NATURAL RESOURCES LAW
FREYFOGLE
SPRING 2013
Chapter 1: Dividing and Managing Land
Natural Resource Law = The expansive body of rules and processes governing the ways people interact with nature
Concerned With:
· Owning some discrete component of nature
· Defining resource-use rights so as to anticipate conflicts, avoiding them whenever they can be avoided and resolving them when they cannot be
Private Property = Use rights controlled by individuals
Public Property = Use rights held for communal use or to provide shared services
Land = As a legal concept, land is really just a bundle of rights to use the elements of nature that exist in a defined place
Natural Resource Policy Ideal = Individual uers ought to possess as much independent authority over their resources as they can safely exercise (SELF-GOVERNANCE)
Two Main Elements of Natural Resource Law
1. Resource-Use Rights: Prescribes these use rights in terms of what they include, how holders can exercise them, how the rights of one user fit together with the rights of others and explaining how you can gain ownership of them.
a. Perhaps most importantly, answers the question: What use rights does a person acquire by buying land?
2. Governance Regimes: Many resource activities require oversight or communal input of some sort, whether to enhance the resource’s overall productivity or to protect the land’s lasting health and beauty.
a. Keeping in my mind: “Human blood is more precious than water, even in this thirsty land”
Hypothetical: 400-acres of land being sold for the right to hunt in Southern Illinois? Limitations
· What species?
· What types of weapons allowed?
· Can the hunters erect structures for hunting?
· Surface rights?
· Build roads?
· Keep stuff on land?
· Vegetation removal?
· How much can they kill?
· How many people are allowed?
· Qualification of guests?
· Liability? à Dangerous conditions of the land? Accidents on the land by easement user?
· Fee structure arrangement?
· Seasonal limitations?
· Where on the land can hunting occur?
· Whether the right is exclusive? Can land owner hunt? Can landowner give out other licenses?
· Transferability? Severability? Divisibility of the right?
· Ability of landowner to use at the same time? Make changes to the land?
uLobster Stewards in Maine (The Monhegan Lobstermen)
***Self-Governance Scheme Working***
· Maine lobster conversation laws, which lobsterman, by and large, enforce themselves through peer pressure and social sanctions
· Neighboring fisherman wanted to fish on Monhegan’s land by obtaining permits to fish there
· Monhegan, in attempt to not allow this, went to the legislature and asked the legislature to issue a bill
· The Legislature passed the measure and closed Monhegan’s grounds to outsiders, giving the islanders control by a communally managed governing system.
· The Monhegans now had control of the apprenticeship program required to become a lobsterman there
· This is an example of the governance scheme of Self-Governance (Managing Nature)
uMarincovich v. Tarabochia (Altoona Snag Union Case) Washington – 1990
***Options of Governance Regimes/Public Waterway = Public Good = No Exclusion***
· Snag Fishing = Fishing without bait and snagging fish as soon as movement is felt on pole
· Drift Nets = Large nets left in the water to catch fish; nets float until retrieved by human
· Altoona Snag Union (commercial gillnet fishermen) has a system of private right embedded in a governance system whereby they can exert an informal property system, thus excluding outsiders
· The Union has exclusive rights to clear snags in particular drifts of the Columbia River
· The Union also believes it has the exclusive right to fish there and to issue fishing permits
· Outsider
its natural conditions remain fundamentally unchanged (use nature so lightly that it doesn’t alter nature that much)
2. Look at priority in time: whichever user is first gets to keep using the resource without interference (one of two instinctive choices)
3. Assess the competing uses in terms of their reasonableness or how much they promote the common good (one of two instinctive choices)
4. Carve up the resource and then allocate fair shares of it to each interested user, employing the correlative rights approach (equal share to both parties)
5. Focus on the ability of the competing users to make alterations in their practices so as to diminish the conflict. (Seek out possibilities of accommodation, then press for change by the party that can more easily diminish the conflict) à More present in other countries
a. Can the other party alter its behavior without giving up something?
b. Diminish conflicts if possible
6. Do nothing and leave the parties to resolve things as they see fit.
a. NOTE: this approach is by no means neutral because when the law allows parties to act as they see fit, it has essentially chosen to favor the party whose resource use is more intensive.
b. Favors more intensive land user
7. Choose a process-oriented solution. Instead of dictating a particular resolution of the dispute, the law could create (or simulate) a private governance body of resource users which possesses the power to decide which river uses will take place and on what terms.
a. Instead of law trying to resolve dispute, embed the use rights in a private governance system who sets the rules (Altoona Snag Union; Monhegan Lobster Fishermen)
