CONSERVATION TRUSTS by Sally K. Fairfax and Darla Guenzler. Lawrence:University Press of Kansas, 2001. 255 pp. Cloth $40.00. ISBN: 0-7006-1078-2.Paper $19.95. ISBN: 0-706-1079-0.

Reviewed by Lettie McSpadden, Department of Political Science, Northern Illinois University.

As government becomes "hollowed out," devolved, dispersed and reduced to what level we have yet to discover, other institutions are taking over some of its former responsibilities. One such legal institution is the conservation trust. It is expanding to take up the conservation of valuable landscapes left unprotected in the era of "reinvented government" and the devolution of authority to the economic marketplace-an institution to which the present administration seems willing to cede most policy making power. The most well known example is the Nature Conservancy. It is known for its moderate stand toward conservation issues and its devotion to private means of achieving the public purpose of maintaining valuable ecosystems.

Sally Fairfax and Darla Guenzler have written a very timely book that describes some of the new conservation trusts that have grown up in various parts of the United States. The trusts attempt to prevent every acre of land, regardless of its ecological value, from being developed to its "highest and best use," which is defined as whatever makes its owners the most money--strip malls, oil wells, or condominiums. The authors begin with a careful definition of the legal concept of the trust wherein a trustor turns over to trustees an asset to be managed for the benefit of specified parties. This is an ancient concept of common law that was used extensively in America's frontier days when the national government was considered trustee of the public domain. After the distribution of the most valuable of these lands--partly to the new states to support their burgeoning new educational institutions, partly to the railroads and other economic interests with influence in Washington, and partly to new settlers--it is debatable whether the U. S. Government was true to its "trust" to benefit the entire population. However that is ancient history, and Fairfax and Guenzler are out to discover whether the newer versions of trusteeship are working as intended.

The authors divide the concept of trust into three categories: inter- governmental, mixed governmental and private, and entirely private. They have studied nine cases and describe the process and, in some cases, the degree of success of each. Many of the mixed category of trusts began as the result of litigation in which environmental groups sued to prevent governmental regulators from allowing the development of a resource in what the group believed was a wasteful manner. Included in this category are the Platte River Whooping Crane Maintenance Trust (PRT), the North Dakota Wetlands Trust, and the Great Lakes Fishery Trust (GLFT).

The Platte River Trust was created in the 1970s after the National Wildlife

Page 270 begins here

Federation (NWF) sued to stop the Missouri Basin Power Project (MBPP) from effectively eliminating the endangered Whooping Crane's habitat. Rather than eliminate the Endangered Species Act, as Congress was poised to do unless the project could be accommodated, environmentalists, the state of Nebraska, and the utilities lobbying for the dams reached a settlement. They established a $7.2 million trust fund to be administered by the State of Nebraska and private organizations to protect some of the central flyway in an eighty-mile stretch of the Platte. The professional staff now manages about 10,000 acres for the cranes' benefit. The utility's trustee and that of the governor, responding to public demand for development, have prevented the trust from bold actions. However, it has managed to survive and obtain the use of some of the Platte River's water for the benefit of the cranes.

The North Dakota trust, born out of environmental groups' suits against the Garrison Diversion in the 1980s, has encountered an even more hostile political climate. The governor's trustees have prevented the trust from doing more than using the mitigation funds to pay farmers to adopt some conservation methods on their land. The Great Lakes Fishery Trust is well funded by utilities to pay for the destruction of alewives pulled into their turbines. Trustees representing the Fish and Wildlife Service, Michigan's Department of Natural Resources, and the National Wildlife Federation use most of their funds for scientific research to provide more fish for commercial and sports fishermen.

Examples of all-governmental trusts are the Dade County Wetlands Trust, the Exxon Valdez Oil Spill Trustee Council, and the Hawaiian Homelands Trust. Despite the Clean Water Act's proscription against loss of wetlands, the first allowed Dade County to develop 8,300 acres of wetlands through agreement of the Department of Interior's National Park Service and Fish and Wildlife Service, the U. S. Army Corps of Engineers, the Environmental Protection Agency, and the state's and county's departments of environmental management. Developers, who reaped a profit from the development, paid into a trust fund to restore a 9,880-acre site within the Everglades National Park that had formerly been farmed. By restoring this publicly owned land to wetlands status, the trust mitigated the newly filled privately owned wetlands.

Both the Exxon Oil Spill and Hawaiian Lands Trust cases were based on restitution for injuries. The fine the court imposed on the oil company was used to buy Native American lands given them by the 1971 Alaskan Native Claims Act. The trustees represent the U.S. Fish and Wildlife Service, National Park Service, National Marine Fishery Service and Alaska's departments of environment and agriculture. Together they manage the trust funds and the lands so purchased as wildlife refuges. The Hawaiian Island Trust attempts to restore to the native Hawaiian owners and/or their descendants some of the land confiscated by the U. S. Government when it occupied Hawaii.

All-private trusts are the Phillips Memorial Preserve in Maine, the Society for the Protection of New Hampshire Forests, and the NAPA County Land Trust. Landowners who sought to protect their holdings from future development started all of these. They typically buy fee simple and conservation easements and select family members and friends to manage the lands. The major tensions in such arrangements include potential disagreements among

Page 271 begins here

future family members who may wish to develop their lands.

These trusts have had varying degrees of success. As the authors stated in their first chapter, they are neither advocating nor denigrating conservation trusts. They have established five goals or requirements for trusts: (1.) clarity of purpose, (2.) accountability to someone, (3.) perpetuity, or remaining true to the trust's original purpose, (4.) enforceability, and (5.) prudence. The nine examples rank variously on these five dimensions. One helpful addition to improve the book's clarity would be a table that ranks the nine cases along the five dimensions. The authors have provided an equally valuable service by providing a glossary of the various abbreviations used in the book.

However, as the authors point out, it is difficult to devise good measures for the success of many of these trusts. The beneficiaries are often the general public or wildlife that are incapable of suing to enforce the terms of their trust. Accountability to the political system is often at odds with the perpetuity of the trust and the trustors' original goals. The ability to change the trust with the times and adapt to new circumstances certainly conflicts with the concept of perpetuity. The authors have given us a number of theories about what makes an effective conservation trust and which are doomed from the start. Now it is up to the rest of us to devise ways of measuring these concepts and comparing large enough numbers of these institutions in order to add credibility to these theories.