MIDKIFF: For two CoMo conservationists, no good deeds go unpunished

Lawyers leave behind a big mess

By Ken Midkiff

COLUMBIA, Mo 5/18/15 (Op Ed) --  Columbia residents Jim and Joanna Whitley willed almost half million dollars and a 102-acre estate to the college that started Jim's academic career, North Central Missouri College or NCMC.

The land, northeast of the Pinnacles, came with a catch: a deed restriction or conservation easement that would forever preserve it.  It is in mostly pristine condition.  The only thing that isn't natural is a shallow pond where Jim raised aquatic plants and a small patch dedicated to daffodils.

Unhappy with the restrictions, which allow only low-impact activities, NCMC's leaders decided to sell the land.  But first, they needed to maximize its development potential. 

NCMC President Neil Nuttall (presumably) hired Columbia attorney H.A. "Skip" Walther to create a different easement with fewer land use restrictions.   I say "presumably" because, like many aspects of this situation, how Walther was hired or who hired him is unclear.   I do have a document showing NCMC -- a public institution -- had paid him almost $15,000 as of March 8. 

The legal moves have sparked a months-long battle between conservation advocates, the Whitley's many Columbia friends, the college, and the lawyers. 

To preserve and protect

An ardent conservationist and Missouri Department of Conservation official, Jim was a world-renowned fish expert and clean water advocate. Equally concerned about the natural world, Joanna -- known to her friends as "Joanne" -- was a Greenbelt Land Trust director.  Both were lifetime Sierra Club members. 

The Whitleys named close friend Pam Haverland -- a high-ranking US Geological Survey employee working out of Washington, D.C. -- executor of Joanna's will. 

To honor Jim's wishes, Ms. Haverland had the Greenbelt Land Trust (GLT) create the conservation easement according to national standards.   She also signed and notarized a blank piece of paper, with instructions to her attorney -- Jean Goldstein -- not to affix the pages to the deed transfer or the conservation easement without her knowledge and consent. 

Walther, meanwhile, filed a lawsuit to remove Haverland as executor, otherwise known as "successor trustee", accusing her of disregarding the Whitley's wishes and reducing the value of the land.  With no authority from either the Whitley estate or the GLT,  Walther -- on the public's dime -- then created his own easement, attached Haverland's signature document, and filed it with the Boone County Recorder of Deeds, along with paperwork transferring the 102 acre site to NCMC. 

Skip's easement has a twist:  it can be terminated if land management becomes "impractical", or in simpler terms, "too much of a hassle."  It's also completely unenforceable as a means to preserve the land:   It doesn't meet any of the standards for a conservation easement.  

Skip dropped the lawsuit against Haverland about a month later, apparently considering the matter closed.  But it was just getting started.

Skip's scheme

Made aware of Skip's scheme, Haverland told her attorney his easement was invalid, and that title should not be transferred to NCMC until a valid conservation easement was finalized. 

On advice from conservation attorney Magill Weber, interpreting standards from the Land Trust Alliance (LTA) -- a national organization that helps people protect land with conservation easements -- GLT president Gene Gardner also rejected Walther's easement. 

It is "meaningless," Gardner says, and GLT will neither accept nor enforce it. 

Haverland filed an affidavit with the Boone County Recorder of Deeds that she never authorized her signature on the documents Skip filed.  But Goldstein had granted Walther permission to affix Haverland's signature to the new easement and deed transfer, he said in his defense. 

How could that be?   Goldstein knew Pam Haverland objected to Skip's version.   But we don't know what she did or why exactly because Goldstein won't respond to requests for comment.

Narrow turnings

"The one great principle of the English law is, to make business for itself," Dickens observed. "There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings." 

Think of all the "narrow turnings" that have landed the Whitley estate in the state of limbo it now occupies.  Haverland says her signature is not legally affixed to any of the documents transferring Jim and Joanna's land to the NCMC.  Walther's easement does not meet conservation standards, and is therefore unenforceable.  The land's title is now clouded -- no title company I checked with would insure it -- ironically reducing its value and resale potential -- the very qualities NCMC sought to enhance. 

And as the owner of these questionable acres, NCMC has sullied its reputation.

It's a big mess, exactly what Jim and Joanne wanted to avoid. 

If there's a silver lining in all these narrow turnings, it may be the lesson they hold for future preservationists:  Hire an attorney with the right expertise to draft a valid conservation easement before you die.  Don't leave a decision this important to chance, 'til tomorrow -- or to the legal system.

Remember that other great principle of English law:   An attorney today keeps the lawyer away.