More on the rule of capture

There seems to be a lot of interest in the "rule of capture" for property in natural resources (see here and here). In the latest entry into the field, Joseph Dellapenna has another article on water law with a historical dimension (see also here) up on SSRN: "The Rise and the Demise of the Absolute Dominion Doctrine for Groundwater".

The abstract:

We live in a world with ever greater water shortages driven by a combination of factors: growing human populations, increasing per capita water usage, and accelerating climate disruption. In coping with these shortages, groundwater will play a central role, if only because the greater part of fresh water on the planet Earth is found underground. As a result, we see greater and greater attention — including legal attention — given to groundwater across the United States. In many respects this is because the law in some states is still rooted in legal principles established in the nineteenth century — an era of pervasive ignorance about groundwater.

A good deal of legal confusion about groundwater persists. Statutes, judicial opinions, tradition, and pragmatism have provided numerous definitions that generally ignore the fact that the division of surface and groundwater into separate legal categories, as well as the subdivision of groundwater into several additional legal categories (such as “percolating water” and “underground streams”), contradicts scientific hydrology. These old classifications, however, remain embedded in the law. Lawyers and jurists have developed a body of law for percolating groundwater, the first approach to which was variously called the “absolute dominion” rule, “the absolute ownership,” or the “rule of capture.” This article uses the term “absolute dominion,” generally including within that term decisions or arguments that use either of the other two terms.

In the common-law tradition, the absolute dominion doctrine dates at least from 1836. Today, the absolute dominion doctrine has largely disappeared from the common law world. The doctrine survives most strongly and most clearly in Indiana, Maine, and Texas. Even in those jurisdictions, however, the doctrine’s reach has been limited legislatively and judicially. Elsewhere, the doctrine is far weaker if it exists at all. Continuing modification is the least that can be expected from courts and legislatures wherever the rule purportedly survives; complete abandonment is more likely. In this article, I summarize the rise and fall of the absolute dominion doctrine, noting the doctrine’s initial widespread adoption in the common law world and its characteristic features, followed by a description of its abandonment throughout most of the United States. Particular attention is given to the intense struggle over the rule in Texas. The article also notes some of the possible roles that federal law could play before drawing some conclusions about the future of the doctrine in the United States.