AS Title 34, Chapter 17: Conservation and Public Recreational Use Easements

Article 1. Uniform Conservation Easement Act. Chapter 17. Conservation and Public Recreational Use Easements. Sec. 34.17.010. Creation, conveyance, acceptance, and duration. (a) Except as otherwise provided in AS 34.17.010 — 34.17.060, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements. (b) A right or duty in favor of or against a holder and a right in favor of a person having a third-party right of enforcement may not arise under a conservation easement before the conservation easement is accepted by the holder and the acceptance is recorded. (c) Except as provided in AS 34.17.020 (b), a conservation easement is unlimited in duration unless the instrument creating the conservation easement provides a limitation on duration. (d) An interest in real property in existence at the time a conservation easement is created is not impaired by the conservation easement unless the owner of the interest is a party to or consents to the conservation easement. (e) The state or a municipality may not establish a conservation easement on property by eminent domain. Sec. 34.17.020. Judicial actions. (a) An action affecting a conservation easement may be brought by (1) an owner of an interest in the real property burdened by the easement; (2) a holder of the easement; (3) a person having a third-party right of enforcement; or (4) a person authorized by other law. (b) AS 34.17.010 — 34.17.060 do not affect the power of a court to modify or terminate a conservation easement under the principles of law and equity. Sec. 34.17.030. Validity. 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. Sec. 34.17.040. Applicability. (a) AS 34.17.010 — 34.17.060 apply to an interest created on or after May 31, 1989 that complies with AS 34.17.010 — 34.17.060, whether designated as a conservation easement or as a covenant, equitable servitude, restriction, easement, or otherwise. (b) AS 34.17.010 — 34.17.060 apply to an interest created before May 31, 1989 if the interest would have been enforceable if it had been created after May 31, 1989 unless the retroactive application contravenes the constitution or laws of the state or the United States. (c) AS 34.17.010 — 34.17.060 do not invalidate an interest, whether designated as a conservation or preservation easement or as a covenant, equitable servitude, restriction, easement, or otherwise, that is enforceable under the law of the state. Sec. 34.17.050. Uniformity of application and construction. This chapter shall be applied and construed to effectuate its general purpose to make uniform the laws with respect to the subject of the chapter among states enacting it. Sec. 34.17.055. Tort immunity from personal injuries or death arising out of the use of land subject to a conservation easement. (a) In addition to the immunity provided by AS 09.65.200 , an owner of land, a portion of which is subject to a conservation easement that is 50 feet or less in width, that has been granted to and accepted by the state or a municipality, and that provides public access for recreational purposes on the land subject to the conservation easement is not liable in tort, except for an act or omission that constitutes gross negligence or reckless or intentional misconduct, for damages to a person who uses the easement to enter onto or remain on the land if (1) the person had no responsibility to compensate the owner for the person's use of the easement or the land; and (2) the damages arise out of the person's use of the easement for recreational purposes on the land. (b) The immunity under (a) of this section extends to the grantee of the conservation easement providing public access to the land for recreational purposes. Sec. 34.17.060. Definitions. In AS 34.17.010 — 34.17.060, (1) “conservation easement” means a nonpossessory interest of a holder in real property imposing limitations or affirmative obligations to retain or protect natural, scenic, or open space values of real property, ensure its availability for agricultural, forest, recreational, or open space use, protect natural resources, maintain or enhance air or water quality, or preserve the historical, architectural, archaeological, or cultural aspects of real property; (2) “holder” means (A) a governmental body empowered to hold an interest in real property under the laws of the state or the United States; or (B) a nonprofit corporation, charitable corporation, charitable association, or charitable trust exempted from taxation under 26 U.S.C. 501(c)(3) and empowered to retain or protect the natural, scenic, or open space values of real property, ensure the availability of real property for agricultural, forest, recreational, or open space use, protect natural resources, maintain or enhance air or water quality, or preserve the historical, architectural, archaeological, or cultural aspects of real property; (3) “third-party right of enforcement” means a right provided in a conservation easement to enforce any of its terms granted to a governmental body, nonprofit corporation, charitable corporation, charitable association, or charitable trust that is not a holder. Article 2. Public Recreational Use Easements. Sec. 34.17.100. Public recreational use easements. (a) A public recreational use easement may be created for the purposes of AS 09.65.202 by recording the grant of the easement in the recorder's office for the recording district where the land affected by the easement is located. The grant of the public recreational use easement must (1) be on a form provided by the Department of Natural Resources; (2) identify the land affected; (3) set out restrictions, conditions, or reservations affecting the easement, including terms addressing duration or termination of the easement, if any; and (4) state that the purpose of the easement is to make the land available for public recreational activity. (b) The easement granted under (a) of this section may be a conservation easement under AS 34.17.010 — 34.17.060 (Uniform Conservation Easement Act).