Congressional Support for Corner Crossing: BHA

[1_pointer]

I'm going to park on the freeway right-of-way, then cross a corner to hunt a pronghorn this fall...just because...I can.

SCOFFLAW!!!! Take pics of the results as I won't be hunting those tasty little bastards this year.

 

[RobG]

Why can't we get this settled? . Someone with a financial backing should corner cross near landowners that don't allow it. Kill a bull, buck, bear etc. video the whole thing. Make it publically available. Presumably get cited and fight it like hell. Get a court ruling.

Would this work?

Turns out I've been recently schooled in this sort of stuff . I don't guarantee the following to be exactly correct, but it should be close. If you got cited and fought the ticket, the outcome of the trail doesn't decide the legality of what you did. For example, if you are found innocent it just means they didn't have enough evidence to find you guilty. If they found you guilty, the next judge (or jury) might find you innocent.

What fighting the ticket could do is influence the prosecutor's decision to take the next case to trial. If the "crosser" has historically been found innocent the prosecutor probably won't waste the court's time. However, the prosecutor in the next county might.

In cases where the landowner has blocked access to a road or trail what getting a ticket does is give you "standing." Standing means you have a reason to sue - that reason being that the landowner's action has caused you damage (the ticket). You would be suing to prove the public has a right to use the trail.

Now if you decided to sue a landowner who had you ticketed for corner crossing I'm not sure if it would clear the issue. If it were a trail it would only apply to that particular trail so maybe the ruling would only apply to that corner. Plus there are criteria in place to determine whether the public has the right to use a trail, but nothing in place to determine if the public has a right to cross at a corner. Maybe that is why there are no corner crossing laws - it would give you something to overturn with a lawsuit.

There was a drone case (Boggs v. Merideth) making its way through the courts that could have given some guidance on whether you can be cited for trespass if you go through airspace above private land. For better or worse, it was dismissed the other day, leaving the question unanswered.

 

[grizzly_]

Utah's new law makes me wonder if, though drones are banned over private property, corner crossing is legalized as it requires the "entire body" to "enter" on the property... Thoughts?

-----------------------------------

Effective 5/9/2017
76-6-206. Criminal trespass.

(1) As used in this section:
(a) "Enter" means intrusion of the entire body or the entire unmanned aircraft.

(b) "Remain unlawfully," as that term relates to an unmanned aircraft, means remaining on or over private property when:
(i) the private property or any portion of the private property is not open to the public; and

(ii) the person operating the unmanned aircraft is not otherwise authorized to fly the unmanned aircraft over the private property or any portion of the private property.


(2) A person is guilty of criminal trespass if, under circumstances not amounting to burglary as defined in Section 76-6-202, 76-6-203, or 76-6-204 or a violation of Section 76-10-2402 regarding commercial obstruction:
(a) the person enters or remains unlawfully on or causes an unmanned aircraft to enter and remain unlawfully over property and:
(i) intends to cause annoyance or injury to any person or damage to any property, including the use of graffiti as defined in Section 76-6-107;

(ii) intends to commit any crime, other than theft or a felony; or

(iii) is reckless as to whether the person's or unmanned aircraft's presence will cause fear for the safety of another;


(b) knowing the person's or unmanned aircraft's entry or presence is unlawful, the person enters or remains on or causes an unmanned aircraft to enter or remain unlawfully over property to which notice against entering is given by:
(i) personal communication to the person by the owner or someone with apparent authority to act for the owner;

(ii) fencing or other enclosure obviously designed to exclude intruders; or

(iii) posting of signs reasonably likely to come to the attention of intruders; or


(c) the person enters a condominium unit in violation of Subsection 57-8-7(8).


(3)
(a) A violation of Subsection (2)(a) or (b) is a class B misdemeanor unless the violation is committed in a dwelling, in which event the violation is a class A misdemeanor.

(b) A violation of Subsection (2)(c) is an infraction.


(4) It is a defense to prosecution under this section that:
(a) the property was at the time open to the public; and

(b) the actor complied with all lawful conditions imposed on access to or remaining on the property.


https://le.utah.gov/xcode/Title76/Chapter6/76-6-S206.html

 

[VikingsGuy]

If you got cited and fought the ticket, the outcome of the trail doesn't decide the legality of what you did. For example, if you are found innocent it just means they didn't have enough evidence to find you guilty. If they found you guilty, the next judge (or jury) might find you innocent.

. . .

Now if you decided to sue a landowner who had you ticketed for corner crossing I'm not sure if it would clear the issue. If it were a trail it would only apply to that particular trail so maybe the ruling would only apply to that corner.

I am not an attorney in MT or WY, and trespass is a state by state legal framework. Those disclaimers aside, there is a fairly consistent foundation across states in both real property and rules of civil procedure where I think I can offer reasonable comment as an attorney in general.

RobG, I think your statements quoted above overstate the limitations of precedent and res judicata in these circumstances. The general question is, was the case decided on the facts (which create relatively limited binding guidance) or on the legal issues (which very much shape the law going forward). For example, if I corner-cross and am cited for trespass I would argue both facts (such as I had consent, or there were not proper postings -- in some states notice is a requirement -- or I acted in error and corrected as soon as I realized -- a defense in some locals -- or that particular trail has come under a prescriptive easement, etc) and the law (there is a clear public easement, corner crossing is deminimus and there for not properly trespass, etc). Typically these legal issues are resolved first, before a jury rules on the facts. If the judge agrees with my legal argument then I win - and that win is binding on that jurisdiction (often a county). The land owners/county attorneys/sheriffs in that jurisdiction can't keep handing out tickets under those circumstances (and continuing to do so can have significant ramifications for them). But, if the judge rules against me on my legal arguments and sends to the jury for fact finding, then relatively little of that is useful for the next guy as they are particular to that instant or that piece of land. However, at this point I can go to an appellate court and argue the legal rulings were wrong, and if I win there, this is binding on an even bigger jurisdiction (such as a whole state or a federal district).

