Thanks to TSW readers who submitted this piece for discussion. It’s an essay that touches on some of our usual topics.
The hunters had “corner crossed.” Like checker pieces on a game board, they had moved diagonally from one public land parcel to another. They didn’t touch the North Carolina financier’s 22,045-acre ranch land, everyone agreed, but he maintained that they had entered his airspace and therefore trespassed, to the tune of $7.75 million in damages.
For a moment, it seemed the little guy and advocates for public land access had won. But wait.
In Colorado, an angler lost a similar public/private battle in June when the state Supreme Court ruled in favor of the landowner. The Arkansas River might seem like a historic public way in Colorado, but when a river or stream flows through private land, the court ruled, wading by members of the public is not okay. Meanwhile, in New Mexico, it is okay. In Utah, it depends.
Across the West, courts are reflecting the struggles that residents and visitors face in trying to balance public trust and private land ownership. Some cast it as simple battles of rich vs. poor, or of locals vs. out-of-towners. But it’s not so simple.
As outdoor recreation increasingly fuels economies here and as landowners assert their rights, the clashes — not just in courts but also across streams, fence lines and dirt paths — will continue.
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This summer, the county’s newly created Outdoor Recreation Industry Office hosted public workshops to share their findings. Turns out, some 2 million visitors spend more than $100 million annually in our little corner of the West, according to RPI Consulting, the firm hired to do an economic assessment.
While real estate agents, backcountry outfitters and bike shops are celebrating, many of us here struggle to roll with the triple influx of transplants, second-home owners and visitors. Like the courts, when we consider the multifaceted impact of this population flow, we’re conflicted.
While newcomers are nothing new in the West, I feel for communities such as Gallatin County in Montana and Weld County in northern Colorado, whose populations have swelled more than 30 percent between 2010 and 2020, according to the Census Bureau.
My thought. Gallatin County is a different kettle of fish than Weld County, parts of which are expansion of the Colorado Front Range Megalopolis. But maybe not.
I delved into the comments on the piece; there was some thinking that private landowners are protected from liability by recreational access laws. I think this reporting piece by Jason Blevins in the Colorado Sun gets at some details of real-world problems with existing recreational use law in Colorado. As usual, it’s more complicated than many seem to think.
The legislation was in response to a 2019 federal appeals court decision that awarded $7.3 million to a mountain biker who sued the federal government after crashing on a washed out trail at the Air Force Academy. That decision has pushed many landowners to close access, fearing the decision would lead to more lawsuits from injured visitors.
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The group is fine with the statute’s exceptions that do not protect landowners who display “gross negligence” or “malicious intent” with dangers on their property, said the coalition’s chairwoman, Anneliese Steel. The group is concerned that the decision in the Air Force Academy case could lead to a lack of protection for landowners who might be aware of hazards but a jury could find they failed to adequately warn visitors about those hazards.
“That is too low of a bar and it has led to a significant chilling effect among landowners that we are seeing right now with these closures,” Steel said. “It’s an unnecessary barrier to access. What’s going on at the Leadville 100, for example, is untenable.”
Trial lawyers who testified against the recreational statute reform legislation in March argued that a single award for an injured visitor in the 45-year history of the law shows that the statute is working. There has not been a surge of lawsuits from injured people suing landowners.
Oregon’s 1859 statehood by congressional act gave ALL submerged land to the State, and is managed by the State Land Board. All docks pay rent for the land they drive piling into and anchor walkways, boardwalks floating above. So ports lease the land on which they are located from the State. The State Land Board is the Governor, Sec of State and State Treasurer. State AG is their legal representation and defender, prosecutor. Clam and oyster beds are leased from the State. No idea of how that affects or impacts tribal rights to fish, hunt and gather. Certainly the State and Bur Indian Affairs are working with tribes to allow them to manage fish and game on reservation and other lands they lay claim to.
Weld County vs Gallatin County. I think the point for our purposes is that a lot more people are suddenly headed up the “Poudre” (Arapaho-Roosevelt NF) and into Hyalite Canyon (Custer-Gallatin NF). Emphasis on the “suddenly” since the rate of change makes it more difficult to respond and adapt.
It seems like the federal land management agencies should be big supporters of anything that opens more public lands to public use, or even more private lands.