Blumm and Ritchie on the Rule of Capture

Michael C. Blumm and Lucus Ritchie (both of Lewis & Clark Law School) have posted The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife on SSRN. Here is the abstract:

The law of capture, a central feature in Anglo-American property law, has deep historical roots, running at least to Rome, where capturers could create private property in res nullius resources like wildlife (ferae naturae) if they did so consistent with Roman law (imperium). When transfered to English common law, capture doctrine was laden with pervasive restrictions imposed by royal prerogatives, as the English king was said to own wildlife that had been unowned in Rome. Thus, royal forests and hunting franchises imposed substantial limits on wildlife capture.

In early America, the lack of royal prerogatives seemed for a time to sanction a free-wheeling rule of wildlife capture unknown in England. For example, the English rule allowing landowners to exclude capturers was largely discarded, at least with respect to unfenced lands. But as the overharvesting consequences of expansive capture rules became apparent, American courts rediscovered and republicanized the royal prerogatives into the concept of state ownership of wildlife. This 19th century development was grounded on both sovereign power and public ownership principles, or sovereign ownership, a concept endorsed by the Supreme Court in 1896.

Although during the 20th century the Supreme Court repeatedly limited the state ownership of wildlife where it conflicted with federal law - and finally overturned the case that endorsed the doctrine in 1979 - today nearly every state claims ownership of wildlife. This article examines this phenomenon and explains both the limits and utility of the state ownership doctrine in the 21st century. We claim that although modern notions of the police power justify expansive state regulation of wildlife, the state ownership doctrine retains vitality because it may bolster or enlarge police power regulation by 1) imposing affirmative duties to protect wildlife, 2) empowering states to collect damage for damages to wildlife, and 3) offering an affirmative defense against landowner claims of constitutional takings due habitat protections.

Ben Barros