2.5 Laws and policies indicate that leasing or ownership of the site is possible to ensure protection and needed level of long-term exclusivity.

After an organization determines that exclusivity is needed to achieve its conservation goals for a site and discovers who owns and uses the lands and resources at the site, it is ready for the next step. An organization must then assess the relevant laws and policies to determine if leasing and ownership are possible.

Probable Acquisition

If the lands and resources lying within the ocean and coastal waters are currently privately owned, then acquisition of fee-simple and less-than fee-simple ownership interests is likely possible. If the lands and resources are currently publicly owned, then in most circumstances ownership per se is likely not achievable. However, in some situations exchanges or outright acquisition of fee-simple ownership of publicly-owned lands and resources are feasible. If not, conservation organizations can consider some form of leasing. Under all circumstances, relevant laws and policies, the public trust doctrine, and case law should be evaluated to determine the rights which can and cannot be acquired.

Public Rights

In many circumstances, even when private entities own fee-simple title to lands and resources below the high tide line, the public retains certain rights to access or use the lands and resources. This represents a significant difference between fee-simple ownership of uplands and fee-simple ownership of lands below the high tide line. The rights held by the public for lands and resources below the high tide line are often associated with the public trust doctrine in the United States and may be associated with cultural, community, and other historical rights in other countries. These public rights may have a bearing on the rationale for conserving the lands and resources as well as on the ability to do so.

Law and Policy Assessments

Our current understanding of laws and policies for specific states and countries is summarized in the U.S. state and country overview pages on this site. In some cases, extensive law and policy analyses have been completed; many of these are provided as assessments within the toolkit. In other cases, few to no analyses have been completed. If insufficient information is available to make a determination for a specific site, then conservation organizations will have to undertake an analysis themselves.

An attorney or policy analyst should be consulted if a law and policy assessment is necessary. An analysis of constitutional provisions, federal, state, and local statutory laws and regulations, management agency policies and practices, public rights (associated with the public trust doctrine and other common law rights), and case laws may be necessary. In addition, interviews with management agency staff will help clarify how the laws and policies have been implemented and interpreted in the field.

The fundamental questions that should be answered by law and policy assessments include:

• Can fee-simple or less-than fee-simple rights to lands and resources lying within ocean and coastal waters be acquired through sale, lease, gift, or exchange by private conservation organizations for conservation purposes?
• What rights and responsibilities do public and private entities hold or maintain (via the public trust doctrine, federal/state laws and regulations, and case law) in publicly-owned lands and resources?
• What rights and responsibilities do public and private entities hold or maintain (via the public trust doctrine, federal/state laws and regulations, and case law) in privately-owned lands and resources?
• Can private ownership of lands and resources partially or fully exclude other uses from the site to the degree and duration necessary?
• Given the multiple use mandates of many public agencies and the status of the lands and resources in question how much will other uses need to be accommodated?
• What authorizations will be required of private conservation organizations that undertake in-water acquisition projects given the anticipated activities on the sites?

Policy versus Perception

Conservation organizations should be aware that it is often assumed in many public and private arenas that lands and resources lying within ocean and coastal waters are not available for private leasing or ownership. Frequently, this assumption is incorrect. As such, any analysis undertaken may have to distinguish between actual law and policy barriers and perceived institutional barriers to leasing and ownership. If law and policy barriers do not exist, then the agencies, land and resource owners, and political climate must be conducive for a private conservation leasing or ownership project to go forward.