purchased development rights (PDRs)—the development rights are
not necessarily extinguished, but instead become the property of the easement holder. PDRs are generally
classified as easements in gross. For a more extensive discussion of PDRs, refer to Part I § A.6.
31
To understand the concept of an easement, it is helpful to think of owning land as
holding a bundle of rights—a bundle that includes the right to occupy, lease, sell,
develop, construct buildings, farm, restrict access or harvest timber, and so forth. A
landowner may give away or sell the entire bundle, or just one or two of those rights. For
instance, a landowner may give up the right to construct additional buildings while
retaining the right to grow crops. In ceding a right, the landowner “eases” it to another
entity, such as a land trust. However, in granting an easement over the land, a landowner
does not give away the entire bundle of ownership rights—but rather forgoes only those
rights that are specified in the easement document.
209
1. Appurtenant conservation easements
In legal terms, conservation easements generally fall into one of two categories:
(1) appurtenant easements; and (2) easements in gross. An appurtenant easement is an
easement created to benefit a particular parcel of land; the rights affected by the easement
are thus appurtenant or incidental to the benefited land. Put differently, if an easement is
held incident to ownership of some land, it is an appurtenant easement. The land subject
to the appurtenant easement is called the servient estate, while the land benefited is called
the dominant estate. Unless the grant of an appurtenant easement provides otherwise, the
benefit of the easement is automatically transferred with the dominant estate—meaning
that it “runs with the land.”
210
Under the majority U.S. common law authorities, an
209
The grantor of a conservation easement remains the title holder, the nominal owner of the land. The
landowner conveys only a part of his or her total interest in the land—specifically, the right to develop the
land. However, the landowner retains the right to possess, the right to use (in ways consistent with the
easement), and the right to exclude others. Daniel Cole, Pollution and Property 17 (2002).
210
Roger Bernhardt and Ann Burkhart, Real Property in a Nutshell 191, 214 (4th ed. 2000). An interest
“runs with the land” when a subsequent owner of the land has the burden or benefit of that interest. An
appurtenant easement runs with the land since the servient estate remains subject to it after being
transferred, and the dominant estate retains the benefit after being transferred. With an easement in gross,
32
appurtenant easement does not require the dominant and servient estates to be adjacent to
one another—an easement may be appurtenant to noncontiguous property if both estates
are clearly defined and if it was the parties’ intent that the easement be appurtenant.
211
There are some jurisdictions, however, that require the estates affected by an appurtenant
easement to be adjacent.
212
In such jurisdictions, there are a number of ways to meet—or
potentially relax—the adjacency requirement while furthering the goal of private lands
conservation. The following list is a brief sample of such methods:
213
▪ Purchase by NGOs of land that can serve as adjacent estates – A
method for an NGO to meet an adjacent lands requirement by
acquiring, via purchase or donation, land adjacent to the property to be
subject to the easement. This allows the NGO’s property to be the
dominant estate, and the NGO to hold the easement over adjoining
lands.
▪ Creative “nexus” arguments for non-adjacent lands – A potential
method for creating a valid appurtenant easement between non-
adjacent properties by establishing (e.g., by successfully arguing its
existence in a court of law) an adequate nexus between the properties
in question. In Costa Rica, the Center for Environmental Law and
Natural Resources (CEDARENA) created an appurtenant easement
between a parcel of private land and a nearby state reserve that shared
the same birds.
the benefit cannot run with the land as there is no dominant estate—however, provided certain
requirements are met, the burden can run with the land.
211
Verzeano v. Carpenter, 108 Or.App. 258, 815 P.2d 1275 (1991) (“[W]e agree with the majority view
that an easement may be appurtenant to noncontiguous property if both tenements are clearly defined and it
was the parties’ intent that it be appurtenant.”) (citing 7 Thompson on Real Property § 60.02(f)(4)); see also
Day v. McEwen, 385 A.2d 790, 791 (Me.1978) (enforcing reserved “right of an unobstructed view” over
servient tenement where dominant tenement was on the other side of a public road); Private Road’s Case, 1
Ashm. 417 (Pa.1826) (holding that a circumstance in which a navigable river intervenes between a meadow
and an island is no legal reason why a way across the former should not be appurtenant to the latter);
Saunders Point Assn., Inc. v. Cannon, 177 Conn. 413, 415, 418 A.2d 70 (1979) (holding that while an
easement appurtenant must be of benefit to the dominant estate, the servient estate need not be adjacent to
the dominant estate); Woodlawn Trustees, Inc. v. Michel, 211 A.2d 454, 456 (1965) (holding that in cases
of noncontiguous parcels, the easement over the land of the servient tenement is valid and enforceable if,
by means of a right of way of some sort which traverses land of another, the servient tenement benefits the
dominant tenement).
212
Environmental Law Institute, Legal Tools and Incentives for Private Lands Conservation in Latin
America: Building Models for Success 23 (2003).
213
The information is taken primarily from Environmental Law Institute, Legal Tools and Incentives for
Private Lands Conservation in Latin America: Building Models for Success 23–24 (2003).
33
▪ Reciprocal easements – Enables adjacent landowners to limit their
respective land uses through easements granted to each other—a
method that provides protection for both properties.
214
Working with
private landowners, conservation groups in Latin America have used
reciprocal easements that grant a third-party NGO the right to enforce
the easement—with express authority to enter the property, monitor
compliance, and seek judicially enforcement of the rights and
obligations derived from the easement. Thus, the use of reciprocal
easements can potentially provide a conservation NGO with
enforceable rights over land, without the need for the NGO to own
adjacent land.
▪ Use of public lands as the dominant estate to hold an easement –
Easements over private land have been created in several Latin
America countries by using adjacent or nearby public lands as the
dominant estate. In some instances, the easements have also provided
a third-party NGO with the right to enforce its terms.
