Out of Bounds

Playing Games with Our Public Lands

What’s happening out on the checkerboard squares of our public lands isn’t kid stuff

By Rob Breeding

I haven’t played four square since I was a boy, when I used it as a way to meet girls on my elementary school playground. 

Four square is a fine game for kids. The players bounce the ball into one another’s square, trying to make competitors miss. What’s happening out on the checkerboard squares of our public lands isn’t kid stuff, however.

It’s a battle to control land that belongs to all of us.

Most know the story. To encourage development of the West, President Abraham Lincoln signed the Pacific Railway Act in 1862, granting the private companies building the transcontinental railroad ownership of alternating square sections of land in exchange for laying the tracks. 

What seemed prudent in the 1800s, when silly concepts such as “the rain follows the plow” were promoted by seemingly serious people, is a nightmare in the modern West. We now better understand the place, and that a good portion of this arid land’s value derives from the fact that it will never support settling in concentrations like those in the wetter East.

Undeveloped public land is a resource, a valuable resource. Anyone paying attention to public access disputes the last 30 years or so knows this. Mitchell Slough. Ruby River. Durfee Hills. Crazy Mountains. Montana has had its share of access battles.

Up next may be that checkerboard square, or more precisely, the virtual four square pattern on the land where public and private sections meet. It’s a dot really, no bigger than the intersection of those imaginary, but legally significant property lines.

Four Missouri hunters are challenging the concept that corner crossing constitutes a trespass, even if they never stepped foot on the private land, using a ladder to climb over the corner pin from public section to public section.

Corner crossings are unsettled law. Some western states prohibit them. Others are less clear. An estimated 1.6 million acres in six western states are inaccessible because the public is blocked from crossing corners. The Missouri hunters crossed their corner in Carbon County in southern Wyoming. They were eventually cited for criminal trespass, a misdemeanor for which they face a fine of up to $750. 

Wyoming Backcountry Hunters and Anglers set up a GoFundMe page to pay their legal bills. About $65,000 has been pledged so far.

It’s not a violation of Wyoming Game and Fish laws to corner cross, but it may be a criminal trespass. 

There’s a photo making the rounds that appears to show the spot the hunters crossed. There’s a corner marker in the ground, and above it, two “No Trespassing” signs joined by a foot of chain. The signs include the phone number of the adjoining Elk Mountain Ranch. There is nothing else in the photo — roads, fences or gates — except sagebrush.

The photo illustrates what’s at stake. There’s no harm to a private property owner if a shoulder’s width of human enters the airspace above their property, other than they lose their dominion over access to our public land. 

The landowners argue their property rights extend into space to infinity and beyond. Well, sort of. They can’t block air traffic above and Wyoming’s stream access law, a pathetic shadow of Montana’s gold standard, still allows floaters to pass over underwater property lines.

Floaters can be cited if they step out of their boat, or drop anchor, however.

Laws that result in absurd outcomes can’t be constitutional, and no right is limitless. Kicking citizens off land they own because of nebulous air space trespasses over corner pins, protects the property rights of no one. 

Instead, it absurdly takes them from the rest of us.

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