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Help by Environmental Zealots (Allen Chair Symposium 1996: the Future University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 1996 Capture and Counteraction: Self- Help by Environmental Zealots (Allen Chair Symposium 1996: The uturF e of Environmental and Land-Use Regulation) James E. Krier University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/243 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Animal Law Commons, Common Law Commons, Natural Resources Law Commons, and the Property Law and Real Estate Commons Recommended Citation Krier, James E. "Capture and Counteraction: Self- Help by Environmental Zealots (Allen Chair Symposium 1996: The uturF e of Environmental and Land-Use Regulation)." U. Rich. L. Rev. 30, no. 4 (1996): 1039-54. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. CAPTURE AND COUNTERACTION: SELF-HELP BY ENVIRONMENTAL ZEALOTS James E. Krier* I. THE MEANING OF SELF-HELP Self-help is a largely neglected topic in American legal stud- ies.' With the exception of a survey by a group of law students published a dozen years ago,2 there appears to be little, if any- thing, in our legal literature that confronts the subject in a systematic way.3 This is so, at least, if one defines self-help as I do. To me, the term refers to any act of bypassing the formal legal system in order to get what one wants. Lest this meaning seem obvious, notice that there are alter- native definitions of self-help that view it more narrowly. One of these alternatives defines self-help to mean what it means in the large and familiar range of popular self-help books and articles that offer "how-to" guidance on matters ranging from the mundane to the metaphysical: how to do your own plumb- ing, how to be your own best friend, and so on. If we were to * Earl Warren DeLano Professor, University of Michigan Law School. An earlier version of this essay was presented as the George E. Allen Lecture at the T.C. Wil- liams School of Law, University of Richmond, during my week-long visit to the school as the George E. Allen Professor in March 1996. I am grateful to the Allen family, and to the students, staff, and faculty of the law school-Professor Michael Allan Wolf in particular-for hospitality and support. Research assistance was provided by a cluster of people during their time as students at the University of Michigan Law School. My thanks especially to Daniel Ginsberg, Eric Guidry, Stephen Ross, Kevin Toh, and Donald Wiest. 1. In contrast to the situation with respect to American law, there are a number of studies of self-help written in other languages and focused on other legal cultures. I have not consulted these for purposes of the present essay, but I intend to consider them in connection with the larger work of which this essay is a part. 2. See, Special Project, Self-Help: ExtrajudicialRights, Privileges and Remedies in Contemporary American Society, 37 VAND. L. REV. 845 (1984). 3. But see Richard A. Posner, Killing or Wounding to Protect a Property Interest, 14 J.L. & ECON. 201 (1971). Posner's article, despite its rather limited substantive reach, approaches the question of self-help in a way that illuminates the general subject, as I shall try to show. 1039 HeinOnline -- 30 U. Rich. L. Rev. 1039 1996 1040 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 30:1039 define self-help in this way, we would find a raft of legal liter- ature offering instruction on the preparation of one's taxes, the making of one's will, the filing of one's lawsuit, the dissolution of one's marriage, and so on, by and for oneself.4 But this gen- re is concerned only with the relatively limited question of self- help that bypasses lawyers, whereas I am concerned with the very broad matter of self-help that bypasses the formal legal system entirely. Another definition of self-help gets closer to the broad concep- tion but still manages to fall short, and in a way that proves to be instructive. An example is found in the Oxford English Dic- tionary, which, under the term "self-help," has an entry that reads: "Law. Redress of one's wrongs by one's own action, with- out recourse to legal process."5 The shortcoming of this defini- tion is its focus on the righting of wrongs. Self-help in its full- est and most significant sense entails substantially more than that, a point I can explain by reference to the rule of capture, which happens to be one of my central concerns in this essay. II. SELF-HELP AND THE RULE OF CAPTURE The rule of capture is quite clearly a self-help rule, yet it has nothing