Abstract

http://ssrn.com/abstract=2423831
 


 



The Durability of Private Claims to Public Property


Bruce R. Huber


Notre Dame Law School

April 11, 2014

Georgetown Law Journal, Vol. 102, p. 991, 2014
Notre Dame Legal Studies Paper No. 1417

Abstract:     
Property rights and resource use are closely related. Scholarly inquiry about their relation, however, tends to emphasize private property arrangements while ignoring public property — property formally owned by government. The well-known tragedies of the commons and anticommons, for example, are generally analyzed with reference to the optimal form and degree of private ownership. But what about property owned by the state? The federal government alone owns nearly one-third of the land area of the United States. One could well ask: is there a tragedy associated with public property, too?

If there is, here is what it might look like: private claims to public property are remarkably durable. Consider private claims to the lands and resources owned and managed by the federal government. Once established, these claims — of which there are hundreds of thousands — seem, in many instances, to take on a life of their own. Mining claims, leases for the development of coal or oil and gas, grazing permits, hydropower licenses, ski resort leases, even residential leases — claims such as these are often extended, expanded, renewed, and protected by law and by bureaucratic practices in ways that shape, and often trump, other policy objectives with respect to federal land. Newer claim-ants, and policies that would favor new land uses or alter the mix of uses, tend to be disfavored. These tendencies create a set of managerial and policymaking difficulties that constrain lawmakers and land managers and that ultimately disserve the interests of the citizens in whose interest state property ostensibly is managed.

This Article examines the durability of private claims to public property, first, by providing a set of examples, and second, by explaining how the American historical experience and legal system combine to give public property this character. Third, it suggests implications for both theory and practice, in particular cautioning that lawmakers should take into account the phenomenon described here before granting new forms of access to various public resources.

Number of Pages in PDF File: 54

Keywords: natural resources, property, public property, state property, private property, grandfathering, public lands, privatization, oil and gas, coal, regulation, tragedy of the commons

JEL Classification: K11

Accepted Paper Series





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Date posted: April 12, 2014  

Suggested Citation

Huber, Bruce R., The Durability of Private Claims to Public Property (April 11, 2014). Georgetown Law Journal, Vol. 102, p. 991, 2014; Notre Dame Legal Studies Paper No. 1417. Available at SSRN: http://ssrn.com/abstract=2423831

Contact Information

Bruce R. Huber (Contact Author)
Notre Dame Law School ( email )
P.O. Box 780
Notre Dame, IN 46556-0780
United States
(574) 631-2538 (Phone)
HOME PAGE: http://law.nd.edu/people/faculty-and-administration/teaching-and-research-faculty/bruce-r-huber/

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