Viewpoint: Untangling the problem of inaccessible public lands
Erik Molvar
Hunting and angling groups have done us all a favor by highlighting the problem of public lands locked away behind no-trespassing signs, the result of arcane laws that give ranchers and other landowners the right to block access. But this is not just a hunting and fishing access issue.
The intermixed federal, state, and private landownership pattern across much of the West creates major problems for land management, for wildlife and habitat conservation, and for access to federal public lands not just by hunters but by all Americans, including campers, birdwatchers, rockhounds, wild horse enthusiasts, hikers, and wildlife viewers – essentially all of us.
Let’s take the checkerboard of land ownership in Wyoming as an example, where this is the core issue in several lawsuits involving individuals attempting to hunt on public lands. The checkerboard pattern results from land grants to railroad corporations under the 1850s-era Railroad Acts, enacted as a subsidy to incentivize the construction of transcontinental railways.
This created a bizarre hodgepodge of ownerships in which the corners of public lands touch in a diagonal checkerboard pattern on those federal lands that were never homesteaded. The same is true on the old railroad lands that have passed into private ownership. In Wyoming, state courts have at times asserted that it is illegal to step from one corner of public land to the next, ruling that the airspace above private property is inviolable, and any “corner crossing” constitutes trespass. In Wyoming, this situation extends in a band 40 miles wide stretching west, intermittently, from Elk Mountain across the Red Desert along the Union Pacific railway.
It's not just a public access problem, but also a land management headache. For the Bureau of Land Management, the interspersion of private and public lands, often without fences (a benefit to wildlife, of course), means that the agency cannot realistically manage any of the uses occurring on public lands in the checkerboard.
Private landowners essentially get veto power over any activities (or restrictions) the agency might allow or apply. In the Red Desert that means designated sage grouse Priority Habitats cannot be effectively protected, potential wilderness is not granted protective designations, wild horse herds are slated to be zeroed out, historic features like the Overland Trail and ancient rock art panels don’t get the full protection of federal law, and migration corridors and crucial wildlife ranges like the Red Desert to Hoback Mule Deer migration corridor cannot get their full measure of conservation.
Private checkerboard landowners could be inconvenienced too, but they often get to use and control more than the land that they own, effectively controlling the interspersed public lands as well. While these landowners might enjoy taking advantage of the checkerboard situation, from a public interest standpoint, it’s unacceptable.
The Rock Springs Grazing Association complains that their Red Desert checkerboard holdings are grazed by wild horses – but this problem could be solved if their lands were consolidated into one or several large private parcels.
The easiest way to solve the problem would be to swap lands on an acre-for-acre basis to consolidate ownerships. In Wyoming’s Red Desert, for instance, private interests could get consolidated lands around the Monell Unit and Continental Divide-Wamsutter Field that they could manage and develop more easily. In exchange, the public could get lands that are sage grouse Priority Habitats, archaeological and geological wonders, the Red Desert-to-Hoback mule deer migration corridor, and proposed National Conservation Area and proposed wilderness lands, all more valuable for public recreation and enjoyment. It would be a win-win.
Because the federal government has the power of eminent domain, such a land swap could even be mandatory rather than voluntary, in the event that some landowners were unwilling to come to the bargaining table.
The other solution would be for Congress to enact a right of reasonable access to all public land parcels, requiring private landowners to provide a reasonable level of access to adjacent public lands (motorized in the case of open roads, non-motorized where roads in current use are lacking).
After all, private property owners already have exactly this right of reasonable access, so why shouldn’t the public have it too, for federal lands managed for the public benefit? Such legislation would not only solve land-access issues in the checkerboard, but also provide public access for large blocks of federal lands currently isolated behind private lands, locked gates, and no-trespassing signs. In some cases, adjacent landowners charge exorbitant “trespass fees” for hunters and anglers to access public lands on the other side of private property.
It’s long past time to right the wrongs of the ill-conceived 19th Century Railroad Acts, and grant public access to public lands. Consolidating land ownerships along the railroads would also facilitate land and wildlife conservation by eliminating fragmented land ownership patterns and potentially conflicting land-use priorities. To quote the Arlo Guthrie song, if “this land is your land,” shouldn’t you be able to go there and enjoy it without getting arrested for trespassing?
Erik Molvar is a wildlife biologist and Executive Director with Western Watersheds Project, a nonprofit conservation group dedicated to protecting and restoring wildlife and watersheds throughout the American West.