Natural Resources Law

Natural resources law performs three basic functions: it Basic Functions specifi es the parts of nature that can be owned and the basic terms of use rights, it facilitates resource-related Broadly speaking, natural resources law performs three transactions, and it provides mechanisms to coordinate basic tasks. First, it specifi es the parts of nature that can uses and resolve inevitable disputes. Within these func- be owned and defi nes or prescribes the terms of the legal tions, a key question for lawmakers is whether a part of rights (use rights) that users acquire. Many uses of nature nature is identifi ed as a discrete resource or an attribute involve the extraction and consumption of parts of nature. of land ownership. Other uses—recreational activities and nondamaging uses of a land surface such as hiking and recreational boating— atural resources law is the body of legal rules that are mostly nonconsumptive. Valuable parts of nature can Nencourages and controls uses of nature, particularly lie beneath, on, or above the surface. Resources that people the parts of nature that people fi nd valuable. Most soci- consume can be either naturally renewable (plants, animals, eties have rules prescribing who can use nature, where, some energy sources) or nonrenewable (most minerals and and in what ways. When markets play a dominant role, a fossil fuels). Laws setting the terms of resource-use rights society’s legal system tends to include more complex laws typically prescribe what can be used and in what ways, that go beyond defi ning use rights in nature to regulat- specify the duration of use rights and their transferability, ing commercial transactions. Similarly, a society concerned address the inevitable confl icts among resource users, and about environmental degradation will have rules limiting impose cleanup or restoration obligations once a resource- resource-related activities to reduce environmental harms. use activity ends. Natural resources law also includes rules In such societies, natural resources law may have multiple that allocate use rights—that is, rules specifying how gov- aims: to encourage and facilitate uses of nature, to promote ernments make ownership rights in nature initially avail- fairness among citizens, and to ensure that human activities able to fi rst users. do not unduly pollute or degrade the natural environment. Th e second basic task of natural resources law is to facil- In order to understand natural resources law, it is impor- itate resource-related transactions. Resource-use rights tant to identify its main elements and basic functions. As often arise in private transactions—licenses, leases, sales, lawmakers craft laws, they have certain options to meet conveyances, and the like. Typically, private parties enjoy their particular circumstances and needs. Th e United considerable freedom in how they structure such transac- States has detailed, varied bodies of natural resources law tions (as do governments when they are engaged in simi- among its fi fty individual states. Although the laws of other lar commercial transactions). Natural resources law can nations can vary considerably from U.S. laws, the underly- assist such transactions, thereby making markets more ing functions of natural resources law are basically the same regular and effi cient. One way it does so is by prescrib- everywhere. In some manner, lawmakers in all nations ing rules of contract or deed interpretation that govern a must devise rules that perform these basic functions. As transaction unless the parties choose otherwise. Th e law, such, one can identify similarities among legal systems and for instance, may provide defi nitions for commonly used among the laws governing specifi c natural resources. terms (for example, mineral rights, mining claims, water

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rights, and hunting easements). It may prescribe widely parts of nature belong to the landowner and which parts accepted royalty arrangements and presumptions govern- are discrete assets. ing the duration of use rights (for example, the rule that a Landownership almost always includes rights to use the particular use right lasts only so long as its owner makes soil, to harvest most or all plants, to grow crops, and to continued use of it). In such instances, the law fi lls in the engage in some range of surface-use activities. Even on gaps in incomplete contracts and incorporates customary these basic points, however, legal systems vary. In colo- understandings into private transactions. If private parties nial America for instance, English law withheld certain desire, they can usually reject these legal conventions and tall trees from private owners, reserving the trees for use by deviate from customary practices to defi ne terms as they the Crown as ship masts. Nature protection laws in many see fi t. In some instances, lawmakers insist that contracts countries today (e.g., Great Britain) similarly protect par- or deeds include specifi c terms designed to foster some ticular forests and even specifi c trees. public policy, without regard for the wishes of the parties. Beyond such uses of soil and vegetation, there is less For example, laws governing oil and gas leases may insist agreement among legal systems on the parts of nature that all leases require lessees to clean up well sites when that attach to land. Landownership, for instance, may or pumping ends. may not include rights to extract minerals on or beneath Th e third major task for natural resources law—one the