In short, I understand why the average joe doesn't fight, and I understand that some situations are better suited to make precedent that others, but there is more opportunity than I think your comments suggest.

Of course that being said, clear statutes can fix a lot of things, but most aren't that clear and litigation will arise there as well if folks have $$$ at stake. So in the end, public land hunters willing to litigate will likely be required to secure corner crossing fix and lock in various prescriptive easements.

 

[mdunc8]

Ship it!

 

[JLS]

Rob,

You’re mixing apples and oranges a bit here. Corner crossing is not a civil issue as is an easement on a trail. It involves legal interpretation of what actually constitutes a trespass.

Your case was different in that the existence (or not) of an easement granted you permission to be where you were at. The heart of the issue with corner crossing is and will be the establishment of case law (ie a legal precedent) deciding if the act of stepping over a corner monument constitutes the act of trespass.

While they seem similar, they actually are quite different and the corner crossing issue could potentially be decided once and for all by someone deciding to challenge it in the court system.

 

[VikingsGuy]

JLS, I agree with where you end up, but FWIW, "Corner crossing is not a civil issue as is an easement on a trail" is not the relevant distinction. Fact finding and legal interpretation are elements of both criminal and civil law, so both can have limited outcomes or broader precedent depending on the nature of the resolution. The apples are "decided on the facts" and the oranges are "decided on the law".

 

[Rancho Loco]

Clarification for everyone - this is a Nevada Assembly bill, not a US Congressional bill.

 

[JLDemo]

Clarification for everyone - this is a Nevada Assembly bill, not a US Congressional bill.

That's fine, if the precedent is set for one, others might follow with enough nation wide support. Signed and I'm a member. I can only hope and pray that this will carry over to Wyoming.

 

[RobG]

I am not an attorney in MT or WY, and trespass is a state by state legal framework. Those disclaimers aside, there is a fairly consistent foundation across states in both real property and rules of civil procedure where I think I can offer reasonable comment as an attorney in general.

RobG, I think your statements quoted above overstate the limitations of precedent and res judicata in these circumstances. The general question is, was the case decided on the facts (which create relatively limited binding guidance) or on the legal issues (which very much shape the law going forward). For example, if I corner-cross and am cited for trespass I would argue both facts (such as I had consent, or there were not proper postings -- in some states notice is a requirement -- or I acted in error and corrected as soon as I realized -- a defense in some locals -- or that particular trail has come under a prescriptive easement, etc) and the law (there is a clear public easement, corner crossing is deminimus and there for not properly trespass, etc). Typically these legal issues are resolved first, before a jury rules on the facts. If the judge agrees with my legal argument then I win - and that win is binding on that jurisdiction (often a county). The land owners/county attorneys/sheriffs in that jurisdiction can't keep handing out tickets under those circumstances (and continuing to do so can have significant ramifications for them). But, if the judge rules against me on my legal arguments and sends to the jury for fact finding, then relatively little of that is useful for the next guy as they are particular to that instant or that piece of land. However, at this point I can go to an appellate court and argue the legal rulings were wrong, and if I win there, this is binding on an even bigger jurisdiction (such as a whole state or a federal district).

In short, I understand why the average joe doesn't fight, and I understand that some situations are better suited to make precedent that others, but there is more opportunity than I think your comments suggest.

Of course that being said, clear statutes can fix a lot of things, but most aren't that clear and litigation will arise there as well if folks have $$$ at stake. So in the end, public land hunters willing to litigate will likely be required to secure corner crossing fix and lock in various prescriptive easements.

I don't remember the context of my 9 month old posting, but my understanding of the legal system is consistent with what you are saying, although I'm sure you are saying it more precisely. The only thing I'd add is that I believe finding the facts is a very involved and expensive process that you want to get right.

 

[one ate E grain]

signed

 

[twodot]

Another signature.

 

[F250]

Signed !!!

 

[elkduds]

signed as well

 

[Phaseolus]

I just signed and I am a new (one Month ago) BHA member

Phaseolus AKA BeanMan

 

[Falcon75]

signed. hope other states follow. or make a tax for the land they basically control.

 

[mountain monster]

Signed, I am a member. There is no good reason we can't cross corners!

 

[SherpaPhil]

Another signature from a BHA member.

 

[Irrelevant]

Anyone know if anything happened with this?

 

[PrairieHunter]

Why can't we get this settled? . Someone with a financial backing should corner cross near landowners that don't allow it. Kill a bull, buck, bear etc. video the whole thing. Make it publically available. Presumably get cited and fight it like hell. Get a court ruling.

Would this work?

So in simple terms we start a go fund me account in the case there is legal trouble to cover lawyers fees. Then decide who wants to be the hero of the public land hunting community. Find a suitable location where the DA will not prosecute, notify the game warden and sheriff. Then send that lucky hunter(s) in with a live streaming on facebook and here to have a confrontation with landowner. Completely make a fool of landowner who would not be prepared for the situation while providing a very high profile case for others in Wyoming to follow.

How about the BuzzH public land corner crossing challenge? I guess they could do it blindfolded when crossing the corner to make it a public land corner crossing bird box challenge. Then hunters from all over the West start video taping corner crossing and posting on your tube.