Checkerboard Pro-Active Solutions?

[Dakotakid]

Sportsman do not have the political clout to eat the whole elephant.
Is corner crossing a articulatable solution?
How many specific corners are need to open “locked” public lands?

Claiming prescriptive easements for a Kardasian crossing people’s lawns is not going to grow public opinion or support.

 

[Ben Lamb]

I have no idea what the ballot initiative rules are in WY (or even if they have that process), but clarifying that corner crossing is not trespass is absolutely not a constitutional issue. This is not a legally complex area and it would take one simple sentence for the legislature to fix. Many states already have this rule (and others) that make incidental trespass less aggressive and pro-landowner. A change in "regulatory scheme" is almost never deemed a constitutional taking. I am not a big fan of ballot initiatives in general, but this could easily be done in a general sense (subject to WY initiative rules).

Changes to terms of public land leases (in new or renewed leases) would also raise no consitutional issues. Would be odd to do this via ballot initiative, but probably no lawful reason it couldn't.

Non-voluntary easements and land swaps would raise eminent domain issues and the commensurate slow/expensive administrative and legal process these entail. I don't see how these could be done by initiative.

As my lawyer, read this and let me know what you think: https://escholarship.org/content/qt...fc668f8ed128cea513a924b6199a91bb.pdf?t=q23n5f

Also, if you don't think that a legislature would whipsaw eliminate that initiative in 90% of the western states, you're not paying attention.

 

[Ben Lamb]

WHAT, no way,

Romans v. Nazi's

I mean if anything in DS9 was forced it was the dominion. I mean Jem'Hadar...

Honestly, after they killed Jadzia my interest declined 85%.

Dweeb.

 

[AvidIndoorsman]

Sportsman do not have the political clout to eat the whole elephant.
Is corner crossing a articulatable solution?
How many specific corners are need to open “locked” public lands?

Claiming prescriptive easements for a Kardasian crossing people’s lawns is not going to grow public opinion or support.

1. Articulatable, Yes.
2. 10,000? 100,000. I could write a script and figure it out... but it's a lot. The Oxy purchase constituted ~6,250 corners alone.

3. Kim K was tongue in check, owners like to argue a prescriptive easement doesn't exist and people aren't using it. My point is with millions using Strava you could likely in many locations provide the court with a mountain of data proving otherwise.

My screen shot of the "trail-less area" was in the middle of the Alaska Range, imagine what it looks like around Aspen.

 

[Dakotakid]

10,000 parcels?
I know the reference to Kardiasians are joking and prescription is off topic so I won’t steer towards the iceberg.

I think crowd sourcing could be used, pick a state. Identify all landlocked public lands. Total landlocked not inconvenient, but actual closed off.
How many are accessible from an adjoining public access.

 

[AvidIndoorsman]

@Dakotakid lots of countries have "Freedom to Roam" laws. In a lot of the NE US you can trespass, and even hunt as long as a property isn't posted. I don't think it's unreasonable to have the conversation about passing a law that changes trespass laws as to allow folks to freely cross private land.

Freedom to roam - Wikipedia

en.wikipedia.org

 

[Dakotakid]

Citing MT to the NE is unlikely to win many friends.

 

[AvidIndoorsman]

10,000 parcels?
I know the reference to Kardiasians are joking and prescription is off topic so I won’t steer towards the iceberg.

I think crowd sourcing could be used, pick a state. Identify all landlocked public lands. Total landlocked not inconvenient, but actual closed off.
How many are accessible from an adjoining public access.

No like literally 100,000s of corners. There are millions of acres of public land that look like this, you would need access at all the corners.


A prescriptive easement is an easement upon another's real property acquired by continued use without permission of the owner for a legally defined period.

This is a prescriptive easement in blue, I moved to this subdivision when I was 8, I'm 33, everyone in my family and the entire neighborhood has walked up that drive way to access the BLM for the last 25 years+
From a longtime it was a vacant lot, and everyone parked there and walked in, people even use to park trailers there and unload horses. Someone purchased the lot and built a house. The family is super nice, and from the neighborhood and they haven't tried to fight access, but if they sell and the new owner tries they will lose. It's now an easement, it's been the access point for decades and no one has ever asked permission.



So Strava, here it is on the map. the lines get "hotter" dark purple --> white for how many recorded trips were on a path. That line is almost white, meaning a crap ton of people are using it.

My point is you could take this before the county and be like look there are thousands of recorded trips through this easement on an exercise app imagine what the actual use is.

 

[Cornell Cowboy]

A few thoughts strike me:
1) You need to potentially handle state lands differently than federal because their goals/motivations may be different and require differing jurisdictions.
2) The discussion seems somewhat myopic: we want hunting access to "public" lands, so how can we compel landowners that potentially purchased the land precisely for the exclusive public land to give us access to hunt? Regardless of the correctness of the idea, it won't play well with those for whom the rules currently exist. You'll catch more flies with honey than vinegar!
3) I would also just say to be careful how hard you push.

