Hunter tests access rights to USFS land

[JLS]

It's just danged unfortunate greed is going to erode private property rights in MT and other western states.  They stand to loose a lot of money not being able to sell trespass fees to hunt a public resource (Elk).  Since these fees are generating substantial revenue they won't be neighborly and allow corner jumping and do everything they can to make sure to cut off access.

Add outfitters to the mix and man what a mess.

I'm not sure I'm tracking you.  Landowners can already charge trespass fees, and do so.  That's also why they don't and won't allow corner crossing and in this case are trying to block the trail.  That stuff cuts down the fees they can charge.  This won't affect landowners as a whole at all, and really won't change private property rights outside of this particular easement issue.

Maybe I'm missing what you're saying?

Edit: I agree wholeheartedly with you on the greed issue as a whole

[JLS]

As I understand it, the issue of corner crossing in Montana is huge and neither sides wants to risk losing in court so it continues to be unresolved.

As of right now the sportsmen have nothing to lose because they aren't able to corner cross as it is.  Landowners have a LOT to lose should someone ever challenge it in court.

This location here shows the importance of corner crossing, which a few dismissed as a non issue a few years ago.

No one has challenged this because it would entail a lengthy trial and appeal process and would be expensive.  Whoever does is going to need deep pockets and/or the backing of some groups like BHA, TRCP, Wildlife Federation, etc.

[JLS]

It sounds like there are a lot of issues at play here. It's possible even if one part is not upheld something like the corner crossing rule could provide some relief.

Fortunately the down side of being the test case for this issue isn't a lot of $. Granted taking it to court costs $ but the fine isn't that much.

I don't see people lining up to be the test case in Seattle to face the Concield Carry issue in places like safeco or century link feilds... the down side is much bigger.

The downside is a misdemeanor on your criminal record.

[Special T]

A misdemeanor means nothing in the grand scheme of things.

[bearpaw]

It's just danged unfortunate greed is going to erode private property rights in MT and other western states.  They stand to loose a lot of money not being able to sell trespass fees to hunt a public resource (Elk).  Since these fees are generating substantial revenue they won't be neighborly and allow corner jumping and do everything they can to make sure to cut off access.

Add outfitters to the mix and man what a mess.

I'm not sure I'm tracking you.  Landowners can already charge trespass fees, and do so.  That's also why they don't and won't allow corner crossing and in this case are trying to block the trail.  That stuff cuts down the fees they can charge.  This won't affect landowners as a whole at all, and really won't change private property rights outside of this particular easement issue.

Maybe I'm missing what you're saying?

Edit: I agree wholeheartedly with you on the greed issue as a whole

I wasn't sure what he meant either? I'm sure the corner crossing issue will eventually be taken to court and I hope the public wins, it just doesn't seem right to be able to block access if a piece of public land corners up to another piece of public land, it seems you should be able to go corner to corner on public lands that touch. I wonder, how does Washington stand on this issue?

[deerslyr]

It is an unfortunate case but I'm sure glad some one is challenging it. I used to work on that district and also know a share holder of the hailstone (his uncles seem to make all of the decisions) so I hear both sides of it. I know a number of people that have used it but don't exactly want to come forward due to who there employer is.

[grundy53]

It's just danged unfortunate greed is going to erode private property rights in MT and other western states.  They stand to loose a lot of money not being able to sell trespass fees to hunt a public resource (Elk).  Since these fees are generating substantial revenue they won't be neighborly and allow corner jumping and do everything they can to make sure to cut off access.

Add outfitters to the mix and man what a mess.

I'm not sure I'm tracking you.  Landowners can already charge trespass fees, and do so.  That's also why they don't and won't allow corner crossing and in this case are trying to block the trail.  That stuff cuts down the fees they can charge.  This won't affect landowners as a whole at all, and really won't change private property rights outside of this particular easement issue.

Maybe I'm missing what you're saying?

Edit: I agree wholeheartedly with you on the greed issue as a whole

I wasn't sure what he meant either? I'm sure the corner crossing issue will eventually be taken to court and I hope the public wins, it just doesn't seem right to be able to block access if a piece of public land corners up to another piece of public land, it seems you should be able to go corner to corner on public lands that touch. I wonder, how does Washington stand on this issue?

I think KF was being facetious.

Sent from my E6782 using Tapatalk

[JLS]

A misdemeanor means nothing in the grand scheme of things.

That's not true at all.

[Special T]

A misdemeanor means nothing in the grand scheme of things.

That's not true at all.

So you think a misdemeanor  for trespass to make a legal point will have huge personal ramifications?

I'd love to know how.

[KFhunter]

It's just danged unfortunate greed is going to erode private property rights in MT and other western states.  They stand to loose a lot of money not being able to sell trespass fees to hunt a public resource (Elk).  Since these fees are generating substantial revenue they won't be neighborly and allow corner jumping and do everything they can to make sure to cut off access.

Add outfitters to the mix and man what a mess.

I'm not sure I'm tracking you.

 Landowners can already charge trespass fees, and do so.  That's also why they don't and won't allow corner crossing and in this case are trying to block the trail.  That stuff cuts down the fees they can charge.  - agreed, basically reworded what I had said but I'll add that we don't know the condition or history of this trail in dispute.  I would like to know that to continue this debate



This won't affect landowners as a whole at all, and really won't change private property rights outside of this particular easement issue.
A corner cutting case would set precedent, and if courts find that a small amount of trespassing is OK  (corner markers would be in dispute for accuracy, some trespassing would likely occur yadda yadda) that in effect erodes private property rights.  (small amount of trespassing being OK)  I personally could care less about corner hopping I think it's silly to disallow it.  I would 45 degree my corner and robustly fence it leaving a path for people to go in if it were me.  You can't really harvest hay in a corner anyways, they're usually full of weeds.  On a side note I've had a corner marker be called into dispute multiple times, the neighbor disputed it and so I paid a survey guy to verify it.  He literally moved it 6 inches.  The neighbor wasn't satisfied so he called somoene else out, they moved it 6 inches back.  Neighbor still wasn't satisfied and threatened to take it to court..fine take it to court it's been surved 4 times now...finally laid the issue to rest.  Point is survey markers are subject to contention and in a corner jumping case this will come out.  "is the trespasser crossing EXACTLY over the corner?"   meh what do I know...

