Natural resources law defines how private property owners may use the environmental resources on their land. Natural resources are those parts of the environment with economic or social value. Natural resources include air, water, timber, minerals on and under the surface, animals, and soil use.
"Natural resources law" is sometimes used interchangeably with "environmental law," but they differ. Natural resources law has to do with how a private owner may use their resources for profit or how the government may use them for the public benefit. Environmental law regulates how that use impacts the environment.
Property Ownership and Resource Rights
In the United States, private individuals and companies can own natural resources. This differs from almost every other nation in the world, where natural resources by default belong to the government.
Subsurface rights can be conveyed separately from surface rights. Subsurface mineral rights may be owned by private individuals, corporations, or the U.S. government. The owner of the land on top may not realize this when they sell the property until another entity comes to develop the subsurface resources.
Private property owners own the topsoil and "up to the sky," according to one archaic formulation. For instance, timber rights normally come with the property. Property ownership and natural resources laws grant the right to develop undeveloped land, build, grow crops, and raise livestock.
Land Use and Zoning Laws
Zoning laws are regulatory plans that divide a population center into "zones" or areas for economic development. One of the requirements for zoning is land use. Other elements include traffic patterns, green space, residential areas, and noise control. Land use regulations take into consideration both public and private land and any state or federal laws.
For instance, water laws "run with the land." A deed to real property may give the owner the right to any water that touches the property, known as "riparian rights." In desert states with low rainfall, laws affect whether landowners may collect or divert water that flows over their property during rainstorms. Other states have restrictions on collecting rainwater in an attempt to control mosquitoes.
All these laws are natural resources laws. They affect how a property owner can use resources — in this case, water — on their own land. Similar laws restrict cutting wood or raising livestock. Zoning laws can limit whether a homeowner can raise their own cattle or cut down trees to convert land for agriculture.
Easements and Takings
An easement is the right to enter another person's property without permission. A shared driveway is a type of easement. If the city needs to put a power pole on a corner of your property, they may ask for (and get) an easement so their utility workers can work on the power line without asking you.
A negative easement prevents you from using your property in the way you want. Negative easements are rare and most often prevent the landowner from blocking air, water, or lateral support. For instance, if you wanted to dig a swimming pool, but it would undermine your neighbor's foundations, a negative easement would prevent you from doing so.
If the government imposes an easement or negative easement on a landowner and causes an economic loss, it becomes a taking. Under the Fifth Amendment to the U.S. Constitution, government agencies cannot take property without providing fair compensation. The cost is nominal in most cases, such as placing a utility pole in your yard. In other cases, the cost might be considerable.
Environmental Law and Property Rights
Environmental law covers larger topics of policy and conservation of natural resources. The U.S. Environmental Protection Agency (EPA) oversees the extraction of natural resources and environmental health. In conjunction with the federal government, the EPA also monitors the sustainability of natural resource use and protects endangered species.
Other federal agencies, including the Department of Energy and the Department of Wildlife Services, also monitor environmental laws and protect U.S. resources. Private advocacy groups like the Sierra Club practice environmental justice on behalf of the public.
These agencies impact public policy, which in turn affects property rights. The EPA determines the beneficial use of environmental and natural resources. For example, a property owner may own a large tract of timber and want to sell it for logging. The EPA determines that the land also supports several endangered species that the logging would threaten. Federal courts must step in to determine if the property owner's right to profit is superior to the public's right to an intact forest.
In the early days of America, property rights trumped any other rights. Public policy changed when scientists discovered that unregulated pollution and resource extraction led to climate change and poor water and air quality. The U.S. Department of Justice's Natural Resources Division handles legal disputes today. The division takes legal cases on environmental law representing the government.
Regulatory Taking and the Law
Public policy initiatives limit mining, drilling, or timbering on private property. A regulatory taking occurs when regulations prevent landowners from developing their property. For example, think back to the property owner with the timber. If a developer could have purchased that land and the timber cut for $5 million in logs, the owner has lost that potential income due to regulations.
A regulatory taking must involve a physical intrusion onto the property or a regulation that completely deprives the property of all economic value. A possible regulatory taking is where environmental law and natural resources law intersect. The timber owner must prove that there is no possible use for the land based on the environmental regulations. The environmental lawyer will attempt to show other property uses that could provide value. This can be a way to eliminate the government's taking.
Hiring a Natural Resources Lawyer
Most people won't need the legal services of a natural resources lawyer. Real estate attorneys and title companies can provide legal advice regarding land use regulations affecting property owners' resource use. Attorneys specializing in energy law or management may also know about natural resources law.
Although few attorneys specialize in natural resources law, some firms work exclusively in environmental law. These firms are often involved in suing oil and gas companies or protecting endangered species.
Other practice areas that may help with your natural resource questions may include administrative law for zoning matters and contracts law. Property disputes may involve trespass, which is a type of tort. If your issue involves a dispute with a private individual or entity, you may need to bring them to court.
Since natural resources law is not a major topic in law school, if you need an attorney, your best bet is a land use and zoning lawyer. They can do the legal research needed to answer your questions and help with your dispute resolution. If they can't help, a lawyer referral service can find other resources.