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

• Author: Blumm, Michael C.
• Position: The Rule of Capture and Its Consequences

1. 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 in trust for the benefit of the public, the so-called "wildlife trust."

   The Supreme Court originally interpreted the plenary power of this doctrine to enable states to exclude wildlife harvests from interstate transport, (15) but as described in Part V, the Court eventually ruled that the state ownership doctrine was subject to federal constitutional restrictions. Nevertheless, part VI demonstrates that state ownership of wildlife in trust for the people remains a dominant force in American law, equipping states with broad powers to conserve wildlife. Part VII explains why recognizing the proprietary powers of the wildlife ownership doctrine is important, quite apart from any police powers states may possess to regulate wildlife. These reasons include that the wildlife trust may impose affirmative duties on states to protect wildlife, may empower states to collect damages from those injuring wildlife, and may insulate states from takings claims when they act pursuant to the wildlife trust. The Article concludes that, properly understood, the rule of capture of wildlife and state ownership of wildlife are not separable concepts but inextricably connected parts of the American law of wildlife regulation.

2. ORIGINS OF THE RULE OF CAPTURE: WILDLIFE APPROPRIATION IN ROMAN AND ENGLISH LAW

   Wildlife capture principles are traceable to Roman law, but Roman law recognized the authority of the state to regulate capture. When English law inherited capture doctrine from the Romans, it too subjected capturers of wildlife to the authority of the state to control capture, although it did so by introducing the concept of royal ownership of wildlife--a doctrine that would later influence American law.

   1. Roman Roots

      Like much of modern Western property law, the rule of capture of wildlife originated in Roman law. (16) Roman jurists accepted without argument that animals ferae naturee were capable of qualified private ownership. (17) Indeed, Romans believed that private ownership was natural. (18)

      Romans classified property as belonging to one of two broad categories: res extra patrimonium (things owned by no individual in particular) and res in patrimonium (things owned by someone). (19) There were three categories of res extra patrimonium: 1) res publicae (things owned by the state), 2) res communes (things owned in common), and 3) res nullius (things owned by no one). (20) Res publicae included roads, ports, rivers, and public buildings. (21) Res communes--things belonging to the people in common--included air, running water, and the sea and its shores. (22) Along with unoccupied lands, precious stones, and the property of an enemy captured in battle, wild animals were labeled as res nullius--things capable of individual appropriation, but which belonged to no one until a human took possession by occupatio (the natural method of occupation). (23) In the case of wildlife, occupation occurred when an animal was physically captured. (24)

      According to Justinian, "wild animals, birds and fish, i.e., all animals born on land or in the sea or air, as soon as they are caught by anyone, forthwith fall into his ownership by the law of nations; for what previously belonged to no one is, by natural reason, awarded to its captor." (25) Despite this broad statement of capture principles, however, Roman citizens' right to take wildlife was not absolute. (26) While rarely employed, the Roman state maintained the sovereign power (imperium) to control the harvest of animals ferae naturae. (27) In addition, Roman law recognized land ownership as a restriction on capture. Although trespassing hunters could lawfully take wild animals on another's land, (28) landowners had the authority to physically exclude hunters from their land pre-capture. (29) The Roman rule of capture, while granting freedom to take animals in most circumstances, never permitted an unrestricted harvest.

   2. Capture in Common Law England: Royal Restrictions on the Rule

      The rule of capture prevailed throughout common law England. (30) However, the authority employed by the English Crown over wild animals and their habitat produced a different and much more restrictive permutation of the rule than in Roman law. (31) Blackstone wrote that humanity received from the Creator a "right to pursue and take any fowl or insect of the air, any fish or inhabitant of the waters, and any beast or reptile of the field: and this natural right still continues in every individual, [except] where it is restrained by the civil laws of the country." (32) Under the laws of England, limitations on wildlife appropriation by private individuals were pervasive. (33)

      English law did not recognize modern distinctions between proprietary and sovereign powers. The king not only exercised the lawmaking powers of a sovereign; as the head of the feudal landholding system, he also maintained extensive proprietary rights. (34) Property owners generally possessed only those rights granted to them by their...