New bill would crack down on those who block public land access

Greyman · Feb 13, 2019

"A bill has been introduced to let aggrieved citizens take civil action against people who block access to public lands or roads, writes reporter Nathan Brown of the Post Register. The proposal would add a list of new acts to the existing code dealing with “interference with hunting, fishing, trapping or wildlife control,” specifying that blocking access to public lands, roads and navigable streams are illegal, both physically blocking access and posting signs indicating land is private when it isn’t. People would be able to sue anyone who violates this section to enforce it."

https://www.idahopress.com/eyeonboi...cle_591fd683-a15c-5f20-99c1-4be477fb8347.html

antelopedundee · Feb 13, 2019

So what can they do if you access on known public land as long as you don't as long as you don't trespass on private land to do it? Would they lose in court?

If public land is landlocked should eminent domain be used to obtain a right of way public access?

1_pointer · Feb 14, 2019

antelopedundee said:
If public land is landlocked should eminent domain be used to obtain a right of way public access?

Pretty sure that has been settled in court and the answer is no. And I don't disagree with that...

Carnage2011 · Feb 14, 2019

antelopedundee said:
So what can they do if you access on known public land as long as you don't as long as you don't trespass on private land to do it? Would they lose in court?

If public land is landlocked should eminent domain be used to obtain a right of way public access?

You can’t violate private property rights just because they have some inaccessible public land.

MTGomer · Feb 14, 2019

antelopedundee said:
If public land is landlocked should eminent domain be used to obtain a right of way public access?

Not how it works.

antelopedundee · Feb 14, 2019

1_pointer said:
Pretty sure that has been settled in court and the answer is no. And I don't disagree with that...

If public access to public land is not in the public good then I don't know what is. Here in Iowa I know they intended to use it to allow the Bakken pipeline to go forward tho I don't know if they ever did. Not sure private enterprise qualifies as public good.

Carnage2011 · Feb 14, 2019

antelopedundee said:
If public access to public land is not in the public good then I don't know what is. Here in Iowa I know they intended to use it to allow the Bakken pipeline to go forward tho I don't know if they ever did. Not sure private enterprise qualifies as public good.

If public land can be accessed without infringing on private property rights then it's great. However, there is no way we can require them to allow public access across land they own. I think if the public tried to push something like this we would find a lot of landowners shutting down any kind of access. There are some great landowners out there that allow a ton of access, and if the public starts helping themselves across their land without permission they will soon shut down all access. Public access to public land doesn't trump private property rights, and it shouldn't.

MTGomer · Feb 14, 2019

Dundee, I am a land agent for one of the larger public utilities in the nation and get to talk to and listen to seminars on these topics by the most qualified individuals there are on the topic. I’ve never heard of anyone that has held the opinion that anything remotely close to this would stand up in court. I’m not an expert, but I get to be around a lot of them.

Research the ‘bundle of sticks’ analogy of owning real estate.

An oil pipeline is a piece of infrastructure that delivers vital natural resources, some of which are owned by the public trust, to market to secure affordable raw materials and fuel vital to national security blah bla you know the speech.
They hold more weight than I’d like to walk across private land to hunt.

VikingsGuy · Feb 14, 2019

I am confused by some of the replies - I understood the article to say that if a person marked public land as private, or put a gate on public land to block public access that this would be punishable in a civil proceeding. I did not read it to suggest that it would prevent private land owners from stopping access across their private land. As I read, this is certainly a plausible law and wouldn’t run afowl of any private property right.

As for eminent domain, as a lawyer I have no doubt the feds could legally take the access they wanted (assuming just payment under the takings clause). What they lack is the political will and budget dollars to do so. Hell, a local city in the twin cities forced 10 existing businesses right in the middle of town to relocate to far less advantageous locations to accommodate 1 new business they thought would offer new jobs. If the feds don’t take (with payment) access rights to these public lands it is by choice, not some legal block.

MTGomer · Feb 14, 2019

VikingsGuy said:
I am confused by some of the replies - I understood the article to say that if a person marked public land as private, or put a gate on public land to block public access that this would be punishable in a civil proceeding. I did not read it to suggest that it would prevent private land owners from stopping access across their private land. As I read, this is certainly a plausible law and wouldn’t run afowl of any private property right.

As for eminent domain, as a lawyer I have no doubt the feds could legally take the access they wanted (assuming just payment under the takings clause). What they lack is the political will and budget dollars to do so. Hell, a local city in the twin cities forced 10 existing businesses right in the middle of town to relocate to far less advantageous locations to accommodate 1 new business they thought would offer new jobs. If the feds don’t take (with payment) access rights to these public lands it is by choice, not some legal block.

Having watched how the feds have handled something like the Indian buyback, I can’t imagine them undertaking something enormous like imminent domain to every land locked parcel

You’re correct what this bill is for. It’s to put a real punishment in place for blocking public access where there is a right to have it. IE: FS road, trail etc.

VikingsGuy · Feb 14, 2019

MTGomer said:
Having watched how the feds have handled something like the Indian buyback, I can’t imagine them undertaking something enormous like imminent domain to every land locked parcel

You’re correct what this bill is for. It’s to put a real punishment in place for blocking public access where there is a right to have it. IE: FS road, trail etc.

