Response Essay: The Personhood Rationale and Its Impact on the Durability of Private Claims to Public Property
In his insightful article, The Durability of Private Claims to Public Property, Professor Bruce Huber explores the nature of private claims to the use of federal lands as well as natural resources such as oil, gas, water, and coal located in or around those lands.1 The publication of Professor Huber’s article in April 2014 could not have been timed more perfectly to coincide with Cliven Bundy’s standoff that same month with Federal Bureau of Land Management (BLM) personnel over Bundy’s refusal to pay more than a million dollars of grazing fees incurred over decades of Bundy’s use of federal lands.2 The significant news coverage of the Bundy dispute placed a national spotlight on the tensions between long-term private uses of federal public lands and federal land managers that have always been prominent in the West but have received much less attention in the rest of the nation.
This Response Essay proceeds in three Parts. First, it describes Huber’s concept of the “durability” of private claims to public property and draws parallels to the Bundy dispute. Second, it suggests that the personhood rationale behind the doctrine of adverse possession can help explain the durability of private claims to public property. This is true even though, as every student of first-year property law learns, neither the doctrine of adverse possession nor prescriptive easement generally applies to federal lands. Third, this Response Essay applies some of these principles to the Bundy dispute to provide additional insights into why the dispute so captured the public’s attention and generated such strong feelings on both sides of the debate.
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