MT EQC to determine corner crossing as "illegal"

[Big Fin]

I had heard this was coming, but the release of the agenda this morning confirms such.

Lt. Governor has taken it upon herself to determine that corner crossing is "illegal." She is doing this, absent any case or other legal finding beyond "because we/I said so."

This is the effort in Montana to plant the stake in the ground. Why the Lt. Gov has decided to do this is hard to understand. Yeah, she is an attorney. Yet, no attorney I know, many who are experienced in property law, agrees that there is any statutory or other law to support this claim. There is an old AG opinion indicating such, but most agree that was a politically pressured twisting of law.

Why the Lt. Gov wants to do this now, and why EQC Chairman Fielder is allowing only her to give testimony, seem peculiar. You cannot create law via administrative rule, such as EQC has the power to do.

Here is the agenda. May 13th - https://committees.legmt.gov/#/nonStandingCommittees/5?tab=Meeting+Materials

Here is a screenshot from that agenda:




I would suggest all of you to reach out and comment here (the Gov and Lt. Gov have the same contact portal) - https://governor.mt.gov/contact/

If law is going to be made on this topic, I want the courts to make that determination, not a politician who is likely seeking election after the current Gov's lame duck administration expires.

 

[Nameless Range]

The EQC is an advisory committee and doesn't make law, correct? They could propose a bill, but it would still have to be sponsored and make it through the legislature?

Curious about the chances of such a bill's success.

 

[Big Fin]

The EQC is an advisory committee and doesn't make law, correct? They could propose a bill, but it would still have to be sponsored and make it through the legislature?

Curious about the chances of such a bill's success.

True. But, they want to make it as the stake in the ground FWP can use to take the position that corner crossing is illegal.

FWP has been shown the presentation by Juras. There is a reason nobody else is allowed to present at this event. The skids are greased.

Curious that they don't want the courts to solve this issue. Most everyone I know just wants clarification, by judges, not by elected politicians.

 

[seeth07]

In order to comment, I would like to know where you found that the Lt. Gov is going to testify it as illegal. Can that be posted up please? Did she testify previously on this premise?

 

[Big Fin]

In order to comment, I would like to know where you found that the Lt. Gov is going to testify it as illegal. Can that be posted up please? Did she testify previously on this premise?

I have it from people who would know about her presentation. She has been going around to "friendlies" and giving this presentation. There is nothing to "post up."

I'm confident in what I've been told.

I would add, there is a reason that FWP has come out with their stated position prior to last hunting season. It is coming from the Governor's office.

 

[Gerald Martin]

 

[Gerald Martin]

I wish I was able to make her presentation in person. I would love to know if she can point to any cases of successful prosecution for trespass where the facts of record are undisputed that corner crossing was how an individual accessed checkerboard property?

Looks like there’s an opportunity for public comment at the end of the presentation.

 

[SAJ-99]

Most everyone I know just wants clarification, by judges, not by elected politicians.

A little unusual. I would think "Legislating from the bench" would be viewed negatively, particularly in MT. I wonder if they made a law would it make challenging in Federal court that much easier because someone could use the UIA? However, at the same time I am anxious with anticipation on how they write the law that makes stepping over a corner illegal. The Montana legislature has never let me down with their creativity.

 

[HappyCamper]

Comment submitted. Thank you for sharing! Unfortunately I have no confidence the governors office cares. The MT Republicans have been way to brazen towards public land issues as of late. It’s going to bite them.

 

[Big Fin]

A little unusual. I would think "Legislating from the bench" would be viewed negatively, particularly in MT. I wonder if they made a law would it make challenging in Federal court that much easier because someone could use the UIA? However, at the same time I am anxious with anticipation on how they write the law that makes stepping over a corner illegal. The Montana legislature has never let me down with their creativity.

Not unusual. A court ruling is not “Legislating from the bench.” That is the court doing what courts are supposed to do - interpret the laws and clarify where questions exist.

 

[Alpine01]

Not unusual. A court ruling is not “Legislating from the bench.” That is the court doing what courts are supposed to do - interpret the laws and clarify where questions exist.

Are you looking then for the 9th Circuit Court to consider corner crossing relative to the Unlawful Inclosures Act as the 10th Circuit has (and rightfully ruled IMHO)? If so, I would think FWP (or a law enforcement agency under their request) and an accommodating DA would have to arrest and prosecute a corner crossing case before the courts could take up the matter. A preemptive ruling does seem to be asking a bit much. Or am I missing something?

 

[Addicting]

Would this be an easy way to them let it pass it then challenge it in the court system?