▪ Legal limitations and uncertainties to third-party enforcement –
The common law of some jurisdictions only recognizes the right of an
easement’s holder to enforce its terms. Thus, depending on the
jurisdiction in question, the practice of granting a third-party NGO the
right to enforce the easement may or may not survive legal scrutiny.
Additionally, the relevant legal authority is often unclear as to whether
the grant to an NGO of the right to monitor and enforce an easement is
a real property right that runs with the land, or a personal right
enforceable only against the original maker of the easement.
Under the common law adhered to in the U.S., third party enforcement
of a conservation easement would be invalidated in court due to a
basic principle of contract law which mandates only the parties to the
contract may enforce its terms. However, many U.S. states have laws
authorizing the assignment of this specific power to non-profit
organizations—provided the assignment is written into the
conservation easement.
2. Conservation easements in gross
Unlike an appurtenant easement, an easement in gross is not created for the
benefit of any land owned by the owner of the easement, but instead attaches personally
214
In order to take advantage of federal and state tax incentives, U.S landowners must grant the
conservation easement to either a governmental entity or an authorized NGO. Thus, while the use of
reciprocal easements between private landowners is potentially an effective method for achieving private
lands conservation, conservation incentives provided under U.S. federal and state law would not be
available for this type of arrangement.
34
to the easement owner—regardless of whether the owner of the easement owns any
land.
215
At common law an easement in gross could not be transferred. Today, however,
there are many jurisdictions where legislation and more modern trends in the relevant
common law have authorized the transferability of easements in gross.
216
As noted above, both an appurtenant conservation easement and a conservation
easement in gross meet the legal criteria for what is known as a negative easement—an
easement that prohibits the owner of the servient estate from doing something.
Conservation easements are negative in character because they prevent the owner of the
burdened estate from developing the land, typically in any way that would alter its
existing natural, open, scenic, or ecological condition. However, while the common law
has generally recognized and enforced certain limited types of negative easements, it has
generally refused to enforce negative easements in gross. Due to doubts over the validity
and transferability of negative easements in gross at common law, statutes have been
enacted in most U.S. states authorizing conservation easements—both in gross and
appurtenant.
217
In addition to statutorily authorized interests in land, U.S. common law recognizes
a number of interests in land that have the potential to facilitate the goal of private lands
conservation in the RMI. Among these interests are real covenants, equitable servitudes,
easements and profits. It is important to note, however, that while the common law
215
Examples of typical easements in gross include the right of a non-owner to harvest timber, mine
minerals, extract water or other items from the owner’s land.
216
Restatement (Third) of Property, Servitudes, §4.6 (T.D. No. 4, 1994), provides that all easements in
gross are assignable unless contrary to the intent of the parties. It eliminates the restriction of the first
Restatement that only commercial easements in gross are assignable.
217
Jesse Dukeminier and James E. Krier, Property 856 (4th ed. 1998). Traditionally, courts have
disfavored interests conveyed “in gross” and negative easements because they can cloud title and may raise
recordation problems—the difficulty being notice to future landholders. However, in the U.S. legislation
with proper recordation requirements and limitations upon those who may hold these kinds of interests
have largely overcome these objections.
35
recognizes these interests, it has traditionally imposed requirements that, in many
instances, render their use problematic for conservation purposes. The American Law
Institute’s Restatement (Third) of Property has simplified the law governing real
covenants, equitable servitudes, easements and profits by combining the rules governing
these interests into a single doctrine—that of the Servitude. This modernized law of
servitudes has also largely eliminated the common law impediments to the use of these
interests for conservation purposes.
3. Tax incentives for conservation easements
What incentive does a private landowner have to convey valuable development
rights to either a public or private trustee? In the U.S., along with the desire of
landowners to preserve undeveloped land, the answer is often money—received in the
form of tax benefits (e.g., income, property, gift and estate taxes) or cash payments. For
instance, U.S. landowners who donate conservation easements that satisfy requirements
of the Internal Revenue (IRS) Code can take advantage of federal income and estate tax
benefits. To satisfy the relevant section of the Internal Revenue Code, a conservation
easement must be granted:
▪ to a governmental entity or charitable organization that meets certain
public support tests; and
▪ exclusively for conservation purposes, which include (1) the
preservation of open space for scenic enjoyment pursuant to a clearly
delineated governmental conservation policy; (2) the preservation of
land for outdoor recreation; (3) the protection of the natural habitat of
wildlife or plants; and (4) the preservation of historically important
land or a certified historic structure.
218
218
IRS Code, § 170(h).
36
If a conservation easement satisfies these requirements, the grantor may then receive a
charitable deduction for the difference in property’s value before the easement was
granted compared to the property’s value after the granting of the conservation easement.
This is often referred to as the “before and after” test.
219
In addition to federal tax
incentives, U.S. landowners can frequently take advantage of a variety of state tax
incentives.
4. Uniform Conservation Easement Act
In order to facilitate the development of state statutes authorizing landowners to
create and convey conservation easements and government agencies and nonprofits to
hold such easements, in 1981 the National Conference of Commissioners on Uniform
State Laws drafted the Uniform Conservation Easement Act (UCEA). The Act’s primary
objective is to enable “private parties to enter into consensual arrangements with
charitable organizations or governmental bodies to protect land and buildings without the
encumbrance of certain potential common law impediments.”
220
The UCEA defines “conservation easement” as “[a] nonpossessory interest of a
holder in real property imposing limitations or affirmative obligations the purposes of
which include: (1) retaining or protecting natural, scenic, or open-space values of real
property; (2) assuring its availability for agricultural, forest, recreational, or open space
use; (3) protecting natural resources; (4) maintaining or enhancing air or water quality; or
219
For federal income tax purposes, this difference in value is a charitable deduction which can be used
for a period of up to 5 years to reduce the income tax of the grantor of the easement. The maximum
deduction in any year is 30 percent of the grantor’s adjusted gross income. For federal estate tax purposes,
the grant of the easement results in a lower valuation of the property—and thus, a lower valuation of the
estate to which the federal estate tax will be applied. Under the Farm and Ranch Protection Act (1997), IRS
Code § 2031.c, landowners can receive an exclusion from federal estate taxes for up to 40 percent of the
value of their land under a conservation easement. Only easements granted in perpetuity are eligible for
federal tax benefits.
