Newbergs public land legality podcast

Broomer

Broomer

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Just listened to episode 179 on Randy’s podcast. I loved it! It was super intriguing the ideas and legal commentary.

A couple points that I liked and understood for me were:

1- We know Federal and or state governments can take property through eminent domain. In the discussion of easements for access to public lands whoever initiated the “taking” or the “granting” of land has the ability to control the deal. So if government let say takes land for an easement they can decide that anyone can use the easement by any means. ATV’s, Horses, bikes, vehicles, etc. But If the landowner decides to give access by way of an easement to checkerboard land they can make the rules. So they can limit it to just foot traffic, and they can only grant 1-3 feet. They could even say it’s only for hunting access. To avoid the year round recreational guy?‍♂️.

It would be wise for a landowner to decide to take the first pro active step before governments are forced to take action because of continued pressures by the public.

2- under the constitution fine print it says that a landowner can’t intimidate and create an obstacle to prevent access to public land. I believe this is called “unlawful enclosure act”

I remember being in gellette Wyoming and seeing a dummy dressed up as a hunter hanging by a noose from a tree with a sign that said no hunters. This was on privet property but it was close to a BLM corner and I just looked at that and shook my head in unbelief. The crime in this case could be federal misdemeanor. If found guilty they would have a federal felony conviction or the threat and obstacle would need to be removed.

3- the more cases that come up the more pressure for authorities to do something about it.

I don’t like government forcing anything on people so I say we promote and Lobby landowners to be proactive before they start to loose these cases.
 
Broomer said:
Just listened to episode 179 on Randy’s podcast. I loved it! It was super intriguing the ideas and legal commentary.

A couple points that I liked and understood for me were:

1- We know Federal and or state governments can take property through eminent domain. In the discussion of easements for access to public lands whoever initiated the “taking” or the “granting” of land has the ability to control the deal. So if government let say takes land for an easement they can decide that anyone can use the easement by any means. ATV’s, Horses, bikes, vehicles, etc. But If the landowner decides to give access by way of an easement to checkerboard land they can make the rules. So they can limit it to just foot traffic, and they can only grant 1-3 feet. They could even say it’s only for hunting access. To avoid the year round recreational guy?‍♂️.

It would be wise for a landowner to decide to take the first pro active step before governments are forced to take action because of continued pressures by the public.

2- under the constitution fine print it says that a landowner can’t intimidate and create an obstacle to prevent access to public land. I believe this is called “unlawful enclosure act”

I remember being in gellette Wyoming and seeing a dummy dressed up as a hunter hanging by a noose from a tree with a sign that said no hunters. This was on privet property but it was close to a BLM corner and I just looked at that and shook my head in unbelief. The crime in this case could be federal misdemeanor. If found guilty they would have a federal felony conviction or the threat and obstacle would need to be removed.

3- the more cases that come up the more pressure for authorities to do something about it.

I don’t like government forcing anything on people so I say we promote and Lobby landowners to be proactive before they start to loose these cases.
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Nope! Public lands should be just that, PUBLIC! All National Forrest, State and BLM land should be open to public access. If it’s walking, riding or driving it works for me, but access should not be denied. Especially if somebody is leasing it for cattle, farming, drilling, mining or whatever else.
 
Boomer, you left out that eminent domain requires compensation for value lost. What's just compensation for a resource(game) that supposedly has no commercial value? This is probably a slippery legal slope that no F&G Dept. can afford to go down.

I think Bigfoot is on the right track, tie the leases to public access. But that will never happen either.

On a state level. Cut the checkerboard land out of the hunting regs altogether. You don't want to grant access, let the elk eat them out of business.
 
idahomuleyhunter said:
Boomer, you left out that eminent domain requires compensation for value lost. What's just compensation for a resource(game) that supposedly has no commercial value? This is probably a slippery legal slope that no F&G Dept. can afford to go down.

I think Bigfoot is on the right track, tie the leases to public access. But that will never happen either.

On a state level. Cut the checkerboard land out of the hunting regs altogether. You don't want to grant access, let the elk eat them out of business.
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I know it's a hard thing state with fed.

But I'd love to see grazing leases tied to walk in access on ranches.