 

[TOGIE]

Are you looking then for the 9th Circuit Court to consider corner crossing relative to the Unlawful Inclosures Act as the 10th Circuit has (and rightfully ruled IMHO)? If so, I would think FWP (or a law enforcement agency under their request) and an accommodating DA would have to arrest and prosecute a corner crossing case before the courts could take up the matter. A preemptive ruling does seem to be asking a bit much. Or am I missing something?

i think the point being is that until such a thing like you described happens, there is currently really no conclusive legal/statutory basis for declaring corner crossing illegal in montana.

 

[Big Fin]

Are you looking then for the 9th Circuit Court to consider corner crossing relative to the Unlawful Inclosures Act as the 10th Circuit has (and rightfully ruled IMHO)? If so, I would think FWP (or a law enforcement agency under their request) and an accommodating DA would have to arrest and prosecute a corner crossing case before the courts could take up the matter. A preemptive ruling does seem to be asking a bit much. Or am I missing something?

That’s not what I’d ask for.

I’m stating that if someone is going to give the clarification of corner crossing legality, a position that agencies will be asked to follow, it should be a court that clarifies such, not an elected politician, even if said politician is an attorney.

If the 10th Circuit Court had ruled the opposite of what they did in the Wyoming case, I suspect we’d all be moving on and accepting that outcome. Yet, that’s not what happened and we now have elected politicians in Montana acting as if the Wyoming case never happened.

Until a court rules on the topic as it relates to Montana, it is unsolved, even if a political official says, “because I said so.”

 

[SAJ-99]

Not unusual. A court ruling is not “Legislating from the bench.” That is the court doing what courts are supposed to do - interpret the laws and clarify where questions exist.

You can't get clarity from one circuit on another circuit's ruling without a case, which is sort of others' point. They can't find one and to my knowledge there is no law in making CC illegal. It would have been nice to get clarity from SCOTUS, but they avoided it like a road-killed skunk. This is the same SCOTUS that just gutted the Voting Rights Act, so if they could have found a conservative argument around the UIA defense, they would have. If Montana passes it, we might as well start the GoFundMe now for that case. Although I suspect this law will be like other BS laws, like Montana's Tik Tok ban where no one pays any attention to it.

 

[Alpine01]

i think the point being is that until such a thing like you described happens, there is currently really no conclusive legal/statutory basis for declaring corner crossing illegal in montana.

That was my thinking as well. Seems like the MT Legislature needs to step up and create a legal basis one way or another. I can't see how that can happen without violation of the UIA but I am not a lawyer. That or FWP takes the position it is, and a resulting legal challenge occurs as soon as someone is tried and convicted. Either approach will likely take several years to sort out if MT decides they want corner crossing to be defined as illegal.

 

[Big Fin]

You can't get clarity from one circuit on another circuit's ruling without a case, which is sort of others' point. They can't find one and to my knowledge there is no law in making CC illegal. It would have been nice to get clarity from SCOTUS, but they avoided it like a road-killed skunk. This is the same SCOTUS that just gutted the Voting Rights Act, so if they could have found a conservative argument around the UIA defense, they would have. If Montana passes it, we might as well start the GoFundMe now for that case. Although I suspect this law will be like other BS laws, like Montana's Tik Tok ban where no one pays any attention to it.

That’s not what I’m asking or expecting.

 

[Forkyfinder]

See the time and location of the meeting, and the period for public comment.

Also note there is an opportunity to join remotely.

 

[GearJunky]

A sad day in Montana, thank you to all who keep fighting. I am sending my comments now.

 

[Alpine01]

That’s not what I’d ask for.

I’m stating that if someone is going to give the clarification of corner crossing legality, a position that agencies will be asked to follow, it should be a court that clarifies such, not an elected politician, even if said politician is an attorney.

If the 10th Circuit Court had ruled the opposite of what they did in the Wyoming case, I suspect we’d all be moving on and accepting that outcome. Yet, that’s not what happened and we now have elected politicians in Montana acting as if the Wyoming case never happened.

Until a court rules on the topic as it relates to Montana, it is unsolved, even if a political official says, “because I said so.”

I might be dense or splitting hairs, but I am still not following your argument. You want "a court" to clarify the issue but not the 9th? A Montana court then? If MT did that and another court, say in CA, rules the opposite, then the 9th would get it. If a MT court ruled CC is illegal and someone is convicted, an appeal to the 9th seems highly likely. Whether the 9th points to the ruling of the 10th and says "we agree" is anyone's guess.

As for giving an opinion/clarification on whether a policy or law is "legal" during the sausage making, my experience is that those who care gather as many lawyers that will agree with their interpretation as they can and write massive briefs as to why they are right. That doesn't mean it will pass a true legal test down the road. I just don't think the courts have a role to step in during the sausage making. Takes the lawmaking out of the hands of the voter via their elected reps. It would be faster in a lot of cases assuming the courts rule the way you want them to. If they didn't, well .....