PRIOR APPROPRIATION.

• Author: Adler, Robert W.
• Position: Natural Resources and Natural Law, part 1

Table of Contents Introduction 742 A. Resurgence of Civil Disobedience 743 B. Resurgence of Natural Law 745 C. The Tension with Positive Law 750 I. Natural Law in U.S. Legal History 752 A. Natural Law Primer 753 1. Natural Law in the Medieval Catholic Tradition 754 2. Natural Law in the Enlightenment 757 3. Natural Law in the Secular State 760 B. Natural Law in Formative U.S. Legal Documents 766 C. Natural Law in U.S. Jurisprudence 770 D. Natural Law Principles Relevant to Prior Appropriation 778 II. Prior Appropriation and Natural Law 780 A. Defining the Problem 780 1. Natural Law and Prior Appropriation in Water Law. 780 2. The Analogy to Grazing Rights 786 B. Positive Law and Public Resources 788 1. The Intervention of Positive Law 788 a. Water Rights 789 6. Grazing Rights 793 2. Relevance of Natural Law 798 a. Applicability of Natural Law 799 b. Application of Natural Law 802 Conclusion 804 A. Refuting the Prior Appropriation Analogy 804 B. The Public Trust Analogy 805 INTRODUCTION

In recent years, there has been a resurgence of civil disobedience to support natural law-based arguments regarding public lands and other resources. (1) Some property rights advocates, particularly a discrete group of western ranchers, rely in part on a form of natural law that might be characterized as rigidly prescriptive, (2) and often theistic. (3) Environmental advocates rely on public trust principles and assertions of fundamental human rights that also have potential origins in natural law.

Both groups raise essential questions about the extent to which land and other natural resources are public or private, their legitimate uses, and the protections they deserve. Reconciling the validity of these claims is deceptively difficult. Neither side can reject the claims of the other by asserting the invalidity of natural law per se to interpret or fill in gaps in positive law, without undercutting the validity of their own arguments.

This Article evaluates the source and applicability of the prior appropriation doctrine to support some western ranchers' claims to property rights in public grazing lands and resources. (4) This Article does not challenge the legitimacy of using civil disobedience to support those arguments. There is a long and noble history in the United States of using civil disobedience to protest government action or inaction, and to propose legal reform (5) based on alternative interpretations of law by discrete communities. (6) There is an important difference, however, between the legitimacy of civil disobedience as a tactic to advocate reform, and the legitimacy of the reforms sought. Likewise, there is a difference between nonviolent protest and the use of firearms, but that is also not my topic.

1. Resurgence of Civil Disobedience

   When an Oregon jury acquitted the defendants in a federal prosecution for alleged offenses related to the armed occupation of the Malheur National Wildlife Refuge, defendant Shawna Cox proclaimed triumphantly that "[w]e have God-given rights" (7) and "I pray that [people] understand that God gives us rights, not the government. The government doesn't have any rights." (8) Her proclamation mirrors the views of ranchers in Nevada and elsewhere who dispute the validity of federal land control. (9)

   The Malheur verdict might be explained as jury nullification. (10) The defendants argued "that they were protesting government overreach and posed no threat to the public." (11) However, the argument that one can overcome violations of federal criminal statutes by proclaiming God-given rights, or some other form of fundamental law, cannot be dismissed as the views of one or more lay defendants. The government convicted some Malheur defendants in a separate trial, (12) but a jury also acquitted some defendants prosecuted for the armed standoff with federal officials at the Bundy Ranch that led to the Malheur protest. (13) A federal judge later dismissed charges against the Bundys because of prosecutorial misconduct in withholding evidence from the defendants, engendering mixed reactions ranging from fear that the result would further provoke militia movements to vindication of the defendants' views. (14) Moreover, this was not the first time that western ranchers had disobeyed positive law to protest or resist what they viewed as excessive federal control of their livestock and grazing lands. (15)

   At the other side of the political-environmental spectrum, advocates have also recently resorted to civil disobedience to protest actions that may contribute to climate change. (16) Environmentalists hail judicial willingness to consider that defense as "groundbreaking" and "precedent-setting." (17)