surface—that is, rights to remove coal, metals, oil and that is gaining in importance—is to facilitate the emer- gas, and building stone. When minerals gence of governance regimes by which resource users (and are excluded from landowner- perhaps other people) coordinate resource uses and ship, then either the govern- resolve disputes. For instance, irrigators in ment retains the minerals for many jurisdictions are empowered to form state exploitation or they are irrigation or water-conservancy entities, separately allocated as discrete which can orchestrate water uses over resources. Jurisdictions take a vari- large areas. Similarly, owners of land ety of approaches on this criti- parcels above a particular oil and cal issue of mineral ownership. A gas fi eld might be empowered to landowner, for instance, may have form joint-management entities rights to engage in “hard rock” to facilitate drilling and recovery mining (removing coal, stone, and methods (termed pooling and metals) but have no right to remove unitization arrangements in the oil and gas. Laws can draw even United States). Looking ahead, fi ner distinctions. British law, natural resources law might well for instance, long provided include more provisions that are that gold and silver remained aimed at encouraging resource the property of the Crown, no users to work in concert for joint matter where it was located. benefi t. Landowners had the right to obtain all other minerals. Simi- What Comes lar variations arise with respect to with Land? water, a critical resource in much of the world. Landowners may or may A key task for lawmakers is to prescribe which parts of not have rights to use water that fl ows over, adjacent to, nature can be owned and to set the basic terms of use rights. or beneath their lands. In the United States, this issue is A particular part of nature could be viewed as a discrete largely governed by the laws of the individual states. Laws resource such as a right to divert and use water, a right to in the eastern part of the country tend to empower land- cut trees, a right to hunt, or a right to graze livestock in an owners to use both surface and groundwater, with rights area. Alternatively, a right to use part of nature could be shared among landowners. Laws in the western part of the viewed as an attribute of land ownership, meaning that the country more often treat water as a discrete resource and legal right to use the resource is one of the entitlements include separate rules governing who can gain water rights held by the owner of the land that includes the resource. and how these rights can be obtained. Lawmakers regularly employ both of these alternatives— Similar legal variations exist with wildlife. Lawmakers treating a resource as part of the land and treating it as a must consider the following questions: Does an owner of discrete resource that one acquires separately. Th us, in sur- land own the wildlife located on it? (In the United States, veying the law of a jurisdiction, it is useful to learn which the answer to this question is no, but in Great Britain, for

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example, the answer if yes.) Typically, if a landowner owns their lands in ways that cause no interference. Th us, pri- the wildlife located on the land, the rights end when a wild vate land may remain open to public hikers without the animal migrates. Alternatively, does the legal system view landowner’s consent. In many societies, the public holds rights to use wildlife, which are often tightly controlled by expansive rights to use unenclosed private lands for hunt- species, season, and location, as separate resources allo- ing, foraging, travel, and livestock grazing. In these soci- cated apart from land? Similar issues arise over uses of air eties, resource-related activities are sometimes viewed as space, access to light and wind, and uses of caves. All such use rights available for either all members of the public or rights may or may not be included in the bundle of rights residents of a local village. held by landowners. As lawmakers prescribe the rights that attach to land- On several of these issues, lawmakers sometimes dis- ownership, they typically must deal with spillover eff ects tinguish between the ownership of a physical resource in or externalities. Th ey must consider the ways actions by place and a legal right to use or capture the resource. For one landowner can harm other resource users. For instance, instance, American states provide that water in lakes and natural resources law typically prescribes whether a land- rivers remains public property; landowners only acquire owner can excavate in ways that physically threaten rights to use it. In American law governing oil and gas, neighboring lands. Similarly, it prescribes the freedom a some states assert that landowners own underlying oil and landowner has to divert surface waters and otherwise alter gas in place. Other states assert that oil and gas are not natural drainage. It may also prescribe rules on vegeta- owned until these resources are physically captured; what tive cover by banning certain unwanted species, requiring a landowner acquires, when gaining land, is simply the mowing or other weed control, or regulating forest or pas- right to use the land surface to drill and extract. At fi rst ture management. glance, these two approaches appear quite diff erent: either Whenever lawmakers treat a part of nature as a discrete landowners own the oil and gas or they do not. In prac- resource, they confront a practical challenge. Nature’s