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December 18, 2020

Environmental, Natural Resources, & Energy Law Blog

Unlocking public-access barriers to public lands is best achieved through public and private agreements and partnerships rather than traditional litigation strategies - James Underwood

UNLOCKING PUBLIC-ACCESS BARRIERS TO PUBLIC LANDS

Public-access to America’s public lands is hindered by serious barriers, and traditional litigation strategies do not provide the best keys to unlock them. A growing movement towards public and private agreements and partnerships fosters better resolution than conflict-based solutions. The 2019 Dingell Act, and its permanent authorization of the Land and Water Conservation Fund (LWCF), create exciting opportunities for the Biden Administration to facilitate greater and timely public-access to public lands beyond that associated with antiquated traditional litigation strategies.

FEDERAL PUBLIC LANDS & PUBLIC-ACCESS BARRIERS

The Bureau of Land Management (BLM), the U.S. Forest Service (USFS), and the U.S. Fish and Wildlife Service (USFWF) manage more than 526 million acres of federal public-lands across the United States with a wide-variety and multitude of public uses – including but not limited to recreation, grazing, natural resource use, and wildlife protection.1 Ensuring public access at entry points onto federal public lands is a big undertaking, especially since many areas are functionally inaccessible or abut private lands.

Private lands create access-barriers and impediments to public access to adjacent public lands, both literally and legally. In many areas of the U.S., especially the West, private signage and gates block public access to limited existing roadways and points of entry onto public lands.2 In hunting rich states like Montana, public access is exploited by private landowners seeking financial compensation to grant public access through their properties.3 As a result, private parties act to monetize public lands in direct conflict with the concept of “public lands” owned by the American public. This inherent legal and philosophical tension can materialize into actual legal and physical conflicts between private landowners and the public regarding contested points of entry.

According to a 1993 report by the General Accounting Office, more than 50 million acres of Forest Service and BLM lands – about 14% of their holdings in the contiguous U.S. (mostly in the West) had “inadequate access” and private landowners are increasingly less willing to grant public access across their lands.4 As a result, public lands are privatized in a de facto manner, with public lands essentially landlocked to the benefit of some private landowners, akin to a private Constitutional “taking” without just compensation paid to the public.5

The roots of this problem originate in the fabled history of the West as homesteaders carved-out millions of acres from federal holdings, which formed rings of private land around islands of public land.6 To further complicate things, the federal government dispensed 640-acres squares to railroad companies to spur Western settlement by creating checkerboards of private land within these public-land islands.7 As a result, public access to public lands developed through rough roads scraped-in to serve homesteaders, miners, and loggers and during a time when public-access demands were lesser in scope and contention.8

 

FEDERAL LITIGATION STRATEGIES

At the federal level, legal tools are available to help resolve public-access issues. The Unlawful Inclosures Act (UIA) contains broad prohibitions against all enclosures of public lands by any means in order to preserve access.9 Originally drafted in 1885 under a different title, the UIA prohibited: “All inclosures of any public lands… [and any such inclosures] are hereby declared to be unlawful, and the maintenance, erection, construction, or control of any such inclosure is hereby forbidden and prohibited.”10 The UIA also prohibits the prevention or obstruction of “any person from peaceably entering upon… any tract of public land… subject to… entry under the public land laws of the United States, [or] free passage over or through the public lands.”11

 

The UIA’s plain language is bold, but its historic and pragmatic underpinnings result from Congressional efforts to simply halt range wars between cattleman and farmers and prevent settlement conflicts.12 In 1897, in Camfield v. United States, the U.S. Supreme Court upheld the UIA’s protections against the private enclosure of public lands and compelled the removal of a defendant’s fencing based on governmental police powers and trespass and nuisance justifications.13

 

Despite this precedent, the UIA lacks strong public-access protections given its weak enforcement regime and no private right of action.14 Citizens wishing to complain about a UIA violation must petition a U.S. attorney to initiate an enforcement action. If initiated, the citizen may intervene in the case but this procedural process requires knowledgeable legal counsel.15 The UIA also contemplates prosecutorial collaboration among the Departments of Interior, Justice, and others, which raises practical and logistical hurdles that may frustrate or delay public redress through the judicial system. To further complicate enforcement, federal circuit courts interpret the Camfield decision’s applicable defendant’s intent and enclosure defenses differently.16 As a consequence, federal enclosure lawsuits under the UIA run the risk of unpredictable and inconsistent outcomes for litigants depending on a lawsuit’s location and applicable law.17

 

