Volume 102 - Issue 4 Georgetown Law Journal

The Durability of Private Claims to Public Property

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.

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