Legal regime of separate categories of land

General Provisions

Legal regime of land - this is established by legal norms order of possible and required behavior in relation to land.

Carrying out activities under the right to use subsoil resources for the extraction of commonly occurring minerals, which leads to violation of the legal regime of the land plot, is not allowed until such a plot is transferred to the category of lands allowing mineral extraction.

Prosecutor filed a claim for prohibition of activities under the extraction of clay on an agricultural land plot.

The court has established that an individual whose primary activity is manufacturing of bricks, roof tiles and other building products made from fired clay is engaged in the extraction of loam on a land plot designated for agricultural purposes. The use of subsoil resources is carried out based on a license with specific purpose and types of work - exploration of deposits with simultaneous extraction of brick loams.

The court's decision satisfied the prosecutor's claims, prohibiting the individual from engaging in activities related to the extraction of brick clay on land plots designated for agricultural purposes until the land plots are reclassified into a category allowing for the extraction of minerals.

The appellate court overturned the decision and denied satisfaction of the prosecutor's claims.

In accordance with Article 42 of the Land Code of the Russian Federation owners of land plots and persons who are not owners of land plots, are obliged: to use land plots in accordance with their designated purpose by means that must not cause harm to the environment, including land as a natural object; must not [allow](/enc/32053/ "Definition of the term 'allow' in

of the legal encyclopedia") pollution, depletion, degradation, damage, destruction of lands and soils, and other negative impact on lands and soils.

According to paragraph 1 of Article 78 of the Land Code of the Russian Federation (ZK RF) [/enc/21049/ "Definition of the term 'Agricultural Lands' in the legal encyclopedia"], agricultural lands may be used for agricultural production, creation of protective forest plantings, scientific research, educational and other purposes related to agricultural production, as well as for aquaculture (fish farming) purposes.

Thus, land plot of agricultural purpose may be used for works related to the extraction of minerals only after reclassification of this plot from the specified category. Until that moment, its legal regime of use is limited by the intended purpose under Articles 42 and 78 of the Land Code of the Russian Federation.

The mere fact that the company holds a license for the use of subsoil resources does not exempt it from the obligation to comply with land legislation and does not grant it the right to carry out extraction of commonly occurring minerals on agricultural land plots.

Rejecting the defendant's argument regarding the use of commonly occurring useful minerals on a land plot owned by the company as property under Article 19 of the Mining Law, court noted that the term "use for one's own needs" of commonly occurring useful minerals within the scope of application of this article refers to their use by landowners, land users, landholders, and lessees of land plots for

personal, household, and other needs not related to entrepreneurial activities, while the society uses the silt extracted from the agricultural land plot in production activities¹.

The mining of commonly occurring useful minerals in violation of the legal regime of the water protection zone is not allowed, including in cases where a license for the right to use subsoil resources is present.

Authorized body overseeing supervision in the field of natural resource use has filed a lawsuit with the court requesting prohibition of economic activities related to the extraction of commonly occurring mineral resources on sites of deposits, partially and/or fully located within the protected zone of Lake Baikal. The basis for filing a lawsuit with the court was non-implementation of the recommendation from the East-Baikal Interdistrict Environmental Prosecutor's Office to eliminate

violations of federal legislation, manifested in the continuation of activities related to the extraction of minerals in the central ecological zone and the water conservation zone of Lake Baikal.

The subsoil user opposed the satisfaction of the claim, since licenses for the extraction of commonly distributed minerals were issued prior to the establishment of the water protection zone around Lake Baikal.

By the decision of the court of first instance, left unchanged by the appellate and cassation courts, the claim was fully satisfied on the following grounds.

On the Baikal Natural Territory a special regime for economic and other activities is established, including those carried out in accordance with the principles of prioritizing types of activities that do not lead to disruption of the unique ecological system of Lake Baikal and natural landscapes of its water protection zone. Activities that result in negative impact are prohibited or restricted, including those that cause harm to the unique

the ecological system of Lake Baikal (article 5 and paragraph 1 of article 6 of the Federal Law of May 1, 1999 No. 94-FZ "On the Protection of Lake Baikal", hereinafter - Law on Lake Baikal).

Due to the provisions of paragraph 1 of Article 3 and paragraph 3 of Article 6 of the Law on Lake Baikal, the Government of the Russian Federation establishes the boundaries of the Baikal Natural territory and ecological zones (central ecological zone, buffer ecological zone, atmospheric influence ecological zone), as well as the list of types of activities prohibited in the central ecological zone.

Implementing the aforementioned powers, the Government of the Russian Federation has established that mineral extraction on the territory of Lake Baikal, within its water protection zone, within the riverbeds of spawning rivers and their water protection zones, except for the extraction of groundwater for drinking and household water supply purposes, as well as conducting dredging works is prohibited ([paragraph](/enc/28881/ "Definition of the term 'Paragraph' in the legal

"encyclopedias") ninth decree dated August 30, 2001, No. 643 "On Approval of the List of Activities Prohibited in the Central Ecological Zone of the Baikal Natural Territory", which was in force during the period of the dispute).

Based on the basic principles of environmental protection, including the presumption of ecological risk associated with planned economic and other activities, courts have concluded that further conduct of the company's activities in the extraction of minerals based on the existing license within the water protection zone of Lake Baikal is impermissible.

Any other course of action would constitute violation of environmental legislation and the protection regime of Lake Baikal, which belongs to objects of world natural heritage².

1. Overview of judicial practice on issues related to the application of environmental legislation (approved by the Presidium of the Supreme Court of the Russian Federation 24.06.2022) ↩
2. Overview of judicial practice on issues related to the application of environmental legislation (approved by the Presidium of the Supreme Court of the Russian Federation 24.06.2022) ↩