THE SHORTCOMING OF OTHER LITIGATION STRATEGIES

Under the National Forest Management Act and other laws, the USFS and BLM possess broad directives to secure recreational public access to public lands.18 However, federal agencies often lack budgets and staff necessary to effectuate these directives. Successful agency enforcement and litigation requires the money and expertise necessary to conduct labor-intensive, land-use research to establish historic public-access and knowledge to prosecute access-denial claims against landowners under complex legal theories like prescriptive easement, governmental ownership, historic use, and eminent domain.19

For private citizens, statutory legal remedies against private landowners are similarly expensive and often limited by the lack of direct citizen-suit enforcement remedies. Private citizens also create personal risk to themselves by accessing public lands through private lands if plaintiff landowners prove an unpermitted trespass. In Oregon, liquidated damages are allowable against a trespassing defendant who accesses public lands through private land without permission or through a proven “right of way” and criminal trespass is prosecuted as a misdemeanor crime in Oregon and may be prosecuted criminally in other states. 20 Consequently, private property rights bring significant legal leverage and protections against all adverse interests, whether public or private.

For private citizens, however, legal power can be amplified by numbers and collective action. For example non-governmental groups, like Montana’s Public Land/Water Access Association (PLWA), assist private citizens’ access-efforts by facilitating costly historic land-use research, initiating legal action, and working towards collaborative solutions.21 But non-governmental actors also face funding challenges that can hinder their access-efforts.

 

THE PROMISE OF UNLOCKING PUBLIC LANDS THROUGH PUBLIC & PRIVATE PARTNERSHIPS & AGREEMENTS

1) Public Easements: A Montana Case-study

Despite the potential self-serving interests of some private landowners to deny access to public lands, there are legitimate safety and liability concerns for private landowners who grant access to vehicle operators and armed hunters. In Montana, private landowner Paul Hansen stopped granting road-access to hunters following excessive ATV traffic on his narrow gravel roads and after a head-on vehicle collision injured his daughter.22 In Mr. Hansen’s situation, a public and private agreement ultimately resolved his concerns and the public’s access through a non-litigated solution. Specifically, Mr. Hansen sold a public-access easement to the Montana Fish, Wildlife, and Parks agency in collaboration with the BLM.23 By entering into a voluntary easement agreement, the public successfully obtained timely access to abutting public lands without litigation, the landowner obtained compensation for the easement’s grant, and both parties obtained mutually agreeable liability and easement maintenance protections to avoid future legal conflicts.24

 

2) The Dingell Act & The Land & Water Conservation Fund

On March 12, 2019, the John D. Dingell, Jr. Conservation, Management, and Recreation Act (Dingell Act) became federal law; it made permanent the Land and Water Conservation Fund (LWCF), and improved public access to public lands.25 Arguably, the Dingell Act is the most significant conservation achievement at the federal level in at least the last four (4) years.

As part of the BLM’s efforts to implement the Dingell Act, the BLM established a website, (https://eplanning.blm.gov/eplanning-ui/home), to nominate public lands managed by the BLM that require public access period or greater public access.26 Nominations assist BLM’s reporting to Congress through recommended plans to acquire easements, rights of way, or fee title interests from willing landowners.27 BLM will update its recommended lists every two (2) years for at least the next decade to effect greater public access.28 The Dingell Act also addresses other access tools like land conveyances, exchanges, acquisitions, withdrawals, leases, and transfers.29

Enacted in 1965, the LWCF is designed to preserve, develop, and ensure access to outdoor recreational facilities to strengthen the health of U.S. citizens and created a U.S. Treasury Fund as a funding source to implement outdoor recreational goals.30 The LWCF takes a percentage of federal income from offshore energy and reinvests it into public-lands programs, with a $900- million dollar annual accrual budget available as approved by Congressional appropriation.31 By making the LWCF permanent under the Dingell Act, the LWCF can achieve the Dingell Act’s goals by promoting a greater expansion of public and private agreements and partnerships to increase public access.

In one recent Oregon success, LWCF monies unlocked over 13,000 acres of new and previously inaccessible public lands on Thirty Mile Creek above its confluence with the John Day River in central Oregon.32 The previous private landowners charged a public-fee to access the River and adjacent properties and reserved the right to close access at their discretion. Now thanks to a $8-million dollar allocation from the LWFC, the Oregon public now has unrestricted access to its adjacent public lands through the purchase of these private properties. 33

 

CONCLUSION

The American public needs greater access to its public lands to enjoy many benefits. Without access, can we really say public lands are in fact “public”? I think not.

Despite the existence of litigation strategies and tools that can help achieve better public access, unlocking public-access barriers to America’s public lands is best achieved through collaborative public and private agreements and partnerships between landowners and the public. These issues are complex, and litigation proves an imperfect tool.

