The rule of capture and its consequences.

• Author: Lupo, Frank
• Position: SYMPOSIUM

As part of Lewis & Clark Law School's continuing celebration of the bicentennial of the Corps of Discovery's epic exploratory journey, the Oregon Law Institute and Lewis & Clark Law School hosted a symposium entitled the "The Rule of Capture and Its Consequences" on April 7-8, 2005 in Portland, Oregon. This edition of Environmental Law springs from that symposium and focuses on the rule of capture and its implications across a vast legal landscape. The symposium brought together renowned national legal scholars and a "captive audience" of practicing attorneys and visiting professors.

The bicentennial of Lewis and Clark's arrival on the Oregon coast created an ideal backdrop to pay homage to, and consider the evolving implications of, the "capture" of new American territory. President Jefferson's Louisiana Purchase dramatically altered the course of American history. Through the rule of capture the ability to take title to property by acquisition--settlers were able to converge on the "unexplored" West and shape the future of America.

Law students quickly grasp the concept of capture in their first year Property class. Pierson v. Post, (1) the American keystone to the rule of capture, revolved around the appropriate method by which two competing sportsmen gained rights in their prey. The distribution of property through the rule of capture dictates that the first to control property acquires ownership of it. In a society without existing ownership rules or property rights, capture may be the most straightforward method of distribution. The remembrance of Lewis and Clark's expedition illuminates the prevalence of this doctrine in the early 19th century.

However, as this symposium and its subsequent articles demonstrate, applications of the rule of capture are not so simple in the evolving legal society of the twenty-first century. In this edition of Environmental Law, we asked our authors to examine the rule of capture as the basis for acquisition of different types of property and the impacts a system based on capture has on each of their areas of expertise. Lea VanderVelde (2) examines the deprivation of human liberty which sprang from the Americanized rule of capture, using African slaves and Native Americans as examples. John Copeland Nagle (3) focuses on the modern "uncaptured" elements of wilderness and spiritual implications for retaining their wild status. Jason Scott Johnston (4) uses economic theory to examine the relative merits of...