The pioneer spirit and the public trust: the American rule of capture and state ownership of wildlife.

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The Rule of Capture and Its Consequences

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The pioneer spirit and the public trust: the American rule of capture and state ownership of wildlife.

I. INTRODUCTION II. ORIGINS OF THE RULE OF CAPTURE: WILDLIFE APPROPRIATION IN ROMAN AND ENGLISH LAW A. Roman Roots B. Capture in Common Law England: Royal Restrictions on the Rule 1. Royal Forests 2. Hunting Franchises III. WILDLIFE APPROPRIATION IN EARLY AMERICA A. The Free Take Imperative B. The Consequences of a Pure Rule of Capture IV. THE RISE OF STATE OWNERSHIP OF WILDLIFE: LIMITING CAPTURE VIA PUBLIC TRUST PRINCIPLES A. The Foundation of the American Wildlife Trust B. Early Wildlife Cases: Correcting the Market Hunting Problem C. Geer v. Connecticut: The Polestar of the State Ownership Doctrine V. GEERIS DEAD: OR SO IT SEEMED A. The Federal Power to Regulate Wildlife B. Constitutional Limitations on State Wildlife Regulation C. Overrulling Geer VI. LONG LIVE GEER. THE SURVIVAL OF THE STATE OWNERSHIP DOCTRINE A. The Limits of Hughes v. Oklahoma B. State Courts: Confining Hughes to Federal-State Conflicts C. State Legislatures: Continuing to Endorse State Ownership of Wildlife D. Current Limitations on State Species Regulation under the State Ownership/Wildlife Trust Theory VII. OWNERSHIP IN TRUST: BEYOND REGULATORY AUTHORITY A. Affirmative Duties to Consider Potential Adverse Impacts and Prevent Substantial Impairment. B. The Power to Collect Damages for Injuries to the Trust Corpus C. The Wildlife Trust As An Affirmative Takings Defense VIII. CONCLUSION I. INTRODUCTION

It is fitting that as part of the Lewis and Clark Bicentennial, Environmental Law should publish a symposium on the rule of capture (1) because during the expedition, in 1805, the New York Supreme Court decided Pierson v. Post, (2) the famous fox case that firmly established the rule of capture on American soil. Capture principles subsequently became a central feature of American natural resources law, especially in allocating private rights to public resources like water, minerals, and wildlife. Law students are often taught the importance of the rule of capture at the outset of their first-year courses in property, (3) and the leading texts on natural resources law feature the rule of capture. (4) Capture is, in short, a central feature of the American law of natural resources allocation.

Capture achieved this prominence largely through pedigree. The origins of the capture doctrine run deep, traceable in Western law at least to Rome, where the concept of res nullius (unowned property) enabled capturers to create private property in communal resources. (5) Capture doctrine was transformed in English law to accommodate a strong dose of royal prerogative, under which the king owned wildlife and capturers required royal permission or acquiescence to obtain private rights in wildlife. (6)

Transported across the Atlantic, the capture doctrine was altered substantially by the American experience. In the early nineteenth century, America embraced a freewheeling rule of capture unknown in England. (7) Before long, however, American courts and legislatures used the precedent of the royal prerogative to articulate a doctrine of state ownership of wildlife, equipping regulators with plenary authority to control harvests. (8) That public ownership concept was successfully challenged by federal authority, (9) but absent federal-state conflict, it continues to endure today, as virtually all states claim ownership of wildlife in trust for their citizens. (10)

Throughout its long history, capture doctrine has been modified to fit the felt necessities of the times. Roman law subjected capture to the regulatory power of the state. (11) Medieval English law recognized royal ownership of wildlife and the plenary proprietary power of the king. (12) Later English law granted landowners constructive possession of wildlife inhabiting their lands. (13) Early American law observed an expansive rule of capture. But by the mid-nineteenth century, American law subjected capturers' rights to the states, who "owned" the wildlife within their borders. (14) Capture doctrine, in short, has never been static: it has always evolved. Moreover, this study shows that capture doctrine has never been fully separated from the concept of state regulation or state ownership. Indeed, the latter is an integral element of the former. This Article examines the evolution of capture doctrine from Roman to English to American law. Part II outlines the Roman and English capture rules, emphasizing the restrictions on capture imposed by the king's creation of royal forests and hunting franchises--manifestations of royal prerogative. Part HI examines the role of capture in early America, in which a free-take rule seemed to dominate for a time, but whose consequences quickly led to adoption of state-imposed restrictions. Section IV explains that these restrictions were the consequence of the rise of state ownership--a descendant of the royal prerogative. As section IV suggests, American law distinguished state ownership from royal prerogative by articulating that ownership was i...

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