As I live in Wyoming, let me speak only to that and only to State lands.

The primary purpose of State lands in Wyoming is generate revenue for schools, with public access a consideration but not a mandate. Near Laramie, where I live, a landlocked parcel of State land was being legally accessed by aircraft to hunt elk. The landowner, who will remain nameless except to note that his company probably made your phone case, tried to run him off. He called the sheriff (who actually cited the landowner for cutting timber without a permit), he had his outfitters drive back and forth across the road to prevent the plane from landing, and even tried to put up fences in the area where the plane would land. When none of this worked, he finally petitioned the State to sell the section of land at auction. He requested that initial auction price be set at $1.56M. He now owns the parcel free and clear. The details of the sale are here (https://drive.google.com/file/d/1gYe7ugSlUhFGDM4ge8vIcFHU4bLOyNn1/view). I wrote to the State against the sale and suggested that a simple swap would be best, as simply swapping with another section which would unify the landowner's property AND expand public access by connecting with the nearby national forest. But it comes down to the finances: the annual grazing lease on that State parcel was $837/yr; the landowner argued that the state could invest the proceeds of the sale to make $105,456/yr plus additional property taxes to the state of $8398/yr for a total revenue to the state of ~$115K/yr (see pages in 19-23 in the linked document). (In reality the landowner now pays ~$2500/yr for the ENTIRE 10000 acre parcel that he absorbed the property into, so that was a complete farce.) But the state really can generate ~$100K/yr for schools.

My points with this illustration are:
1) The folks that you might try to regulate have REAL money and either are legislators themselves or fund most of the legislators.
2) As long as revenue generation is a overarching criteria (and given our state finances, I believe that in WY it will be for the foreseeable future), I think we will find the above example will be a much more common reaction. Every big rancher I know could easily buy out their public land sections -- they would welcome a good excuse to do it.
3) In the end, as badly as I would love to hunt elk on an additional section of land near me, I can't in good conscience argue that WY should prioritize my desire to hunt 640 acres over $100K per year revenue.

Ultimately, I think we as sportsman would be better served to proactively seek out land swaps to consolidate public land (access agreements are fine but aren't permanent and can go away with changes in ownership). We will have our lunch eaten if we think we're going to bully the big boys with big money because we won't come out on the winning end from a revenue side. I also think it would be worthwhile to consider seeking out landowners that want to buy out their landlocked property and use some of the proceeds to purchase access/property elsewhere (e.g. sell a landlocked section for $1M but buy an easement to two sections for $50K) -- sportsman win, the State wins, and access is better distributed for wildlife management.

 

[Beignet]

Anything that will effectively deal with corner-crossing will have to be incentive based for the landowner. LWCF being fully funded can accomplish a large chunk of this, as it relates to purchases & easements and state programs can deal with this as well. MT's Land-banking program is a good one in terms of increasing access for state trust lands.

Forcing corner-crossing legality into law isn't a winning strategy.

I get where you’re coming from and am comparing apples to oranges from a legal perspective (as bridges and such were an existing easement), but Montana’s stream access was forced legally. Not sure FWP would’ve had the resources to create easement/purchase agreements on every stream crossing in the state. Not sure that many landowners would have subscribed.

 

[Ben Lamb]

Great post, @Cornell Cowboy

 

[Ben Lamb]

I get where you’re coming from and am comparing apples to oranges from a legal perspective (as bridges and such were an existing easement), but Montana’s stream access was forced legally. Not sure FWP would’ve had the resources to create easement/purchase agreements on every stream crossing in the state. Not sure that many landowners would have subscribed.

Stream access has a constitutional basis in MT, with ensuing legislation that has regulated it.

Show me the votes in the Montana legislature to get to a majority that will pass this or that wouldn't immediately eliminate this voter passed law.

 

[Beignet]

Stream access has a constitutional basis in MT, with ensuing legislation that has regulated it.

Show me the votes in the Montana legislature to get to a majority that will pass this or that wouldn't immediately eliminate this voter passed law.

I agree that you’re probably right; there isn’t an overarching legal solution. As the Sheridan article you linked previously shows, there’s scant precedent.

Also agree with @Cornell Cowboy ’s point #3 about not pushing too hard. Worst scenario, a hypothetical case runs through appeals and it’s determined that corner crossing is certainly illegal at the national level and adjacent landowners tell state agencies to go stuff it with their LWCF easement proposals.

But, as an exploratory spitball; could the public trust doctrine, or something even more obscure, be creatively applied in a legal case? Not advocating for anything prescriptive here, just bouncing some ideas around.

