1.3 Owners, Managers, Users

1. MCA Field Guide: English | Spanish
2. MCA Field Guide Checklist
3. Phase 1: Feasibility Analysis Checklist
4. 1.1 Conservation targets are established
5. 1.2 Threats and strategies are determined
6. 1.3 Owners, managers, and users are known
7. 1.4 Laws and policies are supportive
8. 1.5 Organizational capacity is sufficient
9. 1.6 Stakeholders and their issues are identified
10. 1.7 Costs and financing are assessed
11. 1.8 Reporting has been completed

Conservation organizations must now identify who holds the rights to the conservation targets or management authority over the threats and strategies that are associated with the Marine Conservation Agreement (MCA) project. The targets, threats and strategies previously identified likely focus on one or more “assets” that can be acquired, managed or used via an MCA, including:

1) Physical areas of underwater land, the water column or air space; and
2) Resources such as plants or animals that are attached to the underwater land, floating in or on the water, or traversing the air.

Organizations must determine who (either people or entities) has legal rights or interests in the assets that need to be acquired, managed, used or “provided” (as with ecosystem services). These people or entities usually fall into one of three groups, or a combination of the groups: owners, managers and users. Collectively, these entities are “right-holders.” They hold a “right” to the assets that conservation organizations are interested in. Rights that conservation organizations are often interested in include development rights, harvest rights and access rights, among others.

Given the specific legal framework under which MCAs will be entered into, organizations must consider which rights and interests can and must be acquired or managed to protect the targeted biodiversity elements or provide the targeted ecosystem services.

Fundamental Questions

It is important to note that different people or entities may have legal rights of ownership, management and use over the same sites, resources and ecosystem services. Determining who these people or entities are (through the methods identified below) and what their legal claims are is essential. Once determined, the fundamental questions to answer include:

• Is the site publicly or privately owned and managed?
• Who makes use of the resources, habitat area or ecosystem services, regardless of ownership or management? 
• Is the site, resource or ecosystem service already being used by a public or private entity for a specific purpose which excludes others, including conservation interests?
• If the site, resource or ecosystem service is already in use, is there a specified time period of use, are there opportunities for multiple uses, or are there opportunities for partnering with the current user?
• Are informal, or customary, use and ownership rights involved? 
• Does the owner, manager or user hold the legally recognized rights necessary to achieve the conservation objective? If not, can those rights be obtained, transferred or directed? 
• Alternatively, is the de facto situation conducive to an MCA? 

Rights to lands, resources and ecosystem services are among the most complicated yet important features of any potential MCA project. In many instances where the asset rights are unclear or insecure, MCA design will have to pay particular attention to the balance between incentives and investment in enforcement capacity. If the right-holders cannot be determined for the site, resources or ecosystem services, then an MCA likely cannot and should not be used as a conservation tool.

How to determine right-holders

It may be possible and easiest to determine who the right-holders of sites, resources and ecosystem services are by consulting relevant national or local government agencies. This toolkit provides agency information in Country Analyses, United States Analyses and (U.S.) Contacts. When this approach is not viable, right-holders can often be determined through spatial data assessments, boundary surveys and title reports.

Spatial Data Assessments

Spatial data assessments collect spatial information about ownership, management and uses for specific geographic areas, normally so it can be mapped and interpreted visually. However, ownership boundaries, authorities, jurisdictions, and user rights are often in dispute and can be difficult to determine in ocean and coastal environments. An extensive primer on Shore and Sea Boundaries in the United States is available from the National Oceanic and Atmospheric Administration (NOAA). NOAA has also developed a summary manual for Marine Managed Areas: Best Practices for Boundary Making. The manual identifies many of the boundary issues that organizations may come across when working offshore. For more on this see the overview of Boundaries.

On occasion, spatial data depicting ownership, management and use of lands and resources lying within ocean and coastal waters can be easily accessed and relied upon. Other times the information is either difficult to access or unreliable. If the ownership, management and use information is not easily accessible or reliable, conservation organizations may have to assess and develop the information themselves. The information assessment and development can be undertaken for specific sites or whole regions, states, and countries. A review of spatial data availability for the ocean coast states in the United States can be accessed through U.S. Maps.

A rigorous process to develop ownership, management and use data is presented in detail in the guidelines, Marine Land Ownership & Leasing Spatial Database Template (download pdf, 223k). The template was designed to facilitate spatial data projects and to enable comparisons of progress among different state and country spatial databases. The template was used in 2006 to assess and develop spatial data for MCAs in Oregon (download pdf, 464k) and Massachusetts (download pdf, 2,117k).

Boundary Surveys

Determining the physical location of the MCA project area during sub-step 1.3 (if not already completed) may aid in the assessment of spatial data (see above) or in the title report (see below). For more information on boundary surveys, see sub-step 1.1 Conservation Targets – Completing Boundary Surveys <link to paragraph within sub-section>

Title Reports

In formal settings where land tenure is known and secure, obtaining and reviewing a title report for the land and resources subject to an MCA is part of performing proper due diligence. The title report will determine: 1) who owns or leases the site; and 2) whether there are existing easements, rights, or other encumbrances over the site.

Ownership documents are normally filed at courthouses or statehouses. Leases and easements may be similarly filed, or they may be filed at the authorizing agency's office. The ownership, leasing, and easement documents should be examined to make sure there are no liens against the property and resources or any defect in the title. The product of a title search may be a title report, an attorney's certificate of title, a title abstract, or an insurance company's title commitment (Title binder) that is used in the issuance of a title insurance policy. An insured title policy (title insurance) is a standard requirement of real estate transactions and can usually be purchased from local title insurance companies. This type of insurance usually restricts the previous ownership identification to a limited time frame (i.e., 50 years). Note that ownership inquiries must be made directly to the responsible agencies or professional title insurance company as the current owners may not have a complete ownership history.

Ocean and Coastal Issues: Encumbrances (equivalent to land use restrictions) on or defects in the title may affect negotiations in the deal. For intertidal and subtidal lands and resources, it is common to have restrictions related to tribal rights, the public trust doctrine (in the United States), other leases and utility easements, boundary disputes, shipping and boating, and potential contamination.

Commodity Interests: Besides liens, leases, and easements there are other partial interests in title that can affect the long term viability of a conservation project (or at least contribute to future conflicts). Not the least of these are mineral rights (e.g., oil & gas exploration) and shellfish harvesting rights (tribal or otherwise). The former can easily be included in a title report request. The latter will probably take additional research or collaboration with affected parties.

In most cases dealing with public lands, conservation organizations will not be able to obtain mineral rights, even if the property is acquired in fee simple. However, this can be mitigated by ensuring that the terms of the conservation plan clearly preclude on-site exploration and extraction. In less-than-fee-simple acquisitions, agencies may issue long term (but usually not perpetual) withdrawals from mineral exploration and purposes.

Title Report Review: Unless practitioners have substantial knowledge of title issues, surveying principles and the like, it may be advisable to get an expert review of the title report for completeness and accuracy. Special focus should be on any “exceptions” noted in the title report—the potential implications of these “exceptions” may not always be self-evident. Special attention should also be paid to court rulings on private ownership and use of submerged lands and public trust lands for the specific parcel and for the area in general. In some limited cases courts have ruled in favor of state ownership even when private entities have a clear chain of title.

Next Sub-step

Once the right-holders of ownership, management and use are known, the next step is to assess the laws and policies associated with the lands, resources or ecosystem services.

Proceed to 1.4 Laws and Policies

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