Criterion 7. Legal, Institutional, and Economic Framework for Forest Conservation and
Sustainable Management
National Report on Sustainable Forests—2010
Indicator 7.45.
Extent to Which the Legal Framework (Laws, Regulations, Guidelines) Supports the Conservation and Sustainable Management of Forests, Including the Extent to Which It Clarifies Property Rights, Provides for Appropriate Land Tenure Arrangements, Recognizes Customary and
Traditional Rights of Indigenous People, and Provides a Means of Resolving Property Disputes
by Due Process
What is the indicator and why is it important?
Stable property rights and the assurance that those rights will
be protected, or disputed through due process, are essential for
sustainable forest management. Those who depend on forests
for daily subsistence and livelihood, or have a connection to
forests over long periods of time, will take responsibility for
better long-term care of the land if they are able to own the
forest or can be assured legal access to needed forest resources.
What does the indicator show?
Property rights govern the ability of forest owners and other
landowners to acquire, manage, use, and dispose of their land
and its products and services. These rights are exclusive, but
not absolute. Property and tenure rights are determined by the
government, and may be changed at the behest of government
with due process that includes the interests of the community
and the landowners. Landowners’ tenure and property rights
are generally circumscribed by limits on externalities, such
as preventing soil and water pollution, or on usufructuary
requirements to leave land in good condition for future generations, such as seed tree or tree planting requirements. Broader
landowner and zoning restrictions also have been made to
provide for wildlife habitat protection, recreation access, or
cumulative landscape effects, although these occur mostly in
more urban and developed areas.
Clear property rights are arguably the fundamental requirement
for sustainable forest management, and a process to assign
those rights, determine who controls and determines those
rights, and a means to resolve disputes must be clear and
accessible to all owners.
In the United States, property may be owned by any public or
private organization, ranging from local private property owners,
to corporations, to national public lands to Native-American
land reservations. So the scale of ownership for land tenure in
Last Updated June 2011 the United States varies widely. Approximately 65 percent of
all land in the United States is privately owned, and 35 percent
is owned by various government sectors, including 28-percent
Federal and 7-percent State and local government owners.
Holding clear and absolute title to land is provided by law
in the United States, and the administrative services to track
ownership are usually provided by various local, county, or
parish governments. Land titles may be complete or partial,
depending on the bundle of rights that are conveyed with a
piece of property. Specific prescriptive laws govern the use and
transfer of land; legal processes of contracts and torts govern
how land rights are exercised or exchanged; and courts can
resolve disputes when they arise.
Tenure rights are set by the government, but are not absolute. The
5th and 14th Amendments of the U.S. Constitution protect the
rights of private landowners from the taking of private property
without due compensation. These amendments have rarely been
involved in direct application to limits of forest regulations of
private landowner actions in legal challenges, but do provide
significant checks on excessive government regulation.
Many different products and services associated with the rights
to land exist, and they may be, and often are, owned separately.
Rights to manage and protect forests may be separate from
rights to exploit minerals or extract oil or water, and often are
subservient to more valuable uses, on both public and private
lands. Landowners also may sell some or all of their land
rights, for fixed periods or perpetuity.
Conservation easements have increased considerably in the
United States in the past decade. These easements usually set
aside part of the land to protect it from development, and may
allow only passive uses such as recreation and hunting, or may
permit more active uses such as timber management. Private
markets, conservation groups, and government organizations
negotiate prices, swaps, and loans for land and its produce,
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National Report on Sustainable Forests—2010
Table 45-1. Policy and Governance Classification.
Mechanism
Nondiscretionary/mandatorya
Informational/educationalb
Discretionary/voluntaryc
Fiscal/economicd
Market basede
Scale:
National (N),
Regional (R),
State (S),
Local (L)
N, S, L
Approach
Prescriptive
Process or
Systems Based
Performance or
Outcome Based
Private
Enterprise
L, R, I, G
L, R, G
L, R, G
G
N, S, L
M, E
Laws (L), Regulations or Rules (R), International Agreements (I), Government Ownership or Production (G).
Education (E), Technical Assistance (T), Research (R), Protection (P), Analysis and Planning (A).
c
Best Management Practices (B), Self-regulation (S).
d
Incentives (I), Subsidies (S), Taxes (T), Payments for Environmental Service (P).
e
Free enterprise, private market allocation of forest resources (M), or market based instruments and payments, including forest certification (C) wetland banks (W), capand-trade (T), conservation easement or transfer of development rights (E).
a
b
and these agreements are recorded as contracts, conditions on
property titles, liens, or other legally binding instruments that
reside with the land title.
Federal reservation lands held in trust for or owned by Native
Americans may be controlled by separate treaties, tribal laws
and regulations for management, sale, and acquisition, but still
are subject to Federal environmental restrictions or laws.
All forest landowners, public and private, exercise their tenure
rights to achieve their forest land management goals to produce
market and nonmarket goods and services. Clear title to the
surface land, subsurface rights, water rights, and other assets
is required to manage the resource, although complex, clear
title is usually sufficient in the United States. In cases where
disagreements about land rights occur, courts provide a means
to settle these conflicts.
Last Updated June 2011 What has changed since 2003?
No notable national laws changed forest property rights and
tenure since 2003. Some significant changes, however, in land
ownership and conservation uses have continued. At least 10
million acres of land was sold by forest product industries to
timber investment organizations since 2005. These sales have
been partially attributed to an unfavorable tax treatment of
timber income in vertically integrated forest products firms
compared to other investor classes.
Also, more conservation easements are being made to protect
rural forest and agricultural land from development. These con­servation easements and land trusts may conserve entire properties
or at least the development rights. Government organizations
and nongovernmental organizations have been active in purchasing these forest lands or partial use rights for conservation use.
In this case, favorable tax treatment at the State and Federal
levels, which allow the deduction of the value of conservation
gifts, has been credited with increasing sales or gifts of land.
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