parts tice, the two approaches produce similar results. All land- are ecologically intermingled; they do not exist as neatly owners own the oil and gas they pump from wells on their shaped packages. It is up to lawmakers to defi ne the physical land. Accordingly, a landowner who boundaries of the discrete owns oil and gas in place may lose resource, a task that their rights to a neighbor’s well. On necessarily requires the other hand, a landowner who line-drawing. For possesses only a right to drill is not instance, a jurisdic- disadvantaged. Th e landowner still tion that views water has the right to capture and retain as a discrete resource as much oil and gas as pos- must somehow frag- sible. Th us, the distinc- ment the continuous tion has only minor hydrologic cycle. signifi cance. Rainfall absorbed Natural resource by plants presum- regimes also vary in ably belongs to the terms of a landown- landowner. But can er’s ability to exclude a landowner capture people from land. water on a rooftop Landowners typically cistern system; does can halt interferences that water belong to with their own activi- the landowner, or ties, or at least signifi - must the landowner cant interferences; this acquire a separate is perhaps the key com- resource right to col- ponent of owning lect it? Similarly, can nature. On the other a landowner capture hand, landowners and retain diffuse may or may not have surface waters before power to exclude they reach a stream? outsiders from cross- What about water ing or otherwise using from naturally recurring

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springs or water that is hydrologically disconnected from rights. Th ey can also feature vague principles or values that any stream that would otherwise go unused? When water is courts must apply to resolve the confl icts. Generally speak- scarce, lawmakers are obligated to supply answers. Similar ing, lawmakers tend to use one or more of a relatively small questions arise when the law views subsurface minerals as number of approaches to resolve disputes among neighbor- discrete assets. Which minerals are included with land, and ing users. One common legal approach is simply to favor which are not? Is peat a mineral or part of the soil? What the land or resource user who came fi rst in time. A second about minerals that protrude from the land surface? What approach is to evaluate competing activities and to give about minerals embedded in low-grade ore formations? preference to the one that is, in some sense, more reason- Such issues inevitably arise whenever lawmakers decide able or socially benefi cial. A third approach, which is not to defi ne a part of nature as a discrete resource. (Th ey also always possible, is to divide the resource in question into arise when a landowner voluntarily severs a resource and fair shares—for instance, allowing owners of land above an conveys it separately.) Th e challenge that lawmakers face aquifer to share the underground water in proportion to the is easily stated: the more embedded a resource is in eco- sizes of their landholdings. A fourth approach considers logical processes, the harder it is to draw lines between the whether one or the other party to a dispute might miti- land and the discrete resource. Line-drawing is regularly gate or end the confl ict by making reasonable adjustments required when a legal system allows a person to acquire a or accommodations in its activities. For instance, a court resource by being the fi rst to seize it. For instance, mineral may consider whether one party can reduce its resource use rights might go to the fi rst person to discover a mineral through conservation measures. If a party can mitigate the deposit, but what are the legal boundaries of the mineral confl ict or accommodate the needs of the other side, then deposit? Where does the mineral deposit end, and where the law may insist that it do so. do the rights of the landowner begin? Does the new min- A fi fth, older approach for resolving disputes among eral owner gain ancillary rights to use the land surface users—a once-popular approach that was typically pushed (for example, cutting timber needed to support mining aside with the coming of industrialization—is to resolve shafts)? disputes by using nature as the baseline of legitimate resource use. Th at is, lawmakers might prescribe rights in Using Land land and discrete resources so that owners must use what they own without materially altering the natural incidents Once the law has defi ned the physical elements that are of lands owned by others. In the United States two cen- considered part of land, it must then explain how the owner turies ago, courts typically ruled that landowners were can use the land. Th is subject is an aspect of property or entitled to enjoy the “natural incidents” of their lands, land-use law; yet it is also a component of natural resources including wind, water, and light. A neighbor who materi- law, given that so many resources are included in the land- ally disrupted these natural incidents acted wrongly. Th us, owner’s bundle of rights. water law allowed landowners to use river water so long as A few specifi c issues on this topic were identifi ed in the they did not diminish the natural quantity or quality of the previous section. Can a landowner alter natural drainage water fl ow. Th is legal approach favored sensitive, agrarian or remove vegetation? Can an owner farm in ways that land uses over the newer, polluting industrial uses. Not erode soil or harm rare wildlife species? Adding complex- surprisingly, the