In early October 2021, four hunters from Missouri walked across public lands in Wyoming. Although none of the four hunters physically stepped onto any private lands, they were charged with criminal trespass for passing briefly through the air space of the Elk Mountain Ranch when climbing over a barrier at the common corner of two sections of public land and two sections of ranch land. The legal theory behind this criminal trespass charge claims that the U.S. Congress, in enacting far-reaching legislation intended to promote the settlement of the West, instead locked up millions of acres of public lands. The U.S. Supreme Court decision on which that theory relies—Leo Sheep Co. v. United States, 440 U.S. 668 (1979)—misunderstood the Wyoming law of implied easements by necessity to determine that the federal government retained no access rights to millions of acres of public lands. It was poorly reasoned and outcome driven, and now, after 43 years, should be overruled or at least narrowly limited to its specific facts.
In the Pacific Railway Acts of 1862 (12 Stat. 489) and 1864 (13 Stat. 356), Congress granted the railroads all odd-numbered sections of land for 20 miles on either side of the railroad’s centerline, retaining the even-numbered sections, yielding a checkerboard pattern of public and private land ownership that remains today. Although Congress intended this checkerboard pattern to facilitate access and development, and to increase the value of the public lands that remained, in Leo Sheep, the Supreme Court determined that Congress had not in fact retained access to the lands it hoped to facilitate access to. This is no small thing. According to the Theodore Roosevelt Conservation Partnership, 9.52 million acres of public lands in the western United States are landlocked by private lands, rendered inaccessible and thus unavailable for the very uses they were reserved to facilitate. See Theodore Roosevelt Conservation P’ship, Off Limits, But Within Reach: Unlocking the West’s Inaccessible Public Lands (2018). Although some of this inaccessibility is the product of topography, expected settlement patterns, and the desire to homestead near water courses that flowed out of federal forest reserves, millions of acres of public lands are landlocked due to railroad grant checkerboards.
With respect to those railroad grant lands, this lack of access is contrary to Congress’s intent. In Leo Sheep, the U.S. Supreme Court determined that Congress did not reserve an easement sufficient to allow for public roads across the just-touching corners of granted private lands. But in doing so, the Court made at least three errors. Even if the Court were unwilling to reconsider Leo Sheep on its own or similar facts, these errors suggest that some lesser access—including for the four Missouri hunters—should be readily recognized.
The Court’s initial and most significant error was its failure to recognize the need to analyze the conflict based on the law and relevant property rights as they existed in the 1860s, rather than as we might have understood them in the 1970s. This created confusion in two respects. First, the Court used legal principles that had evolved and changed over the succeeding century, including legal principles created by the State of Wyoming—a state that would not exist for several decades after the land was granted to the railroad. And second, by framing the dispute through its twentieth century lens, the Court wrongly identified the two parties in the dispute. In 1979, the private landowner was a private ranch. The Court thus chose to view the dispute as one between a traditional private party and a government actor, or perhaps even as a dispute between two private actors to whom the common law might apply fully.
But the private party in this case held only those rights possessed by the initial landowner—the Union Pacific Railroad. Unlike a more typical private landowner, who might be at a disadvantage in negotiating with a government actor, the Union Pacific was among the most preferred and powerful corporations in U.S. history, created and largely funded through an Act of Congress, with commissioners and directors appointed, in part, by the secretary of the interior and the president. The Union Pacific should be viewed more as a governmental or quasi-governmental entity than as a private citizen. And significantly, unlike traditional private land exchanges, the Union Pacific did not pay for the lands at issue. In the Pacific Railway Acts of 1862 and 1864, Congress granted the Union Pacific lands equal in area to New Hampshire and New Jersey combined. To consider the Union Pacific a simple private landowner, and thus at some disadvantage when interacting with the federal government, is an absurdity of historic proportions.
