Official Public Lands Access

Photo by: Caitlyn Wade, Swan Mountains

December 2022

Caitlyn Wade

U.S. Federal Public Land Access

RUNDOWN: PUBLIC LAND ACCESS

*Maine has special state law (originally Great Ponds Law of 1641, now MRS Title 17 §3860) allowing undeveloped land to be crossed to access water

• If there is an easement, it is legal to cross private land to access public lands
• Without an easement, is generally illegal to cross private property to access public lands without permission*
• Where public land touches at the corners, it is unclear whether it is lawful to "corner cross"
• Federal law preempts (overrules) state laws when they are in conflict
• Clearer state laws about accessing public lands exist than federal
• The amount of inaccessible or disputed-access public lands in the West totals millions of acres

• For this project "public land" refers to Federal public lands
• Public land is typically open to the public
• Some public land has unclear access or is inaccessible except by air or trespassing
• Some public land is intentionally blocked unlawfully
• Some public land is blocked and the lawfulness is disputed (See: Crazy Mountains Case)
• Many view public land access as a right that the government has a duty to protect
• Many view public land access as in conflict with private property rights

8.

Special Public Land Type and Public Land Law Considerations

Photo by: Caitlyn Wade, Sapphire Mountains

Glossary of Terms

3.

6.

Wyoming Federal Court Decision

1.

Access Issues with Federal Public Lands

2.

History of Federal Public Lands and Access Debates in the West

7.

Public Land Agencies, Public Land Statutes and Access Provisions

4.

Common Approaches to Securing Public Land Access

5.

What is happening in the Crazy Mountains and beyond

Index

Image from: USGS Protected Areas Database https://maps.usgs.gov/padus/s

Montana contains roughly 2 million of those 4 million acres. No uniform federal guidelines exist on what governs public land access. Federal agencies have published generic recommendations given the void of information on what is and isn’t permissible but these are often not legally binding.

+ info

In the United States, 9.52 million acres of federal public land is landlocked because of checkerboarding. According to the Center for Western Priorities, “over four million acres – an area larger than Connecticut –are inaccessible to the public” in the intermountain West.

Why Study Public Lands Access?

Access issues with Federal Public Lands

Video: Project Landlocked by onX

+ info

History of Federal Public Lands and Access Debates in the West

Due to the history of land aquisition, all Western United States land was public domain, Federal land, until it was disposed of to settlers, railroads, and states. When the federal government disposed of lands they used the Jeffersonian Survey System, dividing the land into 36 square mile townships that were subdivided into 1 square mile sections.

+ info

Central issues with public land access today: 1) there is no clear, unified mandate on access and 2) there are many stakeholders with competing interests. This project considers: how public land access is regulated, granted, and limited due to this historical context.

Public access to public lands can raise hair on the necks of some property owners, as what they hear embedded in that phrase is "private property infringement." Why? It goes back to the checkerboard and landlocked lands.

Cont. History of Federal Public Lands and Access Debates in the West

18. Public Lands

30. The Wilderness Act of 1964 (WA)

29. Unlawful Inclosures Act of 1885 (UIA)

28. Township and Range

27. Tort Law

26. The Agencies

25. Taylor Grazing Act of 1934 (TGA)

24. Statute

23. Sovereign

22. Rule/Regulation

21. Range Wars

20. Railroad Grant/Act

19. Public Trust Doctrine

17. Property Clause

16. Organic Act of 1897

15. Open Range

14. Nuisance

13. National Forest Management Act of 1976 (NFMA)

7. Eminent Domain

12. Multiple Use and Sustained Yield Act of 1960 (MUSYA)

11. Land and Water Conservation Fund

10. Jeffersonian Survey System

9. Inholdings

8. Federal Lands Management and Policy Act of 1976 (FLPMA)

6. Easement

• Easement of Necessity
• Implied Easement

5. Common Corners

4. Checkerboard Lands

3. Common Law

2. Case Law

1. 5th Amendment Takings

Alphabetical Glossary of Terms

How is access managed in Wilderness Areas, National Monuments, and in areas with mining claims and inholdings?

The Unlawful Inclosures Act and the Public Trust Doctrine have important public land access implications

D. Imp. Public Land Laws - Doctrines

C. Special Public Land Considerations

A layering of public land statutes and rules govern each department's management of their lands. Rules are specific legally binding interpretations of statutes

B. BLM and FS Statutes and Imp.Rules

This project primarily analyzes laws regarding access for the two largest public land management agencies: the FS and BLM along with additional special designations

A. The Agencies

Public Land Agencies, Public Land Statutes and Regulations, and Access Provisions

• 4 public land management agencies
• In 2 Federal Departments

• Manage 606 million acres, 27% US land
• Bureau of Land Management and Forest Service manage largest amounts
• Access laws, rules, and regulations studied for these two agencies

The Agencies

In March 2019, Executive Order 3373 specified that public access in BLM planning is a priority

1. "You are not guaranteed access" to public lands."2. "It is illegal to cross public land at corners"

Colorado BLM Office Press Release 2013 "Access Tips for Hunting on BLM Lands"

Federal Lands Policy and Management Act (FLPMA) 1976

4(a)

Access in BLM Statutes, Rules, and Guidance

(Colorado State

FLPMA §205 (a) says “the Secretary may acquire access over non-Federal lands to National Forest units through purchase, exchange, donation, or eminent domain.”

+ info

+ info

+ info

Resource Management Plans (RMPs)

4(b)

Access in FS Statutes and Rules

Public land access provisions and priorities in Custer Gallatin NF in South Central Montana

The National Forest Management Act mandates planning. Planning must consider public land access.