nature-as-a-baseline approach was often ity is the physical reality that actions by one landowner pushed aside so that polluting factories and railroads could can readily disrupt other lands and land uses. Disputes arise and so that urban landowners could block air and among neighboring landowners are common and often light with their tall buildings. involve variations on a basic fact pattern: one landowner A sixth, fi nal approach that is often used to resolve dis- favors an intensive land use (perhaps generating noise, putes diff ers from the others. Instead of crafting laws that vibrations, odors, or traffi c) while another landowner directly resolve disputes, lawmakers can create mechanisms plans a more sensitive one. Such disputes today sometimes or processes by which the competing users resolve disputes involve renewable energy sources, as landowners regularly on their own through a type of governance mechanism. As tap solar and wind energy sources, and their eff orts are noted above in “Basic Functions,” natural resources law harmed when neighbors interfere with the light or wind. might authorize resource owners to form private or quasi- Another common fact pattern in disputes arises when public entities with powers to adjudicate disputes, perhaps actions of a landowner clash with uses of a discrete, sepa- even averting the disputes in advance by limiting who can rately owned resource or when owners of two discrete-use do what. Such arrangements can encourage resource users rights disrupt one another. to work in concert, recognizing and resolving competing In some way, the law must resolve such disputes. Legal needs without resort to courts. Another aim could be to rules can be clear and precise, granting one party superior facilitate shared-management arrangements that are more

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economically effi cient or that produce better environmen- eff ort? Does the timing of the capture date back to the fi rst tal outcomes. Th us, owners of land around a lake might be step in the process, or is the timing of capture dated only empowered to create a lake-management entity to resolve when all work is complete? In western U.S. water law, the disputes relating to uses of the lake and shorelines. Owners rule soon emerged that a diversion of water related back of land in grazing districts might be encouraged to form in time to the fi rst step in the diversion process, at least so grazing-management bodies to resolve disputes and, per- long as the capturer used reasonable diligence to complete haps, going further, to arrange joint-grazing activities on the needed work. larger spatial scales. Over time, lawmakers might well see A third, related issue under fi rst-in-time schemes has increasing benefi ts in this approach to resolving disputes, to do with the legal protections a capturer enjoys against given the costs, delays, and unpredictability of the other interference by others. Mining codes in the Ameri- methods listed in this section. can West typically gave prospectors protection against interference on all lands they physically occupied. More Allocating Discrete Resources generally, lawmakers banned what they deemed unfair competition. As a policy matter, lawmakers who are trying Once a part of nature is defi ned as a discrete resource, not to encourage resource discovery and exploitation typically part of the land, a legal system must make the resource must off er prospectors and other potential resource owners available to potential users in some manner. Th is is the some degree of protection against interference. If they do allocation function of natural resources law. A resource not, the danger of disruption can discourage people from could be retained for use by the public (for instance, rights undertaking the search process. to use a river for travel or fi shing). Th e rights could be allo- Allocation of a resource based on fi rst-in-time, or what cated to some subset of the public (for example, to inhab- might be termed historic use, is by no means free of moral itants of a particular village). Alternatively, the resource or social objection. One complaint is that government could be off ered to individuals or businesses through one essentially gives the resource away for free with no income of many possible allocation methods. for taxpayers. A second complaint is that resource users One longstanding allocation method is to make a who are fi rst on the scene are not, for that reason alone, resource available to whomever is fi rst to occupy or start particularly deserving or morally superior. A fi rst-in-time using the resource. Th is fi rst-in-time method has a long rule can reward industry and initiative, but the reward can history. It is an easy allocation method in that no elabo- easily be excessive, particularly when the fi rst occupiers rate government structure is required to implement it. It is can hoard a resource. Later generations can be particularly also typically favored by the fi rst people to arrive in a geo- disadvantaged. At the global level, in terms of planetary graphic region since it favors them over later arrivals. resources, the disadvantage can fall on countries that are As a method of allocation, fi rst-in-time raises predict- later to develop. able issues whenever it is employed. What action must a Th is moral complaint has arisen in disputes over ocean person take to qualify as fi rst? A well-known American resources and, more recently, in clashes over rights to pol- court ruling raised this issue in a dispute over a dead fox. lute