Montana voter initiative for corner crossing.

[MNElkNut]

Straight Arrow,
That is kinda what I thought. Nothing clear. There goes my pole vaulting with a backpack and a bow idea! I thought I was on to something. I don't see what could possibly go wrong with pole vaulting. I guess I shouldn't joke around about it as some overweight weekend warrior just might try it and end up in the hospital.

 

[RobG]

Any thought that the Congress or a State is going to somehow impair the value of those lands, via initiative or Legislative/Congressional action or a large scale Eminent Domain claim, is dead on arrival. Such would be a clear violation of the property rights granted these landowners via the 5th Amendment. If you believe in the tenets of the US Constitution, as I do, it is hard to support something that would be such a clear violation of property rights under the 5th Amendment.

I'm not starting an argument, but just a thought. I'm sure you could find an attorney to explain why your assertion isn't true (and not just the Meyer guy). Without it being decided in court it's just ideas.

Perhaps they would argue that the landowners never had that property right so it isn't a taking. Something like that happened with MT stream access law. I still don't understand how that law doesn't violate property rights by reducing land values, but I'm happy that it doesn't.

Regarding ownership of the air, I think the rule is that you can't prevent the owner from enjoying full use of his property. For example, a neighbor could make you cut a tree limb over his property even though the limb is in the air, but it's easy to think of examples that seem to contradict this simple principle.

Rest assured, if it is important it will wind up being decided by judges who are either directly elected by the ignorant, or put in place by people elected by the ignorant. Outcome uncertain....

 

[Hersbird]

Ironically the checkerboard was set up initially to encourage access. Nobody could build a cross country railroad using only the checkerboard peices they were given (not even purchased) without crossing corners. Now the checkerboard is used as a tool to deny access.
I love the Constitution to it's letter but don't believe the 5th amendment applies in the way the surrounding parcels were bought with the defacto understanding you also then owned sole access to the inner federal and state lands. Even if it did apply all you have to do is give "just compensation". You could build a whole road in there if necessary but I'm only talking about a tiny right of way just at the corner for foot traffic.
The supreme court has ruled you can take land from owners only to sell it to new owners for private development that leads to more tax revenue for the public good. Taking 18" off a corner for the public good seems easier than that.

 

[Hersbird]

I say if anything pass the law deeming corner crossing legal and then if it us a civil matter let the burden of proving damage caused fall on the landowners who want to pursue individual cases against individual people in court. No law enforcement resources to be used in said pursuit.

 

[Hersbird]

I've shared this on here before, but a while back I proposed a strategy to engage in the corner crossing issue in piecemeal way, where the focus could be on maximizing access outcomes bit by bit.

Corner Crossing: A Solution

This is another thread prompted by the most recent Hunt Talk podcast. In that podcast, Randy did not sound hopeful that the issue of Corner Crossing would be resolved cleanly. I agree. I have been hearing about corner crossing all of my adult life, and I would be willing to bet that 15 years...

www.hunttalk.com

That thread is what prompted me to start a new one, I had a slightly different take mainly using citizen's initiative vs legislative initiative and figured the other was a bit old.

 

[Big Fin]

I say if anything pass the law deeming corner crossing legal and then if it us a civil matter let the burden of proving damage caused fall on the landowners who want to pursue individual cases against individual people in court. No law enforcement resources to be used in said pursuit.

That is a possible outcome from a ballot initiative or legislative action. That changes the dynamic, as you state; in a civil case the burden to prove being "damaged" and prove the amount of "damage" falls on the property owner.

It is for that reason that every MT legislative session we are faced with a proposed bill to statutorily define the minimum damage of civil trespass while hunting. Usually a number well over $1,000 as the starting point.

Certain legislators are concerned, knowing that even if civil trespass was found to be committed, which all attorneys tell me would be the case with corner crossing, the court would likely find the damages to be zero or negligible. A landowner would incur significant legal costs to bring forth the case. They would prevail. The damages would be almost nothing.

For that reason, some legislators want to statutorily define the minimum damages for civil trespass. I'm not aware of any other statutorily defined damage for a civil case.

Even if defined as legal under criminal statute, the question remains for each person; Am I comfortable doing something I know in advance is civil trespass and is something every court would rule to be civil trespass?

Each person will answer that differently. For me; I won't knowingly take an action that is civil trespass, even if said action is deemed not to be criminal trespass and if said action results in negligible "damage."

 

[Abshire]

These isolated/landlocked parcels are an expected outcome from the laws that created this property ownership situation. Going back to 1785, it was passed by Congress that newly admitted states would receive Section 16 of every Township for funding of education. That left Section 16 surrounded by other lands that were not State-owned lands. As time passed the amount granted to states was increased. For example, here in Montana, Section 16 and 36 of every Township was granted to the state. That is 2 of every 36 sections in a Township, or 5.6% of all lands would be landlocked as a result of this system. Some of the more arid states got even more than 2 of 36 Sections. That is the history of the isolated state lands.