 

However, the Dingell Act, and its permanency of the LWCF, creates exciting opportunities for the Biden Administration to facilitate greater and timely public-access to public lands beyond that associated with antiquated traditional litigation strategies. With the Biden Administration leading a new era of federal policy with a vision towards the environment, the future is more promising now than ever to realize a more comprehensive and collaborative public-access regime to protect America’s public lands for its peoples’ benefit.

 

REFERENCES

1 U.S. Department of the Interior, Bureau of Land Management, Burns District Office, https://www.blm.gov/or/districts/burns/newsroom/files/acronyms.pdf

2 Marshal Swearington, High Country News: Private property blocks access to public lands (Feb. 5, 2015), https://www.hcn.org/issues/47.2/this-land-is-their-land

3 See id.

4 See id.

5 See U.S. CONST. amend. V (emphasis added).

6 Marshal Swearington, High Country News: Private property blocks access to public lands (Feb. 5, 2015), https://www.hcn.org/issues/47.2/this-land-is-their-land

7 See id.

8 See id.

9 Chandra Rosenthal and Kara Gillon, Don’t Fence Me In: Application of the Unlawful Inclosures of Public Lands Act to Benefit Wildlife, 5 ANIMAL L. 1-4 (1999) (fn. 24), https://www.animallaw.info/sites/default/files/Don%27t%20Fence%20Me%20In.pdf

10 See id at 4 (fn. 25 and 26) (emphasis added).

11 See id at 4-5 (fn. 26 and 27) (emphasis added).

12 See id at 5 (fn. 28).

13 Camfield, et. al. v. U.S., 167 U.S. 518, 524-528 (1897).

14 See id. at 522-523.

See also Chandra Rosenthal and Kara Gillon, Don’t Fence Me In: Application of the Unlawful Inclosures of Public Lands Act to Benefit Wildlife, 5 ANIMAL L. 5-6 (1999), https://www.animallaw.info/sites/default/files/Don%27t%20Fence%20Me%20In.pdf

15 See id; Chandra Rosenthal and Kara Gillon, Don’t Fence Me In: Application of the Unlawful Inclosures of Public Lands Act to Benefit Wildlife, 5 ANIMAL L. 5-6 (1999), https://www.animallaw.info/sites/default/files/Don%27t%20Fence%20Me%20In.pdf

16 See id. at 8.

17 See id. at 8.

18 Marshal Swearington, High Country News: Private property blocks access to public lands (Feb. 5, 2015), https://www.hcn.org/issues/47.2/this-land-is-their-land

19 See id.

20 ORS 105.700 (1)-(3) (2019); ORS 164.245(1)-(2) (2019).

21 PLWA, About Us, https://plwa.org/about-us/

See also Marshal Swearington, High Country News: Private property blocks access to public lands (Feb. 5, 2015), https://www.hcn.org/issues/47.2/this-land-is-their-land

22 Marshal Swearington, High Country News: Private property blocks access to public lands (Feb. 5, 2015), https://www.hcn.org/issues/47.2/this-land-is-their-land

23 See id.

24 See id.

25 National Park Service, Legislative and Congressional Affairs: John D. Dingell Jr. Conservation, Management, and Recreation Act (Public Law 116-9), https://www.nps.gov/subjects/legal/dingell-act.htm

See also Wade, What the Dingell Act Means for Public Lands and Outdoor Recreations, Intrepid Daily (Mar. 13, 2019), https://intrepiddaily.com/what-the-dingell-act-means/

26 Bureau of Land Management seek help increasing access to public lands, The Bandon Western World (Apr. 1, 2020), https://theworldlink.com/news/local/govt-and-politics/bureau-of-land-management-seeks-help-increasing-access-to-public-lands/article_2f5b0bf9-b1c2-5a18-8cef-3a88cf28d171.html

27 See id.

28 See id.

29 Wade, What the Dingell Act Means for Public Lands and Outdoor Recreations, Intrepid Daily (Mar. 13, 2019), https://intrepiddaily.com/what-the-dingell-act-means/

30 [Author Unknown), Land and Water Conservation Fund: Overview, Funding, History, and Issues, EveryCRSReport.com (Jun. 10, 2006 – Jul. 19, 2019), https://www.everycrsreport.com/reports/RL33531.html

31 Randall Williams, Unlocked! 13K+ Acres of New and Previously Inaccessible Public Land Open in Oregon, Theodore Roosevelt Conservation Partnership (Aug. 17, 2019), https://www.trcp.org/2019/08/27/unlocked-oregon-hunters-anglers-will-access-13k-acres-new-previously-inaccessible-public-land/

32 See id.

33 See id.