SYMPOSIUM ARTICLE: THE PIONEER SPIRIT AND THE PUBLIC TRUST: THE AMERICAN RULE OF CAPTURE AND STATE OWNERSHIP OF WILDLIFE Skip over navigation
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Copyright (c) 2005 Lewis & Clark Law School
Environmental Law

SYMPOSIUM ARTICLE: THE PIONEER SPIRIT AND THE PUBLIC TRUST: THE AMERICAN RULE OF CAPTURE AND STATE OWNERSHIP OF WILDLIFE

Fall, 2005

35 Envtl. L. 673

Author

By
Michael C. Blumm * & Lucus Ritchie **

Excerpt



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 ...
 
 
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