Too many ranches feed off the MTN, saving the ranch for later in the year as a magnet to suck in animals, that they can then get landowner or CWMU tags for.
 
Where I hunt any National forest leased for grazing has a walk in gate. Our deer hunt starts after a three mile hike to the top through one of those gates. This is good for young men in shape who will put in the work to harvest game but it’s hell on those out of shape and old timers.
 
Bigfoot 1 said:
Nope! Public lands should be just that, PUBLIC! All National Forrest, State and BLM land should be open to public access. If it’s walking, riding or driving it works for me, but access should not be denied. Especially if somebody is leasing it for cattle, farming, drilling, mining or whatever else.
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Especially if there is a road system on the other side that the land owners are allowed to use but the public isn't. That's what really chaps my @ss. I know of several areas in Colorado that there are Miles of roads on BLM but because it crosses through a 1/4 to 1/2 mile of private it's all off limits to the public.
 
My dad grew up.on the MTN. Herded sheep. Literally lived in a sheep camp his senior year and drove down to go to school.

When he got ling cancer at 54, many of the places he had lived, were off limits to him and his Cherokee.

I d love to blame the FS, but after doing homework, it was lack of money causing gates to be shut.

Rob Bishop. Mike Lee.

I will never forgive them for the games they played.
 
hossblur said:
My dad grew up.on the MTN. Herded sheep. Literally lived in a sheep camp his senior year and drove down to go to school.

When he got ling cancer at 54, many of the places he had lived, were off limits to him and his Cherokee.

I d love to blame the FS, but after doing homework, it was lack of money causing gates to be shut.

Rob Bishop. Mike Lee.

I will never forgive them for the games they played.
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What did Rob Bishop and Mike Lee have to do with gates being closed 20 years ago?
 
fullcry said:
So does that mean y’all are also in favor of access for everyone on all wilderness lands also?
What’s the difference between checker board land and Wyoming wilderness.
Nothing, both are bull.
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That's what makes me concerned that even if the courts rule in favor of access, the state legislature will change the law to outlaw corner crossing specifically.

Wyoming politicians will side with the few nonresident landowners over the thousands of residents... that's my guess any way.

I hope I'm wrong.
 
Here in Colo state land is often off limits to the public unless authorized. Each state is a little different in regard to its own state land. Also in Colo there is county owned land. Each county decides what county land is open or closed to the public.
 
It’s pretty clear that presently the WG&F wants nothing to do with the corner crossing issue. Game wardens hand this over to the sheriffs to enforce. There is nothing in the hunting regs that states anything in regard to corner crossing is trespassing. Until that is published hunters have no clue whether it is legal or not. Previously it was known that some counties didn’t enforce corner crossing in Wyo.

It seems odd that previously Carbon County courts had little to nothing to do with corner crossing. Now that a rich landowner is involved the sheriff suddenly took action. So what happens from this time forward in this and other counties in Wyo? Will this truly be resolved after this case?

Is corner crossing considered trespassing? Will the WG&F ever have the ability to either allow or enforce trespass for corner crossing? It certainly would be great if Wyo hunters knew whether this was legal.

Here in Colo it is illegal to corner cross so there is no question in the mind of hunters. If you are caught corner crossing in Colo you will be handed a ticket! The big question is, is it legal to corner cross in Wyo? Right now no one knows?

A lot of weird stuff happens in the court system. Will this court battle dictate what happens from this time forward in Wyo and other states?

Bottom line….It certainly would be nice to know if all that land locked checker board public ground is truly open to the public in Wyoming. Obviously there are 2 sides to this issue.
 
notdonhunting said:
What did Rob Bishop and Mike Lee have to do with gates being closed 20 years ago?
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You missed the point.

They, along with their ilk, after the sagebrush rebellion didn't succeed, came up with an idea to starve public land agencies budgets to death, then publically bash the agencies for "closing access".

Mike Lee specifically voted against GAO, and LWCF, .

Bishop sat on natural resources committee, and became head, enacting the "starve and *****" strategy.

Rob Bishop was in Congress 20 years ago.

