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

• Author: Rasband, James R.
• Position: The Rule of Capture and Its Consequences

1. 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 public land laws as the source of their title.

   At the same time that the capture metaphor has the potential to undervalue legitimate resource ownership claims, it can overvalue them as well. Because pure capture can be the basis of a legitimate ownership claim, (12) describing certain resource laws as rules of capture may inadvertently strengthen an otherwise dubious claim of vested rights. Consider, for example, the water law doctrine of beneficial use. To describe water rights as a capture rule may tacitly concede that the beneficial use doctrine was never intended to be an impediment to permanent vested rights. While historically states have been slow to use the beneficial use doctrine to limit water diversions, (13) the doctrine's existence suggests a stronger public interest in water than does a rule of capture metaphor. In other words, recognizing that nineteenth century judges and lawmakers did not recklessly adopt capture rules for all resources may actually open opportunities to challenge assertions of vested rights in natural resources.

   If one of the core functions of takings doctrine is to protect property owners' reliance interests, it is imperative to accurately identify those interests. In the terminology of Lucas v. South Carolina Coasted Council, (14) the key question is whether the restricted or eliminated property right originally "inhere[d] in the title." (15) Thus, labeling the nineteenth century as the century of capture suggests that many natural resource users have indisputably good title to those resources because that their title depended only upon capture. Under both Lucas and Penn Central Transportation Co. v. New York City, (16) reallocation of a resource obtained under a rule of capture is more likely to be a taking than reallocation of a resource that is not being used in conformity with the terms of the grant. While it may be appealing to reallocate resources away from an owner who took the resource under a "primitive" capture rule that has now fallen out of favor, it is less just because of its refusal to recognize reasonable reliance interests. Recognizing this truth does not mean that the capture metaphor is never appropriate for public land laws. It simply means that capture is a double-edged sword. In the end, it seems wisest to carefully identify the reasonable reliance interests associated with the ownership requirements of individual resources.

   In the sections that follow, the article will investigate the viability of the capture metaphor for nineteenth century public land and resources law, and then test the proposition that the metaphor is both over- and under-inclusive by considering a rather obscure section of the 1866 mining law known as R.S. 2477, which grants state and local governments "the right-of-way for the construction of highways over public lands, not reserved for public uses ....", (17) Although R.S. 2477 was repealed with the passage of the Federal Land Policy Management Act (FLPMA) in 1976, (18) FLPMA also promised to preserve valid existing rights, (19) meaning that any R.S. 2477 right-of-way created prior to 1976 would not be lost. Given the vast number of potential R.S. 2477 claims in the West--by one estimate, there are 10,000 R.S. 2477 roads in Utah alone (20)--this is no small matter. Moreover, because designation of wilderness generally requires at least 5000 acres of roadless lands, the presence of an R.S. 2477 road, particularly a road that can be managed and improved by a state or local government, can preclude the designation of wilderness. Thus, this "obscure" statute presents one of the most significant potential limitations on wilderness designation in the West.

   The actual impact of R.S. 2477 depends in large measure upon the interpretation given to three statutory terms. Namely, what does the statute mean when it refers to 1) "construction" of 2) "highways" over public lands 3) "not reserved for public uses"? While all three questions are important, it is the meaning of "construction" upon which the article will focus. Considering what sort of activities amounted to construction is a particularly useful vehicle for analyzing the capture metaphor because the question cuts across some of the typical conceptions of nineteenth century public land law. With R.S. 2477, the environmental community, which is often inclined to a capture view of the nineteenth century, finds itself vigorously asserting an improvement rule requiring serf-conscious, mechanical construction. (21) On the other side, states and rural counties, who are typically more inclined to view the public land laws as rewarding yeoman settlers for virtuously and diligently improving and cultivating a hostile wilderness, find themselves asserting a "beaten path" standard of ownership under which very little effort at improvement is necessary to acquire title. Whether there are thousands of R.S. 2477 roads across the public lands, as claimed by state and local governments, or...