220
UCEA, Prefatory Note, 12 U.L.A. 166 (1996). An online copy of the UCEA is available at the
following address: http://www.law.upenn.edu/bll/ulc/fnact99/1980s/ucea81.htm.
37
(5) preserving the historical, architectural, archeological, or cultural aspects of real
property.
221
The UCEA has made conservation easements more certain devices by eliminating
several common law impediments. Specifically, the UCEA provides that a conservation
easement is valid even though: (1) it is not appurtenant to an interest in real property; (2)
it can be or has been assigned to another holder; (3) it is not of a character that has been
recognized traditionally at common law; (4) it imposes a negative burden; (5) it imposes
affirmative obligations upon the owner of an interest in the burdened property or upon the
holder; (6) the benefit does not touch or concern real property; or (7) there is no privity of
estate or of contract.
222
A unique feature of the Act is the “third-party enforcement right.” Under the Act,
an easement may empower an entity other than an immediate holder to enforce its terms.
The third-party must be a charitable organization or governmental body eligible to be a
holder. Additionally, one organization may own the easement, but delegate enforcement
to another, provided the terms of the easement allow it.
B. Conservation easements in the RMI
No legislation enacted in the RMI explicitly authorizes, or even refers to,
“conservation easements” per se. The National Environmental Protection Act 1984 does
authorize the acquisition of easements for the purpose of “conservation,”
223
but this is
mentioned only very briefly and without further explanation. As discussed earlier,
however, there is some reason to believe that the RMI courts, absent any controlling
221
UCEA, §1(1)—Definitions.
222
§ 4, 12 U.L.A. 179.
223
35 M.I.R.C. Ch. 1, § 21(3)(a).
38
custom or statute, might look to the ALI Restatement (Third) of Property for guidance in
this area.
1. Restatement (Third) of Property
The Restatement (Third) of Property recognizes conservation easements
(servitudes)
224
and states that they are the most common use of negative easements.
225
Early on, there was doubt about whether the benefits of a conservation easement could be
held in gross (i.e., not running with land) so most states enacted authorizing statutes.
226
However, as previously noted, the most recent Restatement eliminates restrictions on the
creation and transferability of benefits in gross,
227
so “there is no longer any impediment
to the creation of servitudes for conservation or preservation purposes.”
228
Additionally,
the benefits may be granted to third parties who are not involved in creating the
easement.
229
The benefits of conservation easements are often held by governmental and
conservation entities, and public funds are usually spent to acquire them. As a result, the
public’s interest in enforcing conservation easements is “strong,”
230
and “special
protections”
231
are afforded them. For instance, if the benefits are held by a
governmental body or conservation organization,
232
the conservation easement may not
be modified or terminated unless (1) the particular purpose for which the easement was
224
In the latest Restatement, “servitude” is a generic term that covers “easements, profits, and covenants.”
Restatement (Third) of Property §§ 1.1(2), 1.1 cmt. a, 1.1 cmt. d (2000).
225
Id. at § 1.2 cmt. h (2000).
226
Id. at §§ 1.2 cmt. h, 2.6 cmt. a.
227
Id. at §§ 2.6, 4.6.
228
Id. at § 2.6 cmt. a.
229
Id. at § 2.6(2).
230
Id. at § 8.5 cmt. a.
231
Id. at § 1.6 cmt. b.
232
“A ‘conservation organization’ is a charitable corporation, charitable association, or charitable trust
whose purposes or powers include conservation or preservation purposes.” Id. at § 1.6(2).
39
created becomes impracticable; or (2) the easement can no longer be used to accomplish
a conservation purpose.
233
If the changed condition is attributable to the holder of the
servient estate, damages may be charged.
234
To further secure the conservation easement,
governmental bodies or conservation organizations may enforce it by coercive remedies
(e.g., injunctions) and other methods (e.g., require restoration).
235
Lastly, benefits held
by governmental bodies or environmental organizations may only be transferred to other
governmental bodies and environmental organizations (unless the creating instrument
provides otherwise); whereas all other benefits in gross are freely transferable.
236
IV. O
THER POTENTIAL LEGAL TOOLS
A. Leases, “Leaseback” Agreements, and Reserved Life Interests
Long-term lease agreements between a private landowner and a conservation
NGO or governmental agency are another potential method for achieving the goal of
private lands conservation. A lease agreement can enable a conservation NGO to
temporarily possess the property in exchange for rent payments. Conservation objectives
can be met by including land use limitations in the lease agreement.
237
A “leaseback”
agreement allows a landowner to donate or sell land in fee simple and immediately lease
it back for an agreed use and period. In this case, a landowner transfers title to the land to
a conservation NGO or governmental agency. As part of the agreement, the conservation
233
Id. at § 7.11(1)-(2).
234
Id. at § 7.11(3).
235
Id. at § 8.5 (including cmt. a).
236
Id. at § 4.6(1)(b)-(c).
237
Environmental Law Institute, Legal Tools and Incentives for Private Lands Conservation in Latin
America: Building Models for Success 30 (2003). In addition to stipulating detailed use-limitations, the
lease could include a base-line ecological inventory of the land, using written descriptions, data,
photographs, graphs, maps, etc. Breach of the use-conditions would normally entitle the landowner (or his
or her heirs) to terminate the lease. This arrangement would provide the landowner with ongoing control
over land use while providing some security of tenure to the conservation NGO.
