Could Your Private Property Become a Thoroughfare for People Accessing Federal Land?
By: Rachael Buzanowski
From Montana to New Mexico and all states west, federal lands make up a great deal of the landscape. These lands are often open for grazing, mineral development, and recreational activities to the public. However, not all these federal lands have legal public access. Sure, some have public roads going to them, but others are completely landlocked by privately owned lands. Still other federal lands are found in what is known as the “checkerboard.” Checkerboard lands trace back to the time when the U.S. Government granted thousands of acres to railroad companies by giving them the odd numbered sections (640 acres), for up to twenty miles, on either side of the tracks. The remaining sections were reserved to the federal government and are now generally managed by the Bureau of Land Management (BLM). The railroad companies eventually sold their lands to private landowners to finance the construction of the railroads. This resulted in the current configuration of one section being managed by the BLM and the next being privately owned.
The common corners of four checkerboard sections consist of two private and two federal sections, with the private sections situated diagonally from each other. Federal lands in the checkerboard have generally been deemed inaccessible to the public unless serviced by a public road because there is no right to trespass across private land to access federal land. However, the scope of private property rights in the checkerboard are now being tested in a Wyoming federal court. In a case specifically designed to get a court’s ruling on the issue, four members of the public used a “ladder” to go from one corner of federal land to another. “Technically” these individuals did not touch the private surface, but they clearly entered the airspace above the private lands – it would be impossible not to. This airspace is as much part of the private property as the soil beneath it.
There is nothing in Congress’ creation of the checkerboard land pattern that indicates it intended to allow the public to access federal lands by crossing private property. Congress knows how to write bills that allow access across private property to federal lands, Congress did not do that here. Even the federal agencies do not believe that the public can corner cross to get to the federal checkerboard sections. Brochures developed by the BLM and Forest Service caution against corner crossing to get to federal lands. If access to federal checkerboard land is desirable, Congressional, and state statutes, provide a plan – purchase the access from the private landowner.
The defendants argue that because the federal Unlawful Inclosures Act (UIA) prohibits anyone from enclosing or obstructing free passage or transit over or through federal lands, a private landowner cannot stop the public from accessing federal lands across private lands. This argument grossly enlarges both the scope and the purpose of the UIA. The UIA was created to prevent ranchers from strategically fencing lands in such a way that provided them exclusive livestock grazing on federal lands. The Act in no way gives permission to the public to trespass on private property. Thus, the UIA simply does not apply here since the issue in this case is keeping unwanted trespassers off private land, not preventing others from grazing cattle on federal land.
The public does not have the right to trespass on private property to get to federal lands. According to the U.S. Supreme Court, “Ownership of property implies the right of possession and control and includes the right to exclude others; that is, a true owner of land exercises full dominion and control over it and possesses the right to expel trespassers.” This should include stopping someone from using a “ladder” just to get across your property. While the scope of private property is defined by state law, this case will have west-wide implications for all private property owners in checkerboard lands. Depending on the outcome of this litigation, your private land could become a thoroughfare to the federal lands.