Citing Wyoming corner-crossing case, hunters sue Montana for public land access – WyoFile

Montana’s lieutenant governor made clear that corner crossing remains trespassing in her state, despite a Wyoming case decided in favor of access to public land.

Lt. Governor Kristen Juras made her remarks Thursday at a legal forum at the Miles City Bucking Horse Sale, where she called the Wyoming corner-crossing case “unique” and said that Montana had a “different precedent” that allows it to criminalize the act.

She defended a Jan. 21 memo to game wardens declaring “corner crossing remains unlawful in Montana.” The memo authorizes them to cite corner-crossing hunters and others under state game and trespass laws.

The day Juras made her remarks, public land advocates sued Montana Fish, Wildlife and Parks, asking a district court to block enforcement of the memo.

The suit by Montana Backcountry Hunters and Anglers and Public Land And Waters Access names the wildlife agency and Director Christy Clark as defendants. The groups cite the Wyoming corner-crossing case in which hunters prevailed. Ruling on that Wyoming case, the 10th Circuit Court of Appeals held that corner crossing is legal in Wyoming, Colorado, Utah, New Mexico, Kansas and Oklahoma.

That should apply to Montana, even though it is not in the 10th Circuit’s jurisdiction, the new lawsuit states.

“The 10th Circuit Court of Appeals just last year held that Defendant [Montana, Fish, Wildlife and Parks] is wrong,” the new lawsuit states.

Corner crossing is the act of stepping from one piece of public land to another where ownership is arranged in a checkerboard pattern. Corner crossers do not set foot on kitty-corner sections of private property but do momentarily pass through the airspace above it.

Whether corner crossing is legal affects public access to 871,000 acres of public land in the Treasure State, public land advocates say. Juras said the “corner-locked” acreage — public land accessible by corner crossing alone — is about half that.

Unconstitutional directive?

The suit against Montana Fish, Wildlife and Parks asserts that the memo authored by Director Clark violates administrative rule-making laws and the state constitution. The complaint goes further, claiming that Clark’s interpretation of Montana’s criminal and hunting laws “is an incorrect statement of Montana law and directly in conflict with federal law governing much of the lands at issue.”

The suit claims that treating corner crossing as a crime damages John Sullivan and Dylan Pipinich, who recreate on public land and have corner-crossed to do so.

“For generations, Montanans have responsibly corner-crossed to hunt, fish, and recreate on public lands without ever being found guilty of trespass,” Backcountry Hunters and Anglers said in a Facebook post. “Our lawsuit challenges that administrative overreach and seeks a durable path forward for law abiding citizens to hunt and access their shared public lands while ensuring private property rights are respected.”

The complaint by the two public access groups states that Clark’s memo “does not cite any Montana statute or court decision establishing that corner crossing is illegal, nor did it address a recent Federal Circuit Court Decision directly addressing the issue.

“[N]ot a single Montana Court decision supports FWP’s position,” the lawsuit states.

Montana’s trespass and hunting laws “focus on physical contact, occupation of land, and actual interference with property rights owned,” the suit states. The laws “require more than momentary crossing of undefined airspace” before they can be used to charge a person, according to the public-access advocates.

Fish, Wildlife and Parks “is specifically ‘interpreting’ the momentary act of de minimus [sic] airspace crossing as ‘entering private land’ or being ‘on private property’ with no statutory direction from the legislature,” the suit states.

Backcountry Hunters and the Public Land and Waters Access, an organization whose members say access to public lands and waters is fundamental to the identity of Montana, reject the common law ad coleum doctrine that holds that landowners also own from the depths to the heavens. The groups cite a 1946 U.S. Supreme Court decision that says the concept “has no place in the modern world.”

The new lawsuit also states that Fish, Wildlife and Parks has a public trust duty to ensure access. The suit claims that cases involving river access even allow contact with private land and should apply to corner crossing.

Courts have decided that “in order for the public to recreationally use its water resource, some ‘minimal’ contact with the banks and beds of rivers is generally necessary,” the two advocacy groups say. “[P]ublic access to public land at common corners is the same as public access to public water,” the suit states.

Ruling on the Wyoming case, the federal 10th Circuit Court of Appeals held that the 1885 Unlawful Inclosures Act “prevents any landowner from implementing a program that prevented hunters from corner-crossing,” the groups’ suit reads.

“‘It is perfectly proper for [Montana courts] to use criteria developed in federal cases’ when state law is silent or lacking,” the suit states.

Bucking the 10th Circuit

Montana’s Lt. Governor Juras said the 10th Circuit opinion doesn’t apply in Montana’s 9th Circuit, which covers Montana, Washington, Oregon, California, Idaho, Nevada and Arizona.

“We do have different precedent,” she said. “That is why our administration feels strongly.

“We have Montana case law that does allow [prosecution of] trespass into airspace, both at the district court and the Montana Supreme Court level,” she said. “So we truly are under a different legal paradigm than the 10th Circuit.”

The 10th Circuit limited its ruling to federal public lands that can only be reached by corner crossing, she said.

“So if there is some other road,” Juras said, “even if it’s inconvenient, even if it means you have to hike another two miles, or you have to go over a mountain or across the stream, you need to use whatever available public access is there.”

A lot of corner monuments are affixed to trees, she said, making corner crossing at such points impossible.

“You literally can’t walk across it,” she said of a tree monument. “That takes away all the corner crossings with a marker on the tree.”

Juras also raised the issue of fencing and whether a corner-crosser who touches a fence is trespassing by contacting private property. The Wyoming case appears to discount that theory because the Unlawful Inclosures Act deems that a fence cannot be used to block public access.

Montana landowners build fences “with legitimate, good faith intent to contain your livestock,” Juras said. The intent “is not to lock out people from using the corner.”

In Montana’s 9th Circuit, a landowner’s fence-building intent — whether to contain stock or deter corner crossers — is relevant, she argued. If fences are built to contain livestock, a corner crosser who touches one would be trespassing unless they used a ladder or stile, she argued.

The U.S. Supreme Court rejected an appeal from the Elk Mountain landowner who wanted it to overturn the 10th Circuit’s ruling that favored public access. But that doesn’t mean it endorsed the 10th Circuit’s reasoning, Juras said.

It is possible, depending on how the new Montana case evolves, that the Supreme Court would be more interested in considering corner crossing if the new lawsuit ends in a determination that’s different from the conclusion reached by the 10th Circuit.

Meanwhile, Juras said her concern “is that hunters are going to overly interpret what a corner crossing means, and don’t understand how narrow and what the tests are and how strictly you have to comply with them in order to meet the standards set out by the 10th Circuit.”