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Spotlight on the National Trust’s Legal Defense Fund 

03-01-2010 00:00

Ever confront a legal issue and not know where to turn? Then perhaps you are missing out. The National Trust’s Legal Defense Fund, headed by preservation law veteran Elizabeth Merritt, may be able to help. The Legal Defense Fund, or LDF for short, provides ongoing legal support and advocacy for all things preservation-related.

At the outset, it is important to clear up two common misunderstandings—first, that the Legal Defense Fund describes a dedicated “fund” available to finance litigation, and second, that the sole focus of the Legal Defense Fund is litigation in court. The “Legal Defense Fund” is simply the name used for the National Trust’s legal advocacy program, and does not actually describe a specific funding source. (The name was chosen to increase the visibility of the program by giving it a distinct programmatic identity, along the lines of the Environmental Defense Fund and similar advocacy organizations.)

As a general matter, funding to support the work of the LDF legal team is raised on an annual basis, through regular National Trust membership dues, general donations, foundation grants, and—importantly—individual gifts specifically designated for legal advocacy. In addition, the LDF relies on critical pro bono support from individual attorneys and law firms across the country.

As for the focus of the LDF’s work: While the National Trust’s attorneys are prepared to go to court when necessary, they view litigation strictly as a course of last resort. Rather, the National Trust prefers to work proactively with organizations and officials at the federal, state, or local level, so that preservation-based policies and programs are put in place, and decisions are made on individual projects that are more sensitive to preservation concerns. By encouraging better government decision-making through the administrative and legislative process, historic properties are more likely to be protected, thereby preempting the need for costly litigation, which nonprofit organizations and individuals can rarely afford.

Daily Work of the LDF

So what exactly is the Legal Defense Fund and what does it do? As noted above, the Legal Defense Fund is the legal advocacy arm of the National Trust. While the National Trust has been engaged in legal advocacy almost since its inception, the LDF has been an organized program of the National Trust’s Law Department for almost 20 years.

Although small in size, the Legal Defense Fund packs a powerful punch. A typical day’s work may entail writing a letter to a city council member on proposed legislation, providing background legal research on a pressing issue, negotiating a memorandum of agreement under Section 106 of the National Historic Preservation Act, commenting on agency environmental impact documents, consulting with preservation organizations on legal strategy, or responding to calls for help from individuals and organizations all over the country.

Examples of recent notable accomplishments include:

  • The negotiation of a Programmatic Agreement signed by the Bureau of Land Management, Advisory Council on Historic Preservation, Bill Barrett Corporation, and other consulting parties, which will reduce the negative impacts of a massive oil and gas development. Original development plans would have sent hundreds of dust-churning semi-trucks streaming through Nine Mile Canyon, which includes more than 10,000 images carved and painted onto canyon walls by Native Americans, on a daily basis. 
  • A favorable decision by the U.S. Court of Appeals for the Tenth Circuit upholding the Bureau of Land Management’s closure of several vehicle routes in Utah’s Grand Staircase-Escalante National Monument. This will help protect the objects of historic and scientific interest there, including hundreds of prehistoric sites from the Anasazi and Fremont cultures.
  • The negotiation of the preservation of the Vesey Street Staircase, the only surviving above-ground remnant of the original World Trade Center complex.

The LDF’s newsletter, which spotlights major advocacy and litigation matters, is published tri-annually and posted on the National Trust’s Legal Department’s web page:

Litigation Intervention Policy

Even though the Legal Defense Fund’s preference is to avoid litigation altogether, the National Trust is prepared to go to court to protect historic resources. Since 1970 the National Trust has formally participated in more than 200 court cases involving preservation-related issues. Many of these cases resulted in rulings upholding the constitutionality of local preservation laws, and set important precedent on the interpretation of state and federal preservation laws and programs, such as the National Historic Preservation Act and the National Register of Historic Places.

The National Trust carefully weighs each decision on whether to get involved in a case. It has adopted a formal litigation policy—which serves as a guide for evaluating whether to participate in a lawsuit—and every decision must be approved by the National Trust’s president.

First and foremost, a proposed lawsuit must further at least one of the following goals:

1. Securing the validity and effectiveness of federal, state, and/or local laws that protect historic resources, and advocating strong judicial and regulatory interpretations of those laws.

2. Supporting the validity and effectiveness of private legal tools used for preservation, such as conservation easements.