the planet’s atmosphere. Developed countries typically Was a hunter considered fi rst in time when he spotted the claim that reductions in emissions, required to mitigate cli- fox and pursued it closely, or was a person fi rst only when mate change, should begin from historic patterns of use. he actually physically seized the fox? (Th e court decided it Th is policy position implicitly accepts the existing alloca- was the latter.) In western U.S. water law, the rule gradu- tion scheme under which countries fi rst to develop captured ally developed that a person was fi rst to capture a water disproportionate shares of the planet’s absorption capac- fl ow only if the person physically diverted the water from ity. An alternative approach is to allocate Earth’s capacity the stream and applied it to a benefi cial use; mere diversion on a per capita basis—an equal share for each person on was not enough, nor did a water right evolve if the use was the planet—without regard for prior patterns of pollution. not benefi cial. In mining law, a person was fi rst to fi nd a Such an approach would require that reductions be made valuable mineral deposit only if the person properly staked disproportionately by countries with above-average pollu- out the claim, fi led papers on it, and could show that the tion levels per person. A per-capita allocation scheme would deposit was valuable. withdraw the advantage gained by countries that were fi rst A second issue that arises under fi rst-in-time schemes in time to industrialize. has to do with the timing of the capture when the action Lawmakers devising natural resource regimes have required to complete the work of capture takes time, as is a wide variety of other methods to use when allocating often the case. How is timing determined when the work resources to initial users. An obvious method is either by of capture takes months or years, as it might when diverting sale at the highest prices the market will bear or by auc- water for miles and applying it to an irrigation or mining tion. Another approach is to allocate a resource based on

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how the resource will be used or on characteristics of the be required to compensate surface owners for the dam- prospective user. Th us a resource could be made available age they cause. by permit only to people who will use it in the public Th e many confl icts among resource users have given interest, however it is defi ned. Alternatively, a resource rise to rich, complex bodies of law, commonly tailored to could be off ered based on the personal abilities or char- the specifi c needs and consequences of using particular acteristics of users. Th us, marine resources are sometimes resources. Th us, irrigators in arid lands may have rights to allocated to subsistence fi shers, particularly communities cross adjacent lands to convey water to the places where they that retain traditional patterns of harvesting. Rights to will use the water. Public users of waterways may possess plant gardens could be allocated to low-income appli- rights to enter private lands along a cants. Rights to engage in demanding recreational river to avoid waterway obstruc- activities (for example, river raft- tions. American Indian tribes ing and mountain climbing) with reserved rights to fi sh at could be allocated based on traditional fishing sites may demonstrated individual skill. have, as ancillary entitlements, Many resource-allocation rights to dry the fi sh before schemes favor local users in transporting them. Holders of an eff ort to stabilize and pro- specifi c grazing rights may have tect local economies. In some the legal ability to construct fences jurisdictions, lawmakers bun- and watering facilities. Further, the dle discrete resources and allo- defi nition of a resource-use right in cate them as a package when many resource settings somehow must the resources are best used prescribe the extent or intensity of the together. For instance, a right permissible use. For instance, a right to graze cattle in a semiarid area to harvest trees in a region would need may be bundled with a right to use to specify what trees can be removed, water for that purpose. where they can be removed, in what ways they can be removed, and Rights to Use Discrete with what damage to soils, water, Resources and other trees. A right to graze livestock would specify the num- As lawmakers prescribe rules bers and types of animals that can governing discrete natural be grazed, where the grazing can occur, resources, the main challenge and whether the landowner (which could be a govern- they face is to prescribe the contours of each use right— ment agency) can order changes in grazing levels due to what it covers, how the resource can be used, and how drought. the terms of one resource right fi t together with other resource and landowner entitlements. Th e numerous Duration and Transfer of Rights issues that fall into this category are often related to the physical features or attributes of particular resources. Two key issues when defi ning resource-use rights have to Sometimes lawmakers favor strict rules of priority as a do with their duration—how long they last—and whether means of clarifying rights and avoiding disputes. Th us, the owner of a use right can sell or otherwise transfer it. mineral law in the United States has typically provided Land ownership is typically (although not always) under- that owners of subsurface minerals have priority when stood as perpetual, and landowners can transfer land at their excavation methods