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Forest Sustainability Reporting in the United States
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Indicator 7.45: Clarifies forest property rights and land tenure

An indicator for Criterion 7: Legal, Institutional, and Economic Framework for Forest Conservation and Sustainable Management

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 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, 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.

Table 45-1: Policy and Governance Classification

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 con- servation 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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Criterion 7 Indicators