3. Protecting nationally significant historic properties.

4. Challenging government decisions and policies that threaten historic properties, and supporting government decisions and policies that protect and preserve historic properties.

Second, the case should involve at least one issue identified by the National Trust as a litigation priority. Examples include:

  • defending and enforcing federal and state preservation laws,
  • upholding or defending against challenges to preservation ordinances that could affect such ordinances nationwide (such as takings or free exercise claims),
  • opposing funding discrimination against religious properties,
  • upholding the validity and effectiveness of private legal tools used for preservation, such as conservation easements, and 
  • addressing important procedural issues, such as standing, which sometimes serve as obstacles to enforcing preservation laws.

Finally, there should be a likelihood of success on the merits and the National Trust’s participation should be likely to influence favorably the outcome of the dispute or influence a long-range aspect of the issues in the case.

The full National Trust Litigation Policy is available at

Level of Involvement in Court Cases

Most often, the National Trust participates in a lawsuit as amicus curiae (friend of the court). This approach enables the LDF to strategically target a narrow yet important set of legal issues in a larger, more complex case. For example, the National Trust recently filed an amicus brief before the Washington Court of Appeals in a lawsuit involving a broad-based attack on Seattle’s historic preservation ordinance. The National Trust’s brief—which focused on the specific claim that the ordinance’s criteria for reviewing and acting upon applications for certificates of appropriateness were unconstitutionally vague—proved instrumental in the court’s ultimate decision to dismiss the lawsuit.

Although less common, the National Trust will occasionally participate as a plaintiff or co-plaintiff in a lawsuit, or intervene as a party, when it has a heightened interest in the case, such as when the legal issues have or could have significant national implications or the case involves a major site-specific controversy in which the Trust has been involved in the administrative process. For example, in 2009 the National Trust filed a lawsuit against the Orange County, Va., Board of Supervisors challenging the Board’s approval of Wal-Mart’s application for a special use permit to construct a new Wal-Mart superstore on the Wilderness Battlefield and immediately adjacent to the Fredericksburg & Spotsylvania National Military Park.

In all matters, the National Trust seeks to work with pro bono counsel. Without this generous assistance the LDF’s effectiveness would be substantially diminished, because any single case could easily require legal fees far in excess of the program’s annual budget.

Alternative Dispute Resolution and Other Legal Support

Litigation is not always the best course of action. The LDF has participated actively in a number of successful Alternative Dispute Resolution initiatives, both in the context of consultation under Section 106 of the National Historic Preservation Act and in other contexts. These include a wide range of issues, such as:

  • the construction of the new Washington, D.C., Convention Center, which could have resulted in the needless demolition of nearby historic structures and alterations to the L’Enfant Plan; 
  • the proposed demolition of the 1920 Tenth Street Bridge in Great Falls, Mt., the longest and oldest concrete arch bridge in the upper Great Plains; 
  • the widening of Paris Pike in Kentucky, which would have destroyed its historic stone walls and canopies of mature trees;
  • the relocation of the San Diego Padres ballpark to an area near the Gaslamp Quarter Historic District, which would have resulted in the demolition of multiple historic buildings;
  • the proposed demolition of the 1966 Century Plaza Hotel in Los Angeles.

Moreover, in cases in which the National Trust decides not to formally participate in a lawsuit, the LDF often helps in other ways. For example, the National Trust’s lawyers may be able to assist local preservation groups in finding pro bono counsel. The National Trust routinely consults with city attorneys and other counsel on legal issues and provides ongoing legal and strategic advice along with pleadings, briefs, and legal research that may prove helpful. In some cases, National Trust lawyers have prepared affidavits or testified as expert witnesses, and/or prepared comment letters for the parties to include in the record or as an exhibit to a brief.

Educational Resources

The Legal Defense Fund further leverages its capacity by providing background information on a host of preservation law–related issues on its web page. Its staff members hold legal workshops from time to time, and frequently serve on the faculty of continuing legal education seminars. Detailed information on federal, state, local, and preservation law issues and easements is published on the National Trust’s website at

Contact Information

The Legal Defense Fund may be reached directly by calling 202-588-6035 or by sending an e-mail to . However, individuals or organizations with specific preservation challenges are first urged to contact the National Trust’s regional office serving their state. The LDF staff works closely with regional office staff to identify the best way to respond to individual controversies—and often other measures should be considered before exploring the possibility of a legal response.

For further information, visit

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Author(s):Julia Miller