The Legal Landscape of America's Landlocked Property.

• Author: Sheridan, John W.

TABLE OF CONTENTS INTRODUCTION I. THE WESTERN CHECKERBOARD PROBLEM A. The Union Pacific Act of 1862 and the Homestead Act of 1862 B. Unintended Consequences of the Pacific Railroad Acts C. The Economic Opportunity Cost of the Western Checkerboard Problem II. LEGAL SOLUTIONS TO THE WESTERN CHECKERBOARD PROBLEM A. Common Law Principles Fail to Address the Western Checkerboard Problem 1. Implied Easement Arising From Necessity 2. Nuisance & Trespass B. The Feasibility of Condemnation and Eminent Domain Actions 1. Is There Political Will to Condemn Easements to Access Public Land? 2. Economic Realities: The BLM Budget Constraint 3. Past Condemnation Actions C. Private Land Acquisition and Negotiated Sales, and Land Exchanges III. POTENTIAL CONGRESSIONAL SOLUTIONS A. Reauthorizing the Land and Water Conservation Fund Will Facilitate Access to Landlocked Public Acreage B. Could the Public Trust Doctrine and a Transfer of Public Lands to the States Resolve the Western Checkerboard Problem? CONCLUSION INTRODUCTION

Analogizing to the pleasures of reading a good book, Theodore Roosevelt wrote that "[l]ove of outdoor life, love of simple and hardy pastimes, can be gratified by men and women who do not possess large means, and who work hard." (1) Unimpeded, low-cost access to America's public land facilitates such recreation. Like public libraries, wilderness areas, national parks, and wildlife refuges provide spaces for people to explore and learn from a rich archive of the natural world. Outdoor enthusiasts of every type enjoy recreation on these public lands. America's impressive expanse of public land remains a unique venue for multiple generations to enjoy a Thoreauvian saunter (2) with minimal financial impediment.

Four federal agencies administer public lands for conservation and recreation. The two largest, by acreage managed, are the Bureau of Land Management (BLM) and the United States Forest Service (USFS). The BLM alone manages nearly 250 million acres of public lands for "multiple use[s] and sustained yield," primarily in thirteen western states. (3) The USFS, which has a similar multiple-use mandate, manages 192.9 million acres, most of which are designated as national forests. (4) Because of the historical choice to designate public land in a checkerboard pattern across the western United States, however, millions of these acres are inaccessible to the public. (5) Certain public lands and their accompanying hiking, camping, fishing, and hunting opportunities are circumscribed behind private property. Even when the only place public lands physically adjoin is at a corner of the checkerboard, passing from one public tract to another is typically illegal because of private property rights. (6)

Today, the patchwork of private-public land ownership and competing land use interests among conservationists, recreationists, corporations and families complicates and at times inhibits access to public lands. Many advocates believe a permanent reauthorization of the Land and Water Conservation Fund (LWCF), with dedicated annual funding, is the surest way of securing public land access. (7) Others suggest states should administer public lands and exercise discretion over their management, sale, and recreational use. (8) Meanwhile, some private actors with intent towards conservation have purchased specific private tracts to open up ingress routes to public land, while others have swapped land with the federal government, thereby creating such access. (9) However, many more landowners have simply refused to sell private lands or easements to the BLM, perpetuating a situation where public lands remain inaccessible to the public behind private property, a problem hereafter referred to as the "western checkerboard problem."

This Comment examines the variety of legal and political challenges confronting the western checkerboard problem. The first Part offers a historical explanation of the western checkerboard problem and discusses the unintended consequences of the Pacific Railway Acts. The second Part considers a variety of solutions to the western checkerboard problem, including common law causes of action and negotiated land transfers. The third Part focuses on Congressional action and the role the political process can play in improving and ensuring continued access to America's public lands. The Comment concludes with a summary of the legal framework surrounding the western checkerboard problem and a brief policy recommendation.

1. THE WESTERN CHECKERBOARD PROBLEM

   This Part characterizes the scope of the western checkerboard problem. The first Subpart provides historical context around the land allocation and management plans that have resulted in today's access issue on public lands. The second Subpart examines the unintended consequences of the Pacific Railway Acts and considers the economic opportunity costs of landlocked public acreage.

