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Natural Resources Law
Temple University School of Law
Sinden, Amy

NATURAL RESOURCES

Outline

Definitions

Public Lands most often refers to all lands that are or once were in federal ownership

Public Domain typically refers to a subset of the public lands, namely those public lands that are unreserved for any specific purpose and were subject to disposition under the general land laws until the passage of the Federal Land Policy Management Act of 1976 and are now managed by the Bureau of Land Management

A. Why should we Protect or Use Natural Resources?

I. The different Ethics regarding the protection and use of natural resources

1. Deep Ecology

– established by the Norwegian philosopher Arne Naess

– Philosophy of the kinship (Verwandtschaft) with nature

– founded on the twin principles of self-realization and biocentric equality

– Bill Devall/George Sessions: Deep Ecology: Living as if nature matters (1985)

– all things in the biosphere have an equal right to live and of self-realization

– all organisms and entities in the ecosphere are equal in intrinsic (innewohnend) worth

– core principles of deep ecology:

– human and nonhuman life have value in themselves, independent of the usefulness for human purpose

– diversity of life forms is a value in itself

– humans have no right to reduce this diversity except to satisfy vital needs

– the flourishing of nonhuman life requires the decrease of human life

– present human interference with the nonhuman world is excessive

– policies affecting basic economic, technological and ideological structures must be changed

2. The Land Ethic

– established by Aldo Leopold in 1949

– the extension of ethics to man’s relation to land and to the animals and plants which grow upon it is an ecological necessity

– the Community Concept: the individual is a member of a community of interdependent parts, this community includes soils, waters, plants and animals = “the land”

– The Land Ethic cannot prevent the alteration and use of the resources but it does affirm their right to continued existence (in a natural state)

– man shall not be conqueror of the land-community but plain member of it

– most members of the land community have no economic value but are essential for the stability of the biotic community

– the Land Pyramid:

apex

carnivores decrease in

animal groups numerical

birds and rodent abundance

insects

plants

base soil

– a thing is right when it tends to preserve the integrity, stability and beauty of the biotic community

3. Anthropocentrism

– in the Judeo-Christian tradition, our relations to the natural world have largely been anthropocentric

– Utilitarism (John Stuart Mill)

– seeks to provide the greatest good to the greatest number of people (most widely accepted argument for anthropocentrism)

– William Baxter, People or Penguins: The case of optimal pollution (1974): people –oriented criteria, no interest of preserving the nonhuman for its own sake

– Ecosystem Services: Use- and Nonuse Values

– direct market use (consumable ecosystem goods that are exchanged in markets)

– direct nonmarket use (consumable goods not exchanged in a market)

– existence values (knowing the good exists)

– option value (visiting the land in the future)

– bequest value (knowing that children will be able to use the goods)

– indirect nonmarket use (ecosystem services)

– James Salzman, Protecting Ecosystem Services (2001):

– despite their obvious importance to our well-being, ecosystem services have been ignored in environmental law and policy

– these services have no market value for the simple reason that no markets exist in which they can be exchanged → no direct price mechanisms to signal the scarcity or degradation of the public goods until they fail

– an explicit ecosystem services perspective provides two benefits:

– 1. political: understanding their role justifies why habitat preservation and biodiversity conservation are vital policy objectives

– 2. instrumental: efforts to capture their value may spur institutional designs and market mechanisms that effectively promote environmental protection at the local, regional, national and international levels

– Problem: Is there a legitimate way to convert the value of ecosystem services into dollars and cents?

– cont

of the triggering events of the Revolution.

f) After the Revolution and Declaration of Independence the colonies and their citizens owned the land but there were overlapping land claims between the states, European sovereigns and Indian tribes

A state’s power over its lands and resources is absolute, except as presumed by federal action and except for those resources that the state is obligated to hold in trust for the whole people under the public trust doctrine.

Parts of the land within state borders, however, are owned by the federal government and the federal government can dispose of or retain public lands as it chooses.

Property Clause: The Congress has the power to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” (U.S. Const. Art. IV, § 3, Cl. 2)

II. The Discovery Doctrine

Under the Discovery Doctrine, title to lands lay with the government whose subjects explored and occupied a territory whose inhabitants were not subject of a European Christian monarch. The doctrine has been primarily used to support decisions invalidating or ignoring aboriginal possession of land in favor of colonial or post-colonial governments.

Johnson v. M’Intosh; 1823

[In 1773 and 1775 Thomas Johnson bought land from Piankeshaw Native American tribes. The plaintiffs were lessees (Pächter) of Thomas Johnson’s descendants, who had inherited the land. The defendant, William M’Intosh, subsequently obtained a land patent to this same land from the United States federal government. The plaintiffs brought an action for ejectment (Räumungsklage) against M’Intosh in the United States District for the District of Illinois, contending that their chain of title was superior because of Johnson’s purchases.]