8.3M acres of public land in limbo due to questions over legality of corner crossing

Access to 8.3 million acres of public land in 11 western states is in limbo due to questions over the legality of crossing from one corner of public land to another, known as corner crossing.

The checkerboard-like acreage is highlighted in a recent report by onX, a Montana-based online mapping company, which pointed out the amount is more than half of the West’s total landlocked acreage. In Montana, this amounts to 871,000 acres, according to onX, while Wyoming leads all western states with 2.44 million acres of “corner-locked” land. Idaho trails with only 57,000 acres.

The difference between the amount of landlocked acreage is tied to the presence, or lack thereof, of Bureau of Land Management property. The majority of the “corner-locked” lands, 5.98 million acres, are thanks to land grants given to railroad companies to encourage them to build westward lines, onX found, with 70% of the parcels owned by the BLM.

“The other 28% of corner-locked public lands tend to be on the edges of larger units of public land, perhaps a result of land being bought, sold, and swapped over the past 170 years,” onX wrote.

Court case raised concerns

The issue of corner crossing gained a higher profile last year after nonresident hunters in Wyoming faced charges of trespassing when they corner crossed using a ladder to step over fences from public land to public land.

“I think we first started diving into this in December,” said Lisa Nichols, access advocacy manager at onX, with initial numbers available by January. When the company’s geographic information system analyst took a deeper dive into the data, other information was added to round out the report.

At issue is whether a person going from the corner of one piece of public property to another corner of public land trespasses on the adjoining two private properties, since their body would cross into the landowners’ airspace. After the Wyoming case drew attention, blogs, websites and online personalities have highlighted the issue and debated whether it’s legal or not.

“At every point where four squares meet, there is a property corner ripe for controversy,” onX wrote in the introduction to its report. “With the issue of corner-crossing in the news again, we decided to leverage our strengths and drill down on the data.”

The four Missouri men were acquitted in district court, but now face civil charges filed by the landowner. They were also issued a summons during their first trial for a similar issue on the same property in 2020, even though the Wyoming Game and Fish warden did not cite the men for that offense. The civil case is set for trial this month after being transferred to federal court.

“Could this set a precedent? It’s possible,” David Willms, a Wyoming legal expert, told MeatEater writer Sam Lungren in a recent story. “It’s possible there could be a decision saying corner crossing is either legal or illegal. It’s also possible the decision will be far narrower. It’s possible the judge dismisses the landowner’s case on other grounds. It’s so hard to predict because there are so many possible outcomes.”

“The four hunters from Missouri now serve as proxies for thousands of others, virtual martyrs for this cause,” Lungren wrote.

Corners across the West

There are 27,120 such corners across the West, onX found, the result of the United States platting land in 640-acre square sections. When including completely inaccessible public lands, ones surrounded entirely by private property, onX has previously identified 15.8 million acres of landlocked federal and state lands in the West.

“As land was doled out to homesteaders and the newly formed states, designated for parks and forests and reservations, and retained or reclaimed by the federal government, a complex patchwork of ownership formed,” onX wrote.

Diving deeper into the data, onX learned that almost half of the acres “are just one corner away from an accessible parcel. The remaining 51% would require between two and 15 corner-hops, if it could be done legally.”

With 16,102 public easements purchased from 11,000 landowners the inaccessible public property could be unlocked, according to onX.

Nichols said onX compiled the corner-crossing report at the request of clients and organizations, not because of the Wyoming court case. The info was also given to agencies like the Forest Service and BLM following onX’s first report, she added. If those agencies eventually digitize all of their easements, as the two agencies have done in Montana and Idaho, onX would have an easier time assessing if some of the parcels are already open, Nichols said.

Unlocking public land

Signifying the disagreement over corner crossing in Montana, in 2013 the state Legislature shot down a proposal to legalize corner crossing. Then, in 2017, a Livingston-area legislator attempted to outlaw corner crossing, which also failed.

Landowners may see corner crossing as illegal because the point in space where the lands all meet is tiny. Once you step across that corner, you violate the airspace on private property. That airspace was defined as private by U.S. Supreme Court decisions as anything under 500 to 1,000 feet above ground, depending on the circumstances. However, this has become murkier following Federal Aviation Administration rulings regarding the use of drones and what is navigable public airspace.

A Montana Department of Fish, Wildlife & Parks official said if a landowner were to complain about a corner-crossing the agency’s enforcement role is to “refer the complaint to the county attorney in the county where the issue has occurred.

“If there is clear evidence of trespass beyond corner crossing, the warden has the discretion to cite,” FWP noted. “In cases where there is that clear indication, we will defer to the property owner. If the property owner wants the trespasser cited, we will cite. Sometimes they just want the trespasser warned.”

A 2004 Wyoming Game and Fish Department memo from its then director said its wardens were in a similar situation of referring corner-crossing reports to the local sheriff or county attorney. That same year, the Wyoming attorney general wrote to the Game and Fish director, noting that in a 2003 corner-crossing case, the hunter was found not guilty of trespassing. However this ruling, the attorney general’s office added, had “no binding effect on any court, even (the judge’s) own.”

The attorney general goes on to note that any case would depend on the “factual circumstances.”

The United Property Owners of Montana, a landowner group, stated on its website that corner crossing is a trespass because it’s a “physical occupation of private property,” a violation of the Fifth Amendment, which outlines taking property without just compensation, onX pointed out.

“As a sportsman interested in the issue, it feels like a gray area,” said John Sullivan III, chairman of the Montana Chapter of Backcountry Hunters and Anglers. “We’d love to see the public have access to their public lands. We’d like to find a reasonable solution to solve those problems.”

Solutions

The Montana digital mapping company identified the Land and Water Conservation Fund as a possible benefactor to resolve some of the problems. The fund requires that $15 million be spent each year to improve public recreational access. Small portions of private property could be purchased to connect the isolated parcels.

Another option is programs like Montana’s Block Management, under which the Department of Fish, Wildlife & Parks pays landowners to provide access. In Wyoming, a similar program is called Access Yes. The limitation of these programs, however, is that they only unlock access for a few months in the fall to benefit hunters, not other recreationists like hikers and bird watchers, onX noted. The agreements are also year to year, making future access uncertain.

Montana FWP also has a program called Unlocking Public Lands — designed to provide landowners a tax credit for allowing access across their property to public parcels — that could be used for corner crossing. These agreements open the land to trapping, hiking, bird watching and fishing, as well as hunting.

A more long-term and meaningful option would be corner easements, onX contended. Since most easements are in perpetuity, the access would not be limited, and only a small portion of land — just large enough to walk across — would need to be purchased.

Asking a landowner for permission to cross at a property corner is always an option.

To read the complete onX report, log on to www.onxmaps.com/onx-access-initiatives/corner-crossing-report.