PERPETUATING PERPETUITY

Abstract

TET is the only known example of a land trust that has become bankrupt in the United States. Its failure raises a series of critical questions about the management and mechanics of conservation easements. The organization's failure brings the potential difficulty of protecting land in perpetuity by means of a conservation easement sharply into focus. The issue of maintaining perpetual conservation easements raises numerous unanswered questions. For example, the bankruptcy court's suggested chain of succession for the easements and lands that TET held is logical, but one wonders if this is the most effective way to guarantee that those assets will be protected in perpetuity. Are there other tools or legal mechanisms available to land trusts to avoid a fate similar to TET's? Is perpetuity a realistic legal timeline for any conservation easement? What can a land trust do to help ensure its own longevity and fulfill its duty to manage a conservation easement for perpetuity? Do local or state governments have a duty to play a more prominent role in the selection and administration of conservation easements? These are questions lawyers and government officials must begin to confront and examine if conservation easements are to continue as the most popular method of private land conservation for years to come. Put more succinctly by Mike Kelly of the San Diego Conservation Resources Network, "[w]e have two problems-what to do with these particular parcels of land and . . . how to prevent similar (failure) in the future." This Note seeks to begin that conversation by exploring these questions.