2020 Custer Gallatin National Forest Plan

+ info

+ info

+ info

2012 Planning Rule

The Organic Act 1897

The Forest Service Organic Act considers access for early inholdings

+ info

5(a)

Wilderness Lands are the most protected lands in the U.S. They are managed for preservation, not conservation. These lands have clearer access provisions and authorities than most. However, the access provisions are largely dictating private access to private lands - Motorized and mechanized access is prohibited - Agency has control over when, how, and where inholdings are accessed

Managed under the Wilderness Act of 1964 and subsequent enabling laws, these lands are to be managed for "wilderness character"

Special Public Land Considerations: Wilderness Areas

+ info

5(b)

-Inholdings are private or state lands surrounded by federal lands. Some inholdings are mining claims and some are not - Inholdings are extremely common; 17% of land within Forest Service - Most inholdings are to “be provided with ‘adequate’ or ‘reasonable’ access”... but agencies can regulate access to protect the values of surrounding public lands - Most public land statutes specify that the rights of miners shall not be interfered with

Photo by: Caitlyn Wade, Private Lake in the Russian Wilderness Agencies have more access control in Wilderness Areas, as they can forbid methods of access if they interfere with Wilderness character

Miners have more access rights than typical inholdings due to the politicized history of mining in the U.S.

Special Public Land Considerations: Mining Claims and other Inholdings

+ info

5(c)

- National Monument ("NM") designations are on Federal Public Lands - Like other public lands, they contain inholdings, permits, and leases -- Access is not accounted for in these designations (issues include: motorized restrictions, mining claims, state trust lands, private properties) - The Antiquites Act doesn't give managerial details, each enabling legislation for each NM does - National Monument designations often withdraw hardrock mining and mineral leasing - National Monuments do not typically revoke any grazing permits

The Antiquities Act of 1906 gives the President Power to declare National Monuments with the stroke of a pen

Special Public Land Considerations: National Monuments

+ info

https://youtu.be/7XbUhoVBBpQ

5(d)

- Some resources are so important a sovereign needs to hold them in trust for their beneficiaries - If the federal government has a trustee duty to hold public lands in trust for its people, then they may be obligated to provide public access - Stream access and beach access have both been granted because of the PTD - Shelby D. Green (2014): "No entry to the public lands: towards theory of public trust servitude for way over abutting private land"

An ancient legal doctrine giving the state the duty to protect natural resources for its people

Public Trust Doctrine

+ info

Read more about important caselaw for the Unlawful Inclosures Act:

5(e)

The Unlawful Inclosures Act of 1885 (UIA) has had little recognition and few cases interpreting it. However, it could be a critical tool for securing better public land access. Born out of range wars that were dominating the West, it plainly forbids “all inclosures of any public lands.” It also says that “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… 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.”

“"All enclosures of any public lands in any State or Territory of the United States, heretofore or to be hereafter made, erected or constructed by any person, party, association or corporation, to any of which land included within the enclosure the person, party, association or corporation making or controlling the enclosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith with a view to entry thereof at the proper land office under the general laws of the United States at the time any such enclosure was or shall be made, are hereby declared to be unlawful, and the maintenance, erection, construction or control of any such enclosure is hereby forbidden and prohibited...

Unlawful Inclosures Act of 1885

+ info

+ info

+ info

+ info

Currently employed strategies for securing better public access to public lands can be split into two buckets: Outright acquisition and less than fee interests. Outright acquisition methods include: negotiating land transfers or exchanges of properties of equal values, voluntary purchases by the government or a third party, donations from landowners, and eminent domain takings. Less than fee interests methods include: establishing easements across private properties to reach public lands, the purchase of development rights or scenic easements, private land entering conservation easements, and the extension of federal land management rules over adjacent private property pursuant to the Property clause.

Easements

Voluntary Purchases

Eminent Domain

Land Exchanges

These approaches are all used on a case by case basis

Common Approaches to Securing Public Land Access

Less-than-fee interests: Purchasing development rights, scenic easements, and conservation easements

Less-than-fee interests: Property Clause extension of Federal land management rules over adjacent private property

+ info

+ info

Approaches to Resolving Inholding Access Issues

Info

Image from: Montana Free Press

"Some recreationalists have described trying to get to public land in the Crazies as a maze of “locked gates, “No Trespassing” signs, Forest Service signs illegally removed, trail markers plucked off of trees, and brush piles erected in the middle of trails designed to force hikers to trespass by stepping off the route.” - Amanda Eggert, Montana Free Press

Access in the Crazy Mountains

Public access conflicts rampant; Several trespassing fines issued for people found on 4 trails. FS fought to continue public access and work with landowners

2000s-2010s

Gallatin travel plan includes 4 trails

2006

1990s

Conflict ensues; trails sometimes blocked, FS policy issued directing its employees to maintain public access to 4 trails

4 trails approved by public on CGNF Land and Resource Management Plan

1986

2022

East Crazies Land Exchange Proposed, open for public comment until Dec. 23rd

South Crazy Mountain Land Exchange Completed

2022

FS stopped maintaining 4 disputed trails

2017

Sweet Grass trail built prior to the creation of the Forest Reserve

Pre 1906

Friends of the Crazy Mountains sues FS for failure to maintain public access

2019

The "4 trails" are depicted on FS maps published since early 1900s

1925, 1930, 1937

Judge sides with FS, bad news for public access advocates

2022

"Crazy Mountains Forest Reserve" established

1906

Overview of Crazies Access Disputes

Proposed East Crazies Land Exchange

Wyoming Federal CourtJudge Rules

May 2023

Corner Crossing is Legal

University of Montana Master's Student in Resource Conservation Fall 2022 Edited Summer 2023

Caitlyn Wade

Thank you!