I agree of low probability, I was just reacting to suggestions that it would be shot down in court.

antelopedundee · Feb 14, 2019

VikingsGuy said:
I am confused by some of the replies - I understood the article to say that if a person marked public land as private, or put a gate on public land to block public access that this would be punishable in a civil proceeding. I did not read it to suggest that it would prevent private land owners from stopping access across their private land. As I read, this is certainly a plausible law and wouldn’t run afowl of any private property right.

As for eminent domain, as a lawyer I have no doubt the feds could legally take the access they wanted (assuming just payment under the takings clause). What they lack is the political will and budget dollars to do so. Hell, a local city in the twin cities forced 10 existing businesses right in the middle of town to relocate to far less advantageous locations to accommodate 1 new business they thought would offer new jobs. If the feds don’t take (with payment) access rights to these public lands it is by choice, not some legal block.

Wasn't there a situation in NJ a number of years back where the locals tried to invoke eminent domain for constructing a shopping mall for the jobs it would create and not necessarily because it was in the public good? You're right about the lack of political will tho.

VikingsGuy · Feb 14, 2019

antelopedundee said:
Wasn't there a situation in NJ a number of years back where the locals tried to invoke eminent domain for constructing a shopping mall for the jobs it would create and not necessarily because it was in the public good? You're right about the lack of political will tho.

Different states can set statutory rules as to how state agencies and local cities/counties can use the power of eminent domain. This typically arises in the case of eminent domain taking from one private party and then sale or transfer to a second private party (like the twin cities example I referenced above). But I am not aware of any SCOTUS case that stands for the premise that the Fed Gov couldn’t “take” an easement for the public to access federal lands (subject to just reimbursement). SCOTUS has been very “pro-taking” for many years - this new court may shift that a little bit away from that, but I can’t imagine too much.

Losing_Sanity · Feb 14, 2019

Good news if they can actually enforce it against people who block access to public lands or roads. Seems there are a lot of "laws" that never get enforced. Many times, I have come out of an area only to find a locked gate across BLM or Forest land put there by a rancher controlling access to his grazing area. Only recourse is to back track out to another way out. I talked to the forest ranger and BLM officer when I find one and they say it's a continual battle and they go cut the lock off.

Must happen to a lot of other people or there wouldn't be an action to start a bill.

antelopedundee · Feb 14, 2019

Losing_Sanity said:
Good news if they can actually enforce it against people who block access to public lands or roads. Seems there are a lot of "laws" that never get enforced. Many times, I have come out of an area only to find a locked gate across BLM or Forest land put there by a rancher controlling access to his grazing area. Only recourse is to back track out to another way out. I talked to the forest ranger and BLM officer when I find one and they say it's a continual battle and they go cut the lock off.

Must happen to a lot of other people or there wouldn't be an action to start a bill.

They likely only enforce it if they get complaints. In your case you had other options. Carry your own bolt cutter or hook up to the gate and drag it down. Just make sure that you're in the right. The guy might get mad as hell, but not much he can do. The person who doesn't know his rights pretty much doesn't have any.

I'm told that here if you leave a tree stand up on public land, the DNR may just cut the tree down.

antelopedundee · Feb 14, 2019

MTGomer said:
Dundee, I am a land agent for one of the larger public utilities in the nation and get to talk to and listen to seminars on these topics by the most qualified individuals there are on the topic. I’ve never heard of anyone that has held the opinion that anything remotely close to this would stand up in court. I’m not an expert, but I get to be around a lot of them.

Research the ‘bundle of sticks’ analogy of owning real estate.

An oil pipeline is a piece of infrastructure that delivers vital natural resources, some of which are owned by the public trust, to market to secure affordable raw materials and fuel vital to national security blah bla you know the speech.
They hold more weight than I’d like to walk across private land to hunt.

I was kind of mostly playing devil's advocate.

VikingsGuy · Feb 14, 2019

Losing_Sanity said:
Good news if they can actually enforce it against people who block access to public lands or roads. Seems there are a lot of "laws" that never get enforced. Many times, I have come out of an area only to find a locked gate across BLM or Forest land put there by a rancher controlling access to his grazing area. Only recourse is to back track out to another way out. I talked to the forest ranger and BLM officer when I find one and they say it's a continual battle and they go cut the lock off.

Must happen to a lot of other people or there wouldn't be an action to start a bill.

Rather than making private citizens (per the above propose law) or the local county officials (who are too busy or beholden to local interests) enforce public access to public lands, congress could fix in a heartbeat. Just make posting or blocking access to BLM land by a licensee is an offense that automatically terminates their lease. That would get a few ranchers’ attention.

Losing_Sanity · Feb 14, 2019

Although maybe not exactly the same deal, these two land owners had a representative, a caretaker if you will, up in the Boise National Forest area running people off and turning them back. The forest department got involved and told them they could not block the forest road. Hunters lost a lot of hunting land to private sale.

https://www.idahostatesman.com/outdoors/playing-outdoors/article218846715.html

1_pointer · Feb 15, 2019

VikingsGuy said:
Rather than making private citizens (per the above propose law) or the local county officials (who are too busy or beholden to local interests) enforce public access to public lands, congress could fix in a heartbeat. Just make posting or blocking access to BLM land by a licensee is an offense that automatically terminates their lease. That would get a few ranchers’ attention.

It’s already listed as a prohibitive act in the BLM CFRs for grazing permit holders.

VikingsGuy · Feb 15, 2019

1_pointer said:
It’s already listed as a prohibitive act in the BLM CFRs for grazing permit holders.

What are the penalties/consequences? I am guessing they are far less than self-effecting termination.

New bill would crack down on those who block public land access

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