In Montana, is Corner Crossing “unlawful,” “illegal,” or something else entirely?
Across the country, the concept of “corner crossing” became the hottest topic in the hunting community when a federal judge in Wyoming ruled that, at least for the case in front of him, it did not constitute as unlawful trespass. You can read the full 32-page summary judgment here.
As you can imagine, this has riled Montanans up from both sides of this issue.
So what exactly are we talking about here?
In Montana and across the West, there exists land ownership patterns resembling a checkerboard, where the black squares are privately owned and the red squares are publicly owned. Public land owners - for good reason - often want to cross from one square to another, diagonally, where public lands are touching public lands. Some private landowners, however, argue that by crossing at the corner that trespass is unavoidable. The legality of this has been unresolved in Montana, and the practice is referred to as “corner crossing.”
What happened in Wyoming?
In the fall of 2021, four non-resident hunters were issued citations in Carbon County. Wyoming, for criminal trespass (later charged with civil trespass too). The four hunters never touched private lands: They used a ladder to cross between adjoining corners of public lands managed by the BLM. The Wyoming Chapter of BHA immediately started a fundraiser in 2021 to help cover the legal fees of these hunters (the fundraising efforts continue here) and Backcountry Hunters & Anglers filed a legal amicus brief in defense of these hunters in December of 2022.
They were first acquitted by a jury for criminal trespass in April of 2022, and then the adjoining landowner sued them civilly, which the judge found them not liable for on May 26th, 2023. Federal District Judge Scott Skavdahl in Wyoming held: “Corner crossing on foot in the checkerboard pattern of land ownership without physically contacting private land and without causing damage to private property does not constitute an unlawful trespass.” The Wyoming state legislature also recently passed a law clarifying that a hunter would need to set foot on private ground to be convicted of criminal trespass.
Those two actions, taken collectively, mean that it’s more legal to corner cross in Wyoming today than it was just a few months ago.
But how does that impact Montana?
In short, it doesn’t.
In Montana, no such clarity exists, as no legislation specifically dealing with this issue has become law, and no court cases have been settled to provide much clarity either. The legality of corner crossing in Montana is unsettled, a legal gray area.
What else can we point to in Montana to help provide clarity on this?
A good place to start is Montana’s trespass statutes and case law, which can be prosecuted as either civil (by a private party) or criminal (by the state). The Wyoming corner crossers, for example, faced both civil and criminal charges.
Montana’s two trespassing laws include the following:
A civil trespass has been defined by the Montana Supreme Court: “A civil trespass occurs when there is ‘(1) an intentional entry or holdover (2) by the defendant or a thing; (3) without consent or legal right.’" Miller v. Kleppen, 2019 MT 83, ¶ 24, 395 Mont. 286, ¶ 24, 438 P.3d 806, ¶ 24 (internal citations omitted). There does not need to be any damage to another’s property for a civil trespass to have occurred.
Under the criminal code, MCA 45-6-203(1)(b), a person commits the offense of criminal trespass to property if the person knowingly enters or remains unlawfully in or upon the premises of another. A criminal prosecutor would need to prove a few elements of this statute at trial, specifically: 1) that the person “knowingly” entered or remained, 2) that their entry was unlawful and 3) that the premises belonged to another.
So for someone to be found liable for civil trespass by corner crossing, a jury would need to find that there was no “legal right” to access the property, and for someone to be found guilty of criminal trespass for corner crossing, a jury would need to find that the “entry was unlawful.”
It is easy to see how both civil and criminal trespass laws in Montana fall short of answering the question.
Is the intentional entry from public to public a legal right, per civil case law? And under the criminal code, is crossing at a perfect corner, in fact, unlawful? Both remain unanswered by the courts.
Isn’t that different from the statement FWP Director Temple just recently released?
Yes, and here’s the backstory on that.
Montana FWP has attempted to clarify the issue of corner crossing as early as 2001, wherein they issued a department memo including a detailed legal analysis from a paralegal, which concluded that they would not issue citations and “since the law is technical and the effect on property being crossed is minimal, it should be the local county attorney who decides whether or not to file charges.”
