Nearly 900,000 acres of Montana in access limbo 

When four hunters used a specially constructed ladder to step from one corner of public land in southern Wyoming to another, the ripples from that decision were initially small but have since ignited an impassioned debate that could open - or unequivocally restrict - access to more than eight million acres of public land across the West. Here, in the second of our three-part series, we explore why Montana lacks a clear "test case" on the legality of corner-crossing.

Nearly a decade before four Missouri Hunters drove to Wyoming for a now-famous hunting trip that landed them before state and federal judges on trespassing charges, Bozeman-based hunting personality Randy Newburg planned something similar. Like the Missouri hunters, Newburg was going to use a ladder to avoid stepping on private property as he corner-crossed, or climbed over the point where two-square-mile sections of public land meet two-square-mile sections of private land.

Newburg, who stars in a hunting-themed TV show and podcast, said he picked a "high-profile" corner in central Montana's Crazy Mountains involving a wealthy, access-adverse landowner's property that, once crossed, opened access to thousands of acres of U.S. Forest Service land with plentiful elk hunting. An accountant by trade, Newburg even worked out a script to guide his interactions with the property's ranch manager. 

"I was going to call the county sheriff [and] the landowner and say, 'This is what I'm doing opening morning,'" he recalled.

Newburg said he'd hoped that the resulting conversations would provide something that's sorely needed in Montana: clarity on whether corner-crossing is legal, so that hunters, landowners, land managers and law enforcement officials can work off of a common understanding of Montana law. After consulting a Bozeman law firm founded by Jim Goetz, the attorney who secured for the state what is widely considered to be the most progressive stream access law in the country, Newburg scrapped his plan to establish a corner-crossing "test case" in Montana.

"They thought it would not be criminal trespass, but the legal opinion I got said there's a high likelihood it's civil trespass. As someone who respects private property rights, I was not going to take that chance," Newburg said. 

In addition to the ethical and legal considerations at play, there are logistical complications that have thwarted a corner-crossing test case in Montana, which has nearly 900,000 acres of public land stuck in access limbo because of checkerboard land ownership. Even with sophisticated and widely available mapping technology, it can be hard to find the precise location of a checkerboard corner in Montana. 

Devlan Geddes, a Bozeman-based attorney active on public access issues, told Montana Free Press that two undisputed facts that worked to the hunters' favor in the Wyoming case - the precise location of the corners involved and the fact the four Missouri hunters never physically stepped on Elk Mountain Ranch property - are harder to replicate in Montana. That's due in part to the fact that there are fewer checkerboard corners in Montana than in Wyoming - and fewer yet with an intact brass cap marker that surveyors installed decades ago when they were mapping the West. 

Furthermore, county attorneys have considerable discretion when deciding whether to prosecute a case - and few in Montana are inclined to. Drewry Hanes, a consultant for the Public Land Water Access Association, a nonprofit that represents recreationists in public access disputes, said her organization has fielded calls from hunters concerned that a trespassing citation could lead to a conviction punishable by up to six months in jail and a fine of up to $500.

"The county attorney in every case that has been brought to us has [ultimately] said, 'This is corner-crossing, we're not going to pursue it. The case is being dropped against you,'" Hanes said. 

The case against a Townsend bowhunter - recently charged with hunting without permission, a misdemeanor that can result in the loss of hunting privileges for one to three years - ended similarly. Joshua Sangray, who owns an excavation business in Broadwater County, had been preparing for a jury trial over the alleged corner-crossing incident that occurred in 2021 when the prosecuting attorney last fall abruptly dismissed the charges. 

Sangray declined to be interviewed by MTFP, but Molly Woodman, the attorney representing him, said Sangray was happy the charges were dropped. He was also, she added, "frustrated that it took this long and frustrated with these wealthy landowners that are trying to interfere with public access." 

Woodman said that the allegations that Sangray entered private property owned by the G/T Ranch during his hunt on Bureau of Land Management land were not as clear-cut as originally asserted by the Montana Department of Justice attorney who'd been assigned to the case at the request of the Broadwater County Attorney.

Neither the prosecutor for the DOJ nor the spokesperson for his boss, Attorney General Austin Knudsen, replied to MTFP's multiple requests for comment regarding the state's decision to drop the charge against Sangray. MTFP's request for the report prepared by a Montana Fish, Wildlife and Parks warden who investigated the 2021 incident has been deemed off-limits by public record gatekeepers at FWP and DOJ, who argue it's "confidential criminal justice information." The state's reasoning in dismissing the charge - like so much in this debate - therefore remains opaque, adding a layer of murkiness to an already muddy issue. 