 

[VikingsGuy]

As my lawyer, read this and let me know what you think: https://escholarship.org/content/qt...fc668f8ed128cea513a924b6199a91bb.pdf?t=q23n5f

Also, if you don't think that a legislature would whipsaw eliminate that initiative in 90% of the western states, you're not paying attention.

First of all, I have repeatedly stated the real issue is that we lack the political will to fix (including legislative willingness). But as some have raised constitutional concerns I was addressing those separate from the political problem. Just because changes would be lawful, doesn’t mean the laws will be passed, enforced, or remain on the books. This is a political problem, not a constitutional one.

As for a 30-page law review article, haven't had time to read it in detail, but a quick scan suggests I would generally agree. It too seems to conclude the fastest and cheapest answer is a legislative revision of trespass law as it affects corner-crossing. The article sees only political barriers (not legal ones) for this - I agree.

So, as with so many things, we have the laws/system we deserve. If the 99% of Americans who are not western states landowners can't be bothered to fix bs cornering crossing laws (that have been fixed in other places already), then we have the rules we deserve.

In short - an easy legal fix for checker board, hard and expensive solutions to address fully landlocked (with no public corners).

 

[Ben Lamb]

First of all, I have repeatedly stated the real issue is that we lack the political will to fix (including legislative willingness). But as some have raised constitutional concerns I was addressing those separate from the political problem. Just because changes would be lawful, doesn’t mean the laws will be passed, enforced, or remain on the books. This is a political problem, not a constitutional one.

As for a 30-page law review article, haven't had time to read it in detail, but a quick scan suggests I would generally agree. It too seems to conclude the fastest and cheapest answer is a legislative revision of trespass law as it affects corner-crossing. The article sees only political barriers (not legal ones) for this - I agree.

So, as with so many things, we have the laws/system we deserve. If the 99% of Americans who are not western states landowners can't be bothered to fix bs cornering crossing laws (that have been fixed in other places already), then we have the rules we deserve.

I want to thank you for doing my homework for me.

 

[AvidIndoorsman]

A few thoughts strike me:
1) You need to potentially handle state lands differently than federal because their goals/motivations may be different and require differing jurisdictions.
2) The discussion seems somewhat myopic: we want hunting access to "public" lands, so how can we compel landowners that potentially purchased the land precisely for the exclusive public land to give us access to hunt? Regardless of the correctness of the idea, it won't play well with those for whom the rules currently exist. You'll catch more flies with honey than vinegar!
3) I would also just say to be careful how hard you push.

As I live in Wyoming, let me speak only to that and only to State lands.

The primary purpose of State lands in Wyoming is generate revenue for schools, with public access a consideration but not a mandate. Near Laramie, where I live, a landlocked parcel of State land was being legally accessed by aircraft to hunt elk. The landowner, who will remain nameless except to note that his company probably made your phone case, tried to run him off. He called the sheriff (who actually cited the landowner for cutting timber without a permit), he had his outfitters drive back and forth across the road to prevent the plane from landing, and even tried to put up fences in the area where the plane would land. When none of this worked, he finally petitioned the State to sell the section of land at auction. He requested that initial auction price be set at $1.56M. He now owns the parcel free and clear. The details of the sale are here (https://drive.google.com/file/d/1gYe7ugSlUhFGDM4ge8vIcFHU4bLOyNn1/view). I wrote to the State against the sale and suggested that a simple swap would be best, as simply swapping with another section which would unify the landowner's property AND expand public access by connecting with the nearby national forest. But it comes down to the finances: the annual grazing lease on that State parcel was $837/yr; the landowner argued that the state could invest the proceeds of the sale to make $105,456/yr plus additional property taxes to the state of $8398/yr for a total revenue to the state of ~$115K/yr (see pages in 19-23 in the linked document). (In reality the landowner now pays ~$2500/yr for the ENTIRE 10000 acre parcel that he absorbed the property into, so that was a complete farce.) But the state really can generate ~$100K/yr for schools.

My points with this illustration are:
1) The folks that you might try to regulate have REAL money and either are legislators themselves or fund most of the legislators.
2) As long as revenue generation is a overarching criteria (and given our state finances, I believe that in WY it will be for the foreseeable future), I think we will find the above example will be a much more common reaction. Every big rancher I know could easily buy out their public land sections -- they would welcome a good excuse to do it.
3) In the end, as badly as I would love to hunt elk on an additional section of land near me, I can't in good conscience argue that WY should prioritize my desire to hunt 640 acres over $100K per year revenue.

Ultimately, I think we as sportsman would be better served to proactively seek out land swaps to consolidate public land (access agreements are fine but aren't permanent and can go away with changes in ownership). We will have our lunch eaten if we think we're going to bully the big boys with big money because we won't come out on the winning end from a revenue side. I also think it would be worthwhile to consider seeking out landowners that want to buy out their landlocked property and use some of the proceeds to purchase access/property elsewhere (e.g. sell a landlocked section for $1M but buy an easement to two sections for $50K) -- sportsman win, the State wins, and access is better distributed for wildlife management.