40
NGO leases the land back to the owner using a long-term lease, subject to conditions
designed to ensure conservation of the land. Breach of the lease could enable the
conservation NGO to terminate the lease and take possession of the land.
A landowner could also transfer fee simple title to the land to a conservation NGO
(by donation or sale), but reserve a life interest in the land. This method would enable
the landowner to remain undisturbed on the land for life. The landowner also has the
assurance that without further legal action the conservation NGO will assume control of
the land upon his or her death.
As discussed earlier, recent RMI legislation aims to make available its private
land for leasing.
238
It is not clear, however, whether leaseholds entered into strictly for
the purpose of conservation would be allowed; but presumably, some types of land use
restrictions included in the lease agreement would be valid.
B. Real covenants
A real covenant is a promise concerning the use of land that (1) benefits and
burdens both the original parties to the promise and their successors and (2) is
enforceable in an action for damages.
239
A real covenant gives rise to personal liability
only. It is also enforceable only by an award of money damages, which is collectible out
of the general assets of the defendant.
240
If the promisee sues the promisor for breach of
the covenant, the law of contracts is applicable. If, however, a person who buys the
promisee’s land is suing, or a person who buys the promisor’s land is being sued, then the
238
See Section III(C)(2) of this report.
239
Promises that restrict permissible uses of land are referred to as negative or restrictive covenants.
240
This historic remedy for breach of a real covenant is damages, measured by the difference between the
fair market value of the benefited property before and after the defendant’s breach.
41
law of property is applicable.
241
The rules of property law thus determine when a
successor owner can sue or be sued on an agreement to which he or she was not a party.
Two points are essential to understanding the function of these rules. First, property law
distinguishes between the original parties to the covenant and their successors. Second,
each real covenant has two “sides”—the burden (the promissor’s duty to perform the
promise) and the benefit (the promissee’s right to enforce the promise).
In order for the successor to the original promissor to be obligated to perform the
promise—that is, for the burden to run—the common law traditionally required that six
elements must be met: (1) the promise must be in a writing that satisfies the Statute of
Frauds; (2) the original parties must intend to bind their successors; (3) the burden of the
covenant must “touch and concern” land;
242
(4) horizontal privity must exist;
243
(5)
vertical privity must exist;
244
and (6) the successor must have notice of the covenant. In
contrast, the common law traditionally required only four elements for the benefit of a
real covenant to run to successors: (1) the covenant must be in a writing that satisfies the
Statute of Frauds; (2) the original parties must intend to benefit their successors; (3) the
benefit of the covenant must touch and concern land; and (4) vertical privity must exist.
The Restatement (Third) of Property (Servitudes) has eliminated a number of
these traditional common law requirements. The horizontal privity requirement and the
prohibition on third party beneficiaries have been entirely eliminated. Also, the
241
English courts never extended the concept of real covenants outside the landlord-tenant context.
American courts, however, extended it to promises between fee simple owners or neighbors.
242
For the covenant to “touch and concern land,” it must relate to the direct use or enjoyment of the land.
A covenant that restricts the development on a parcel meets this requirement.
243
The common law traditionally requires that the original parties have a special relationship in order for
the burden to run, called horizontal privity. In some U.S. states, horizontal privity exists between the
promissor and the promisee who have mutual, simultaneous interests in the same land (e.g., landlord and
tenant). Other U.S. states also extend horizontal privity to the grantor-grantee relationship.
244
Vertical privity concerns the relationship between an original party and his or her successors. Vertical
privity exists only if the successor succeeds to the entire estate in land held by the original party.
42
prohibition on covenant benefits in gross, the touch and concern requirement, and the
vertical privity doctrine have been replaced with doctrines designed to more effectively
accomplish their respective purposes. Pursuant to the Restatement’s approach, a
covenant is a servitude if either the benefit or the burden runs with the land. The benefit
or burden of a real covenant runs with the land where (1) the parties so intend; (2) the
covenant complies with the Statute of Frauds; and (3) the covenant is not otherwise
illegal or violative of public policy.
245
C. Equitable servitudes
The primary modern tool for enforcing private land use restrictions is the
equitable servitude.
246
An equitable servitude is a promise concerning the use of land that
(1) benefits and burdens the original parties to the promise and their successors and (2) is
enforceable by injunction. The usual remedy for violation of an equitable servitude is an
injunction, which often provides more effective relief for conservation purposes than
compensatory damages.
Under traditional common law rules,
247
for the burden of an equitable servitude to
bind the original promissor’s successors four elements must be met: (1) the promise must
be in a writing that satisfies the Statute of Frauds or implied from a common plan;
248
(2)
245
Restatement (Third) of Property (Servitudes) §§ 1.3, 1.4 (2000). Under the Restatement, a covenant
burden or benefit that does not run with land is held “in gross.” A covenant burden held in gross is simply a
contractual obligation that is a servitude because the benefit passes automatically to successors to the
benefited property. A covenant benefit held in gross is a servitude if the burden passes automatically to
successors to the land burdened by the covenant obligation.
246
There is some doctrinal confusion regarding the difference—if any—between an equitable servitude
and a conservation easement. However, under the approach adopted by the Restatement (Third) of
Property, easements, profits, covenants—including equitable servitudes, are governed by a single body of
law. See Susan F. French, Highlights of the new Restatement (Third) of Property: Servitudes, Real
Property, Probate and Trust Journal 226, 227 (2000).
247
Traditional common law rules are being distinguished here from the modernized law of servitudes set
forth by the Restatement (Third) of Property.
248
If a developer manifests a common plan or common scheme to impose uniform restrictions on a
subdivision, the majority of U.S. courts conclude that an equitable servitude will be implied in equity, even
43
the original parties must intend to burden successors; (3) the promise must “touch and
concern” land; and (4) the successor must have notice of the promise. In contrast, the
traditional common law only required three elements to be met for the benefit to run to
successors: (1) the promise must be in writing or implied from a common plan; (2) the
original parties must intend to benefit successors; and (3) the promise must “touch and
concern” land.
