Disputes over land and discrete resources are typically resolved by defining private rights by law and then letting owners use and negotiate as they see fit. When conflicts develop, we either open the courtroom doors to litigation or create a regulatory body to avert conflicts. Legislatures occasionally also get involved, sometimes by tinkering with existing laws, and sometimes by setting up new agencies or making extensive alterations. What problems do we have with these various bodies of resources law? And are there patterns to the problems that might point the way to solutions?

Lawmakers are in a real bind when it comes to prescribing the elements of resource rights. When resource rights are defined clearly, they become inflexible, inhibit planning and coordinated action, and otherwise suffer from various problems—mostly because they either fail to require resource owners to act sensibly or actually inhibit owners from doing so. At least in some settings (prior appropriation water law, for instance) clear entitlements make market transfers harder, not easier. On the other hand, vaguely defined rights have defects of their own. Private actors do not know where they stand. Conflicts are more numerous even if litigation is rare. Institutional roles are unclear.

Without regard for how precisely or vaguely we define resource rights, private litigation in court is simply not a sound way to resolve disputes. And it is virtually useless as a setting to coordinate land- and resource-use activities on larger spatial scales. Imagine the challenge of coordinating land and resource uses so as to restore more natural water flows in a river or to turn a river corridor into a better passageway for wildlife. A judicial forum offers little promise.

Nature's own dynamism, changing patterns of settlement and resource use, and various other factors have together led many observers to call for land management at the ecosystem or landscape scale; that is, at a scale typically well above the individual land parcel. At the moment, only government agencies can undertake this kind of work. And in doing so they are greatly hampered by private property rights. Planning agencies are openly resisted, culturally and politically, in large parts of the country. Even more ambitious than ecosystem planning is the related call for adaptive land management, in which managers and users keep tabs on changing conditions and modify land-use patterns accordingly. At the moment, we lack good ways to engage in such management except on individually owned parcels with single owners in charge.

Particularly as we place higher value on "ecosystem services," we find ourselves routinely wanting to promote multiple resource uses on pretty much all tracts of land, private and public. Many particular resource activities do not involve people entering onto private land. They deal instead with wildlife populations, water drainage, and fire regimes; that is, with natural processes that we ought to respect more than we have. (Who knows, though, we might be closer than we realize to a day when, like Britain, we open up rural lands to qualified public wandering rights—thereby partially returning to the days of antebellum America, when private rural lands were open to public uses.) In any event, there are multiple reasons to coordinate private activities on large spatial scales, taking account of multiple resource activities. Again, we lack good ways to do that today.

All of these considerations, it turns out, point in a single direction. Plain and simple, we need better ways of coming together at the landscape scale to make resource-related decisions. We need better ways to discuss and decide how we might tinker with our land and resource uses so as to accomplish a long, shifting list of resource-related goals. We cannot restore sound wildlife populations or contain exotics except by coordinated action. We cannot restore natural water flows, create recreational trails, or make room for occasional fires without similar coordinated action. With such coordination we can undertake wide-ranging grazing practices. We could develop ways to control polluted water runoff without forcing farmers to give up all chemical usage. And we could concentrate residential and other intensive development so as to reduce infrastructure costs and enhance landscape aesthetics.

The chief need in natural resources law is to develop new mechanisms to undertake such collective discussion, planning, and implementation. In designing these governance structures, we have many options—more than we might realize. We need not use as models simply government bodies that we already know. When appropriate, we can craft regimes that are firmly linked to the knowledge, ideas, and values of users. Regimes could, for example, resemble a typical homeowners association as much as they do any civic government. They could be no larger than a half-dozen ranchers who have pooled their lands for common management, to enhance economic returns and foster ecological health. The options are many. Experimentation should be the order of the day.

In all likelihood, the governance regimes that work best will be ones that blur functional lines and work in ways that seem to defy easy categorization. By providing a forum for resolving disputes relating to resource uses, they will clarify for a time the options of various users and thus participate in the law-making process. They will certainly engage in something that resembles regulation, but it might well be regulation developed by the users rather than imposed by outsiders. As they go about their work, the governing bodies will likely play a role in resource reallocation over time—not as a full substitute for market transactions, but by helping readjust resource uses to make reallocation more feasible. Looking on these new arrangements from a distance, it might well prove difficult one day to distinguish between a person's property rights as individual owner and the power the person exercises as a member of the governing group. Certainly a successful governance regime will be one in which participants understand the ways they and their private holdings are interconnected with all that surrounds them. Good land use and good living cannot take place in isolation.

In a crowded world that presses against the land's carrying capacity, we simply must find ways to coordinate our uses of nature better than we do—flexible, adaptive ways that engage the knowledge and desires of users while working to sustain larger wholes. The day is gone when we can simply define private rights, allocate them to individual owners, and then let them live as they see fit. A much different model is needed, one in which private rights are embedded into governance regimes whose flexible work transcends old functional categories. It is work very much worthy of our top legal minds.

Excerpted From:
The Evolution of Natural Resources Law and Policy

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Product Code: 5350182 Editors: Lawrence J. MacDonnell, Sarah F. Bates Publication Date: December 9, 2009 ISBN: 978-1-60442-430-0 Page Count: 451 Trim Size: 6 x 9 Paperback Sponsoring Entities: Section of Environment, Energy, and Resources Topics: Environmental Law Format: Pricing: $109.95 (Regular) $89.95 (Section of Environment, Energy, and Resources) Log in now to receive this discount!