Lee, I suggest you do some homework about what Mike Lee was doing prior to Senate run.
His "sell it all", and "starve and *****" ideas didn't start when he ran for Senate. Both he and his dad were very active in the "transfer" scheme.
 
jims said:
Here in Colo state land is often off limits to the public unless authorized. Each state is a little different in regard to its own state land. Also in Colo there is county owned land. Each county decides what county land is open or closed to the public.
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Any non security related land paid for by the tax payer should be accessible to the public. We are our own worse enemies, instead of banding together and protesting with our voices and votes we just move on to land that is open to us. Yet every year we find more and more land closed. We give them an inch and they take a mile. Sad but true.
 
Things can get tricky in a hurry when it comes to public access on public owned land! There are often season and/or permanent closures on many public lands across the Western US that protect wildlife and natural resources.

This is very common on public national forest service land in the Western US that have locked gates to certain vehicles during the winter months, BLM critical winter ranges, etc. There are many national wildlife refuges across the country that are closed off entirely to public use or only open during certain times of year. Many of these refuges may have rare and endangered species. Counties here in Colo often have raptor closures areas during nesting periods....the lists go on and on.

Just because land is public doesn't always necessarily mean it should be open to the public. There often are very good reasons for many of these public lands to be closed to public use.
 
jims said:
Things can get tricky in a hurry when it comes to public access on public owned land! There are often season and/or permanent closures on many public lands across the Western US that protect wildlife and natural resources.

This is very common on public national forest service land in the Western US that have locked gates to certain vehicles during the winter months, BLM critical winter ranges, etc. There are many national wildlife refuges across the country that are closed off entirely to public use or only open during certain times of year. Many of these refuges may have rare and endangered species. Counties here in Colo often have raptor closures areas during nesting periods....the lists go on and on.

Just because land is public doesn't always necessarily mean it should be open to the public. There often are very good reasons for many of these public lands to be closed to public use.
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You make valid points, I agree. I don’t agree with closing them permanently to the public. I can understand seasonal use.

Grab the land for whatever reason you can imagine and close it to hunters, campers, ATV use and so on and we all lose. Our deer hunting area has had so much National Forest land fenced off for cattle leasing and pasture rotation over the past couple of decades that its making it extremely harder to use for hunting.

There are always people scheming to take away our hunting and guns. They can’t stop hunting so they figure out ways to lock the land, they can’t ban firearms so they figure out ways to tax the ammo, powder, primers and so on. Anyways my point is we had better band together and lobby for us before it’s too late.
 
Bigfoot 1 said:
You make valid points, I agree. I don’t agree with closing them permanently to the public. I can understand seasonal use.

Grab the land for whatever reason you can imagine and close it to hunters, campers, ATV use and so on and we all lose. Our deer hunting area has had so much National Forest land fenced off for cattle leasing and pasture rotation over the past couple of decades that its making it extremely harder to use for hunting.

There are always people scheming to take away our hunting and guns. They can’t stop hunting so they figure out ways to lock the land, they can’t ban firearms so they figure out ways to tax the ammo, powder, primers and so on. Anyways my point is we had better band together and lobby for us before it’s too late.
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"We" kinda do it to ourselves.

Closures being the prime example.

There is plenty of online video showing shed hunters running animals during critical times trying to get the shed.
Fishing line strung between trees.

Where I hunt waterfowl, dudes illegally will ride out across mudflats to haul decoys out.

I'm pretty sure every turn on a dirt road in the forest has been "high banked" by ATV/sxs, which means they have to fence it, or lose the road to erosion.

You watch the Moab guys and they are adamant about cleaning up, not littering .

"Our" roads, you know which county your in by the brand of empty beer cans. Fire pits left full of garbage.

I agree, there are roads we've lost that I love, and are pissed about. But that grand conspiracy that the libs are behind it, isn't really true either.

And ya, those libs are better on public land than the R, but ONLY because they haven't found a way to profit from selling them off like the R.

Neither should be trusted
 
hossblur said:
"We" kinda do it to ourselves.

Closures being the prime example.

There is plenty of online video showing shed hunters running animals during critical times trying to get the shed.
Fishing line strung between trees.

Where I hunt waterfowl, dudes illegally will ride out across mudflats to haul decoys out.

I'm pretty sure every turn on a dirt road in the forest has been "high banked" by ATV/sxs, which means they have to fence it, or lose the road to erosion.

You watch the Moab guys and they are adamant about cleaning up, not littering .

