Trust principles as a tool for grazing reform: learning from four state cases.

• Author: Fairfax, Sally K.

1. INTRODUCTION

   This Article discusses four complex cases that challenge state trust land grazing programs. (1) For most of our nation's history, state trust lands have languished in an obscurity that perhaps ought to have suggested to us that examining four complex cases, or even four simple ones, might not be of enormous public interest or social utility. We persist not merely because we have already gone to great effort to understand the disputes, but because trust lands currently experience far more than their allotted fifteen minutes of fame. They provide not simply an alternative theory or idea about public resource management, but rather a deep and diverse body of land management experience that differs significantly from the law and practice of federal land management.

   This is important at present because management practices at the federal level appear to be falling apart. Unable to agree on goals for the federal agencies, Congress has hamstrung the United States Forest Service (USFS), (2) the Bureau of Land Management (BLM), (3) and, to a lesser degree, the United States Fish and Wildlife Service (FWS) with an apparently endless planning process that permits advocates of every stripe and persuasion to talk and litigate almost without surcease. The plans that are the cynosure of so much public and agency effort are almost without effect on the ground. For example, whatever the forest plan says must be tied in a completely different process to a budget, and reanalyzed in a separate and equally contentious process of planning specific activities. (4)

   Little wonder that a consensus has emerged among most scholars of public land management, and among both practitioners and the general public as well, that federal multiple-use land management has eroded beyond repair. One expert has argued, for example, that the progressive era consensus (5) that sustained federal land for most of the twentieth century has disappeared. (6) Although speculation that the Forest Service would be reorganized out of existence before its centennial (2005) seems to have subsided, (7) observations that the agency is demoralized and directionless have not.

   Citizen activists, watershed alliances, consensus groups, and affected communities struggled throughout the 1990s to provide alternative leadership and a new way of thinking about federal lands and their management. Scholars and activists have sought new "paradigms" for public resource management through everything from market-like incentives (8) to Green Christianity. (9) The current Bush Administration is pushing experiments on "charter forests" that will provide, according to Agriculture Undersecretary Mark Rey, case studies on one or two national forests to see "if the government can remove 'procedural bottlenecks' that occur in day-today management and emphasize local involvement in decision making." (10)

   Trusts figure prominently in that discussion as an alternative Approach. (11) In this environment, trust principles are enjoying a moment in the sun as a reasonable organizational template somewhere between the inefficiencies of government bureaucracy and the rapaciousness of global capitalism. Trusts are being analyzed and advocated (12) as an institutional approach to solve all sorts of conservation dilemmas. (13)

   According to the authors of State Trust Lands, a principle virtue of the trust, as compared to the familiar federal multiple-use doctrine, (14) is that the trust is enforceable. (15) A clear mandate to provide benefit to a specified beneficiary is supported by centuries of statutory and common law of the trust. The trustee, in acting with undivided loyalty to the beneficiary, must disclose all trust dealings fully to the beneficiary, and an aggrieved beneficiary may seek judicial enforcement of the trustor's goals and the court's standards of prudent management. (16) In a burst of enthusiasm that may henceforth be viewed as excessive, the two indefatigable trust mavens asserted, more or less, that the state lands managed under the trust mandate were a fairly good model of an institution designed to achieve sustainable resource management. (17)

   Several major trust land cases in the 1980s and 1990s built on the U.S. Supreme Court decision in the classic case of Lassen v. Arizona ex rel. Arizona Highway Department (18) and perhaps justified the optimism. In Lassen, the Court overturned the Arizona Supreme Court's holding that the Arizona Land Commissioner cannot require compensation to the trust for material sites and rights of way on trust lands. (19) The Court unanimously concluded that the New Mexico-Arizona Enabling Act established a real trust and that Arizona must compensate the trust for the full value of resources acquired. (20)

