Q&A: LEAP Student Fellow Stuart Babcock ’24 on Establishing Wildlife Trusts

Stuart Babcock ’24 is a 3L student and a Student Fellow with the Law, Ethics, & Animals Program (LEAP) at Yale Law School. Babcock’s research examines the feasibility of establishing wildlife trusts in the United States using existing legal statutes.

LEAP Postgraduate Fellow Laurie Sellars spoke with Babcock about his ongoing research. Their conversation has been edited for concision and clarity.

What are wildlife trusts? How did you start thinking about trusts as an animal protection mechanism?

Simply put, a wildlife trust is a trust whose beneficiaries are wildlife. Before I go any further, let me define what exactly constitutes a trust. The person who initially owns some property and puts it in trust is the settlor. By the creation of a trust, a trustee is charged with managing the trust property for the benefit of some beneficiaries. A standard example is a child who is orphaned and is not yet of age: a trustee might be appointed to manage the parents’ estate for the benefit of the child, which could involve, for instance, saving and paying for college. A wildlife trust is like that, but the beneficiaries are wildlife.

There are a few attributes unique to wildlife trusts that distinguish them from traditional trusts. First, unlike traditional trusts, the trust property is not — or at least, the way that I talk about it is not — cash or liquid assets but is instead a swath of land and natural resources that is managed by the trustee for the benefit of wildlife beneficiaries. Second, also unlike traditional trusts, wildlife have neither the legal nor literal capacity to enforce the trustee’s charges. That means that any wildlife trust, in order to be something more than a mere promise from the trustee, needs a third party, known as an “enforcer,” who can ensure that the trustee manages the property for the benefit of wildlife beneficiaries by bringing a lawsuit if the trustee is doing a poor job. The existing pet trust, purpose trust, and conservation easement statutes that I examine all have third-party enforcement provisions, which make them suitable vehicles for implementation of wildlife trusts.

In terms of how I got interested in this topic: I took [Simeon E. Baldwin Professor of Law] Claire Priest’s property seminar at Yale in fall 2022 and we were required to write a paper. I spent some time looking into the literature on animals and property, which is vast, and ended up reading Wildlife as Property Owners: A New Conception of Animal Rights by Karen Bradshaw, a Professor of Law and Mary Sigler Fellow at Sandra Day O'Connor College of Law at Arizona State University. I’ve been running with the idea since. I took advanced property last fall, again with Professor Priest, where I continued to develop this paper. I should also note that Bradshaw refers to what I call “wildlife trusts” as “animal trusts.” I use “wildlife trusts” to distinguish this category of trusts from pet trusts, another kind of animal trust.

How might humans define which wildlife species are covered by trusts? 

Currently, the settlor of a trust decides who the trust benefits. You could imagine the class of beneficiaries being as narrow as “endangered species X that lives on property Y” or you could imagine the class of beneficiaries being as broad as “any animal that passes through this property.” Or let's say the trust property contains a river, there's a lake downstream, and there's a species that lives in that lake but isn't found in the river. In that case, a settlor might define the trustee’s duties as something like “managing the trust property for all wildlife who benefit from it, whether they live within the trust property or benefit from downstream effects of the ecosystem therein.”

In general, my own instinct is to make the class of beneficiaries as broad as possible, helping wildlife without regard to species and incorporating the interests of future generations of wildlife. But once you define the class of beneficiaries, there’s the question of how the settlor wants the trust property managed: do you want a hands-off, no pollution, no development approach, or do you want active engagement with the environment and an interventionist mindset? The settlor gets to decide the nature of the trustee’s duties too; they have a lot of power over the trusts they create. 

There’s also the issue of competing interests among wildlife species. Trust law imposes a number of duties on trustees to ensure that they manage the trust property appropriately for the beneficiaries. One of these duties is the duty of impartiality. For example, let’s say two parents die and leave an inheritance for their children who are not of age yet: that inheritance would be managed for their children by a trustee. In some ways, the children have a conflict because you could imagine each child would be better off with a larger share of the remaining inheritance. Depending on how the trust is set up, the trustee must be impartial between the conflicting interests of the children: that doesn't necessarily mean equality, but it means a consideration of all interests. The standard is — as I currently understand it — very closely tied to what the trust actually says, which is, again, determined by the settlor. 