LEGISLATIVE TINKERING

Montana's lack of an unambiguous law regarding the legality of corner-crossing has served to preserve the issue's haziness. The Montana Legislature has twice taken up the issue in the past decade, but those forays were short-lived. 

In 2013, a Democratic lawmaker from Missoula introduced House Bill 235, which sought to make corner-crossing explicitly legal by establishing it as an exception to the state's criminal trespassing statute. The measure failed to make it out of committee. 

A Republican representative from the Livingston area drafted a bill four years later to make the practice explicitly illegal. Had it passed, someone crossing a shared corner without the permission of the adjacent landowner could face a fine of up to $500 and up to six months in jail. House Bill 566 was abandoned before even receiving a committee hearing.

That two bills, diametrically opposed, failed to gain any traction in the Legislature demonstrates how politically "radioactive" the issue is, according to Geddes, the Bozeman attorney who's worked on access issues. 

Montana's Legislature has a fairly large contingent of politically conservative landowners with strong convictions surrounding private property rights. Many of them would probably prefer to make the practice illegal, Geddes said - but such a vote could come with a political cost.

"Legislators are never going to say corner-crossing is illegal because they will be labeled anti-access, but they're never going to go against their high net-worth constituents, either, because they have too many ranching-slash-recreational property owners who want to preserve the status quo of keeping the public out," Geddes said.

Access advocates like Geddes note that in addition to the political calculations at work, philosophical and economic considerations are coloring land management debates. 

Montana has more than 30 million acres of public land, an engaged contingent of recreationists who use it, and one of the largest recreation-based economies in the country on a per-capita basis - all things that tend to mobilize voters when access issues crop up at the state Legislature. 

On the other hand, property rights are enshrined in both the U.S. and Montana constitutions, with the latter holding that "acquiring, possessing and protecting property" is an inalienable right. Property rights find their way into conversations about everything from eminent domain to government "takings" of physical property or economic interests to historic easements. 

Property rights, of course, also enter into any conversation about trespassing. United Property Owners of Montana, a group that intervened in the trespass lawsuit Elk Mountain Ranch's owner brought against the four Missouri hunters in the Wyoming case, is partial to the term "corner-trespass" to describe the practice. Regardless of the term used, it's impossible to do without crossing "all four corners, including the private ones," according to UPOM. 

"That is a trespass - a physical occupation of private property," UPOM maintains.

LAND MANAGERS' CONFLICTING INTERPRETATIONS 

Different state and federal land managers have differing guidance about the practice's legality, adding yet another layer of complexity to the debate.

Montana Fish, Wildlife and Parks, for instance, said in June that it's illegal. FWP directs agency wardens, who investigate game and hunting violations, to forward corner-crossing reports to local county attorneys. (Access proponents note that the agency's earlier guidance was more hands-off: In 2001, FWP's then chief of enforcement proposed that the department "refuse to issue a citation and refer the landowner who complains of trespass to the county attorney.")

A spokesperson for Region One of the U.S. Forest Service, the largest land manager in Montana, told MTFP that the agency "does not have a national (or regional) policy regarding corner-crossing."

"The Forest Service is a strong supporter of legal public access, and corner-crossing is not legal in the states in our Northern Region (ND, ID, MT and SD)," Dan Hottle wrote in an email. "If the law were changed we would support that access, but we would not advocate for public access where it is deemed illegal in those states."

The Bureau of Land Management, the federal agency that has the most corner-locked land nationally, told MTFP in an email that it's aware of the Wyoming civil trespass ruling in federal court that vindicated the Missouri hunters.

"Our current response is that we are aware that the court's decision on this issue has been appealed and have not currently issued any formal guidance," spokesperson Brian Hires said.

For someone like Newburg, who's built a following around hunting on public land, the fact that land managers don't have a common understanding of the legality of corner-crossing underscores the importance of the Wyoming lawsuit against the four Missouri hunters.

Newburg said he expects both the Forest Service and the BLM to take notice when the 10th U.S. Circuit Court of Appeals decides whether the ladder-wielding hunters committed civil trespassing when they hunted BLM-checkerboard sections interspersed with Elk Mountain Ranch property. The ruling there could force land managers to revisit their long-held "let-the-sleeping-dog-lie" strategy, he said.

"There's been a default feeling that the landowners are going to rule the day," Newburg said. "If the Wyoming case gets decided in the benefit of these four hunters, the agencies are not going to have any choice: They don't get to pick and choose what part of [the] law they're going to follow."

The final installment of this series will be published on Monday, March 18. In it, MTFP will explore a handful of proposals that could bring clarity to the legality of corner-crossing or establish access to corner-locked property with government agency-sponsored initiatives.

See original story at: https://montanafreepress.org/2024/03/11/nearly-900000-acres-of-montana-in-access-limbo/