Why Not Legalize All Corner Crossing in the West?
Millions of acres of public land in the West are "corner-locked" by private lands, but blanket legalization of corner crossing might not the best solution. Here's why
There are more than 8 million acres of public land in the West that are currently locked up behind controversial corners. There’s also a civil lawsuit pending in federal court that could decide whether four hunters who crossed one of these contested corners, from one piece of public land to another—stepping over two corners of private land—caused any damages to the private landowner.
This case represents a widespread problem across the checkerboarded West. Whether or not corner crossing is against the law has been a legal gray in Western states ever since their settlement. There are still no laws at the state or federal level explicitly allowing or forbidding it, with some counties prosecuting corner crossers as trespassers and others choosing to turn a blind eye in most cases.
For some public land hunters and access advocates, the solution might seem simple: Legalize all corner crossing throughout the country and allow Americans to access every acre of their public lands, including those that are corner-locked between privately owned parcels. After all, what damage could possibly be done by stepping over private land to access public ground?
However, as more pressures mount around resources in the West (including everything from wildfires to more hunters on the landscape), even the most prominent public land access advocates aren’t calling for blanket legalization of corner crossing. But why not?
Understanding the Corner Crossing Court Case
The Wyoming corner-crossing case involves four Missouri hunters who used a stepladder to cross from one parcel of public land to another—and stepped over privately owned parcels of Elk Mountain Ranch in the process. After they were charged with criminal trespassing by the Carbon County Attorney last November, the four pled not guilty and asked for all criminal charges to be dropped. They had their day in court on April 29, and after less than two hours of deliberation, a six-member jury in Carbon County found the hunters not guilty of criminal trespassing.
The community of public lands users and public access advocates in the West was quick to celebrate the jury’s unanimous decision. But legal experts say the Carbon County jury’s not-guilty verdict does not set a legal precedent. A civil suit brought against the hunters by Eshelman in February is still pending in federal court, and the outcome of this lawsuit could have larger implications for the future of public access in the West, they say.
At this point, however, it’s doubtful that any decision will provide the end-all solution that many are hoping for. And WyoFile reports that it could be a year or more until the federal court can determine whether Eshelman’s rights as a private landowner were violated when the four hunters momentarily entered the airspace above his sprawling, 22,000-acre ranch during their elk hunt last fall. (Check out these podcasts to better understand the corner crossing issue).
The Landowner’s Perspective
The attorney representing Eshelman in the civil suit did not respond to request for comment on this story. However, we can gain some insight into their argument from their civil suit court filing, which includes the following claims:
Plaintiff owns and controls the airspace above its real property, and is entitled to exclude others from the use of that airspace by a “corner crossing…”
Defendants’ intentional entry upon the Property was committed without Plaintiff’s permission or acquiescence and was a trespass upon the Property…
Defendant’s unauthorized entry and trespass clouds the title to Plaintiff’s Property and Plaintiff has suffered damages for interference with the exclusive use, possession, and control of such Property, in an amount to be proven at trial…
In other words, the private landowner is arguing that they own the airspace above their property, that they have the right to block access to neighboring public lands, and that allowing corner crossing would devalue their property, which is worth tens of millions of dollars. In a broader sense, more access could mean more people. And for landowners that could mean more potential problems like trespassers, litterers, or poachers.
The Public Land Advocate’s Perspective
As one of the nation’s leading advocates for “keeping public lands in public hands,” Backcountry Hunters and Anglers has continued to throw its support behind the four Missouri hunters involved in the Wyoming corner crossing suit.
Last December, BHA launched a GoFundMe page, and its members (and others) have since contributed more than $70,000 to help cover the hunters’ legal fees. BHA also stepped into the legal arena earlier this month, asking the Wyoming U.S. District Court to keep the civil suit in a federal venue, where federal laws favoring public access could have more influence on the court’s decision. And while their request to submit an amicus brief is still pending, U.S. District Judge Scott Skavdahl ordered on May 19 that the lawsuit will remain in federal court.
“That was a win for us,” says BHA president and CEO Land Tawney. “We would love to see this suit dismissed outright, since [the hunters] have already gotten off for the criminal charges. But having it stay in federal court is exactly what we wanted.”
However, even Tawney and BHA are not calling for an outright legalization of corner crossing across the West. Tawney, a fifth-generation Montanan, says the answer to the corner-crossing dilemma is more about finding compromise solutions than changing the law in one fell swoop.
“We want to make sure that we’re respecting private property rights, while at the same time supporting the public’s right to access their public lands,” Tawney says. “Instead of a ruling that just automatically says everybody can have access, there’s opportunities for us to work with private landowners to think about ways that [these] impacts can be minimized.”
As for what those opportunities might look like, Tawney points to more traditional, time-tested solutions to the access dilemma currently facing the West. These include recreational easements, as well as public access programs like Montana’s Block Management Program and Idaho’s Access Yes, which compensate private landowners who allow the public to access (or pass through) their land for hunting, fishing, or other recreational purposes. He also says that if it were necessary, he believes that a large contingency of sportsmen would be willing to compensate landowners themselves.