   1. The Union Pacific Act of 1862 and the Homestead Act of 1862

      From outer space, images of the contiguous United States reveal a largely borderless landscape. Except for a few natural landmarks, state boundaries and property lines seem all but impossible to recognize; however, a close examination of satellite images of the American West exposes a peculiar patchwork that cannot be explained by natural forces. One such image of southwest Oregon reveals perfectly square plots of land alternating between deep green hues and barren light browns, suggesting an intentional land use plan. (10) Similar checkerboards are visible across the West from a sufficiently elevated vantage, though even discerning eyes cannot see the extent of the western checkerboard without the aid of property lines drawn on a map. The checkerboard patterns found throughout the West are a visible reminder of a century-old land grant scheme intended to spur westward expansion. (11)

      Any casual student of American history could offer an explanation for the western checkerboard. (12) Officially, the patchwork owes its origins to the Union Pacific Act of 1862 and its five subsequent amendments--collectively referred to as the "Pacific Railway Acts." The discovery of gold in California in 1848 (13) and the desire to expand west (14) created a national fervor over a transcontinental railroad. Alongside the Homestead Act of 1862, (15) the Pacific Railway Acts reflect Congress's intent to assure the security and economic growth of the United States. (16)

      On July 1, 1862, President Lincoln signed the first of the Pacific Railway Acts into law, authorizing federal support for the Union and Central Pacific Railroad Companies to construct a transcontinental railroad. (17) The Union Pacific Act and its later amendments granted contiguous rights of way within (200) feet on either side of newly laid track, as well as alternating one square-mile plots of land on either side of the tracks for every ten to forty miles. (18) The railroad companies also acquired rights to timber, where timber was present, though mineral rights associated with the land were excepted. (19) Consistent with prior articulations of Manifest Destiny, (20) the Act expressly "extinguishe[d] as rapidly as may be the Indian titles to all lands falling under operation of this act...." (21) All told, by 1943, the U.S. General Land Office reported transfers of over 131 million acres to railroads to fulfill the objectives of westward expansion. (22)

   2. Unintended Consequences of the Pacific Railroad Acts

      Legislative history suggests Congress believed that granting lands to the railroads would "attach value to the remainder" of property that was otherwise unreachable before the railway. (23) Congress hoped that the railroad would drive private enterprise and facilitate economic growth. (24) Proximity to the railroad increased land values as Congress hoped, but it also rendered the land too expensive for those moving west. (25) The unsold land was either made available to the public through the Homestead Act of 1862 or retained by the federal government. (26) The land retained by the federal government became public property that is now administered by the BLM or USFS. Because of the alternating checkerboard pattern of public and private land, however, many parcels of public land became landlocked behind private property and are therefore inaccessible.

      Congress never foresaw the type of access problems that have resulted from the Pacific Railway Acts, as the Supreme Court has pointed out. (27) Parcels are landlocked when they cannot be accessed directly from a public road, or through adjoining public land accessible from a public road. There are 492,000 acres of landlocked public land in California alone, while Montana has 1.52 million acres and Nevada has 2.05 million. (28) In total, over 9.52 million acres of federal public land are landlocked (29) because of the Pacific Railway Acts and the checkerboard scheme.

      To gain access to these parcels, an interested hunter or hiker need only ask for permission from the private landowner whose property restricts access to the public property; however, property ownership patterns have made it increasingly unlikely for private landowners to grant access for free. (30) Because 72 percent of western hunters rely on access to public lands, the western checkerboard problem disproportionately affects the ability to hunt; (31) however, all types of outdoor recreation on lands hidden within America's western checkerboard are stymied by this lack of access.

   3. The Economic Opportunity Cost of the Western Checkerboard Problem

      For outdoor enthusiasts, these inaccessible lands represent foregone opportunities for recreation, including hiking, hunting, fishing, and camping. The economic value of ensuring access to public land for these activities is tremendous. In 2013 alone, consumers spent over $646 billion on outdoor recreation, which directly supported 6.1 million jobs. (32) This considerable segment of the outdoor economy...