FWP reasserted this position in 2018 with another departmental memo that stated: “unless there is clear evidence of hunting without permission or criminal trespass other than corner crossing set forth above will remain in effect until such time as legislation or other factors are established that require altering this approach.”
Therefore, FWP had been suggesting that the only way we will get any clarity on this issue is either by legislative action, if a case gets tried and taken on appeal to the Montana Supreme Court, or if a civil lawsuit is filed in Federal Court, which would then have to be appealed to the 9th Circuit (it is worth noting that the Wyoming case, even if appealed, would be decided in the 10th Circuit and still have no authority in the State of Montana).
But none of that has happened in Montana.
Yet somehow, very recently, FWP has seemingly reversed course on corner crossing without citing any “legislation or other factors” that changed their mind. In their 2021 Hunter FAQs, FWP declared corner crossing “illegal.” But in January of 2023, when pressed on this, FWP said that they’d correct and update their FAQs to read as follows:
“Corner-crossing is the act of stepping from one corner of a parcel of public land — held in trust by a federal or state land management agency — to another parcel of public land, in which two pieces of private property also meet. Without permission from adjacent landowners, you could be charged and prosecuted for trespass.”
This is an accurate statement of the law. You “could be” charged, and what happens next is a mystery in the hands of local prosecutors, juries, and judges.
However, FWP is now choosing not to follow this advice and has instead reversed course with a new public statement and upcoming FAQs. When we inquired about the public statement, the response we received was that they would now include this language in their FAQs:
“Corner crossing, such as at section corners, in checkerboard land patterns (mix of public and private land) is illegal without permission from the adjacent landowner(s).”
In a subsequent communication with the Billings Gazette, FWP cited two cases to support their new position, one dating back as far as 1946, and the other from 1994. The first comes from the United States Supreme Court in 1946, where the court held that government airplanes flying low directly over private property consisted of a government taking. United States v. Causby, 328 U.S. 256 (1946). The second case FWP is using to justify their position is Ducham v. Tuma, 265 Mont. 436, which simply restates the elements of civil trespass as already outlined in a more recent Montana case above. In Ducham, the defendant was sued for causing water to flow over the private property of the plaintiff and was found liable for civil trespass. Yet neither case addresses crossing from public land to public land. In fact, in Causby, the trespasser was the government (not a private party with a legal right to public land, like a hunter or angler), and in Ducham, the defendant intentionally infringed fully onto the private property of another. Neither case rises to the level of supporting FWP’s new claim, which is probably why they did not refer to these cases back in 2001, nor in 2018.
For these reasons, FWP’s FAQ statement is both factually incorrect and false.
Corner crossing in Montana is neither “illegal,” nor “legal.” It exists in a gray area, undefined.
The risk of prosecution is real, however, and the decision and comfort in corner crossing is up to you.
So who ultimately gets to decide if corner crossing is legal or not in Montana?
At this point, if a trespass citation for corner crossing is issued by a warden or sheriff’s deputy, it would then be up to a criminal prosecutor (under the authority of the State Attorney General), to advance the charge.
And since Montana County Attorneys and the Attorney General are elected positions, as are county Sheriffs, and wardens serve under a department director who is appointed by the governor and confirmed by the Senate, politics could continue to influence the outcomes of these decisions and who is making them. In other words, while the ambiguity of corner crossing is likely to be settled by the courts, it is certainly connected to the political appointments and elections in Montana.
The other remedies for providing clarity on corner crossing in Montana could come from state legislation (which could be overridden by a US Supreme Court Decision), a ballot initiative, a Montana Federal Court decision or a 9th Circuit ruling, in the form of another circuit appellate decision working its way up to the US Supreme Court, or least likely, the U.S. Congress passing federal legislation.
So, in the meantime, how do you recommend we proceed in Montana?
Well, that’s the big question. We’re not here to offer legal advice on this, just clarity. And unfortunately, in our eyes, the clarity is that this is still unclear. We can only tell you to proceed at your own risk, carefully and respectfully.
For other FAQs on corner crossing, click here.
To listen to Randy Newberg discuss the issue on a recent Hunt Talk Radio podcast, click here.
Brett French and Thom Bridge talk about the controversy on Montana Untamed.