Walking in public areas should not require a ladder and a lawyer

Imagine that you co-owned a lovely piece of countryside, perhaps with a trout stream running through it. But your neighbors won’t let you in. You don’t have to imagine, because access to far too much public land is legally blocked by private property owners, causing headaches throughout the West.

Looking at a map of the region, large tracts of land run in a “checkerboard” pattern of mixed public and private land ownership. The West is literally diced into alternating square mile sections of federally managed land and private land, generally owned by a timber company or ranch.

This is not a small problem. Researchers have found that 8 million acres of public land are “landlocked” in 11 states. That is roughly equivalent to the area of ​​four Yellowstone National Parks.

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This pattern of land ownership has caused headaches since it was rolled across the West in the 1860s. It dates back to the days of Abraham Lincoln, when the federal government granted land to railroads as incentives to span the continent with tracks and thus open the West to development.

Unintended consequences continue to fill courthouses. This year, in Wyoming, the absentee owner of a 22,000-acre ranch was not happy when four hunters crossed from one part of public land to another, thanks to a makeshift ladder they erected at the corner of his private land.

Once the Missouri hunters had completed their “corner crossing,” the rancher convinced a local prosecutor to file trespassing charges. After a jury failed to reach a verdict, the ranch’s owner was not satisfied.

He filed a civil suit, claiming that the hunters, by simply crossing his land on the corner, had diminished the value of his property. To be clear, the hunters never set foot on his land. But the landowner claimed they were infringing on the “air space” above the corner where the property met. The lawsuit charged that the loss of exclusive access to his land caused millions of dollars in damages.

The case is followed closely around the country. Access attorneys have raised tens of thousands of dollars in donations through GoFundMe accounts to help pay legal costs for the hunters involved. They hope a win in Wyoming will have beneficial effects elsewhere.

But a victory for public land access is far from automatic, even if a Wyoming judge or jury agrees with the hunters in civil court. The question remains: Where do public rights end and private property rights begin?

Legislatures across the West will be under political pressure to address the issue, and conservative lawmakers may pass a law giving private landowners the authority to block “corner crossings.”
Under this scenario, the public would lose. Still, there are proven tools to protect access in checkerboarded landscapes.

All that is required are private landowners who do not crave a showdown.

Where I live in northwestern Montana, checkerboard landscape was the norm and when I went hunting I often had no idea whose land I was on. Public or private, however, it did not matter, for visitors were welcomed by both.

That changed when lumber companies shifted their focus from sawing wood to selling real estate. Thousands of acres suddenly fell behind “No Trespassing” signs or fences erected around trophy ranches.

Fortunately for me, groups like the Trust for Public Land and the Montana Department of Fish, Wildlife & Parks worked with willing landowners and elected officials to ensure public access. Today, every major logging company in Montana has a conservation easement that allows the public to enter at least part of their domain. This has helped secure access to fast-growing resort towns like Whitefish and Columbia Falls.

Meanwhile, then-Sen. Max Baucus brokered a huge deal in which the federal government bought thousands of acres in the Swan River Valley, making the land a state or national forest. Fortunately, there are sources of money through the Land and Water Conservation Fund that can pay for such solutions. Land trading is another way to solve the problem.

David-vs-Goliath battles between hunting parties and wealthy, absentee landlords generate a lot of passion, and perhaps the disputes will end by securing more rights for ordinary people to enjoy public land.

But bigger solutions will require more people willing to work together and a lot more money on the table. Not everything has to be decided in court.

Ben Long is a contributor to Writers on the Range, writersontherange.org, an independent nonprofit organization dedicated to spurring lively conversation about the West. He is a senior program director for Resource Media in Kalispell, Montana. Top photo: Claude Richmond

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