On the Federal side, there is a similar history that resulted in this strange array of land ownership. The Homestead Acts, The General Mining Act of 1872, and the Railroad Land Grants from 1850-1872, where railroads were given every other Section in a 20-mile or 50-mile swath, for each mile of railroad built. Look at the land ownership along Interstate 80 in southern Wyoming. That is a classic checkerboard stemming from these railroad land grants. Similar incentives were provided to timber and mining companies.

The homesteaders were allowed to stake claims based on the rules of the Homestead Acts and subsequent amendments. Those were usually the most watered and productive lands. That left the arid or unproductive lands unclaimed, retained by the US Government or retuned by homesteaders who couldn't make a go of it on these poorly suited lands. End result is that these less productive lands that were in the hands of the US Government were surrounded by the more productive lands that had homesteaders making claim to. And, the original roads were built to connect homesteaders to the cities/towns, resulting in roads that were mostly over/across private lands, further isolating these public lands.

These events were happening 100-200 years ago, with lands having changed hands many times over that period, and with each subsequent owner paying significant prices (relative to the era) for these lands. Some current owners might use this strange ownership pattern for their own benefit, but they have the right to do that, given part of what they paid for when they purchase the property was the right to control access across their lands, whether to public or other private lands.

Any thought that the Congress or a State is going to somehow impair the value of those lands, via initiative or Legislative/Congressional action or a large scale Eminent Domain claim, is dead on arrival. Such would be a clear violation of the property rights granted these landowners via the 5th Amendment. If you believe in the tenets of the US Constitution, as I do, it is hard to support something that would be such a clear violation of property rights under the 5th Amendment.

As much as I want to see access to all public lands, my perspective is that we are best served to find ways to accomplish such and not infringe on the 5th Amendment rights of the landowners who own lands that control access to the public lands. It is not like a State or Federal agency did this by design. It is not like the original homesteaders or companies receiving the land grants did it to block access to recreationists in the 21st Century.

I would offer that hunters are far better served by supporting full funding of programs like the Land and Water Conservation Fund, increasing support for access easements, working on land exchanges, and the purchase of perpetual easements with willing landowners. It might not solve the problems as quickly as hunters of today would like, but if a long-standing effort was supported, over the course of the next 100 years, a lot of access could be obtained through willing buyer-willing selling agreements.

As a Montana resident, that is annoyed(in the moment) when I am hunting and come across a parcel of land that blocks my access I lower my head and go "wish I moved here 150 years sooner..." It actually happened the other day.I actually spoke with the landowner and he had very valid reasons for blocking off the road that he pays to maintain, and the feds/state does not. I asked because I was curious not because I was seeking permission and people tore his roads up driving on them after rain, and snowmelt. So he closed the road but allowed foot traffic for a while. He even took part in the Block Management program for a while, but people left trash, didn't pick up spent casings, and worst of all they LEFT GATES OPEN...So I would absolutely 100% close it off and fight for my right as a property owner to protect something that I paid for...and is mine. Property Ownership is sacred in America. Public land is amazing and something that only we really offer...so to support legislation that would strip away property rights and force people to allow others to potentially destroy their property, would be un-American IMO.

I understand and sympathize with people who are frustrated by being blocked by access. I guess since I moved to Montana in 2012 from NC, that has virtually no Public land, to a place that it abounds I never understood the HUGE uproar people get into...you have access to millions of acres. Someone moved here 100 years before it mattered to you, and their family shouldn't have to fork over ownership of their property because you want to hunt on land that is easier to get to...cause that is what it really boils down to...you can still access those parcells if you wanted to bad enough, it would just be easier to drive through Jim's property...instead of walking 14 miles and crossing a mountain...so don't say its not accessible...its just not easily accessible.

Kinda thought that is what we were all about.

 

[Straight Arrow]

As a Montana resident, that is annoyed(in the moment) when I am hunting and come across a parcel of land that blocks my access I lower my head and go "wish I moved here 150 years sooner..." It actually happened the other day.I actually spoke with the landowner and he had very valid reasons for blocking off the road that he pays to maintain, and the feds/state does not. I asked because I was curious not because I was seeking permission and people tore his roads up driving on them after rain, and snowmelt. So he closed the road but allowed foot traffic for a while. He even took part in the Block Management program for a while, but people left trash, didn't pick up spent casings, and worst of all they LEFT GATES OPEN...So I would absolutely 100% close it off and fight for my right as a property owner to protect something that I paid for...and is mine. Property Ownership is sacred in America. Public land is amazing and something that only we really offer...so to support legislation that would strip away property rights and force people to allow others to potentially destroy their property, would be un-American IMO.

