Park County Court Cases Testing Boundaries Of Public Access, Private Property Rights

By Rachel Cramer - February 28th, 2020 - Originally published at Montana Public Radio

March 1 kicks off the new license year for Montana hunters, many of whom will rely on public land to punch their tags. Some of them say large, out-of-state ranch owners are making it harder to get to their favorite hunting grounds. A hunter in Park County is pushing the courts to decide the limits of public access against private property rights.

Driving south of Livingston, it’s easy to see why this area is called Paradise Valley. The wide Yellowstone River snakes through ranchlands covered in snow. To the east lie the towering Absarokas with their jagged teeth and thick forests. To the west are the drier, scrubbier foothills to the Gallatin Range.

But looking at a map reveals a different image. It shows a checkerboard of public and private land, a remnant of 19th Century policy-making when the federal government gave railroad companies alternating, square-mile sections of land up to 20 miles from where they were laying down tracks.

For decades, people in Montana have been debating whether someone can cross from one square of public land to another at the corner where they touch without illegally trespassing on privately owned land.

While ‘corner crossing’ is allowed in checkers, it’s a contentious and legally gray area in Montana and other Western states.

The issue pops up regularly in the popular Bozeman-based podcast MeatEater, at public meetings about proposed hunting regulations and in online hunter chat rooms.

Since there isn’t a specific law that says whether corner crossing is legal, it’s up to each county attorney. Hunters and outdoor enthusiasts tried to pass bills to make corner crossing legal in the 2011 Wyoming Legislative Session and the 2013 Montana session, but both bills died in committee.

Montana legislators against corner crossing argued property ownership extends to the airspace directly above the property. The Missoulian in 2013 reported Republican Representative Jeffrey Wellborn of Dillon said, “It is not about playing hopscotch, it is about trespassing across private property.”

But a series of court cases coming out of Park County may indicate the limits of public access vs. private property rights.

Enter Cody Cherry, a retired horse trader south of Livingston. Cherry hunts and collects elk antlers in a checkerboard area of Custer Gallatin National Forest and Point of Rocks Ranch.

“I’m doing what the public has a right to do,” Cherry says.

Point of Rocks Ranch has accused Cherry of trespassing multiple times. Last year, Cherry was charged with trespassing on the ranch while corner crossing between two sections of Forest Service land.

The case was dismissed. Check one for public access rights.

Cherry’s attorney, Karl Knuchel, says former Park County Attorney Nels Swandel’s 1986 opinion on corner crossing played a role.

“Swandel’s opinion was that he wouldn’t prosecute. It was not trespassing to go from one public section to the next public section over that infinite corner. So once we pointed out to the county attorney that, that was the rule before she became involved, became elected, then they dropped the charge,” Knuchel says.

The current Park and Gallatin county attorneys say corner crossing cases are reviewed on a case-by-case basis. Montana Fish, Wildlife and Parks’ Access Guide says the agency doesn’t recommend it without permission from the landowner, and a spokesperson with Custer Gallatin National Forest said the agency doesn’t have a position.

But here’s where this issue gets even more complicated. Because the earth is round, some of the square-mile sections of land that were surveyed in the 19th Century don’t actually touch at the corner.

In a second case last year, a jury found Cherry guilty of failing to get landowner permission for hunting on Point of Rocks Ranch when he cut across a nearly 80 foot gap between two corners of Forest Service land.

His lawyer appealed to the Montana Supreme Court, saying Cherry wasn’t hunting on private property, just passing through that gap to hunt on public land. The Supreme Court upheld the jury’s decision in February 2020.

Check one for private property rights.

Now in a third ongoing civil case, the Point of Rocks Ranch is sueing Cherry for trespassing at that same offset corner. Cherry has counterclaimed with something called prescriptive use.

His attorney, Karl Knuchel, says because Cherry crossed the gap between the two corners continuously for at least five years, without landowner permission and without hiding it, he can continue using that section of private property.

Rachel Cramer: So even if somebody doesn’t have permission, but they have that historical use, then it works

Karl Knuchel: It could be if a court determines that you met all those elements for a period of five years.

The attorney for Point of Rocks Ranch, Matthew Monforton, said in an e-mail that Cherry’s claim for a prescriptive easement is unfounded. He declined an interview, citing the pending litigation.

Groups like United Property Owners of Montana have argued that prescriptive easements are a private property taking. Many private property rights advocates also say most landowners allow public hunting access if people ask permission first.

Dane Rider with the Montana Chapter of Backcountry Hunters and Anglers says the amount of landlocked acres in Montana isn’t necessarily increasing, but when land changes hands, a new owner may decide not to let anyone through.

“One of the things people most often cited as a reason to stop hunting is a lack of access,” Rider says.

A study from Responsive Management, which specializes in Survey Research on Natural Resource and Outdoor Recreation Issues, and the National Shooting Sports Foundation found a lack of access to land is the leading reason for hunter dissatisfaction and an important factor that influences hunters’ decisions to stop hunting nationwide.

According to Fish, Wildlife and Parks, the number of Montana residents buying hunting licenses has been dropping by a few thousand people every year for the last four years from over 180,000 people in 2016 to fewer than 168,000 last year.

The decline is part of a national trend. A U.S. Fish and Wildlife Service study found only 5 percent of Americans age 16 and older hunt, which is half of what it was 50 years ago.

Rider says the decline in hunters is a big problem because a lot of conservation work and programs are funded with license fees and excise taxes on guns, ammunition and angling equipment.

“With a decline in hunter numbers, you see declines in funding for very important programs here in Montana like Habitat Montana, which pays for conservation easements, which allows access to public lands, which are typically landlocked,” Rider says.

Of Montana’s 30 million acres of public land, more than 1.5 million acres are completely landlocked by private land, according to a study by the Theodore Roosevelt Conservation Partnership and OnXMaps.

As the debate around corner crossing continues, hunters are leaning more on precise GPS apps like onX Hunt to navigate checkerboard areas of public and private land. Some hunters are bypassing the issue by paying helicopters and small planes to take them in and elk out.

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