If you look at a map of the region, big tracts of land run in a “checkerboard” pattern of mixed public and private land ownership. The West is literally diced up into alternating square-mile sections of federally managed land and private ground, which is generally owned by a timber company or ranch.

This is not a small problem. Researchers have found that 8 million acres of public land are “landlocked” in 11 states. That’s roughly equal to the area of four Yellowstone national parks.

This land ownership pattern has been causing headaches since it was rolled across the West in the 1860s. It dates back to the days of Abraham Lincoln, when the federal government granted land to railroads as incentives to span the continent with tracks, thus opening up the West for development.

Unintended consequences continue to fill up courthouses. This year, in Wyoming, the absentee owner of a 22,000-acre ranch wasn’t happy when four hunters crossed from one section of public land to another, thanks to a makeshift ladder they raised at the corner of his private land.

Once the hunters from Missouri accomplished their “corner crossing,” the ranch owner convinced a local prosecutor to file trespassing charges. After a jury failed to convict, the ranch owner was not satisfied.

He filed a civil case, claiming that by merely crossing his land at the corner, the hunters had decreased the value of his property. To be clear, the hunters never stepped foot on his land. But the landowner claimed they violated the “airspace” over the corner where properties met. The suit charged that the loss of exclusive access to his land caused millions of dollars in damages.

The case is being watched closely around the country. Access advocates have raised tens of thousands of dollars in donations via GoFundMe accounts to help pay legal costs for the hunters involved. They hope that a victory in Wyoming will have beneficial consequences elsewhere. 

But a victory for public land access is far from automatic, even if a Wyoming judge or jury agrees with the hunters in civil court. The question remains: Where do public rights stop and private property rights begin?

Legislatures across the West will be under political pressure to resolve the issue, and conservative legislatures could pass a law giving private landowners authority to block “corner crossing.”

Under that scenario, the public would lose. Yet there are proven tools to protect access in checkerboarded landscapes.

All that’s required are private landowners who don’t hanker for a showdown.

Where I live in northwestern Montana, checkerboard landscapes were the norm, and when I went hunting I often had no idea whose land I was on. Public or private, though, didn’t matter, because visitors were welcomed by both.

That changed when timber companies shifted their focus from sawing lumber to selling real estate. Thousands of acres suddenly fell behind “No Trespassing” signs or fences put up around trophy ranches.

Luckily for me, groups like the Trust for Public Land and the Montana Department of Fish, Wildlife & Parks worked with willing landowners and elected officials to secure public access. Today, every major timber company in Montana has a conservation easement allowing the public to enter at least part of their domain. This has helped secure access around fast growing resort towns like Whitefish and Columbia Falls.

Meanwhile, then-Sen. Max Baucus brokered a huge deal where the federal government bought thousands of acres in the Swan River Valley, making the land state forest or national forest. Thankfully, there are sources of money through the Land & Water Conservation Fund that can pay for such solutions. Land trades are another way to settle the issue.

David-vs-Goliath fights between hunting parties and wealthy absentee landlords generate a lot of passion, and perhaps the disputes will conclude by securing more rights for everyday folks to enjoy public land.

But larger solutions will require more people willing to work together, and a lot more money on the table. Not everything needs to be settled in court.

Ben Long is a contributor to Writers on the Range, writersontherange.org, an independent nonprofit dedicated to spurring lively conversation about the West. He is senior program director for Resource Media in Kalispell, Montana.

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Rather than risking either injury or arrest, Hill sued the landowners, claiming that the bed of the Arkansas River is navigable. If that assumption is true, then Hill can legally stand on the riverbed and fish.

But Roger Hill’s fight is not just about his right to fish. It is about pushing back against the creeping tide of wealth-driven privatization that seeks to deny public access to our waterways and other public resources.

Here’s Hill’s case in a nutshell: When Colorado became a state in 1876, it entered the Union on an “equal footing” with other states. Among other things, the equal footing doctrine gives states title to the beds of all navigable streams within their borders.

As the U.S. Supreme Court explained in a case called Illinois Central Railroad v. Illinois, “it is a title different in character from that which the state holds in lands intended for sale….It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them,and have liberty of fishing therein, freed from the obstruction or interference of private parties.”

History buffs might be interested to know that these public rights in navigable waterways date back at least to the time of the Roman Empire. 

You might assume that Colorado would join this case on Hill’s side. Instead, the opposite happened. Attorney General Phil Weiser, a Democrat, joined the case on the side of the private landowners and has moved aggressively against Hill, seeking not just to deny his right to fish from the bed of the river, but also to claim that Hill doesn’t have the right to even be in court. 

At various times, Attorney General Weiser has somewhat astoundingly argued that there are no navigable rivers in Colorado, and that even if there were, the state may deny public access to navigable riverbeds. So much for the Supreme Court’s holding that the State holds title to the bed of navigable streams “in trust for the people, that they may … have the liberty of fishing therein.”

In Colorado, opportunities to get outside and explore are celebrated. For that reason, it is alarming that the state’s Attorney General seeks to deny public access to Colorado’s navigable waterways. If he were to prevail, Colorado would be alone among the 50 states — including all of its Western neighbors — in denying these rights.

Recently, the Colorado Court of Appeals offered Roger Hill a glimmer of hope that Attorney General Weiser can be stopped. The court held that Hill has standing to pursue his claim in state court and made the important finding thatIf “the relevant segment of the river wasnavigable at statehood, then the … defendants do not own the riverbed and would have no right to exclude [Hill] from it by threats of physical violence or prosecution for trespass.”

Although it seems unlikely, Attorney General Weiser now has an opportunity to switch sides and support public rights in navigable waterways, including Roger Hill’s right to fish while wading the bed of the Arkansas River.  Coloradans should expect and demand that he do so.

The Colorado Constitution proclaims that “water of every natural stream … within the state of Colorado, is … the property of the public…” When the framers dedicated Colorado’s natural streams to “the use of the people” they surely did not expect that the state’s attorney general would aggressively try to block public use.

Roger Hill’s fight is everyone’s fight. Let’s hope that he prevails.

Mark Squillace is a contributor to Writers on the Range, writersontherange.org, a nonprofit dedicated to spurring lively conversation about the West. He is the Raphael Moses Professor of Natural Resources Law at the University of Colorado Law School, and he and Alexander Hood are representing Roger Hill, pro bono.

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