Under the law of servitudes set forth by the Restatement (Third) of Property
(Servitudes), there are eight basic rules that govern expressly created servitudes:
249
(1) a
servitude is created by a contract or conveyance intended to create rights or obligations
that run with the land if the servitude complies with the Statute of Frauds; (2) the
beneficiaries of a servitude are those intended by the parties; (3) servitude benefits held in
gross are assignable unless contrary to the intent of the parties;
250
(4) a servitude is valid
if it is not otherwise illegal or against public policy; (5) a servitude is interpreted to carry
though the Statute of Frauds is not satisfied. The common plan is seen as an implied promise by the
developer to impose the same restrictions on all of his or her retained lots.
249
As noted above, under the “integrated approach” adopted by the Restatement (Third), easements, real
covenants, profits and equitable servitudes are all categorized as servitudes
250
Restatement (Third) of Property (Servitudes) § 2.6 (1)–(2) (2000). Early law prohibited the creation of
servitude benefits in gross and the creation of servitude benefits in persons who were not immediate parties
to the transaction. However, under the Restatement (Third) of Property (Servitudes), the benefit of a
servitude may be created to be held in gross, or as an appurtenance to another interest in property. Also,
the benefit of a servitude may be granted to a person who is not a party to the transaction that creates the
servitude.
Homeowner associations are entitled to enforce covenants despite owning the fact that they do no own
land. See, e.g., Streams Sports Club, Ltd. v. Richmond, 109 Ill.App.3d 689, 440 N.E.2d 1264 (1982), aff’d,
99 Ill.2d 182, 457 N.E.2d 1226 (1983); Merrionette Manor Homes Improvement Ass’n v. Heda, 11
Ill.App.2d 186, 136 N.E.2d 556 (1956); Neponsit Property Owners’ Ass’n v. Emigrant Indus. Sav. Bank,
278 N.Y. 248, 15 N.E.2d 793 (1938).
Courts have also held that developers are entitled to enforce covenants after selling all their lots if
intended to have the power to do so. See, e.g., Riverbank Improvement Co. v. Bancroft, 209 Mass. 217, 95
N.E. 216 (1911); Christiansen v. Casey, 613 S.W.2d 906 (Mo.Ct.App.1981).
Even where a conservation easement is not authorized by statute, courts have recognized the benefit in
gross as a valid and enforceable interest. See e.g., Bennett v. Commissioner of Food and Agriculture, 576
N.E.2d 1365 (Mass.1991) (where beneficiary of a restriction is the public and restriction reinforces a
legislatively stated public purpose, old common law rules barring creation and enforcement of easements in
gross have no continuing force; question is whether bargain contravened public policy when made and
whether enforcement is consistent with public policy and reasonable).
44
out the intent or legitimate expectations of the parties, without any presumption in favor
of free use of land; (6) servitude benefits and burdens run to all subsequent possessors of
the burdened or benefited property;
251
(7) servitudes may be enforced by any servitude
beneficiary who has a legitimate interest in enforcement, whether or not the beneficiary
owns land that would benefit from enforcement; and (8) servitudes that have not been
terminated may be enforced by any appropriate legal and equitable remedies.
D. Purchased development rights
In the U.S., purchased development rights (PDR) are voluntary legal agreements
that allow owners of land meeting certain criteria to sell the right to develop their
property to local governmental agencies, a state government, or to a nonprofit
organization. A conservation easement is then placed on the land. This agreement is
recorded on the title to permanently limit the future use of the land. A PDR is thus an
interest in real property that is nonpossessory and entitles its holder to enforce certain
land use restrictions or to enforce certain rights to public use or access upon the holder of
the possessory interest.
252
Under a PDR agreement, the landowner retains all other ownership rights attached
to the land. The buyer essentially purchases the right to develop the land and retires that
right permanently, thereby assuring that development will not occur on that particular
property. Used strategically, a PDR program can be an effective tool to help maximize a
251
Special rules govern servitude benefits and burdens that run to life tenants, lessees, and persons in
adverse possession who have not yet acquired title.
252
At common law PDRs closely resemble negative easements in gross. With the exception of
commercial easements in gross, easements in gross were not transferable and expired with the holder.
These common law and statutory impediments to the use of PDRs have been addressed in those states that
have enacted the UCEA. In addition to providing protection against being extinguishment, for PDRs
drafted as conservation easements under its provisions, the UCEA provides the basis for claiming both
federal and state income and estate tax benefits. See Maureen Rudolph and Adrian M. Gosch, Comment, A
Practitioner’s Guide to Drafting Conservation Easements and the Tax Implications, 4 Great Plains Nat.
Resources J. 143, 146 (2000).
45
community’s conservation efforts. Financial support for PDR programs can be raised
through a variety of mechanisms—including bond initiatives, private grants and various
taxation options.
E. Profits à Prendre
A profit à prendre is a common law interest in land that gives a right to enter and
take part of the land or something from the land.
253
Although it is not commonly used for
conservation purposes, a profits à prendre have the potential to facilitate the conservation
of private lands. For instance, a landowner that wishes to protect the timber on his or her
property could grant a profit à prendre to a conservation group with respect to that
timber.
254
The conservation organization would have the exclusive right to decide
whether and what trees to cut. By granting such a right to a conservation group, the
landowner would prevent future owners of the land from harvesting the trees, since that
right has been given away. Under the common law, a landowner can grant a profit à
prendre to anyone—there is no requirement that the holder of a profit à prendre own
adjacent property.