2. Resurgence of Natural Law

   Some ranchers cite natural law in various forms to claim vested property rights in public lands. Combining prior appropriation of water and forage, Cliven Bundy reportedly told a Ph.D candidate researching early Mormon views of public land policy that, "[f]rom the moment their ancestors' horses took a sip of water or ate the grass, 'a beneficial use of a renewable resource' was created." (18)

   Speaking in his own defense at the trial over the Bunkerville, Nevada armed standoff, Cliven's son, Ryan Bundy, asserted "inalienable rights" to grazing on public lands. (19) Some ranchers signed, and others considered signing, letters to the federal government "denying federal authority to regulate grazing" on federal lands, and unilaterally revoking their own grazing permits. (20) Some lawyers who represent ranchers have asserted similar claims in law journals and elsewhere. (21)

   It is difficult to know how many ranchers assert property rights to federal lands through prior use, but I do not presume that these views are universal. Apparently, at least a significant number of western ranchers share these views, but some prefer anonymity. (22) Other ranching representatives advocate balance between public and private uses and values on public lands. (23) Because of these diverse views, I refer to those ranchers and their attorneys who espouse natural rights views collectively as "natural law ranch advocates."

   These natural law claims also resonate with the populist description of western rugged individualism in popular literature and film. (24) The rugged individualism narrative might help explain the jury verdicts in the Malheur and Nevada standoff cases (25) in the face of significant evidence demonstrating federal law violations. (26)

   Similarly, some environmentalists argue that civil disobedience is necessary due to positive law's failure to prevent or mitigate climate change or other environmental harms, relying on arguments that sound in natural law. (27)

   Renewed reliance on natural law is not limited to the legal and policy debate over public lands, climate change, or other natural resources. Some recent scholarship calls for the resurgence of natural law, (28) and arguments grounded in natural law pervade divisive aspects of the nation's current political discourse. Opponents of same-sex marriage, (29) opponents of publicly required insurance for birth control, (30) proponents of the right to bear arms, (31) and advocates for religious liberty have invoked natural law. (12) The belief that religiously based natural law can override positive law is resurging in widespread ways that may also reflect changes in the U.S. political climate, including the wave of populist supporters who elected President Donald Trump. (33)

   In its most extreme form, proponents of theologically grounded natural law suggest that their obligation to obey civil law is secondary to their religious beliefs. An organization called "Dependence-onGod.com" published advertisements in major daily newspapers proclaiming a "Declaration of Dependence Upon God and His Holy Bible," signed by Evangelical religious leaders, business owners, attorneys, and politicians. (34) One Bundy supporter cited the dismissal of their prosecution as a case of divine intervention, and linked the public land debate to other issues of conservative social policy: "There's a higher power in control.... Federal land is going to go back to the states. Abortion is going to stop, same-sex marriage is going to stop. Otherwise God is going to destroy this country." (35) These assertions of theocratic supremacy are reminiscent of the divide among Puritans in the Massachusetts Bay Colony, a debate one author asserts has not yet been resolved in the United States. (36)

3. The Tension with Positive Law

   As explained in detail in Part II, (37) federal authority over public natural resources rests on the positive law in the Property Clause of the U.S. Constitution, statutes and regulations adopted pursuant to that authority, and judicial decisions interpreting those texts. (38) The Property Clause grants the federal government plenary authority over its public lands. (19) Federal courts have upheld a significant body of federal land management statutes (40) against challenges to their scope and effect. (41) Courts have rejected claims challenging the legitimacy of federal regulation of grazing on federal land, (42) or asserting private property rights to those lands. (43) Most recently, in a federal government trespass action against a vocal natural law ranch advocate, the Ninth Circuit held that existing water rights did not support an easement by necessity to graze livestock on public lands without a permit. (44)

   Natural law ranch advocates seek to refute this seemingly overwhelming body of positive law through arguments of three distinct kinds, reflecting different variations of natural law theory. At one level, the theistic rhetoric used by Ms. Cox, the Bundys, and others suggests a version of natural law in which religious precepts alone are sufficient to override human positive law. (45) That set of claims is most summarily refuted as inconsistent with basic principles of separation of church and state incorporated in the...