I understand and sympathize with people who are frustrated by being blocked by access. I guess since I moved to Montana in 2012 from NC, that has virtually no Public land, to a place that it abounds I never understood the HUGE uproar people get into...you have access to millions of acres. Someone moved here 100 years before it mattered to you, and their family shouldn't have to fork over ownership of their property because you want to hunt on land that is easier to get to...cause that is what it really boils down to...you can still access those parcells if you wanted to bad enough, it would just be easier to drive through Jim's property...instead of walking 14 miles and crossing a mountain...so don't say its not accessible...its just not easily accessible.

Kinda thought that is what we were all about.

I tell you what though, law or not...if I own property people are not allowed on it without my permission. I don't care if the federal government says I have to give them permission...they won't be there when the people are trespassing.

I understand and agree for the most part. However, even as a landowner myself, but moreover a lifetime hunter, hiker, camper and public land user, the simple legal status of a road which is public and accesses public land is such that the landowner is wrong to close it for personal reasons, no matter how seemingly valid those reasons. The road you described was not identified as public access or private road. Which is it? That is a critical question and paramount to the access issue.

Private property rights are "sacred" ... but also are public access to public lands rights!

 

[Abshire]

Public Lands are a privilege, not a right. Remember that. As much as it pains me to articulate, but they are a privilege. Rights cannot be taken away from you, by definition. That is what makes them rights. Privileges can be taken from you. So don't make the mistake of thinking we have a right to public land, be happy we have the access that we do...fight to keep it...but don't fight to give the government the power to create a law that gives them power to take land rights from people.

Cause I mean...as a white dude living in Red Lodge, MT...we have a history of the Government doing that and I don't think it is a good idea to give them an inch in that regard...cause they will absolutely take a mile.


The Road I mentioned before ends on the map, at his property line. From sat photos you can see the road...so most people (myself included) drive to that gate to learn a valuable lesson about using sat photos for recon of an area and the pitfalls associated with such...lol. So My guess would be it was a private road built by the landowner as an extension of an existing road. (Like most of the ones blocking access) and for that I say...damn wish I moved here 150 years ago.

Oh, and you have private land in the Gallatin Gateway? Seen any bears? Maybe you let me come and shoot one...maybe I won't tear up your property in the process...up for a gamble? I sure am!

 

[Straight Arrow]

Although Congress and the respective federal agencies are entrusted by the public to manage and impose certain valid restrictions and limitations on federal public lands, federal public lands are owned by the public, the people. The public has legal access to federal public lands, thus the rights embodied by that legal access. In the case of public access to public lands through private property, certain circumstances have established the legal public access to public lands through prescriptive easement imposed on the private property and adjudicated as spelled out in a prescriptive easement right. Thus I respectfully disagree that access by the public to public lands is a "privilege".

"Seen any bears?" Yep, but typically only if garbage containers are not stored inside my shop. Living just west of Gallatin Gateway on the river, there is plenty of wildlife but also neighbors, so I drive at least an hour before hunting. However, my fence is back from the river fifteen or twenty feet, so feel free to access for fishing on my property riverside trail. (Just heed the sign I placed to warn of my transplanted-from-midwest neighbor's less than hospitable attitude about walking on his "sacred" ground and follow the stream access guidelines.)

 

[elkduds]

That is a possible outcome from a ballot initiative or legislative action. That changes the dynamic, as you state; in a civil case the burden to prove being "damaged" and prove the amount of "damage" falls on the property owner.

It is for that reason that every MT legislative session we are faced with a proposed bill to statutorily define the minimum damage of civil trespass while hunting. Usually a number well over $1,000 as the starting point.

Certain legislators are concerned, knowing that even if civil trespass was found to be committed, which all attorneys tell me would be the case with corner crossing, the court would likely find the damages to be zero or negligible. A landowner would incur significant legal costs to bring forth the case. They would prevail. The damages would be almost nothing.

For that reason, some legislators want to statutorily define the minimum damages for civil trespass. I'm not aware of any other statutorily defined damage for a civil case.

Even if defined as legal under criminal statute, the question remains for each person; Am I comfortable doing something I know in advance is civil trespass and is something every court would rule to be civil trespass?

Each person will answer that differently. For me; I won't knowingly take an action that is civil trespass, even if said action is deemed not to be criminal trespass and if said action results in negligible "damage."

I am a by-the-book straight arrow RE game and environmental laws. However, in weighing the damages public land hunters have and continue to suffer by being barred from public lands, compared to the damage I would do to a landowner by touching the air over the corner of his property, I would cross that corner.

Beyond the individual ethic, if this legal course moved landowners and federal agencies to legally resolve their differences and provide access to blocked public lands, that would be progress.

 

[joelweb]

Interesting stuff. When will the podcast air, Randy? I'd like to listen.

