oag8-10

¶ 18. First and foremost, county forest lands are county lands. Wis. Stat. § 28.11(2). As discussed previously counties may acquire lands whether encumbered or not. The issue remains whether they may be acquired for county forest purposes.

¶ 19. Within the county forest law, Wis. Stat. § 28.10 provides specific authority to counties to acquire lands for county forest purposes. The authority of the county board under Wis. Stat. § 28.10, to "establish a county public forest and acquire land by tax deed or otherwise for that purpose" is broad and unqualified. The acquisition of land "by tax deed or otherwise" is not limited to acquisitions of unencumbered land. Wisconsin Stat. § 28.11(3)(c) empowers the county board to "[a]ppropriate funds for the purchase, development, protection and maintenance of such forests and to exchange other county-owned lands for the purpose of consolidating and blocking county forest holdings." Wisconsin Stat. § 28.11(3)(e) authorizes the county board to "[e]stablish aesthetic management zones along roads and waters . . . ." Acquisition and protection of lands in the county forest for these purposes may be served by lands impressed with conservation easements. In addition, Wis. Stat. § 28.11(5)(a) requires counties under the program to prepare a comprehensive county forest land use plan that "shall include . . . land acquisition . . . ." Again, this section does not limit land acquisition to unencumbered land. Moreover, this section also requires the plan to include "land use designations, . . . forest protection, annual allowable timber harvests, recreational developments, fish and wildlife management activities, roads, silvicultural operations . . . ." These land uses can be served by and consistent with conservation easements.

¶ 20. Additionally, Wis. Stat. § 28.11(4)(c) contemplates the existence in county forests of lands having uses that may be served and are fully compatible with conservation easements that run with them. That section provides for "'county special-use lands'" within the county forest that "are not suited primarily for timber production . . . but . . . are suitable for scenic, outdoor recreation, public hunting and fishing, water conservation and other multiple-use purposes." These are consistent with the purpose of the county forest law "to enable and encourage the planned development and management of the county forests for optimum production of forest products together with recreational opportunities, wildlife, watershed protection and stabilization of stream flow, giving full recognition to the concept of multiple-use to assure maximum public benefits; to protect the public rights, interests and investments in such lands . . . ." Wis. Stat. § 28.11(1).

¶ 21. An interpretation of these provisions as including an unwritten restriction on the use of conservation easements in county forests would stifle the broad authority provided for land acquisitions and uses for county forest purposes. Limiting acquisitions and land agreements to unencumbered lands could significantly frustrate the public purposes to be served and public benefits to be derived from county forests including "for the purpose of consolidating and blocking county forest holdings." Wis. Stat. § 28.11(3)(c), (4)(b).

¶ 22. For the above reasons, I believe the legislature provided counties with the authority to acquire and grant conservation easements that run with the land in county forests because that authority is "necessarily implied from the powers expressly given or from the nature of the grant of power." County of Milwaukee v. Williams, 301 Wis. 2d 134, ¶ 24 (internal quotation marks and citation omitted). Because the broad authority of acquisition and management of county forests is not limited by the law, the counties' ability to fully carry out the purposes of the county forest law would be unduly constricted by an unexpressed, unqualified and unnecessary prohibition on the use of conservation easements, and such a prohibition could readily prevent consolidation and blocking of county forest holdings. I believe the authority to use conservation easements is necessary to carry out the purpose of the statute, is necessary to fully exercise the powers expressly granted, and is necessary to perform the express duties provided in the county forest law. State ex rel. Treat v. Puckett, 252 Wis. 2d 404, ¶ 10. Thus, counties have the authority to enter into conservation easements as part of their county forest acquisition and management authorities and duties.

¶ 23. I am mindful of the fact that it may be argued that the "Powers of county board" with respect to establishment and management of county forests are enumerated in Wis. Stat. § 28.11(3), and no express authority for conservation easements is provided within them or within the rest of Wis. Stat. ch. 28. Wisconsin Stat. § 28.11(3) provides, "The county board of any such county may" establish regulations governing public use of the county forest and enter into various agreements, including for projects or actions that ordinarily would not be consistent with the purposes of the county forests stated in Wis. Stat. § 28.11(1). For example, see Wis. Stat. § 28.11(3)(i) and (j) (leases for ore, mineral, gas or oil exploration and extraction). Thus, it may be argued that because it is not enumerated, the authority to provide for conservation easements in county forests is not provided. I would reject that argument for the following reasons.