"Our" roads, you know which county your in by the brand of empty beer cans. Fire pits left full of garbage.

I agree, there are roads we've lost that I love, and are pissed about. But that grand conspiracy that the libs are behind it, isn't really true either.

And ya, those libs are better on public land than the R, but ONLY because they haven't found a way to profit from selling them off like the R.

Neither should be trusted
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I find the vast majority of hunters and outdoorsmen do more for the land and environment than any good intentions liberal ever has. Do we have a few bad apples amongst us, of course. Imagine this planet without conservatives and outdoorsmen like us, Imagine…
 
Bigfoot 1 said:
I find the vast majority of hunters and outdoorsmen do more for the land and environment than any good intentions liberal ever has. Do we have a few bad apples amongst us, of course. Imagine this planet without conservatives and outdoorsmen like us, Imagine…
Click to expand...


I generally don't take a poll on politics when I meet someone in the field.

But if we are assuming that hunters aren't libs, then conservatives are pigs.

Take a walk down any waterfowl management dike in Utah.
 
jims said:
Here in Colo state land is often off limits to the public unless authorized. Each state is a little different in regard to its own state land. Also in Colo there is county owned land. Each county decides what county land is open or closed to the public.
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They have been opening some STLs but still tons that are off limits to recreation which is a damn shame.
 
HntHrdr said:
They have been opening some STLs but still tons that are off limits to recreation which is a damn shame.
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School sections kinda make me mad. I would love to see public access or at least some competition for the recreational rights. They are a legacy entitlement IMO.
 
Competition for the recreational rights means, in the context of state land; access, or outright sale, to the highest bidder. I doubt you want that. Idaho added a surcharge to hunting licenses to pay for school sections, which may be what you're thinking(I think Montana does this too). That's probably the best thing a state can do to ward off the legislature from selling out.
 
Understood. It doesn’t make much difference whether it’s tied up by a ranch family for generations for pennies, or an outfitter who paid market value each year.

Either way it’s public lands off limits to the public. The lawyers can argue over the definition of public.
 
”2- under the constitution fine print it says that a landowner can’t intimidate and create an obstacle to prevent access to public land. I believe this is called “unlawful enclosure act”

With the Wyoming Civil case going to trial the UIA is being used by defendants as a primary defense tool by the attorneys so maybe we’ll get some type of Court clarification when that goes to trial. It seems like if it’s ruled unlawful to try and prohibit public access over adjoining corners then the Wyoming criminal trespassing case is a waste of time for Wyoming. Interesting how the Federal Judge ordered the Civil case to move to a Federal court for jurisdiction, that alone should speak volumes. Hopefully we get some legal clarification soon. If UIA is deeming Corner crossing as legal then the Wyoming legislature would be powerless to do anything where Federal lands are concerned.
 
I wonder.

In Utah the law says it must maximize profit when selling STL.

Has anyone ever challenged a sale by pointing out a one time sale vs a lifetime lease back to the state isn't a maximum profit.?
 
Bluehair said:
School sections kinda make me mad. I would love to see public access or at least some competition for the recreational rights. They are a legacy entitlement IMO.
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Some shady dealings when it comes to recreational rights, supposedly there is a way to lease them from the state but they are very hush hush about what the current leasee is paying for them. All sorts of back room deals
 
IDbullz said:
”2- under the constitution fine print it says that a landowner can’t intimidate and create an obstacle to prevent access to public land. I believe this is called “unlawful enclosure act”

With the Wyoming Civil case going to trial the UIA is being used by defendants as a primary defense tool by the attorneys so maybe we’ll get some type of Court clarification when that goes to trial. It seems like if it’s ruled unlawful to try and prohibit public access over adjoining corners then the Wyoming criminal trespassing case is a waste of time for Wyoming. Interesting how the Federal Judge ordered the Civil case to move to a Federal court for jurisdiction, that alone should speak volumes. Hopefully we get some legal clarification soon. If UIA is deeming Corner crossing as legal then the Wyoming legislature would be powerless to do anything where Federal lands are concerned.
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If the Unlawful Inclosures Act is interpreted to allow corner crossing, the next frontier is getting access to all landlocked public lands through the unlawful inclosures act, I mean it pretty clearly states you cannot impede the public from accessing land owned by the federal government.
 
