Questioning the rule of capture metaphor for nineteenth century public land law: a look at R.S. 2477.

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The Rule of Capture and Its Consequences

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Questioning the rule of capture metaphor for nineteenth century public land law: a look at R.S. 2477.

I. INTRODUCTION II. WAS THE NINETEENTH CENTURY REALLY THE CENTURY OF CAPTURE? III. ROADS ON THE PUBLIC LANDS A. Federal Support of Road Building and Rights-of-Way on the Public Lands B. Roads and the Environment. C. The Benefits of Road Building IV. UNTANGLING R.S. 2477 A. R.S. 2477: Federal or State Law? 1. Pre-FLPMA Interpretation of R.S. 2477 2. The Carter Years 3. The Reagan Years 4. The Clinton Years 5. The Bush Years B. R.S. 2477.'A Rule of Capture?. V. CONCLUSION VI. EPILOGUE I. INTRODUCTION

The literature of public land and natural resources law has spawned a number of powerful metaphors to describe Euro-American settlement of the American West and its consequences. Referring to the voracious resource consumption and land acquisition of speculators, miners, railroads, and timber companies during the second half of the nineteenth century, historian Vernon Parrington labeled the era "The Great Barbecue." (1) In the 1990's, Charles Wilkinson described as "The Lords of Yesterday" the approximately 3500 public land laws adopted by Congress between 1785 and 1880 that continue to exert a powerful influence on natural resource policy. (2) This conference participates in that venerable tradition by using "The Rule of Capture" as a metaphor for nineteenth century public land and natural resources law, and asking participants to investigate the rule's consequences.

Characterizing capture as mere metaphor may strike some as inaccurate. After all, there is a legal doctrine of capture. Generations of first year law students have been introduced to property law by the venerable case of Pierson v. Post, (3) which held that as between two fox hunters, the hunter who actually killed the fox was entitled to possession rather than the hunter who first flushed, chased, and tired the fox. (4) Ownership of the fox was a function of capture, of reducing ferae naturae to possession. At one level then, the rule of capture is not a metaphor for nineteenth century natural resources law; it was the law itself. But the conference invitation seemed to have something broader in mind. Participants were invited to think of the rule of capture as exemplary of not just wildlife laws but of all nineteenth century natural resource laws--e.g., water, mining, grazing, road building. The invitation is tempting because it contains a good deal of truth, and perhaps that is all that can be expected of any metaphor. But in the end, the metaphor is one to be resisted or at least more narrowly applied. Public land and natural resources law in the nineteenth century cannot fairly be circumscribed by the metaphor of capture. The settlement of the American West, and the public land laws designed to facilitate it, required more than simple resource capture. At least as often, ownership depended upon improvement. Water vested only in those who put the water to beneficial use; unpatented mining claims required yearly assessment work; Desert Land Act patents required irrigation; and homestead claims required cultivation. (5) In a nation imbued with John Locke's labor theory of property, (6) it typically was not enough to grab a resource. Title depended upon investing the land or resource with one's labor.

It is also the case that the requirements of such laws were relatively minimal, often circumvented, and rarely enforced. (7) Thus, it is fair to say that even the public land laws requiring improvement had plenty of capture characteristics. Why, then, does this paper resist the capture metaphor when it accurately describes a significant swath of natural resource law history? The problem with the metaphor is that it both undervalues and overvalues the nature of resource ownership in the nineteenth century. It is at once too pejorative and too generous.

The capture metaphor undervalues resource ownership because the imagery of capture is of farmers, ranchers, miners, and other settlers acquiring ownership merely by possession. Although mere capture can give rise to ownership even under a traditional Lockean view because the effort of capture can be understood as mixing the captured resource with the labor of the capturer, (8) the capture image devalues the way in which ownership is perceived. Favoring the cultivator and improver has a long and distinguished pedigree in our land and resource law, beginning with the Jeffersonian ideal of yeoman farmers virtuously mixing their labor with the land. (9) Indeed, historically, the distinction between capture and cultivation was an argument against Indian ownership claims. According to this argument, as mere hunter-gatherers who did not improve their land, (10) Indian tribes could not possess good title. (11) The notion that improvement increases the strength of an ownership claim is not relegated to the nineteenth century; it remains a fixture of the law today. Thus, use of the capture metaphor can subtly undermine and devalue the ownership claims of those who legitimately rely on nineteenth century...

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