If I was talking to a landowner in CO.

What happens when folks on the front range get tired of being packed onto one trail every weekend and just decide to pass a ballot initiative.

Look me in the eye and tell me it would be less popular than wolves. There are like 500 major landowners and like 5MM people in the state.

It goes both ways.

 

[Cornell Cowboy]

If I was talking to a landowner in CO.

What happens when folks on the front range get tired of being packed onto one trail every weekend and just decide to pass a ballot initiative.

Look me in the eye and tell me it would be less popular than wolves. There are like 500 major landowners and like 5MM people in the state.

It goes both ways.

No idea about CO, thus my specialization to WY.

I don't know what happens when people get packed at a trailhead, I guess the folks could do what I did and pool their life savings into buying some property.

I'm not sure what goes both ways, my points were simply that our resources aren't anywhere near what theirs are and that we should be cautious about the priority we have for public access vs. the State's (Wyoming in particular) interest in revenue.

As an example, the ENTIRE Access YES donations in WY (from ALL the anglers and hunters that donated) raised $1.17M last year, which wouldn't have even bought the single section that I mentioned above. So my point is that we aren't even in the same ballpark if it comes to raising money to "fight" landowners.

More philosophically, I also don't think that your right to access public has been established legally in the same way that their right to protect their private property is. Private property is (or should be) constitutionally protected, "public property" access not so much. Desire to access does not equal right to access.

 

[1_pointer]

@Dakotakid lots of countries have "Freedom to Roam" laws. In a lot of the NE US you can trespass, and even hunt as long as a property isn't posted. I don't think it's unreasonable to have the conversation about passing a law that changes trespass laws as to allow folks to freely cross private land.

Freedom to roam - Wikipedia

en.wikipedia.org

Have you ever owned land that holds recreational value?

For my case in Indiana, I'd be okay with the land is considered open if not properly posted, inhabited, or in production. I would have a very hard time with any rule that allows the public to cross my land at will. I own land between a county road and federal property and it meets the state's posting requirements, though not required. Heck, I had to make multiple contacts to get the state electronic map to not show my parcel as being public land...

 

[AvidIndoorsman]

@Ben Lamb @VikingsGuy
Check this out

Should CO Full Limited for Elk ?

@BuzzH once watched me shoot the oldest, most haggard-looking doe antelope once as well, when I clearly had a better option. But...she was a trophy.

www.hunttalk.com

 

[AvidIndoorsman]

No idea about CO, thus my specialization to WY.

I don't know what happens when people get packed at a trailhead, I guess the folks could do what I did and pool their life savings into buying some property.

I'm not sure what goes both ways, my points were simply that our resources aren't anywhere near what theirs are and that we should be cautious about the priority we have for public access vs. the State's (Wyoming in particular) interest in revenue.

As an example, the ENTIRE Access YES donations in WY (from ALL the anglers and hunters that donated) raised $1.17M last year, which wouldn't have even bought the single section that I mentioned above. So my point is that we aren't even in the same ballpark if it comes to raising money to "fight" landowners.

More philosophically, I also don't think that your right to access public has been established legally in the same way that their right to protect their private property is. Private property is (or should be) constitutionally protected, "public property" access not so much. Desire to access does not equal right to access.

Philosophically, everything is a construct of humans. Laws only work if people follow them and/or agree to them, everything is entirely arbitrary. There is no actual reason we can't do anything, and or not do it right now.

Throughout human history people have flipped the table over numerous times.

When the table is flipped everyone has a pretty crappy time, we are best served when we find common ground.

To that point, when you or I get packed at a trailhead... sure, but when 3MM people?

Have you ever owned land that holds recreational value?

For my case in Indiana, I'd be okay with the land is considered open if not properly posted, inhabited, or in production. I would have a very hard time with any rule that allows the public to cross my land at will. I own land between a county road and federal property and it meets the state's posting requirements, though not required. Heck, I had to make multiple contacts to get the state electronic map to not show my parcel as being public land...

Personally, complicated, but yes. I personally have ownership of a property with a public easement through it, there is a public road on one side and a path through the top 1/3 of the property that allows people to access the inlet of the lake for fishing or just to walk their dog. Tons of people use it everyday. Sure it's a little annoying and sometimes people take liberties and walk out our deck to take photos, but .

If your willing to include the experiences of family members (grand parents/parents/aunts/uncles) in forming your world view? My family had to have a rider? (correct word) attached to a senate bill (US not state) to do a land swap and get the boundary of Rocky Mountain National Park changed.