   That decision gradually began to reshape programs where a state's enabling act did not create the trust expressly. For example, in 1982 the Oklahoma Education Association successfully challenged the pro-lessee regulations of the State Land Board (SLB). (21) Under the regulations, rents were low, existing lessees had a virtually absolute right to renew their leases, and the state even lent money from its permanent fund to farmers and ranchers at subsidized rates. (22) The SLB promptly rewrote the offending regulations. (23) In 1984, the Washington Supreme Court declared that a statute allowing timber purchasers to opt out of contracts without penalty violated that state's trust. (24) Finally, in 1989, the U.S. Supreme Court again found the Arizona trust land programs in violation of the trust, this time with respect to the statutory method for pricing leases on trust mineral lands. (25)

   Subsequently, a series of disputes regarding grazing leases put state trust lands in the national press (26) for perhaps the first time in history. In at least four jurisdictions--Arizona, Idaho, New Mexico, and Oregon--environmental groups have attempted to bid against ranchers in hopes of leasing state lands traditionally used for grazing. The difficulties the environmental groups have encountered have led to diverse litigation and legislation, and a rather mixed set of outcomes, for the applicants and for trust principles. If we are to embrace trusts as an organizational option, we should explore these cases and the issues they raise for trust enforcement.

   1. Goals of this Article

      The four trust lands grazing debates are significant for three reasons. First, the cases underscore the easily overlooked fact that not all trusts are the same. Even the rather confined category of state trust lands is diverse. They have much in common, most notably their peculiar mandate, and it is legitimate to speak of them as a group. However, it is unwise to generalize across state lines without careful grounding in the frequently slight but important differences in enabling acts, constitutions, and other crucial trust documents, statutory law, and agency culture. The four grazing case stories unfold in very different ways because of important distinctions in some or all of those key variables. This ought to remind us to examine carefully generalizations about trusts and how readily and effectively they might be deployed as a key to reform in a given troublesome circumstance.

      A second reason for looking at these cases is the specific examination of grazing policy. The disputes reviewed are deviant cases; they differ strikingly from the growing body of case law that, as noted above, has dominated discussion of state trust lands since the late 1950s. In diverse jurisdictions, and regarding diverse resources, (27) state and federal courts alike have insisted fairly emphatically on the fundamental principle of undivided loyalty to the beneficiary. What happens to these well-known and generally honored precedents when grazing issues arise? The trust appears to fall down on the job--in whole or in interesting part--as a mechanism stating a clear purpose and assuring that bureaucrats adhere to it. (28) This article addresses whether that is really true--and if so, why?

      Third, these cases counsel caution in planning litigation strategy. Lawyers have been told repeatedly that the trust is a wonderful platform from which to sue. That line of reasoning suggests that trusts are so well defined, and enforcement such a cookie-cutter operation of placing well-known principles onto sloppy fact situations, that it is easy for environmental plaintiffs to prevail without mounting expensive cases at the trial level. (29) The cases herein tell a very different story: Enforcement is not nearly that simple. (30) A greater understanding of the complexities may enable a more practical assessment of the trust as a tool of reform.

      This Article will proceed in four parts. The remaining introduction provides background on the trust lands, their history, management and funding arrangements, and relations to the beneficiaries. Part II discusses the Arizona, Idaho, Oregon, and New Mexico cases. Although they vary considerably in length and complexity, each discussion follows roughly the same format, beginning with a brief history of trust lands and grazing management in each state. After a chronology of events, claims and counterclaims, and key issues, the final element of each discussion answers "where are we now?" Trust enforcement appears complex in the context of these cases because the cases do not end. They morph from one framing of the issue to another, and reemerge in first one and then another political arena. Rather than wait for all four to roll to a stop at one tidy analytical crescendo, we just point to where the questions appear to be headed.

      Part III discusses patterns observed in the four cases: the issues introduced by the scattered location of the originally granted parcels; bidder qualifications and sale terms and conditions; the applicability of state administrative law to trust decision malting; and, underlying everything, the confounding issue of who has...