“Ultimately, we feel that the public has a right to that public land,” Tawney says. “We just want to make sure that we do that in a way that enhances public and private land partnerships. It’s hard for me to say what will and won’t happen [with this civil suit], but we are looking for that compromise.”
Read Next: What’s Next For Corner-Crossers and What Will the Outcome of the Civil Suit Bring?
Tawney points to the Federal Land Transaction Facilitation Act as yet another avenue for enhancing public access on a piece-by-piece basis. That legislation, which was signed into law in 2000, is meant to help consolidate public land parcels by providing the Bureau of Land Management with a means of purchasing large chunks of land (totaling at least 640 acres) that have high conservation or recreation value.
What Tawney and other prominent public land advocates won’t say outright is that pushing for blanket corner crossing legalization might start an access arms race with landowners. In other words, it could drive large landowners (some of whom have incredible financial resources) in Western states to work together to block public opportunities in other ways. For example, the recent lawsuit filed by United Property Owners of Montana accuses state officials of attempting to force public hunter access to private land through restrictive hunting regulations and programs such as game damage hunts, which require public access, according to the Independent Record.
Most insiders do not want to see more suits like this one, and they acknowledge that an all-or-nothing approach to corner crossing could kill the opportunity for partnerships with private landowners down the road.
“Private landowners have a lot of reasons to be concerned and we definitely understand that,” says Brien Webster, the programs manager for Backcountry Hunters and Anglers. “For us, we want to find a solution that avoids an arms race that would lead to an all-or-nothing decision. Our hope is that we can look at this situation and learn from it and maybe come together and have some real conversations about it in the coming months and years.”
The BLM’s Perspective
Tracy Stone-Manning, the director of the Bureau of Land Management, told Outdoor Life in a recent interview that there are cultural changes going on that are directly related to the larger issue of corner crossing.
“What’s on my mind is the sort of deeper cultural issues at play and deeper frustrations at play,” Stone-Manning says. “Public land lovers are frustrated that they can’t get to their public lands. And private landowners are frustrated that a lot more people are coming out onto the landscape than used to be. I think that corner crossings didn’t used to be that big of an issue because you just went and knocked on the rancher’s door and said, ‘Hey, can I hunt your place?’ And they would typically say yes. And yet now … the people are coming in droves. And so it’s difficult for those landowners. And I can see how [why] they’re concerned—they’re seeing the West change before their very eyes. And public [users] are concerned that they are seeing the West change before their very eyes, because people who are opening the door are different than they used to be in some places.”
Stone-Manning says her agency is more focused on unlocking federal land on a piecemeal basis by targeting parcels that she refers to as “low-hanging fruit.” She says that the BLM plans to use money from the Land and Water Conservation Fund to either acquire corner easements or buy private parcels outright. And thanks to the passage of the Great American Outdoors Act, which established a permanent funding mechanism for the LWCF, she says the agency can “gear up on the amount of acquisitions were doing.”
Stone-Manning also points to the John Dingell, Jr. Conservation, Management and Recreation Act of 2019 as an important legislative path toward unlocking corner-locked lands in the West. The Dingell Act, she explains, directs Congress to ask for the public’s guidance on identifying public lands with recreational value that are currently restricted or closed to the public. This helps the BLM create a priority list for federal lands that are currently inaccessible, and Stone-Manning says the agency will use this list to drive future land acquisitions and secure recreational easements.
“Maps can tell us what’s landlocked,” Stone-Manning says. “But more importantly, these nominations allowed people to tell us why that land is important, and what the potential for access is.”
When Congress first reached out to the public in 2020 and called for a nomination of landlocked parcels, the BLM received more than 6,000 responses over a 30-day period. Stone-Manning explains that since then, the agency has whittled down the original 6,662 nominations from 2020 by eliminating parcels that were either duplicates or did not fit the Act’s criteria for inclusion. (Under the Act’s criteria, nominated lands must be managed by the BLM, encompass at least 640 contiguous acres, and have significantly restricted or no public access.)
All that whittling left them with 2,841 parcels for continued evaluation. From that shortlist, she says, the agency has put together an “initial priority access list” that includes 712 parcels of public land covering roughly 3.5 million acres in 13 Western states.
The BLM will continue to use crowdsourcing to expand its priority list, she says. And on May 23, the agency announced the creation of a new internet-based portal that allows the public to nominate parcels of public land more easily and efficiently. The site will remain open to the public until June 30.
“People responded strongly when we asked for their help in identifying places to open,” Stone-Manning said in a press release announcing the launch of the website. “This new technology to gather nominations will help us organize what we anticipate will be an equally robust response in 2022.”
The debate surrounding corner crossing and the pending civil suit that was filed against the four Missouri hunters have certainly brought out hardliners on either side. But even after the dust settles over Iron Bar Holdings LLC vs. Case et al, public land hunters and private landowners will still have to live with one another. Which is why it’s important for public access advocates like Tawney, public land managers like Stone-Manning, private landowners, and public land hunters to continue to stake out the middle ground, and find compromises wherever possible.
Natalie Krebs contributed reporting for this story.