HntHrdr said:
Some shady dealings when it comes to recreational rights, supposedly there is a way to lease them from the state but they are very hush hush about what the current leasee is paying for them. All sorts of back room deals
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Yes, I’m unclear exactly how you are awarded one. It’s not based exclusively on monetary value though. As I said, I think it’s a legacy thing with some first right of refusal?

I have one for a neighbor and stuck my nose into the process. The door slammed on it in about a minute.
 
I think you are onto something with the legacy thing. I had a buddy look into a property on the platte river, which was being leased for almost nothing considering what waterfowl leases go for these days. Same thing with the door slamming in his face
 
andrew12gauge said:
If the Unlawful Inclosures Act is interpreted to allow corner crossing, the next frontier is getting access to all landlocked public lands through the unlawful inclosures act, I mean it pretty clearly states you cannot impede the public from accessing land owned by the federal government.
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It says you can't inclose public land for the purpose of assertion of ownership. This is writing to prevent anyone from seeking a prescriptive easement of pubic land. If you build a fence on your neighbors property, each state has statutes that will allow you to claim that land as yours after a statutory time. This says those statutes can't be used to claim federal land.

It still doesn't answer, or even address, the issue of crossing thru "airspace".
 
idahomuleyhunter said:
It says you can't inclose public land for the purpose of assertion of ownership. This is writing to prevent anyone from seeking a prescriptive easement of pubic land. If you build a fence on your neighbors property, each state has statutes that will allow you to claim that land as yours after a statutory time. This says those statutes can't be used to claim federal land.

It still doesn't answer, or even address, the issue of crossing thru "airspace".
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“No person, by force, threats, intimidation, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct, or shall combine and confederate with others to prevent or obstruct, any person from peaceably entering upon or establishing a settlement or residence on any tract of public land subject to settlement or entry under the public land laws of the United States, or shall prevent or obstruct free passage or transit over or through the public lands”

Based on most of the big landowners with landlocked BLM inholdings and their ability to use it without allowing any access to the public, is that not “assertion of ownership”?

“No person, by force, threats, intimidation, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct,……any person from peaceably entering upon” the way I read that seems pretty cut and dried, you can’t keep people off of any tract of public land.
 
andrew12gauge said:
“No person, by force, threats, intimidation, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct, or shall combine and confederate with others to prevent or obstruct, any person from peaceably entering upon or establishing a settlement or residence on any tract of public land subject to settlement or entry under the public land laws of the United States, or shall prevent or obstruct free passage or transit over or through the public lands”

Based on most of the big landowners with landlocked BLM inholdings and their ability to use it without allowing any access to the public, is that not “assertion of ownership”?

“No person, by force, threats, intimidation, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct,……any person from peaceably entering upon” the way I read that seems pretty cut and dried, you can’t keep people off of any tract of public land.
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No, that is not an assertion of ownership. A landowner is not inherently required to allow you to trespass on his land in order to gain access to public land. This isn't, and shouldn't be the question. You seem to be trying to extrapolate this to "as long as I am legal in my destination my route to get there doesn't matter." The question is still: is crossing airspace trespassing, and it's a state issue. If crossing airspace isn't trespassing then you may have an argument for legally being able to climb his fence if it extends to the corners. I would argue this is true, but I don't have a vote.
 
hossblur said:
I generally don't take a poll on politics when I meet someone in the field.

But if we are assuming that hunters aren't libs, then conservatives are pigs.

Take a walk down any waterfowl management dike in Utah.
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I don’t know anything about Utah. I live in democrat controlled China, I meant NM. I’ve never met a democrat here I like.
 
idahomuleyhunter said:
No, that is not an assertion of ownership. A landowner is not inherently required to allow you to trespass on his land in order to gain access to public land. This isn't, and shouldn't be the question. You seem to be trying to extrapolate this to "as long as I am legal in my destination my route to get there doesn't matter." The question is still: is crossing airspace trespassing, and it's a state issue. If crossing airspace isn't trespassing then you may have an argument for legally being able to climb his fence if it extends to the corners. I would argue this is true, but I don't have a vote.
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In the podcast episode Newberg did with his attorneys, the attorneys cited the unlawful inclosures act and the case they referenced where it was used way back in the 1880’s, so obviously a different time than today, was a case where a sheepherder was moving his herd across a section of private between 2 sections of public land and the cattlemen who owned the land interfered, the cattlemen were found to be in violation of the unlawful inclosures act. Obviously this doesn’t open up just any private land to go out and wander about willy-nilly as one sees fit, but maybe for sections of completely landlocked public land it opens a small window to take the most direct line across private to access public land.
 