disrupt uses of the land sur- will. In the case of discrete natural resources, the law is face; such owners can use the land surface, even destroy more varied. Discrete-use rights in nature are rarely per- it, when such use is reasonably necessary to excavate and petual in duration. Often a use right includes a built-in remove minerals. Oil and gas lessees similarly can make term limit (for instance, a set number of years). Alter- reasonable use of the land surface unless limited by the natively, the use right may last until the resource is fully terms of a lease. Holders of mineral rights do face limits exploited or so long as the use right remains valuable to on their actions, limits that have slowly grown in recent the owner. In many instances, a resource-use right ends decades. For instance, they typically can use the land sur- when its owner abandons it (it is typically not possible to face only to exploit minerals on that land, not to aid in the abandon land). A use right can also be forfeited for simple exploitation of minerals on other lands. Also, they may nonuse or lost by failure to comply with an express duty

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to exploit the resource. For instance, oil and gas leases in thus freeing the resource for reallocation by government, the United States typically extend indefi nitely beyond an or, if the problem is understood in advance, only allocat- original term of years “so long as” the lessee continues to ing use rights that are limited in duration or subject to extract petroleum in paying quantities. Once production termination under specifi c circumstances). Th e power of a ends—and unless the parties agree otherwise—the lease resource owner to transfer the resource is thus intertwined right terminates. As these examples illustrate, the duration with other defi ning elements of the use right. of a use right is often linked to another major defi nitional element of the right: a use-it-or-lose-it obligation that com- Government Regulation pels the holder to exploit the resource. (Landowners sometimes face similar duties—they too can lose their rights if Th e power of government to regulate resource uses is inter- they leave land unused—though such duties of continu- woven with constitutional limits on the powers of various ous use are far less common with land than with discrete governments, federalism issues that coordinate governance natural resources.) activities by multiple levels of government, and limits on As for the ability of resource owners to transfer what regulatory action designed to protect private property. they own, laws sometimes distinguish between resource- Private property is a valuable institution that is capable of use rights of a commercial nature, which are transferable, fostering economic enterprise and growth and adding sta- and those of a more personal or familial nature, which may bility to social, economic, and political orders. At the same not be transferable. Th us, a right to log a forest commer- time, private property derives from the exercise of gov- cially may be transferable whereas a right given to a neigh- ernmental powers (that is, private property is inherently bor to enter land and collect fi rewood might not be. Some a creation of law). And private property is easily used by resource-use rights become attached by law to a parcel of owners to oppress or subjugate other people and to degrade land when the resource-use right is intended to benefi t the lands and waters upon which these people depend. Par- uses of that specifi c land. In a simple case, a right-of-way ticularly in the United States, these confl icting realities to cross land may benefi t adjacent land that is otherwise have been diffi cult to comprehend because of widespread landlocked. In such an instance, the discrete-use right (in assumptions that private property somehow arises outside this illustration, the right-of-way) most likely cannot be of law or existed before the emergence of governance sys- transferred except when the benefi tted land itself is being tems. Adding to the intellectual and ideological clashes transferred. are the economic realities that holders of valuable land and Markets in resources fl ourish when resources are freely resource rights tend to defend their current rights tena- transferable. Free transfer, however, can easily clash with ciously when lawmakers, out to promote the public good, the desires of lawmakers to insist that resources be used in propose changes in the laws that defi ne their rights. Simi- ways that achieve public-policy goals. Governments may larly, established resource users (for example, irrigators) can decide to allocate resources based on a calculation of pub- tenaciously defend their activities even when they cause lic interest or based on the identities of the recipients. Th ey ecological harm, which is viewed by the public as unaccept- may allocate water to support a local farming community; able. Whether lawmakers can promote the public interest they may allocate fi shing rights to subsistence fi shers; or by legally refi ning private rights depends upon governance they may decide that only working farmers can own farm- structures and, importantly, on the strength and vigor of a land. Th ese policy preferences can be frustrated if recipi- jurisdiction’s democracy. ents of the use rights can promptly transfer their rights to Many legal regimes have routinely allowed resource other users or other uses. To avoid that danger, thereby pro- users to walk away from their operations, leaving nature