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Natural Resources Law
South Texas College of Law Houston
Ortiz, Francesca

Natural Resources vs. Envt’l Law

• Natural Resources – ownership and use of public resources. Most are in the west.

– How do you use them?

– Plaid shirts and jeans

• Environmental Law – managing the secondary effects of using resources (i.e., pollution)

– Or making something

– Suits

Course Coverage

• Public Lands

– Acquisition, Disposition, States Rights

• Overarching Issues – 2 statutes

– NEPA, Endangered Species Act

• Mining Resources

• Timber Resources

• Range Resources (i.e., grazing)

• Recreation

• Preservation

Regulation – reasons why we regulate

• Tragedy of the Commons

– The basic idea that when you have resources held in common by a population, there is a tendency for overuse of the resources. In order to get the biggest share, you must use it quickly before you neighbor can do it. Even if you don’t want to you are afraid your neighbor will.

• Tree example

• Anti – it presupposes greed

• Ranchers can’t use over grazed land for example. But it still happens

• Management:

– Preservation – keeping what is there in its present form, like a natural forest

– Conservation – conserving the resource for future use. This is a commodity; we don’t want you to use it all at once.

• Regulate Timber

– Cultural/Historical Reasons

– Stewardship – obligation to the mutual resource

– Economic – control what’s going on with people who have a major/private interest in it

• Grazers or timber lease

Definitions

• Public Lands – all lands owned by the U.S.

• Public Domain – land acquired by the U.S. from other sovereigns and Indian tribes and still federally owned

• Acquired Lands – land acquired or re-acquired from private or state owners

History of Public Land Law

• Age of Acquisition – 1776 to 1867

• Age of Disposition – 1780’s to 1934

• Age of Conservation – 1872 to present

– Theodore Roosevelt is on the exam!

• Age of Preservation – 1964 to present

– Wilderness ACT

– NEPA

Acquisition Timeline – Don’t have to know for Exam, but know what Seward’s Folly – purchase of 586,412 sq miles for $7,200,000 or 2.3¢/Acre

Disposition – Legal Framework

• Land Ordinance of 1785

– Set up the rectangular survey system of 1 mile blocks, each section would have 640 acres (1 sq mile)

– Auctioned off for $1 acre. Too much money and didn’t fly.

– Wasn’t good b/c you had to finish the survey system

• Native Americans were hosed

• Rich people were buying everything up.

– Started giving land to war veterans

• Northwest Ordinance of 1787

– Created a gov’t in the western territories

– Set out way for territory to become a state.

• U.S. Constitution

– Enclave Clause – the Fed gov’t can set up a certain number of “islands” in a state in which the fed rules would apply. Think military bases

– Property Clause – congress has general authority over federal property

Disposition – Grants to States

• Statehood – U.S. Const., art. 4, sec. 3

• East / west disagreement over land policies

– West want to use for private use

– East want to keep it for everybody

• Equal Footing Doctrine – new states entitled to same rights as old states (Proffered by Western states)

• “In place” grants – sections 16 and 36 in each township for public education; if unavailable, state could select “in lieu” lands

• “Swampland” grants – granted for internal improvements and support for agricultural and mechanical colleges (Aggies!)

Disposition – Grants to Settlers

• Land Act of 1796 – cash/credit sales failed; led to creation of GLO (General Land Office) in 1812 (now part of BLM)

– Farmers weren’t getting, speculators were.

• General Preemption Act of 1841 – legalized preemption

– If you have met certain requirements and pay, we will recognize the squatters claim

• Homestead Act of 1862 – settler could obtain 160 acres for free if established residence and cultivated for 5 years

– Congress wants settlers in the West

– What constitutes Cultivation?

Rationale for Free Land

• “Unless the government shall grant head rights * * * prairies, with their gorgeous growth of flowers, their green carpeting, their lovely lawns and gentle slopes, will for centuries continue to be the home of the wild deer and wolf; their stillness will be undisturbed by the jocund song of the farmer, and their deep and fertile soil unbroken by the ploughshare. Something must be done to remedy this evil.”

Homesteading Liberalized – Fraud and Perjury were rampant!

• Desert Lands Act of 1877 – could obtain 640 acres @ $.25/acre if proof of irrigation

• Kinkaid Act of 1904 – could obtain 640 acres in western Nebraska for $1.25/acre

• Enlarged Homestead Act of 1909 – could obtain 320 ac

– Antiquities Act

– Individual statutes creating park system units

Regulation of Wildlife & Refuges

• Fish & Wildlife Service in DOI

– Operate general wildlife programs

– List and recover endangered and threatened species

– Manage National Wildlife Refuge System

• Statutes:

– Endangered Species Act

– National Wildlife Refuge System Administration Act of 1966

– Predator Control

– Migratory Bird Treaty Act

Tues 8/19/10

2 – State Rights: Equal – Footing Doctrine/ Sagebrush Rebellion/County Supremacy/Public Trust

Submerged Lands

· Submerged lands – those lands beneath the ordinary high water mark along water bodies

Pollard v. Hagan (U.S. 1845) Ex. Of the Equal Footing Doctrine

Issue: Who holds title to submerged lands under tidal (navigable) waters?

Historical Basis for Equal Footing:

England – Crown held title to all lands under navigable waters as an aspect of sovereignty.

Original colonies – Claim title to submerged lands as sovereign successors to Crown.

Territories – Purpose of cession was to sell off lands to pay off war debts and create new states; U.S. holds title to submerged lands in trust for new states.

New States – On equal footing upon statehood, so they hold title to submerged lands, ending U.S. trustee relationship. Title automatically vests in state; not a grant from U.S.

Transfer of Rights

Colonies to United States to New States

Acquisition Trustee for

By Cession to US Territories

Navigable vs. Tidal

· Pollard v. Hagan – states hold title to lands under waters navigable at statehood

· Phillips Petroleum Co. v. Mississippi (1988) – state holds title to lands under waters that were not navigable at statehood but were subject to ebb and flow of tide (i.e., tidal waters)

· Rule: States hold title to land that are navigable and tidal