In C.J. Box’s latest novel, Three-Inch Teeth, about a rampaging grizzly bear, Box’s hero, Wyoming game warden Joe Pickett, encounters three Pennsylvania hunters on Bureau of Land Management lands in southern Wyoming amid checkerboard federal and private lands. Pickett tells them that while they may legally hunt on federal lands, they cannot hunt on private lands without the rancher’s permission. In fact, “corner-crossing” from one BLM parcel to another invades his airspace and constitutes trespassing.
The hunters display a ladder built to cross onto BLM land without setting foot on private land. In fact, they use GPS apps to ensure they do not. Pickett says he can’t stop them but warns the county sheriff will arrest them, especially if he hears from the landowner. Reflecting, Pickett sees both sides: Licensed hunters may access public lands, but landowners may exclude strangers. Still, he ponders, if people can wander across ranchers’ lands whenever they please, is “private property actually private?”
Wyoming native Box and Pickett know whom to blame for why corner-locked public lands is a “big issue in the West”: the federal government. Reports Pickett, in Wyoming alone, there are 2.4 million acres of those lands, a landmass larger than Connecticut!
Pickett’s “big” Western issue is getting huge and going national, thanks to litigation decided last May by a Wyoming federal district court and now before the U.S. Court of Appeals for the 10th Circuit in Denver. Because the controlling legal precedent was decided by the Supreme Court decades ago, it is headed there.
The case began over a century and a half ago in 1862, when Congress authorized a railroad from the “Missouri River to the Pacific Ocean.” Recognizing the cost, due to the distance, dangers, and difficult (uncrossed, except for wagon trains) terrain, Congress granted railroads every other section of land within 20 miles of each side of the track for use or resale. The rest remained federal.
Because, under the Constitution, Congress has exclusive authority over “the Territory or other Property belonging to the United States.” And because the founders sought disposal of all federal lands, Congress enacted laws to accomplish that goal beginning with the Homestead Act of 1862. Meanwhile, Congress authorized economic uses of federal lands, including mining, livestock grazing, and timber harvesting. It was not until 1960 as to national forests and 1976 on BLM lands that Congress listed “recreation” as one of the “multiple uses” permitted there, with none favored over another. Also, 1976 marked the end of the “disposal era.” Henceforth: “It is the policy of the United States that the public lands be retained in Federal ownership, unless … disposal of a particular parcel will serve the national interest.”
East of Wyoming, almost all federal lands were homesteaded and transferred into private hands — 1.1% of Nebraska is federally owned — but through Wyoming, Utah, and Nevada, most lands remain federal. Nearly half of Wyoming, 63% of Utah, and 80% of Nevada are federally owned.
In conveying the federal land to railroads, Congress could have expressly reserved easements to effectuate federal purposes, including ensuring public access to other federal lands. That the federal government’s implicit authority is limited, however, the government discovered to its detriment before the Supreme Court in 1979. In Leo Sheep Company v. United States, a Carbon County, Wyoming, case involving checkerboard lands created by Union Pacific Railroad grants and conveyance of some lands to private landowners, federal authorities claimed the right to clear a dirt road across a rancher’s land, over his objections and without just compensation, for public access to a reservoir for fishing and hunting. “No,” ruled a unanimous court.
Justice William Rehnquist, with Justice Byron White taking no part in the case, wrote that the Union Pacific Act reserved no property rights to the federal government and rejected the government’s argument that “settled rules of property law,” including “easements by necessity,” supported its right to build the road. Easements of necessity, the common law presumption that a conveying landowner retained the right to use transferred land to access his inaccessible land, did not apply, held Rehnquist, because that right did not include construction of a road for public access. More importantly, those easements were denied the federal government due to its eminent domain powers — that is, authority to condemn property and pay “just compensation.” Plus, noted Rehnquist, Wyoming does not recognize “easement by necessity” even as to private parties.