to do with redressing wrongs. Under the rule, which re- mains a significant feature of American law despite judicial and legislative modifications over the years,6 so-called fugitive or freely roaming natural resources are, while in their natural state, owned in common by members of the community at large. They remain common property until someone "captures" them by reducing them to individual possession and control, at which point they typically become that person's private property. The rule of capture is of ancient origin. It probably originated in the context of wild animals-animals ferae naturae is the 4. See, e.g., FRANK G. HOUDEK, LAW FOR THE LAYMAN: AN ANNOTATED BiBLIOG- RAPHY OF SELF-HELP LAW BOOKS (1991). Houdek's book is a loose-leaf volume, so obviously a lot of future entries are anticipated. 5. 14 OXFORD ENGLISH DICTIONARY 922 (2d ed. 1989). 6. See generally JESSE DUKEMINIER & JAMES E. KRIER, PROPERTY 20-62 (3d ed. 1991) (discussing various aspects of the rule of capture). Some of the ideas explored in the present essay were first suggested in the cited pages of the Dukeminier & Krier course book. HeinOnline -- 30 U. Rich. L. Rev. 1040 1996 19961 CAPTURE AND COUNTERACTION 1041 pretentious legal term-that were hunted for food and other domestic purposes: waterfowl and other wild birds valued for their flesh or plumage; rabbits, mink and deer; fish and whales. Whales provide a good example of the rule of capture in opera- tion. A whale loose in the open ocean essentially belongs to everybody entitled to fish the waters-it is common proper- ty-whereas a whale fast to a whaling ship belongs, as private property, to the whaler that caught it.' Capture might be liter- al (which is to say "actual"-the whale is harpooned and tied fast to the boat), or figurative ("constructive," as lawyers put it-the whale has been mortally wounded by a harpoon from a pursuing whaler). The general point is apparent: When an ani- mal ferae naturae is killed or caught, or as good as killed or caught, it belongs to the predator who did it in, so long as pursuit of the animal has not been abandoned.8 The rule of capture was extended early on from wild animals to other resources which, though they lack a life of their own, nevertheless roam about. An example is groundwater, found in pools and streams beneath vast stretches of surface land owned as relatively small individual plots by any number of people. Under the applicable rule (since modified to some degree in some jurisdictions), each owner of overlying land had the right to drill down through his land in order to extract ("capture") the water. All of the landowners were in competition with each other.9 No one landowner had the right to exclude the others from taking water by digging wells that started on, and bot- tomed under, their own land. The water was common property until reduced to individual possession and control, at which point it, like a whale on a line, became private property. 7. "A Fast-Fish belongs to the party fast to it," as one respected authority put the matter. "A Loose-Fish is fair game for anybody who can soonest catch it." HERAiAN MELVILLE, MOBY-DICK ch. 89 (Harrison Hayford & Hershel Parker eds., W.W. Norton & Co. 1967) (1851). 8. Under the rule of capture, an animal that subsequently escapes into the wild is usually once again ferae naturae, common property up for grabs. See, e.g., RAY ANDREWS BROWN, THE LAW OF PERSONAL PROPERTY 18 (Walter B. Raushenbush ed., 3d ed. 1975). 9. See DUKEMINIER & KRIER, supra note 6, at 4041. Under the early common law rule, each owner of land over an aquifer was entitled to draw freely from the source. The rule "was in reality a rule of capture... ." RESTATEMENT (SECOND) OF TORTS ch. 41, commentary at 256 (1977). HeinOnline -- 30 U. Rich. L. Rev. 1041 1996 1042 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 30:1039 Likening water beneath the surface of the earth to whales beneath the surface of the ocean would probably strike lay observers as a remarkably odd thing to do. But we can expect that most people, once introduced to the legal conception behind the analogy, would regard the leap from whales to water as perfectly natural and utterly logical. (Whether it was also wise is a separate question that I shall take up eventually.) And given the likening of water roaming free to wild animals roam- ing free, it is not surprising to learn that judges subsequently -extended the notion to still other fugitive resources when man- kind happened upon them and found them worth exploiting.
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