255
A landowner creates a profit à prendre by granting it in writing to the profit à
prendre holder. The landowner specifies precisely what the holder is allowed to enter the
253
See 28A C.J.S. Easements § 9 (noting that a “right to profits à prendre is a right to take a part of the
soil or product of the land of another. It is distinguishable from a pure easement.” Historically, there were
five types of profits à prendre depending on the subject matter of the profit: (1) rights of pasture—where
the taking is done by the mouths of the grazing animals; (2) rights of piscary—to harvest the fish; (3) rights
of turbary—to cut turf or peat as fuel; (4) rights of estover—to take wood necessary for furniture for a
house; and (5) a miscellaneous group referring to the taking and using of sand, gravel, stone, etc. A profit à
prendre cannot generally be used to take minerals.
254
To help ensure its legal validity, a profit à prendre designed to facilitate conservation should be used
only where the protected interest is something that can be taken from the land—e.g., timber, fish, pasture,
or something similar. Otherwise, it is possible a court would construe the document as an easement and
thus apply the far much more restrictive rules governing easements. However, despite this limitation it may
nonetheless be possible to use a profit à prendre to protect things that are not included in these categories of
removable items. For instance, a landowner could protect spotted owls by granting a profit à prendre to a
conservation organization for the harvest of timber.
255
Profits à prendre of this kind are called profits en gross.
46
land to take. Once the landowner has granted a profit à prendre, he or she must respect
its terms. The profit à prendre holder can sue if the owner deals with the land in a way
that detracts from the rights of the profit à prendre holder. The holder of a profit à
prendre can also sue anyone interferes with the profit à prendre.
256
A profit à prendre document is designed to outlive the landowner—and perhaps
even the profit à prendre holder. In creating a profit à prendre, it is thus essential to
consider potential conflicts between a landowner and a profit à prendre holder and
describe exactly what the parties intend in the document itself. To protect the profit à
prendre holder if the land is subsequently sold, the profit à prendre should be registered in
the appropriate land title office. The profit holder can lease, sell, give away or bequeath
the profit à prendre to someone else. The holder can also terminate a profit à prendre by
giving a written release to the landowner, which would then be registered in the land title
office.
V. RMI L
EGISLATION RELEVANT TO PRIVATE LANDS CONSERVATION
Although conservation easements have not been expressly authorized in the RMI,
the Nitijela has enacted legislation that is of some relevance to the conservation of
privately owned land. The details of such legislation are laid out below.
A. National Environmental Protection Act 1984
The National Environmental Protection Act 1984 establishes the National
Environmental Protection Authority (Authority), whose objectives include:
“to restore and maintain the quality of the environment;”
256
Conversely, the profit à prendre holder must respect the rights of the landowner. The landowner can
sue the profit à prendre holder if the holder interferes with the landowner’s rights.
47
to create “conditions under which mankind and nature can coexist in
productive harmony;”
“to prevent, as far as practicable, any degradation or impairment of the
environment;”
“to regulate individual and collective human activity in such manner as
will ensure to the people [a] safe, healthful, productive, and
aesthetically and culturally pleasing surroundings;” and
“to preserve important . . . natural aspects of the nation’s culture and
heritage.”
257
To accomplish these objectives, the Authority is vested with “all such powers as
are necessary or convenient;”
258
and the Authority may in consultation with any “person
or organization in the [RMI] or abroad,” make regulations regarding:
all drinking water;
pollutants, chemicals, and hazardous waste; and
“the preservation of . . . [all] aspects of the environment which, in the
opinion of the Authority, require regulation.”
259
The Authority may also “acquire by purchase, lease, sublease, easement or
otherwise, any land or interest in land . . . for the purpose of its own use, conservation or
rehabilitation.”
260
Significantly, the Authority may “obtain the advice and services of any
person or organization,” including entities located “abroad,” when performing its
functions.
261
Lastly, the Authority is supposed “to report to the President, matters
concerning the protection and management of the environment, and to advise the
257
35 M.I.R.C. Ch. 1, § 19.
258
Id. at § 21(1).
259
Id. at § 21(2) (emphasis added) (The power of the Authority to act in consultation with foreign
organizations opens the door for NGOs such as The Nature Conservancy.).
260
Id. at § 21(3)(a) (emphasis added).
261
Id. at § 21(3)(d) (emphasis added) (see parenthetical to note 259).
48
President as to the need for any new legislation or amendment to existing legislation
concerning any aspect of the environment.”
262
For the purposes of carrying out its duties generally or “for any [other] particular
purpose,” the Authority may expend its own funds or borrowed monies.
263
Where any
money is borrowed—or received by grant, contribution, or gift—for a specific purpose or
subject to conditions, “it may be expended only for that purpose or subject to those
conditions.”
264
B. Coast Conservation Act 1988
Unfortunately, the extent to which the Coast Conservation Act 1988 has been
implemented is very limited
265
—mostly due to limited resources.
266
However, according
to one commentator, when the Act is given full effect it will be a “strong environmental
statement.”
267
The Act gives administration and control of the “Coastal Zone”
268
to the National
Environmental Protection Authority.
269
Although the Coastal Zone is narrow, this area
covers much of the “usable and desirable” lands in the RMI.
270
The Authority appoints a
Director of Coast Conservation (Director),
271
who “shall be responsible for the
formulation and execution of schemes of work for coast conservation within the Coastal
262
National Environmental Protection (Ministerial Oversight and Responsibility, Amendment) Act 2002,
P.L. 2002-55, § 26(l).
263
35 M.I.R.C. Ch. 1, § 21(3)(f)-(g).
264
Id. at § 35(5).
265
RMI UNCCD Report at Section G(ii); Harding at 167.
266
Harding at 167.
267
Id.
268
The area laying within a limit of twenty-five feet landwards of the mean high water line and a limit of
two hundred feet seawards of the mean low water line. Coast Conservation Act 1988, 35 M.I.R.C. Ch.4, §
2(c).
269
Id. at § 3.
270
Harding at 165.
