The rule of capture and its consequences.

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 capture as compared with other means of acquisition from a common pool. Two separate articles implicate the age-old question of ownership in wildlife. Michael C. Blumm (5) and Lucus Ritchie (6) analyze how capture principles have led to opportunities for expansive public regulation through the state ownership of wildlife. Dale D. Goble, (7) after discussing the roots of capture, discusses how the rule may actually reduce private property interests in land. James R. Rasband (8) dissects the appropriateness of allowing the rule of capture to interfere with public ownership of resources, using RS-2477 in the public lands context as an example. Similarly, Debra L. Donahue (9) focuses on grazing rights to examine the overlay between private property interests in public lands and the "capture" of agencies by special interest groups. Rounding out this edition, Bruce M. Kramer (10) and Owen L. Anderson (11) examine the historical roots of oil and gas law in capture principles and hypothesize the result of several impending issues in the oil and gas realm.

Collectively, these articles analyze the hill spectrum of the rule of capture's historical consequences and how this doctrine will continue to impact jurisprudence. As society faces new capture possibilities--such as new territory on other planets, genome sequencing techniques, or power generated from tidal flows--examining the impacts of past applications of capture can guide us to predictable and beneficial results. The following articles should allow the reader to begin to grasp the universal implications of capture. We hope these articles trigger debate in the continuing relevance in the rule of capture two hundred years after Lewis and Clark brought it to the Pacific Ocean. Environmental Law would like to thank all of our authors and the symposium planning committee--Michael Blumm, Lin Harmon-Walker, and Janet Neuman--for all of their hard work.

Frank Lupo

Symposium Editor

(1) 2 Cai. 175 (N.Y. Sup. Ct. 1805).

(2) Josephine Witte Professor of Law and Global Scholar, University of Iowa.

(3) John N. Matthews Professor of Law, Associate Dean for Faculty Research, Notre Dame Law School.

(4) Robert G. Fuller, Jr. Professor, University of Pennsylvania Law School.

(5) Professor of Law, Lewis & Clark Law School.

(6) Associate, Pierce Atwood, LLP, Portland, Maine.

(7) Margaret Wilson Schimke Distinguished Professor of Law, University of Idaho.

(8) Professor of Law, J. Reuben Clark Law School, Brigham Young University.

(9) Winston S. Howard Professor of Law, University of Wyoming College of Law.

(10) Maddox Professor of Law, Texas Tech University School of Law.

(11) Eugene Kuntz Chair in Oil, Gas & Natural Resources, University of Oklahoma College of Law.