The conflicts among wildlife are much, much more extreme than those between children battling over inheritance. There’s competition for scarce resources, life and death, survival of populations. On some level, it stretches the imagination to ask what it means to be impartial in those circumstances: prey have these interests, predators have these other competing interests, you have to adjudicate between the two, and someone’s going to die no matter what you choose. It’s brutal. The best that we can ask for, at least at this point given current legal doctrine, is to hope that settlors are really thinking seriously about the ethics at play and their own personal biases. They might think, “I like the cute animals more,” and they could set up the trust that way. And that would be a bummer. 

The conflicts among wildlife are much, much more extreme than those between children battling over inheritance. There’s competition for scarce resources, life and death, survival of populations. It’s brutal.”

—Stuart Babcock ’24

In what ways do you imagine settlors could identify trustees to manage the trusts?

Bradshaw envisioned an animal trust organization that would serve as a central enforcer. I think this is a reasonably good solution: have a nonprofit animal trust organization whose entire mission is to provide trustees information on how to discharge their duties and, when necessary, bring suit to enforce lackadaisical management. This nonprofit could acquire and distribute expertise about various ecosystems, species, and even fund new animal welfare research. A major advantage of this setup is that a powerful, competent central enforcer mitigates the importance of the trustee. You could imagine a world in which there are an array of wildlife trusts, some managed beautifully, some managed dreadfully, all because some have good trustees and others don’t. A central enforcer of this nature can hopefully reduce the variance of how well trust properties are managed and raise the floor of how well they’re managed. Unlike Bradshaw’s vision, under current law, this central enforcer would need to be a private nonprofit and not a government agency, which means that its designation as an enforcer would be subject to the whims of the settlor. Unless, of course, the central enforcer can serve as a resource to settlors, drafting model wildlife trusts and consulting with settlors to ensure that their wildlife trusts are good ones. That would be a dream.

Of course, absent such a central enforcer, a settlor could try to find trustees who are knowledgeable and good-hearted and wouldn’t try to exploit the resources to be managed. In that setup, you’re really relying on the character and expertise of the trustees, because there’s not much holding them accountable. But it's an interesting game theory problem. And to lay my cards on the able, I haven't thought that much yet about who would or should be named trustees and how to align their incentives with those of wildlife.

How might wildlife trusts be implemented, given current U.S. laws? Are there current efforts to set up these trusts in the U.S. or perhaps in other countries?

In the paper, I identify two types of statutes that could be used to implement wildlife trusts: trust statutes and conservation easement statutes. These are state-level statutes, and I’m interested in how much we could do without making any legislative changes. Pet trust, charitable trust, and purpose trust statutes are all set up well for wildlife trusts, though pet trusts, which might be the most obvious facial choice as the other type of animal trust, are often limited to domestic beneficiaries. Charitable and purpose trusts are merely trusts with charitable or non-charitable purposes, respectively. A conservation easement is a legal structure analogous to a trust that either limits the potential uses for a swath of land or otherwise decrees that the land have some pro-conservation purpose, like protecting wildlife. Conservation easements can have huge tax benefits, which makes them an enticing structure for wildlife trust implementation.

There are many organizations that hold land in trust, often with conservation purposes that benefit wildlife. The upshot of wildlife trusts in particular is that, by law, the land is managed for the wildlife in question. It’s animal-centric rather than environment-centric. This distinction can have some practical implications in edge cases, and I would also hope that wildlife trusts could elevate the perceived moral status of wild animals. Like human beings and like domestic pets, there’s ample reason to believe that wild animals have their own interests, wants, and desires. Their lives can be good or bad. Wildlife trusts are just one of many ways of making their moral importance legible to the law.