Rasbrand on the Capture Metaphor in 19th Century Public Land Law

James R. Rasband, Brigham Young University - J. Reuben Clark Law School, has posted an article, Questioning the Rule of Capture Metaphor for Nineteenth Century Public Land Law: A Look at R.S. 2477. It appeared in a symposium issue of Environmental Law. Here's the abstract:

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. This Symposium participates in that venerable tradition, using The Rule of Capture as a metaphor for nineteenth century public land law and inviting participants to investigate the rule's consequences. Public land and natural resources law in the nineteenth century, however, 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.

The problem with the capture metaphor is that it both undervalues and overvalues the nature of resource ownership in the nineteenth century. The imagery of capture is of farmers, ranchers, miners, and other settlers acquiring ownership merely by possession, which subtly devalues their ownership claims and reliance interests. On the other hand, neglecting the improver requirements of various public land laws may inadvertently strengthen otherwise dubious claims of vested rights.

This article investigates the viability of the capture metaphor by considering a rather obscure section of the 1866 mining law known as R.S. 2477 which grants to state and local governments the right of way for the construction of highways over public lands, not reserved for public uses. Given the vast number of R.S. 2477 claims and that designation of wilderness generally requires an area to be roadless, the presence of an R.S. 2477 road can have significant consequences. The actual impact of the statute depends upon what sort of activities amount to construction under the statute. Whether R.S. 2477 is understood as an improvement rule requiring self-conscious, mechanical construction, as the environmental community suggests, or as a capture rule allowing construction to be accomplished by mere use, the so-called beaten path standard advocated by states and rural counties, depends in part on whether the capture metaphor is an accurate characterization of nineteenth century public land and natural resources law.