The game of Checkers is child’s play. But ‘Checkerboarding,’ a western phenomenon that describes the intermingling of private and public land as if on a giant game board, is anything but child’s play. It can be downright confusing and create issues that negatively affect private landowners in the West.
The Checkerboard of the West
Let me explain: The federal government owns more than 600 million acres of land across the country, but a staggering 92% of federal acreage is in the West. In Nevada, 85% of the land is owned by Uncle Sam, as is more than half of Utah (58%), Oregon (53%), and Idaho (51%). If you want to learn more about public lands in the West, check out this ‘primer’ I wrote about the issue in The Land Report.
That federal land became part of a checkerboard pattern with state and private land in the late 1800s when the government awarded land parcels to railroads on every other section along a rail corridor. The grants were designed to incent the companies to build aggressively, and they did, but so did confusion when other sections were rewarded to state and private interests. In many cases, these land awards left federal sections surrounded without any public access points.
These ‘landlocked’ public lands create a huge checkerboard. A Center for Western Priorities report noted that more than 4 million public acres in the Rocky Mountain West lack adequate public access, meaning they can’t be reached by the likes of hikers, campers, hunters, and fishermen. Since 2018, the Theodore Roosevelt Conservation Partnership has identified more than 16 million acres of public land “with no permanent legal means of access in 22 states.” Both organizations make the point that providing access to these public lands would expand the options for those seeking to experience the wonders of the West and also deliver an economic jolt to regional communities.
SPORTSMEN STRUGGLE AMONG DIFFERING ACCESS LAWS
While I love getting out into the great outdoors, providing access to these lands is no simple matter because often that access must run through privately held land that could suffer from the impact of increased visitation. As an example of that, take a look at my column about how the strong rebound in the outdoor recreation in 2021 also created issues such as habitat fragmentation. Increased visitation can also potentially result in a loss of land value, and such trespass violates covenants granted in warranty deeds to the landowner including the right of seisin, and the covenant against encumbrances.
Solving this issue is further complicated by the fact that state laws differ on access. In Wyoming, the notion of a “corner crossing” is at the heart of a lawsuit over access. Cowboy State Daily reported the dispute arose from an incident in 2021 when hunters used a “ladder-like device to cross a fence from one piece of public land to another at a checker-boarded corner with ranch property.”
The hunters were initially cleared of trespassing charges, but the landowner filed a civil lawsuit against the hunters, “claiming they had violated the ranch’s air space.” The case, which will be heard in late June, has since drawn attention from both sides of the dispute, with the Wyoming Stock Growers Association and Backcountry Hunters & Anglers among those filing briefs.
There’s also a legal standoff in South Dakota between a ranch owner and hunters trying to access public lands by way of a “section line.” A story in South Dakota Searchlight explains that a section line is state law that creates “a 66-foot-wide public path … drawn by surveyors in settlement days (that) divide the state into a checkerboard of square-mile sections.”
This unique law in South Dakota permits the public a right of access along all section lines in the state. Consequently, the hunters considered the section line a legal way to access the ‘landlocked’ area and were on their way to the public land when the landowner stopped them and accused them of trespassing. According to the article, the South Dakota Department of Game, Fish, and Parks stated that “private landowners cannot unilaterally close off public land to hunting,” but the case is still headed to court.
LANDOWNERS FIND SOLUTIONS
All of which means that landowners must be creative to connect the squares on the checkerboard. One solution is a land exchange, a process that involves the swapping of federal land for state or private land of similar value. But that’s a complex solution, involving multiple steps. The Land and Water Conservation Fund (LWCF) is a potential source of funding, as it works in partnership with federal, state, and local efforts to protect land in national parks and other public lands. As someone who has worked on numerous land exchange processes in the past, I can thoroughly explain the issues involved. And my past experience working on LWCF issues also can prove helpful.
While the Ranching for Wildlife program in Colorado doesn’t solve the checkerboard issue, it does enable landowners to better manage hunting on their ranches. Here’s how it works: Participating ranchers offer free hunting on their land free of charge to those who get licenses through Colorado Parks and Wildlife. It’s a win-win situation: the hunters are able to go on private land, while the state and the landowner get a helping hand with management of wildlife populations on that land.
Access to ”landlocked” public land is a complicated issue that can impact a ranch investment. That’s why it’s imperative for anyone looking at western ranch property to consult with experts about access issues that might impact any investment. At Mirr Ranch Group, we have the know-how to identify public access issues with a property up front. In addition, we have the experience to surface any ‘hidden’ issues through our due diligence to ensure your investment isn’t negatively impacted by public access.