(Wyoming elk herd near Johnson County, WY)
 
21 April 2010: Please see the Editor’s Note below for additional clarification.

I have a picture of a herd of Elk out on the vast prairie. They are a magnificent animal in the wild, but they are rightly wary creatures. The image shows the animals wandering on an endless curved horizon, alert and wary as individuals.
 
To the human eye that signaled the brain to send the minute electronic impulse to press the shutter, the majestic animals must have seemed much closer.
 
The question of ownership seems absurd in the context of this wild creature. Naturally, they must belong to themselves, or to the land on which they tread with such dignity.
 
Yet the state of Wyoming permits hunters to take them, implying that there is no ownership at all until the moment that the shot is taken and the animal comes down. It does not matter where the animal might be, or on whose land the act might occur.
 
It is a strange thing, this concept of wild animal, and how it cuts across a strange body of law. I was reading about another wild commodity, gas and oil, and it was quite extraordinary, though logical if you can wrap your brain around the notion of “capture.”
 
It does not take a blood killing to inflict ownership in the wild. It could be done with a noose on a lariat; in point of law, roping the Elk would be enough to confer ownership.
 
I happened across a Hollywood version of the story recently, one of the movies I never get to at the walk-in theater but caught on DVD. “There Will Be Blood” is a sprawling film with the remarkable actor Daniel Day-Lewis striding across California’s turn-of-the-century petroleum boom. Lewis plays a down-and-out silver miner, emblematic of the boom that built the West, He is a single father, and gets word that there is a town were oil is oozing from the ground like blood from a wound.
 
raising a son on his own into a self-made oil tycoon. When Plainview gets a mysterious tip-off that there’s a little town out West where an ocean of oil is oozing out of the ground.
 
The town of Little Boston calls in all the caricatures of the old west and a bonanza is struck. With the gusher comes money and inevitable corruption, which is the universal connective tissue of the drama. I mention it here only because of the great quote that explains rule, or law of “capture” as derived from English common law and applied to the Wild West.
 
The general rule is that the first person to “capture” such a resource owns that resource. For example, a landowner who extracts or “captures” groundwater, oil, or gas from a well that bottoms within the subsurface of his land acquires absolute ownership of the substance, even if it is drained from the subsurface of another’s land.
 
The Preacher of the local charismatic church (played by Paul Dano) asks the wildcatter oilman (Daniel Day-Lewis) to purchase an oil and gas lease on land owned by a member of his church.
 
The Wildcatter owns the subsurface rights on an adjacent piece of land and has already drained the oil.  Day-Lewis explains it this way: “If you have a milkshake, and I have a milkshake, and I have a straw… and my straw reaches across the room, and starts to drink your milkshake, I drink your milkshake! I drink it up!”
 
This flies in the face of the laws applying to real estate, which go back to Roman times, and are considered, in Latin, to be “cuius est solum eius est usque ad coelum et ad inferos.” In our inferior tongue, that would be, “Whosoever owns the soil, it is theirs up to the sky and down to the depths.” All rights held in fee-simple.
 
We learned about that law in Hawaii with some pain, since when you bought real estate you had to be very careful. The old Crown held all the land, and one purchase a house and own it, yet not own the land beneath. The land was only rented out for a finite period by the Bishop Trust, heirs and assigns of the old Queen.
 
In the West, the judges had to sort this all out as unprecedented. In the times of the first Wildcatters considered oil and gas to be the same as the majestic Elk, or the bison whose vast herds had been captured and eliminated through the right of Capture. The judges decided oil and gas to be fleeting or transitory, as is the passing of the Elk, and thus subject to the right of capture regardless of where it came from.
 
That is where matters stood for Daniel Day-Lewis, and it still does in places with rough-and-ready justice like Wyoming.
 
The Johnson County War, also known as the War on Powder River, was a key factor in the development of jurisprudence in the west. In April of 1892, armed men clashed repeatedly in Johnson, Natrona and Converse County in southeast Wyoming. It was a war between small ranchers and big ones in the Powder River Country. It culminated up in a mythic shoot-out that combined class-warfare and banditry, Sheriffs and hired gunmen. The situation grew so violent that the U.S. Cavalry was sent in by President Benjamin Harrison to restore order.
 
The law of Capture is tinged with the blue gun-smoke that wafted, transitory and fleeting, over Johnson County.
 
In Texas, the old saying was “West of the Pecos, there is no law. West of the Brazos,, there is no God.”
 
There was often blood over matters of cattle and later oil and gas. The law developed a Texas school of thought regarding “ownership-in-place,” a theory by which a landowner owns a interest (similar to fee simple) in the substances beneath his land. It is sort of like cattle and rustling; you cannot capture another land-owners cattle if it has been properly branded.
 
The Okies are more cavalier in their approach. Their state law holds that there is an “exclusive-right-to-take” oil and gas, since a landowner does not own the substances that underlies his surface property, but retains an exclusive right to capture the oil and gas below.
 
Louisiana, with a French tradition in law, goes its own way.
 
You can imagine the rule of capture creates an incentive for owners to drill as many wells as possible so as to extract the groundwater, oil, or gas before his neighbor. You can imagine that it is wasteful in the extreme, and that is one of the reasons we have to get most of our oil from overseas, where the law of capture has overwhelmingly been taken from the oil companies and reserved to the nation-states.
 
Of course, excessive drilling comes with consequences. Depleting the pressure within the aquifer or oil and gas reservoir reduces production, and creates waste. Many states have sought to replace the rule of capture with laws to force sharing of revenues and placement of wells to maximize recovery.
 
This is all going to be really important as we come to the end of the oil age. What is still there in the ground is going to be captured and we are going to cycle it through our cars and transform it into plastic.
 
We also need to be thinking about what we are going to do after that, since we will have nothing to capture out there in the wild except the Elk, and we may have to walk to do it.
 
Copyright 2010 Vic Socotra
www.vicsocotra.com <http://www.vicsocotra.com>
 
A reader commented that the below “might be of interest to you and your story. Its gives the pricings for resident and non-resident ownership of the right to hunt on government owned property. Also if you tag the wrong animal Wyo fish and game are all over you. Not quite free blood.
http://gf.state.wy.us/fiscal/license/index.asp <http://gf.state.wy.us/fiscal/license/index.asp>
Management quite agrees. The prices for an Elk license range from $5 for”pioneer landowners” to almost $600 for non-residents. The license is for the right to hunt a specific species, not for a specific animal. English Common law does specify that the animal is not owned until “captured,” and that was the basis for the Daniel Day-Lewis quote about being able to collect oil and gas from adjacent properties. That right has been modified since by state laws to limit drilling.  Any implication I was speaking to Wyoming game laws is completely erroneous. Management regrets the error.

Copyright 2010 Vic Socotra
www.vicsocotra.com
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