271
35 M.I.R.C. Ch. 4, § 4(1).
49
Zones.”
272
In the execution of his duties, the Director must “act in consultation with the
respective landowners affected by the implementation of this Act.”
273
As soon as possible, the Director was to take “an inventory of all estuaries or
wetland areas within the Coastal Zone with an indication of their significance as fisheries
or wildlife habitat.”
274
Within three years of the Act’s passage, the Director was to create
a comprehensive Coastal Zone Management Plan (Plan) that was based on the inventories
taken.
275
The Plan was to include proposals dealing with “land use”
276
and “the
reservation of land or water in the Coastal Zone for certain uses, or for the prohibition of
certain activities in certain areas of the Coastal Zone.”
277
The Authority may, on the recommendation of the Director, make regulations to
give effect to the Plan or to restrict “any development activity within the Coastal
Zone.”
278
In addition, “no person shall engage in any development activity . . . within the
Coastal Zone except under the authority of a permit issued . . . by the Director.”
279
To
receive a development permit, the proposed development activity must not “have any
adverse effect on the stability, productivity and environmental quality of the Coastal
Zone.”
280
The Director may attach to any permit “such conditions as he may consider
necessary for the proper management of the Coastal Zone,”
281
and may subsequently vary
272
Id. at § 5(1)(a).
273
Id. at § 5(2).
274
Id. at § 6(1)(e).
275
Id. at § 7(1).
276
Id. at § 7(1)(b)(i).
277
Id. at § 7(1)(c).
278
Id. at § 7(6).
279
Id. at § 7(7).
280
Id. at § 10(b).
281
Id. at § 12.
50
these conditions or revoke the permit if it is necessary “for the proper management of the
Coastal Zone.”
282
C. Land Acquisition Act 1986
Under the Land Acquisition Act 1986, the RMI government may acquire private
land, or a “servitude” over private land, that is suitable for a public use.
283
The Act
defines “land” to include “any interest in, or any benefit to arise out of any land,” any
“leasehold or other interest,” and “things attached to the earth.”
284
A “servitude” is
defined as “any right over any land and includes a right of way, right to draw water and
similar rights over any land.”
285
The definition of “public use” is left open for
interpretation, but it may not include “a use primarily to generate profits or revenues and
does not include a use not primarily providing a public service.”
286
Upon a decision that certain land is suitable for a public purpose, notice must be
given and the landowners must have an opportunity to make written objections to the
Secretary in charge of land matters.
287
Where it is determined that the land should still be
acquired, the Attorney-General must file an application in the High Court “praying for a
declaration . . . that such taking of land for public use is lawful.”
288
In making its
decision, the High Court “shall have due regard for the unique place of land rights in the
life and law of the [RMI].”
289
If the High Court determines that the taking of land is
justified, all of the former interest holders shall be compensated with at least “reasonably
282
Id. at § 14.
283
Land Acquisition Act 1986, 9 M.I.R.C. Ch. 2, § 5(1).
284
Id. at § 2(c).
285
Id at § 2(h).
286
Id. at § 2(f).
287
Id. at § 5.
288
Id. at § 6(1).
289
Id. at § 8(4).
51
equivalent land rights.”
290
The Traditional Rights Court makes a decision as to whether
the compensation offered by the High Court is just, and the High Court must give
“substantial weight” to the traditional Rights Court opinion.
291
Compensation may come
in the form of an exchange for government land or, if available, the transfer of land with
other private landowners.
292
VI. R
ECOMMENDED ACTIONS
Due to the traditional and unique system of land tenure in the RMI, the concept of
conservation easements per se might be difficult to establish in this country. For them to
become recognized, the rights of the Iroijlaplap, Iroijedrik where necessary, Alap, and
Senior Dri Jerbal must all be considered beforehand. In the end, the method chosen to
conserve private lands might be similar to a conservation easement, but not the same as in
other countries and legal frameworks.
A. Enact conservation easement legislation
The most obvious way to establish the legal concept of a conservation easement
in the RMI would be for the Nitijela to enact conservation easement legislation.
293
Careful drafting would be required, however, due to the unique system of land ownership
in the RMI. The UCEA could be helpful for use as a guiding tool, but any statute passed
by the Nitijela would need to be custom-tailored for suitability in the RMI. For instance,
any conservation easement could not conflict with or invalidate the customary law or
traditional practices concerning land tenure.
294
To make this more likely to succeed, the
Nitijela could act in consultation with the Council of Iroij, or other experts on RMI
290
Id. at § 8(1).
291
Id. at § 8(3).
292
Id. at § 13(1).
293
The National Environmental Protection Act alludes to the idea, but it does not go far enough.
294
See RMI Constitution, Article X, § 1(1).
52
custom. In addition, the National Environmental Protection Authority may offer advice
on how to draft the new legislation.
295
B. Develop conservation easement precedent
As discussed earlier, it appears that in certain situations the RMI courts will look
to U.S. common law as expressed in the ALI Restatements in order to base their
decisions on it. This would only be the case, however, where there is an absence of any
controlling custom or statute in the RMI. It is unclear whether a conservation easement
would conflict with any RMI custom, but the Restatement (Third) Property clearly
recognizes and encourages conservation easements. To clarify this situation in the RMI,
it could be beneficial to bring a “test” case before a RMI court.
To increase the chance that a RMI court will recognize and enforce a conservation
easement, as strong of a foundation as possible should be laid. Several suggestions to lay
a strong foundation are:
if possible, to acquire a conservation easement on land that is not
customarily owned;
296
if it is not possible to acquire non-customary land, acquire a
conservation easement with the consent of the Iroijlaplap, Iroijedrik
where necessary, Alap, and Senior Dri Jerbal;
297
to have the purchaser of the conservation easement be a citizen of the
RMI or a corporation wholly owned by citizens of the RMI;
298
to duly record the transaction with the Clerk of Court;
299
295
See P.L. 2002-55, 26(1).
