The good guys won one for a change.
About an hour after I filed last week’s column, I learned what this week’s topic would be when the 10th District Court of Appeals released its corner-crossing ruling. In its decision, the court upheld the rights of four hunters who in 2020 and 2021, corner-crossed between two pieces of public land to hunt near Elk Mountain in southeast Wyoming.
The ruling applies to states in the 10th Circuit: Wyoming, Colorado, Kansas, New Mexico, Oklahoma and Utah. It will take a similar ruling in the 9th Circuit for it to apply in Montana, so calling this settled law remains a ways off. Still, this is a major step in the right direction.
The issue may still land in the U.S. Supreme Court. You might think SCOTUS will be plenty busy sorting out the legal questions raised by the current administration’s unconventional approach to governing, but there’s a lot of money behind locking out public landowners these days.
SCOTUS has been my concern since the corner crossers were first cited for trespass, though subsequently found not guilty by a Carbon County jury in 2022. I worry the current Supreme Court will not look favorably on the public-landowner rabble getting a win on access. Unless there’s a contrary ruling in the 9th Circuit, however, SCOTUS might never have a good reason to involve itself.
The competing interests here are the rights of private landowners to control the air space above their property. This makes perfect sense, to a degree, though the commercial aircraft that fly above private property remind us that our control of this airspace isn’t absolute.
In the case of the corner-crossers, they found the corner pins marking where two pieces of public land met two pieces of private, and using a ladder, moved from one piece of public land to another without setting foot on private property, though they briefly occupied the airspace above it, not that remoteness matters.
Relying on the 1885 Unlawful Inclosures Act, the court ruled that the public has a right to access public land, a right that trumps a private landowner’s control of the airspace over a corner pin so remote there’s not a building or fence line for miles.
In the unanimous ruling, by a three-member panel, the judges wrote: While the dispute may seem trivial, at its core, it implicates centuries of property law and the settlement of the American West.
That’s spot on. The dispute matters if you want to protect the freedom abundant public lands provide outdoor recreationists of all types in this country. But the issue is complicated by the reality that the laws governing public access reflect a mishmash of 19th- and 20th-century ideas about the value of open space, ideas that aren’t always easily applied in the 21st century country.
Add in a healthy dose of wealth concentration with folks who covet their own slice of heaven in places like Wyoming or Montana and it shouldn’t surprise anyone that there’s a war in the West over access. There’s always been a war in the West between those with abundant wealth and the rest of us.
There will be another skirmish soon when the gates are locked on another piece of dirt or shore, possibly somewhere you’ve been playing for years. The win in the 10th Circuit, sadly, is no Waterloo for the opponents of public access any more than was the decisive ruling in favor of access by the Montana Supreme Court on the Mitchell Slough case.
There’s too much money behind the movement to strip public landowners of their right to use the land we own together for that movement to go away anytime soon. So, we fight on.
Our second president, John Adams, once said, “Property must be secured, or liberty cannot exist.” That liberty includes the public landowner’s right to access public land.