Disclaimer — None of the following should be misconstrued as legal advice. I am not a lawyer and only play one when I’ve had too much to drink, which is an embarrassingly small amount these days.
The 10th U.S. Circuit Court of Appeals has ruled corner crossings are legal, and with the Supreme Court declining to hear an appeal of the case, that’s the law in the six states that make up the 10th Circuit — Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
The rest of the West remains in limbo, at least, kind of sort of. I suppose that’s what limbo means.
Since the SCOTUS decision, Montana Fish, Wildlife and Parks’ Director Christy Clark decided to stick up for Montana hunters and anglers by … oh, wait a second. I assumed she would stick up for the citizens — primarily hunters and anglers — who fund her agency. Instead, she decided to stick it to them. Foolish me.
“Corner crossing remains unlawful in Montana, and Montanans should continue to obtain permission from the adjoining landowners before crossing corners from one piece of public land to another,” Clark wrote in a press release earlier this month.
The first part of the sentence is nonsense. There’s a reason Clark’s press release did not include the Montana Statute ID number that corner crossing violates — because there isn’t one. At best, the legal status of corner crossing remains in well, limbo. That’s why Clark used the intentionally fuzzy word “unlawful” rather than something more precise.
Without a Montana law to rely on, any trespass prosecution for corner crossing in Montana will likely rest on case law. And while the 10th Circuit decision isn’t legally binding in Montana, that ruling will be the most current and relevant case law for juries to consider if a country attorney in Montana is foolish enough to try to prosecute fellow citizens and public landowners for accessing the land they own, via corner crossing.
The second part of Clark’s press release remains sound advice, for the time being at least. Montanans should still try to get “permission” before corner crossing. Why? Because Clark promises, “Wardens will continue to report corner crossing cases to local county attorneys to exercise their prosecutorial discretion.”
Prosecutors surely know they’re unlikely to find a jury willing to convict corner crossers, especially if the crossers are as careful as the group of out-of-state hunters who started this battle in 2020. But if you decide to corner cross outside the 10th Circuit, be prepared, as the Wyoming hunters were, for a potentially legal battle.
Fortunately, you won’t fight alone. In the past, one of the biggest threats to access has been the enormous financial resources some of the landowners possess. For a few plucky access advocates, like the rabble of citizens who fought and won the legal battle over access to Mitchell Slough on the Bitterroot River, raising the kind of money needed for the legal fight can be daunting.
The Wyoming corner crossers demonstrated that the internet has made it much easier for citizens of more limited means to pool resources with like-minded access advocates across the country and fight back. That’s how they paid their legal costs.
I suspect there are still twists ahead before the corner-crossing issue is settled law. Someone may already be planning a Wyoming-like corner-crossing demonstration in Montana, intended to induce a pro-access ruling from the 9th Circuit. But remember, SCOTUS could still take up the issue in a later case and rule against access in the checkerboard West.
Until things are settled, I don’t intend to corner cross outside the 10th Circuit. Access-rights activism is one thing, but I’m not going to derive much joy from hunting on contested land, with a wealthy landowner’s minions harassing my every step.
For now, be judicious out there. Anti-access advocates lost this round, but they’ll surely regroup to fight another day.