This interpretive essay looks broadly at natural resources law in the United States, at the body of law that has emerged out of lawmaking efforts to divide nature into parts, to prescribe use-rights in these parts, and to resolve ensuing conflicts. Generations ago private use rights were defined clearly in ways that enabled owners and outsiders to know the reach of private rights. Most lands were devoted to single resource uses. The situation today has become quite different. Use-rights today are vaguer (with more vagueness to come). Also, more lands are thought to contain multiple resources and value now extends to aesthetics and ecosystem functions. The upshots include rising conflicts, more impaired markets in resources, and evident failures to promote either efficient resource uses or desirable landscapes. These upshots, the essay contends, are linked to a general inability to see clearly the functions that natural resources law is called upon to perform in setting after setting, and, going further, then to link today’s conflicts to the specific ways that current law poorly performs these necessary functions. For reasons considered, private resource-use rights need to be embedded more expressly within well-designed governance regimes; within governance systems that are empowered to resolve conflicts among competing interests and, in doing, to bring contextual clarity to specific private entitlements. This means moving beyond longstanding assumptions that (i) the law defines rights, (ii) governments regulate uses, and (iii) courts resolve disputes — legal functions that, in fact, increasingly overlap. Needed today are new governance systems that blend these legal functions so as to enhance resource-use flexibility, to tailor rights to particular settings (physical and social), and to accommodate shifting needs and values. The best systems will likely blend the public and private in novel ways to resolve disputes more quickly, at lower cost, and with more involvement by affected parties. As examples the essay considers wildlife, surface water (in riparian and appropriation systems), minerals, drainage, and fire regimes.
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