tecting the policy goals underlying the allocation scheme, to remedy scars and to absorb pollution. Increasingly, law- lawmakers often impose limits on subsequent transfer of makers have begun to insist that resource users clean up the the use right. Th ey may allow transfer only to a person or worst contamination and restore lands to ecological condi- to a type of use that is consistent with the original allo- tions resembling their pre-extraction conditions. Oil and cation mechanism. In the American West, transfers of gas producers typically must fi ll in wells so as to diminish water rights are often subject to governmental approval to the dangers of groundwater contamination. Restoration ensure that new uses are socially benefi cial. Lawmakers duties are also being imposed in private transactions. Pri- may further limit transfers so as to protect local farming vate leases and contracts governing resource activities now communities. Th e problem with such restrictions on trans- often require not just removal of equipment but affi rmative fer is that they interfere with the market’s ability to real- measures to return land to specifi ed conditions. locate resources. When the market cannot reallocate, then Natural resources law signifi cantly aff ects how people a state must develop some other reallocation method (for use nature, particularly resource activities driven by market instance, using eminent domain to condemn existing uses, forces. Lawmakers can aid the quest for sustainability by

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reconsidering and revising the elements of natural resources Coggins, George Cameron; Wilkinson, Charles F.; Leshy, John D.; & law in ways that stimulate or insist upon resource uses that Fischman, Robert L. (2007). Federal public land and resources law (6th are consistent with the elements of sustainability. Th ey can ed.). New York: Foundation Press. Daintith, Terence. (2010). Finders keepers? How the law of capture shaped usefully refi ne the elements of resource use rights so as the world oil industry. Washington, DC: RFF Press. to prohibit ecologically degrading actions and require that Dellapenna, Joseph W., & Gupta, Jouetta. (2009). Th e evolution of the law resource users restore natural areas when resource extrac- and politics of water. Dordrecht, Th e Netherlands: Springer. tion ends. Th ey can improve resource allocation and real- Fischman, Robert. (2003). Th e national wildlife refuges: Coordinating a conservation system through law. Washington, DC: Island Press. location methods so that patterns of resource use promote Fisher, Douglas. (2010). Th e law and governance of water resources. the common good. And they can better embed resources Cheltenham, U.K.: Edward Elgar. into landscape governance regimes, which, in eff ect, inte- Freyfogle, Eric T., & Goble, Dale D. (2009). Wildlife law: A primer. grate multiple resource uses so as to reduce confl icts and Washington, DC: Island Press. Hu, Desheng. (2006). Water rights: An international and comparative accommodate shifting natural conditions and public val- study. London: IWA Publishing. ues. Well-designed laws would provide frames in which Knight, Richard L., & Bates, Sarah F. (Eds.). (1995). A new century for market forces can operate, leading to patterns of resource natural resources management. Washington, DC: Island Press. use more consistent both with development aims and with Knight, Richard L., & White, Courtney. (2009). Conservation for a new generation: Redefi ning natural resources management. Washington, DC: the healthy functioning of landscapes. Island Press. Larson, Anne M., et al. (2010). Forests for people: Community rights and Eric T. FREYFOGLE forest tenure reform. London: Earthscan. University of Illinois College of Law MacDonnell, Lawrence J., & Bates, Sarah F. (Eds.). (2010). Th e evolution of natural resources law and policy. Chicago: ABA Publishing. See also Environmental Dispute Resolution; Environmental MacDonnell, Lawrence J., & Bates, Sarah F. (Eds.). (1993). Natural Law—Europe; Environmental Law—United States and resources policy and law: Trends and directions. Washington, DC: Island Canada; Land Use—Regulation and Zoning; Nuisance Press. Maxwell, Richard C.; Martin, Patrick H.; & Kramer, Bruce M. (2007). Law; Ocean Zoning; Real Property Law; Soil Conserva- Oil and gas law (8th ed.). New York: Foundation Press. tion Legislation; Transboundary Water Law McHarg, Aileen, et al. (Eds.) (2010). Property and the law in energy and natural resources. Oxford, U.K.: Oxford University Press. Raymond, Leigh. (2003). Private rights in public resources. Washington, DC: RFF Press. FURTHER READINGS Reeve, Rosalind. (2004). Policing international trade in endangered spe- Bean, Michael J., & Rowland, Melanie J. (1997). Th e evolution of national cies: Th e CITES treaty and compliance. London: Royal Institute of wildlife law (3rd ed.). Westport, CT: Praeger. International Aff airs. Boelens, Rutgerd; Getches, David; & Gil, Armondao Guevara. (2010). Schrijver, Nico. (2008). Sovereignty over natural resources: Balancing rights Out of the mainstream: Water rights, politics and identity. London: and duties. Cambridge, U.K.: Cambridge University Press. Earthscan. Tarlock, A. Dan; Corbridge, James N., Jr.; & Getches, David H. (2009). Burke, Barlow, & Beck, Robert. (2009). Th e law and regulation of mining: Water resource management: A casebook in law and public policy (6th ed). Minerals to energy. Durham, NC: Carolina Academic Press. New York: Foundation Press.

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