Relatedly, the Court’s second error was in applying a common law that evolved with bargained-for transactions between private parties, rather than treating the grant as an Act of Congress. Congress can, of course, repudiate whatever common law principles it chooses in enacting legislation, including in the Pacific Railway Acts. The Leo Sheep Court even recognized that in interpreting federal land grants, all ambiguities should be resolved in favor of the government, not the grantee—a point at odds with common law principles. It then dismissed this principle, without discussion, simply by noting that the Court previously had recognized that the railroad grants in particular should “receive at the hands of the court a more liberal construction in favor of the purposes for which it was enacted.” 440 U.S. at 683. However, the Court did not explain why a lack of access could possibly better achieve Congress’s intent.
Congressional action during this era strongly indicates intent for free access to lands not granted to the railroads. Among the justifications for the railroad land grants was the assumption that it would make the public domain more accessible through railroad construction, which would allow the federal government to charge more for the public lands that remained. That, of course, assumes those lands would become more accessible. Congress would later enact multiple homestead laws, further facilitating access to the public domain. In 1866, Congress authorized the construction of public highways across the public domain, wherever such highways might come into being. And with the Unlawful Inclosures Act in 1885, 43 U.S.C. § 1061 et seq., Congress prohibited private landowners from enclosing the public lands or making any exclusive claims to them. Every time it addressed the public domain in this era, Congress sought to facilitate its access and use, a point the Supreme Court ignored in assessing Congress’s intent.
Even were the common law the appropriate legal pathway to approach the dispute, the Court misapplied that common law as it would have existed in 1862. The Court assessed the dispute through the common law principles of the implied easement by necessity, as that law existed in Wyoming in the 1970s. Perhaps the best indicator of what property law might have looked like at the time of the Pacific Railway Acts is the First Restatement of Property, published in 1936 with the express goal of presenting “an orderly statement of the general common law of the United States.” Restatement (First) of Property intro. (1936). The Restatement does not prescribe specific requirements that must be satisfied for an implied easement by necessity—other than the original unity of title—but rather factors to consider. Among these are the consideration given, the extent of necessity, any reciprocal benefits, and the manner in which the land was used prior to the conveyance. Again, in considering all of these, the proper context is the territorial United States in 1862, and a gift from the United States to a corporation created by the United States. All factors suggest that some type of access to the retained public lands is appropriate. Moreover, the Wyoming Supreme Court has stated that implied easements are “an attempt to infer the intention of the parties to a conveyance of land,” recognizing that intent is not always explicit. Corbett v. Whitney, 603 P.2d 1291, 1293 (Wyo. 1979). Of course, in this case, the only intent that matters, and that must be inferred, is the intent of Congress in enacting legislation to promote access to the public domain.
Why does this matter? As an initial matter, the American West of 2022 is radically different than that of the late 1970s. Together, the population of the eight states in the Intermountain West, where most of our public lands and railroad grant lands are located, has more than doubled since 1980. The demands on the public lands have increased even more, as recreational use has outpaced even this significant growth. While a changed landscape is not always legitimate justification for changing the law, it is absolutely a justification for correcting past mistakes.
And this is a mistake with the potential to yield an ongoing harm. Strictly reading Leo Sheep to preclude any kind of public access to landlocked federal lands has at least two implications for an effective circular economy in the rural West. First, and most obvious, eliminating the anticipated access rights to the checkerboard or other similarly situated federal lands effectively removes those lands and their resources from public use, with limited or no public benefit. In the present case, the denied resources were aesthetic, recreational, and sustenance. While rapidly growing recreational use of public lands is not without its problems, and one of the greatest challenges for land managers in the twenty-first century will be to provide for recreational uses while protecting the resources used, unnecessarily locking up millions of acres of public lands for the benefit of a very limited population of private parties will only exacerbate those problems. Second, while this might be less obvious to many outside of rural America, for many rural families hunting provides a healthy, affordable, and sustainable food source that might not otherwise be available. For those who choose to eat meat, even for those who can otherwise buy it at the store, hunting can be the most ethical and sustainable source of animal protein.
The Court erred in Leo Sheep when it determined that Congress, in enacting the largest land grants in American history, effectively doubled the size of those grants by neglecting even to imply that it should have access to the retained public lands. Even were it to refuse to correct that error, there is no reason—legal, policy, or otherwise—to use Leo Sheep to create criminal liability for four hunters, or any other recreational users, who are doing nothing but carrying out congressional intent in their use of our public lands.