In terms of the 5th Amendment, is one actually using or taking private land if crossing over a corner from public land to public land and never putting a foot on private land? I'm aware of the airspace argument, but it doesn't seem entirely settled from what I know.

I've stayed out of this issue, but can't help but follow it and I find it fascinating.

 

[Straight Arrow]

Beyond the individual ethic, if this legal course moved landowners and federal agencies to legally resolve their differences and provide access to blocked public lands, that would be progress.

It is not the prerogative of landowners and federal agencies, but will require Congress and legislatures to resolve this access issue. As explained previously, litigation is a sticky wicket and may not really resolve the issue.

 

[Sytes]

Look forward to the podcast.

 

[elkduds]

It is not the prerogative of landowners and federal agencies, but will require Congress and legislatures to resolve this access issue. As explained previously, litigation is a sticky wicket and may not really resolve the issue.

Landowners and agencies can and sometimes do make cooperative agreements that allow public access to public lands via easements, land swaps, etc. If landowners face lower odds of success and greater expense in court because trespass is civil and damage awards are minuscule, that will encourage some to negotiate access without requiring further legislation. I entirely agree w your point that the public has a legal right to access public property that is open for recreation. I believe there should be penalties for private landowners that prevent access to public lands. The courts do not typically see it that way.

 

[Straight Arrow]

Landowners and agencies can and sometimes do make cooperative agreements that allow public access to public lands via easements, land swaps, etc. If landowners face lower odds of success and greater expense in court because trespass is civil and damage awards are minuscule, that will encourage some to negotiate access without requiring further legislation. I entirely agree w your point that the public has a legal right to access public property that is open for recreation. I believe there should be penalties for private landowners that prevent access to public lands. The courts do not typically see it that way.

I agree and you make a valid point. My concern is that the landowner agreement with the BLM in Colorado does not help with access for us in Montana.

 

[Hersbird]

A note on trespassing "while hunting", would that even apply in corner crossing unless you actually stood on the corner and took a shot? You aren't "hunting" while crossing the corner, you are hiking. Same as if you are walking down main street and lose your balance and step off the sidewalk, now you face a $1000 minimum fine for trespassing? Just because you may have been hunting on one side, and may resume hunting on the other doesn't mean you are hunting while crossing the corner. Just like you may drive the interstate highway to and from your hunt doesn't mean you committed the offense of hunting the interstate right of way while accessing the land you were actually hunting. Not to open up a different can of worms, but this is also how I read the stream access rules about hunting. You can't hunt the access but that doesn't prevent you from using the access to get to an area that you then can legally hunt.

 

[Straight Arrow]

... also how I read the stream access rules about hunting. You can't hunt the access but that doesn't prevent you from using the access to get to an area that you then can legally hunt.

Nope. You are reading incorrectly. There is another thread on this forum discussing stream access that explains the hunting access limitations of the stream access law.

Further, the corner crossing issue is much broader trespass conundrum than just a hunting access issue as you have described above. Read the more detailed explanation above in this thread described in Big Fin's post.

 

[WapitiBob]

A note on trespassing "while hunting", would that even apply in corner crossing unless you actually stood on the corner and took a shot? You aren't "hunting" while crossing the corner, you are hiking. Same as if you are walking down main street and lose your balance and step off the sidewalk, now you face a $1000 minimum fine for trespassing? Just because you may have been hunting on one side, and may resume hunting on the other doesn't mean you are hunting while crossing the corner. Just like you may drive the interstate highway to and from your hunt doesn't mean you committed the offense of hunting the interstate right of way while accessing the land you were actually hunting. Not to open up a different can of worms, but this is also how I read the stream access rules about hunting. You can't hunt the access but that doesn't prevent you from using the access to get to an area that you then can legally hunt.

This thread is about MT but In Wyoming you will not be cited by a Game Warden for corner crossing (trespassing) provided you have no intent to hunt the private because you have not committed a (Title 23) game violation, per the WY Attorney General.

 

[Hersbird]

Nope. You are reading incorrectly. There is another thread on this forum discussing stream access that explains the hunting access limitations of the stream access law.

Further, the corner crossing issue is much broader trespass conundrum than just a hunting access issue as you have described above. Read the more detailed explanation above in this thread described in Big Fin's post.

So let me put it more simply. If I am hunting forest service land south of highway 2 and I'm walking along and cross highway 2 to hunt the forest service land north of the highway I illegally just by default was "hunting" on highway 2? It's the same with a river or stream. Rivers and streams are the highways of the west from before we were even a nation. You can't hunt the highway or streambed but you can use the highways (rivers) to access other huntable land.
I know these legislators have smart attorneys on staff so I have to think they purposely write the laws to be ambiguous or intentionally grey to give more lawyers work later on.
Sorry if there is a separate thread on this, maybe I'll go read it, but I doubt it's a settled matter even if an internet thread has voted on it.