Maybe I'm missing what you're saying?

Edit: I agree wholeheartedly with you on the greed issue as a whole

I put multiple issues into very few words so sorry for the confusion; let me try to clarify.  It was just a generic comment about greed and not being neighborly.  If there wasn't the concept of trespass fees then landowners wouldn't be so hard line about making sure people stay out so they can maximize those dollars; but in pursuing those outfitter contract monies and trespass fee's they're creating public pressure to find ways to gain public access.  Landowners are slitting their own throats here.

enter blm/usfs/dnr etc..

I worry that on behalf of public pressure these agencies are going to create access.  Perhaps the threshold on what makes a trail will be very vague and existing use very hard to quantify or prove, so they draw a line on a map and brush out a trail..(or as I've said previously, blaze a trail through private property) someone gets a trespassing ticket.  They've essentially created a prescriptive easement with a sort of "cozy lawsuit" (google that).  The only ones seeing it as government abuse is the landowner, the hunting community cheers and private property rights take a back seat to democracy.  The first few examples tested in court will be good ones, the trails will probably be decent existing trails and previous use documented then less and less with each new prescriptive easement.  A slippery slope.

[huntingfool7]

enter blm/usfs/dnr etc..

I worry that on behalf of public pressure these agencies are going to create access.  Perhaps the threshold on what makes a trail will be very vague and existing use very hard to quantify or prove, so they draw a line on a map and brush out a trail..(or as I've said previously, blaze a trail through private property) someone gets a trespassing ticket.  They've essentially created a prescriptive easement with a sort of "cozy lawsuit" (google that).  The only ones seeing it as government abuse is the landowner, the hunting community cheers and private property rights take a back seat to democracy.  The first few examples tested in court will be good ones, the trails will probably be decent existing trails and previous use documented then less and less with each new prescriptive easement.  A slippery slope.

   Well said.

[KFhunter]

IMHO if a landowner is effectively able to control 100% of the access to "public" land, they should have to pay some sort of punitive/confiscatory tax on it if they don't allow some sort of public access to it. 

A lot of public lands aren't for recreational use so the landowner (government) has no duty to provide access for the general public nor seek it.  They'll have their easements in place but that doesn't help the public any.  In that regard there is no such thing as landlocked public lands, the owner will have access.  I know you know all about that, but it's why your idea won't work.  Lands designated for public recreational use has access for the public.  You'll need to bark up a different tree, one that says "all publicly held lands shall be designated for public use unless it's of a sensitive nature" or some such.

[JLS]

KF,

This trespassing case won't address the corner hopping issue, as that was not any of the basis for the trespass charge.  Also, the Attorney General's office issued a statement many years ago that corner hopping was considered a trespass.  As I said, it's going to take someone with the time and backing of a number of sportsman's advocate groups to take that one on, and there is no guarantee of a win.

It makes me sad that the state of access is where it's at, but it's been building for years.  I accessed some checkerboard USFS land in Gallatin County many years ago via a trail easement.  The folks at the Ranger Station told me not to wander off the trail to pee unless I was within the forest boundary, because everything around it was part of a rather expensive elk hunting lease.  It is what it is, I'll just continue wandering my public lands.

[huntingfool7]

http://www.montanalawreview.org/mont-l-rev/new-prescriptive-easement-law-montana-supreme-court-expands-public-access-private-land-public-lands-access-assn-v-board-county-commissioners-madison-county/

A. Prescriptive Easements
.” [12] To establish either easement, the party claiming the easement must show “open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement . . . for the full statutory period.”[13] The statutory period for adverse use is five years.  [14] Establishing a public road by prescription further requires that the public “have pursued a definite, fixed course, continuously and uninterruptedly.”[15] This definite and fixed path may not “permit of any deviation.”

The trail was recently cleared and marked, and apparently required being staked out and cleared.  That would seem to indicate that the trail has not been in continuous use.  At least not in recent years. 

It's an interesting case. Wish there were more historical details available.

I wonder if the trespasser was part of the trail clearing party.

[Blacktail Sniper]

http://www.montanalawreview.org/mont-l-rev/new-prescriptive-easement-law-montana-supreme-court-expands-public-access-private-land-public-lands-access-assn-v-board-county-commissioners-madison-county/

A. Prescriptive Easements
.” [12] To establish either easement, the party claiming the easement must show “open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement . . . for the full statutory period.”[13] The statutory period for adverse use is five years.  [14] Establishing a public road by prescription further requires that the public “have pursued a definite, fixed course, continuously and uninterruptedly.”[15] This definite and fixed path may not “permit of any deviation.”

The trail was recently cleared and marked, and apparently required being staked out and cleared.  That would seem to indicate that the trail has not been in continuous use.  At least not in recent years. 

It's an interesting case. Wish there were more historical details available.

I wonder if the trespasser was part of the trail clearing party.

But wouldn't the actions of the Forest Service indicate that the trail is is in fact meant to be open and free to use?  I could see a case where they had not put any effort into opening it up, then someone is caught using it...