¶ 24. The use of the term "may" in Wis. Stat. § 28.11(3) is ambiguous. The word "may" connotes that there are other powers the board may exercise to fulfill the purposes of the county forest law. Or, the term "may" can simply connote that the enumerated power is available but not mandated by the statutory provision. It might also connote that the enumerated list of authorities is exclusive. Accordingly, the term "may" is ambiguous as to whether it provides the exclusive powers enumerated. See Eau Claire Cty. v. Teamsters Union No. 662, 228 Wis. 2d 640, 645-646, 599 N.W.2d 423 (Ct. App. 1999), citing In re J.A.L., 162 Wis. 2d 940, 962, 471 N.W.2d 493 (1991). Within the context of the above provisions of Wis. Stat. §§ 28.10 and 28.11, I am convinced that the enumerated powers in sub. (3) are not exclusive. For example, although the enumeration of powers under sub. (3) does not grant the board authority to approve county forest plans, that authority and duty is included in sub. (5). Although sub. (3) does not grant the board power to acquire lands for county forests, it is granted in Wis. Stat. § 28.10, and within the board's plan approval authority in sub. (5). Although sub. (3) does not grant the board power to apply for withdrawal of county forest lands, sub. (11) does. Clearly, the enumerated powers of the county board in Wis. Stat. § 28.11(3) with respect to county forests are not exclusive. Moreover, there are no provisions in Wis. Stat. § 28.11 that expressly or implicitly exclude the use conservation easements as a tool for fulfilling county forest purposes.

¶ 25. Although I find that conservation easements may be used as a tool to carry out county forest purposes, the authority to grant (sell) or acquire lands impressed with conservation easements for and in county forests is not without limits. Under Wis. Stat. § 28.10, encumbered lands must be acquired "for that purpose" only – that is, for establishing a public forest consistent with the county forest law. The grant of an easement on land in a county forest or the acquisition of lands impressed with conservation easements must not conflict with and be consistent with the purposes of the county forest law and with the county forest plan developed and approved by the county board and the department for the forest. I do not believe it is sufficient for an easement to be shown to "not interfere with the overall purpose of the county forest system" as your question is asked. An easement must be consistent with and not interfere or conflict with county forest law provisions of Wis. Stat. § 28.11, including with the county forest management plan developed and approved under Wis. Stat. § 28.11(5).

¶ 26. Lastly, counties that enter into conservation easement agreements, and the department that approves their use as part of the county forest plan approval process, should do so with open eyes. Easements and restrictive covenants appended to deeds often run with the land, are permanent, and may become unalterable. They may limit in perpetuity the uses to which land may be put, as they are intended to do. Even though an easement may be consistent with county forest purposes and its management plan, it may limit a county's options in the future to alter forest management plans for particular units or parcels, such as for mining leases. Because the powers enumerated in Wis. Stat. § 28.11(3) are completely within the discretion of the county board to exercise, the board has the discretion to permanently forego or limit the future exercise of particular powers in that section with respect to particular lands by entering into conservation easements that are otherwise consistent with the law and approved forest management plans. Agreements that violate statutorily created duties are voidable. I do not see such easements affecting the authority of the county board to seek, or for DNR to approve, county forest withdrawals under Wis. Stat. § 28.11(11). If withdrawals are granted, the easements would remain in force and unaffected. On the other hand, the duties imposed under Wis. Stat. § 28.11 for compliance with the provisions of the law may not be waived by the board by entry into an easement agreement.

¶ 27. For the foregoing reasons, I believe conservation easements and restrictive covenants are permissible in county forests as long as they are consistent with and do not interfere with the purposes of county forests and the management plans properly developed for them under the county forest law.

            Sincerely,

            J.B. VAN HOLLEN

            Attorney General

JBVH:TJD:drm