Recently it was determined in court that hunters in the high-profile Carbon County corner-crossing case were not trespassing when they used a ladder to access public lands. But the most important question remains: Did they even need a ladder to lawfully access public lands?
Opinion
The right to access public lands was codified into law in 1885. The federal Unlawful Inclosures Act 43 U.S.D.A. was passed to stop private landowners from enclosing (also spelled “inclosing” in historic documents and cases) public lands for their exclusive use. The act prohibits the maintenance, erection, construction or control of an enclosure to prevent access to public lands. From its enactment, it has been contested and ignored, and state laws have passed to undermine it.
Throughout the years, this law has been upheld in the courts. In the following cases illegality of enclosure and the right to access public lands was clearly defined for people, livestock and wildlife.
In Camfield v. United States (1895), the federal government sued and won to have a fence enclosing public lands in Nevada torn down.
Mackay v. Unita Development Co. (1914) also upheld the illegality of building an enclosure of public lands, even if the fence is solely on private property. (Emphasis mine.) This case also said the law prohibits anyone from obstructing livestock passage to public lands, even if this passage causes a loss of forage. Further this case also makes it clear that people can’t be denied access to public lands, either. “No person, by force, threats, intimidation, or by any forcing or inclosing, or any other unlawful means, shall prevent or obstruct, or shall combine and confederate with other to prevent or obstruct, any person, from peaceably entering upon … or prevent or obstruct free passage or transit over or through the public lands.”
Another case, Stoddard v. United States, held that the right of passage applied to animals as well as people stating: “the act, in our opinion, was intended to prevent the obstruction of free passage or transit for any and all lawful purposes over public lands.”
In the Red Rim v. Wyoming Wildlife Federation case, Taylor Lawrence had erected a 10-foot-high fence that enclosed private and public land, which kept antelope out of their crucial winter range. The United States sued. The state and national Wildlife Federation signed on. U.S. District Court Judge Clarence Brimmer issued a bench order requiring the fence be modified so antelope could pass through it. His order was based on findings the defendant was in violation of the Unlawful Inclosures Act.
Regarding antelope access to their winter-feeding range, he also stated “the Court cannot accept the intent of Congress that the UIA would allow that outcome, when it is clear that defendant could not build this fence to prevent humans from undertaking mere recreational pastimes, such as hiking or fishing.”
Further, in his decision, Judge Brimmer clarified the decision in an earlier case, Leo Sheep Company v. U.S., which the defendant’s attorney used for his client’s defense. In that case, the U.S. Supreme Court required the BLM to compensate the Leo Sheep Company for the use of its land because BLM built a road partly on private land to Seminoe Reservoir and invited the public to use it.
Judge Brimmer also agreed that while the law was enacted to prevent “range wars” as the defendant’s attorney argued in the case “nothing in the act or its history limits its application.”
While it is certainly legal for private lands to be fenced off, the Unlawful Inclosures Act forbids denying access to public lands.
Another judge commented early on that the buyers of those lands were knowing buyers of the legal status of those lands.
Clearly, the law provides humans, animals and wildlife access to federal public lands. Court challenges have clarified this. Nonetheless, throughout the West, public lands, especially in the checkerboard, continue to be enclosed for private pleasure or profit.
On Oct. 24, 1975 the regional solicitor of the United States in a memorandum to the Wyoming State Director of BLM said that denying access in the checkerboard is a violation of the Unlawful Inclosures Act. He commented that the landowner could lose his grazing lease for doing so.
In response to this act that has been taken to court time after time, states like Wyoming have passed a body of laws that conflict with its tenets.
Even though federal law supersedes state law, western state and county attorneys discourage the act’s implementation. Instead, they enforce conflicting trespass laws which have provided illegal privileges to western landowners. Likely that is one of the reasons why state legislators want ownership of federal lands handed over to the states.
In the meantime, many of these lands have been turned into exclusive hunting and fishing preserves.
While it is certainly legal for private lands to be fenced off, the Unlawful Inclosures Act forbids denying access to public lands.
Still, wealthy landowners will continue to take the issue to court and do their best to nullify the act. Like feudal landlords of old England, they want those public lands for themselves.
These lands have been a treasured commons for the citizens of this country. Do not allow them to be enclosed.
Camfield v. US originated in Colorado, not Nevada.
Well said, Barbra. I would like to add a foot note. Judge Brimmers decision on Red Rim UIA, was appealed by Lawrence and the 10 circuit appeals court unimously agreed with the Brimmer decision. Then Lawrence’s attorneys appealed to the US Supreme Court where it was denied certification.
This is Ethan call from Rawlins, Wyoming. So why doesn’t the federal government sue the several states that have made conflicting laws regarding access to public lands, and have the issue settled? There will always be landowners that want more land to themselves. That is the nature of the beast within us. If we as citizens do not lift a finger and shake it at the greedy landowners, we will get what we deserve, and in this case, no access.the law of 1885 does not even refer to corner crossing, it refers to çrossing anywhere to get to our public lands . The landowners should wise up, unblock there corners, and put signs up that say ‘cross here’s.
Reality in writing, thankyou. I would think countless sums of money have been spent on courtrooms and lawyers fees, WHICH never should have happened. Again follow the money. This wrong was perpetrated by power mongers. The most effective cure is by the public, unheeded by harassment , to access and enjoy our public lands. Starting a long time ago.
Every WyoFile reader should download this article for future reference. It clearly and concisely explains case law that is now expanded by Eshelman vs. Missouri hunters.
Very informative article. How things were in Wyoming in my younger years. Keep up the good information!
Nice reporting Barb, Lorraine
Excellent read thanks
Superb article – just the time of factual information the readers need – no emotional ranting. Likely to greatly help other locked out people find a solution to their dilemma.
Enjoyed hearing the history of the UIA and it’s applications. One point that Ms. Parsons made is that these landowners have purchased these lands knowing that public lands are an interspersed part of their ranch. This is a stellar point to make. It’s not like this is a sudden change. Hopefully, landowners, the state, federal agencies and the public can work together to identify areas where land exchanges can allow the public easier access to public lands, and landowners a greater degree of privacy and control by their ranch only containing private lands. In the mean time, corner crossing needs to be codified by the legislature so the public understands exactly what is and is not legal. Further, in confusing checkerboard and interspersed areas, ownership lines need to be clearly marked.
This is Ethan Call from Rawlins Wyoming. The law is already codified by the law of 1885. Everyone is just getting confused by the words ‘corner crossing ‘.
Barbara did an excellent job of analyzing past and current case law regarding the Unlawful Inclosures Act. I read Judge Skavdahl’s order to mean that one may walk across a corner even if it technically would result in a violation of Wyoming’s trespass laws (both civil and criminal). The Act should be a complete defense if a person corner crossed with the intent to access adjacent public land and was subsequently charged with criminal trespass under Wyoming law, in my opinion.
This is Ethan Call from Rawlins Wyoming. There is not one state that has a ‘legal’ law that says it is illegal to cross private property to access public lands. The federal law makes it clear that no state shall make a law that is contrary to an already existing federal law. Those states that have done so should be sued to get them to understand that the federal law reigns supreme.