andrew12gauge said:
In the podcast episode Newberg did with his attorneys, the attorneys cited the unlawful inclosures act and the case they referenced where it was used way back in the 1880’s, so obviously a different time than today, was a case where a sheepherder was moving his herd across a section of private between 2 sections of public land and the cattlemen who owned the land interfered, the cattlemen were found to be in violation of the unlawful inclosures act. Obviously this doesn’t open up just any private land to go out and wander about willy-nilly as one sees fit, but maybe for sections of completely landlocked public land it opens a small window to take the most direct line across private to access public land.
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I'll go ahead and say I hope you're wrong. I think corner crossing should be legal but I'm not on board with direct line access. What's the direct line? From where to where? Is there only one direct line or any direct line from any point of entry? Is there a limit on distance? Can I cross 100 yards? 10 miles? Additionally, that case was in the 1880's, was it in a territory or a state?
 
andrew12gauge said:
In the podcast episode Newberg did with his attorneys, the attorneys cited the unlawful inclosures act and the case they referenced where it was used way back in the 1880’s, so obviously a different time than today, was a case where a sheepherder was moving his herd across a section of private between 2 sections of public land and the cattlemen who owned the land interfered, the cattlemen were found to be in violation of the unlawful inclosures act. Obviously this doesn’t open up just any private land to go out and wander about willy-nilly as one sees fit, but maybe for sections of completely landlocked public land it opens a small window to take the most direct line across private to access public land.
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In this case the sheep would be grazing on private land as they crossed. I just want access to public land if that means driving/walking down the road of private to get there. Any taxpayer maintenance on private land to public land should automatically open up that private road.
 
"Any taxpayer maintenance on private land to public land should automatically open up that private road."

I think that's generally true. And I would think an county has been maintaining a road they could easily get a prescriptive easement. Of course in some of these western counties the rancher is the county government too.
 
idahomuleyhunter said:
I'll go ahead and say I hope you're wrong. I think corner crossing should be legal but I'm not on board with direct line access. What's the direct line? From where to where? Is there only one direct line or any direct line from any point of entry? Is there a limit on distance? Can I cross 100 yards? 10 miles? Additionally, that case was in the 1880's, was it in a territory or a state?
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I would say the most direct line is the shortest straight line from any other publicly accessible rd or other non landlocked section, whether that is 1 inch, 1 foot, 1 mile or 100 miles, if the law says you cannot keep people from peaceably entering then being allowed to walk across somebody’s land to gain access to public land doesn’t have a distance limit to it. Obviously you probably better not be damaging crops or littering or hunting on your way across said private land
 
andrew12gauge said:
I would say the most direct line is the shortest straight line from any other publicly accessible rd or other non landlocked section, whether that is 1 inch, 1 foot, 1 mile or 100 miles, if the law says you cannot keep people from peaceably entering then being allowed to walk across somebody’s land to gain access to public land doesn’t have a distance limit to it. Obviously you probably better not be damaging crops or littering or hunting on your way across said private land
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The law does say you can keep people from walking across your land. The question is passing above it.
 
HntHrdr said:
I think you are onto something with the legacy thing. I had a buddy look into a property on the platte river, which was being leased for almost nothing considering what waterfowl leases go for these days. Same thing with the door slamming in his face
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I called on a lease once and was basically laughed at. Seems to be a pattern here.
 
Utah criminal trespass laws are found in Utah Code 76-6-206

A person is guilty of criminal trespass if the person enters or remains unlawfully on or causes an unmanned aircraft to enter and remain unlawfully over property

This section of the law also defines "Enter" to mean intrusion of the entire body or the entire unmanned aircraft.

So if you corner cross in UT, just make sure the entire body does not enter the private property. You could probably place one foot down on the private property to help you over the fence. :)
 

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