As to the Unlawful Inclosures of Public Lands Act of 1885, enacted in reaction to the “range wars” between stockmen and farmers, which barred “fencing or inclosing” lands to deny “free passage or transit over or through the public lands,” Rehnquist held it did not apply. Certainly, it did not apply to a landowner’s opposition to a public road across his property. Moreover, the court held in 1897 that, notwithstanding the act, landowners could fence their lands: “So long as the individual proprietor confines his enclosure to his own land, the Government has no right to complain, since he is entitled to the complete and exclusive enjoyment of it, regardless of any detriment to his neighbor [or the public.]”
With this background, the Wyoming federal district court, after removal from a Wyoming state court, heard a civil trespass case brought by a Wyoming landowner against four Missouri hunters who admittedly crossed multiple corners between BLM parcels and, in the process, trespassed through adjacent private air space. Remarkably, the district court relied not on the Leo Sheep ruling but on a 1914 Wyoming case upheld by the U.S. Court of Appeals for the 8th Circuit, which never reached the Supreme Court. That court sustained the right of a rancher to graze his sheep upon the land of a neighbor as he drove them to public land. Thus, long before Leo Sheep, the appeals court held a member of the public had the right to trespass upon a neighbor’s land because the federal government provided him no other access to its lands where he had the right to graze his sheep. The Wyoming district court did not discuss how a person could, on his own behalf, assert and obtain a right not granted him by the federal government when the federal government, on behalf of the public at large, could not assert a similar access right.
Instead, acknowledging the Wyoming landowner’s inability to exclude the public from its land was not a problem of its making, nor was the public’s inability to access public lands a problem of their making, the Wyoming district court concluded both should share in the solution: “The private landowner must suffer the temporary incursion into a minimal portion of its airspace while the corner crosser must take pains to avoid touching private land or otherwise disturbing private property.”
This may sound Solomon-like, but it is not. It is neither legal nor constitutional nor in conformity with applicable precedent, specifically Leo Sheep. Notwithstanding the Wyoming district court’s holding that “the public is entitled its reasonable way of passage [across private property] to access public land,” there is no statutory or legal authority for that holding. All authority is to the contrary.
Congress never reserved an easement for access across these lands. Nor was there an implied easement ensuring public access, as Leo Sheep and subsequent Supreme Court rulings made clear. That is especially so regarding “recreation,” which Congress did not recognize as to BLM lands until 1976. Besides, that year, Congress, aware that public access to vast federal lands throughout the West was a nettlesome issue, granted the secretary of the Interior Department “the power of eminent domain … to secure access to public lands,” limited to “as narrow a corridor as is necessary to serve such purpose.” Today, with funds from the Great American Outdoors Act, signed into law by former President Donald Trump, the BLM acquires private lands to provide public access to heretofore inaccessible federal lands. Meanwhile, over the decades, the Wyoming Bureau of Land Management informed hunters that corner-crossing is illegal.
Nonetheless, Wyoming’s federal district court fashioned a remedy and balanced equities regarding an issue to which Congress is aware but to which Congress, which alone has the constitutional authority, has not acted. Consequently, for hundreds of agricultural producers who own thousands of acres of private land in Wyoming, the result is Joe Pickett’s worst fear: Their land is no longer private. Simply put, as we say at the Supreme Court, the Wyoming district court’s ruling that “members of the public,” however defined, are “entitled to a reasonable way of passage” across private land to federal land lacks a “limiting principle.” Given the breadth of the word “recreation,” who besides hunters may now trespass on their private land among their livestock? Worse yet, the all-encompassing, ever-expanding, and uncompensated burden for this heretofore unknown right is imposed destructively solely on stockmen.
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If not reversed, the Wyoming federal district’s court ruling will result in an unprecedented and massive taking of private property for public use without just compensation, contrary not only to the will of the 37th Congress but also antagonistic to the U.S. Constitution and the vision of the founders themselves. It was those men, after all, who recognized property rights as the foundation of American dynamism and wealth creation and as the sole guarantor of individual rights, personal independence, and liberty itself.
If the inability of a few scores of hunters to access isolated BLM land in the vastness of Wyoming is a problem, then Congress can fix it. Meanwhile, let Wyoming enforce its trespass law and leave its ranching families alone.
William Perry Pendley, a Wyoming attorney and Colorado-based public interest lawyer for three decades with victories at the Supreme Court, served in the Reagan administration and led the Bureau of Land Management under former President Donald Trump.
