Public Lands and Corner-Crossing: 10th Circuit's Pivotal Decision

The Court of Appeals for the 10th Circuit recently issued a decision that will be of great interest to people who access public lands for recreational purposes. The Court's decision in Iron Bars Holdings, LLC v. Cape held that certain state trespass laws are preempted by federal law. At issue in the Iron Bars case was the act of "corner-crossing," long of dubious legality, where a person steps from the corner of one lot diagonally onto another, momentarily passing over two lots they do not have permission to be on. This movement, illustrated below, can be visualized as a legal move in the game of checkers.

This physical intrusion, though minor and momentary, is likely an act of trespass in many states. However, the Iron Bars Court found that corner-crossing was authorized under the Unlawful Inclosures Act ("UIA"), a federal statute passed in response to historical disputes over whether the grazing lands in the American West were open range or not.

Checkerboard Pattern of Land Ownership

The need to cross corners in this manner originated from a land grant scheme implemented by Congress long ago. This scheme was designed to encourage the construction of transcontinental railroads and the settlement of the West. Specifically, Congress allocated odd-numbered sections of land to the railroads, while reserving the even-numbered sections for the federal government. The original goal was that as the land was occupied and developed, the federal holdings would (hopefully) double in value, covering the cost of the land grant and serving as a source of revenue when later sold to new arrivals to the area. The federal lands were also opened for homesteading. Then, in 1976, Congress decided to retain federally owned lands in trust for the public, resulting in a "checkerboard" pattern of land ownership across much of the American West.

The Iron Bars Decision and Its Implications

This pattern has troubled members of the public seeking to use and enjoy these public lands, many of which are not practically accessible without corner-crossing. For the six states within the 10th Circuit (i.e., Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming), that issue has been resolved, for now. The Court found that the UIA prohibits any "inclosure" that operates to appropriate federal lands for private use and exclude members of the public who are permitted to be on public lands. The Court went on to find that, under the UIA, an "inclosure" could be a physical barrier, use of force, threats, or even the legal assertion that a person would be trespassing by corner-crossing over private lands onto the public commons.

While the implications of this decision are substantial, they are limited by the facts of the Iron Bars case. As the Court noted, "[t]he controlling principle is that checkerboard landowners cannot maintain a barrier that has the effect of fully enclosing public lands and preventing complete access for a lawful purpose." Furthermore, this ruling is binding only for federal courts within the 10th Circuit, so the legality of corner-crossing remains uncertain in other states; the U.S. Supreme Court has not directly ruled on the legal effect of the UIA in over a century. Whether these and other questions will be resolved by the U.S. Supreme Court or Congress, or whether this decision will be influential in courts outside of the 10th Circuit, will remain to be seen.

Contact DWT's land use and development group with any questions about how Iron Bars Holdings, LLC v. Cape may impact your access to public lands or if you have questions about legal boundaries. We're here to help you navigate these complex issues and ensure your rights are protected.