296
“Most” land in the RMI is owned under custom so it might not be possible to do this. Land Issues in
the Pacific at 45. If it is possible, the worry that a conservation easement conflicts with custom disappears.
297
This is required by the RMI Constitution, Article X, § 1(2).
298
RMI law limits land ownership to RMI citizens, 24 M.I.R.C. Ch. 1, § 13; but even though this
requirement does not apply to some lesser interests, it might cause a RMI court to be more inclined to
recognize the conservation easement.
299
This is required under 24 M.I.R.C. Ch. 1, § 18.
53
to acquire a conservation easement on a smaller sized parcel of land.
300
and
to acquire a conservation easement on land that is ecologically
significant.
301
C. Acquire a leasehold interest for the purpose of conservation
Perhaps the best option in the RMI is to acquire a leasehold interest over
ecologically important land. With the passage of the Marshall Islands Development Land
Registration Authority Act 2000, the leasing of land is now a more realistic option. To
fulfill the goal of conservation, however, land use limitations should be included in the
lease agreement.
A drawback to this strategy is that in the RMI a lease agreement may not exceed a
period of fifty years;
302
but a “conservation leasehold” could still be a valuable tool
because:
“[a] lease executed by a senior land interest holder is binding on his or
her heirs, successors, assigns, or any one claiming an interest through
him or her;”
303
and
the lease may be “guaranteed” by the Marshall Islands Development
Land Registration Authority for the benefit of the third party.
304
In order to obtain an enforceable leasehold, care should be taken to acquire the
interest from holders of an undisputed Certificate of Registration. If this is done, the
lease is “deemed conclusively valid and enforceable in accordance with the terms of the
lease.”
305
300
The less of a burden the conservation easement is to the economic potential of the land, the more
inclined a RMI court might be to recognize the interest.
301
Again, a RMI court might be more inclined to recognize the conservation easement.
302
P.L. 2001-26, § 33.
303
Id. at § 31.
304
Id. at § 26.
305
Id. at § 23(1).
54
D. Utilize the National Environmental Protection Act
As discussed earlier, the National Environmental Protection Authority has the
power to acquire easements for the purpose of conservation.
306
It may also advise the
President as to the need for any new legislation.
307
Unfortunately, it does not appear that
the Authority has taken either of these steps.
308
A possible explanation for the failure to acquire easements might be a lack of
resources. Under the Act, however, the Authority may accept monetary gifts and may
consult with outside persons or organizations—domestic or abroad—in order to fulfill its
duties and functions.
309
In this case, domestic or foreign organizations that are willing to
make monetary contributions and consult with the Authority should be located. As a
safeguard, money that is received by the Authority for a particular purpose—i.e.,
acquiring conservation easements—“may be expended only for that purpose.”
310
E. Utilize the Coast Conservation Act
The extent to which the Coast Conservation Act has been implemented is
limited;
311
but since the Act is a “strong environmental statement” on paper,
312
and
because the Coastal Zone comprises much of the “usable and desirable” lands in the
RMI,
313
the implementation of the Act is important for the well-being of the RMI
environment. Implementation would include taking an inventory of important natural
areas within the Coastal Zone and the drafting of the Coastal Zone Management Plan, if
these steps have not been completed already. In addition, the Director of Coast
306
35 M.I.R.C. Ch. 1, § 21(3)(a).
307
P.L. 2002-55, § 26(1).
308
See Harding at 164.
309
35 M.I.R.C. Ch. 1, § 21(3)(d) and (g).
310
Id. at § 35(5).
311
RMI UNCCD Report at Section G(ii); Harding at 167.
312
Harding at 167.
313
Id. at 165.
55
Conservation may limit and attach conditions to development on private lands in the
Coastal Zone through the issuance of permits.
314
F. Utilize the Land Acquisition Act
The extent to which the Land Acquisition Act has been utilized is not known.
However, the Act has the potential to serve conservation purposes. Under the Act,
“public use” may include a broad range of things except for uses “primarily to generate
profits or revenues.”
315
Presumably then, natural resource or wildlife conservation would
qualify as a “public use.” In this case, the RMI government could locate private lands
that are of ecological importance and exercise its authority to acquire title to the land or
an interest in the land for the purpose of conservation.
G. Establish “mo” reserves
Lastly, it might be possible for mo reserves to be established for conservation
purposes. At tradition, these areas were established by the Iroijlaplap so that heavily
utilized reef or land areas could be replenished or conserved. At a recent Summit on the
Socio-Economic aspects of Land Management,
316
it was recommended that the
traditional mo system be re-introduced as a reserve system to protect threatened
resources.
317
In this way, the traditional land system in the RMI would not be interfered
with. Although the World Database on Protected Areas lists two mo protected areas in
the RMI,
318
little was discovered about the administration of these areas.
314
35 M.I.R.C. Ch. 4, §§ 7(6), 7(7), 12, and 14.
315
9 M.I.R.C. Ch. 2, § 2(f).
316
The purpose of which was to provide input for a fifteen-year development strategy for the RMI.
317
RMI UNCCD Report at Section E.
318
World Database.
56
C
ONCLUSION
The likelihood of successfully introducing conservation easements into the RMI
legal system is unclear. Custom and tradition are such major components of land
ownership in the RMI that it might not be possible to accomplish the feat. However,
certain statutory provisions—allowing easements to be acquired for conservation
purposes and suggesting that the U.S. common law can be determinative—suggest that
the RMI courts could potentially recognize conservation easements, or at least would
embrace a somewhat similar concept. To clarify the matter, it is recommended that a
solid “test” case be brought before a RMI court. In the interim, however, it appears that
“conservation leaseholds” are a viable option in the RMI and this matter should be
explored further.
57
B
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58
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59
