'Good reference, Buzz. The "taking" issue has proven to be invalid all the way up to the Montana Supreme Court regarding stream access, Montana game farm laws, and recreational access to state owned lands. The precedent appears to be in favor of public interests and access, rather than contrived private property rights which are "stretched" to fit the intent of the Constitution.
Devil's Advocate. Stream access (and all the water law and navigation issues that go along with it) is not anything like corner crossing. This appears to be a Memorandum penned by a zealous advocate for an interested party. It does not constitute the law, or even an objective recitation of it. Without an opposing party, say the Mountain States Legal Foundation, submitting a response ripping this memorandum apart, and then having the parties appear before a court of competent jurisdiction to decide the matter, the memorandum just provides interesting reading and a start for any attorney who wanted to take the matter up. That would not be me.
I'm not going to go pull all the case law which could be used to stomp this memo but a cursory review would have me note there is a world of difference between letting the state off the Fifth Amendment hook for refusing to prosecute on the one hand, and finding the Fifth does not apply on the other hand. The memo, in substance, wants to find the Fifth Amendment to the U.S. Constitution is nothing more than a nuisance. Oh, that pesky Constitution, always raising it's stupid head to protect the rights of individuals.
There is no legitimate health, safety, welfare or moral interest in allowing hunters to trespass on private property in their effort to access public land. Montana's abundance of natural resources and public land actually cuts against the memorandum and any alleged legitimate health, safety, welfare or moral interest in allowing a denigration of Fifth Amendment rights.
The memorandum turns logic on it's head when claiming private landowners have no legal interest in controlling access to land they do not own. Private land owners can stipulate to that. That is NOT the interest private landowners seek to protect. Rather, they seek to keep the public off of their private land.
Regarding Camfield, a case from 1897, it is irrelevant. The private land owners did not argue that the Unlawful Enclosures Act was unconstitutional under the Fifth Amendment so the issue was never raised. In any event, the court said the Feds had the rights of an ordinary proprietor to maintain its possession, and to prosecute trespassers. This would mean private property owners have those same rights and since the 5th was never argued, the issue of a taking still exists.
Likewise in Bergen. According to the memorandum, the question of a taking was not an issue in the case.
The memorandum notes a case on point, Leo Sheep, finding a taking, but then tries to distinguish that case by noting the proposed (defeated) Montana law which the memorandum was written to support is not taking an affirmative action to allow access but merely allows a refusal to prosecute. No wonder the law was defeated. It basically said the state will decline to enforce the law.
The fundamental mistake in the memorandum is, again, turning logic on it's head. It states: “ . . . the property interest at stake is not the right to exclude; rather it is the ability to control access to land that property owners have no interest in.” That is simply not the case. The property interest at stake is specifically the right to exclude the public from private land. Wouldn't it be nice if we could all just tell everyone what another's private property rights are or what they are thinking?
As to the airspace, they cite noise in public airspace, not private airspace closed to the public.
The memorandum also makes a de minimus argument. Basically saying they only want to trespass a little bit, and gee, if it's only a little bit, then it's not really trespassing. Tell that to the cop enforcing the speed limit. The memo basically says there is no recognized property interest in the corner of your property, that purchase of the property could not have included a valuation based on a lack of people crossing your property, and the character of the government action is de minimus.
In short, if the impact is really de minimus as argued in the memo, then payment for the access should be chump change, right? Then the public could not only walk or jump, they could drive their quads and trucks and everything else across that little corner, opening the land up to all kinds of public use. The Fifth would just say: Pay for it! It ain't much, right? Or is someone afraid to find out just exactly how much that investment was worth when the private property was bought with the Fifth in mind?
Again, the only real way to resolve this is to take it all the way up with the issue on point.
