Note: Due
to deadlines, this column was submitted for print
publication on January 27th based on the information
I possessed at the time. Proponents for HB235, the
corner crossing bill, did not provide me their legal
reasoning until the morning of January 29th, so I
edited this column on February 3rd so as to include
their information and clarify my opposition to HB235
as recorded on January 30th before the House
Judiciary Committee.
In the legislative process, things are not always as
they appear. Let me explain. For 30 years I have
wondered about the legality of corner-crossing;
whether it is permissible to step diagonally from
one property to another passing through only the
airspace of the adjacent properties. Representative
Ellie Hill introduced a bill addressing this and she
asked if I would co-sponsor her bill hoping my doing
so might pull a few votes. I agreed, intending not
so much to sway votes, but more to draw attention to
a much bigger issue. Thus HB235, an “act revising
laws related to trespass,” was heard before the
House Judiciary Committee on January 21st.
What should have been a debate focused on property
rights and the constitution, quickly morphed into an
emotional argument between sportsmen and landowners.
Thirty minutes into the hearing, all agreed the
corner-crossing question was a legal gray area which
had never been decided in Montana, Wyoming or Idaho.
On January 23rd, we amended the bill to the single
issue of whether property rights extend into the
airspace above the surface. Those who think the
answer is easy simply do not understand the
question. I gave proponents and opponents of HB235,
one week to provide the Judiciary Committee with
data to help make our decision.
Proponents for HB 235 revealed an incident in
Wyoming in 2004 where a hunter corner-crossed a
point using his handheld GPS. He was charged with
trespass and then found not guilty by an Albany
County judge. Unfortunately, the judge ignored the
underlying question and provided no reasons for his
decision.
Further clarifying their position in Tuesday’s legal
memorandum, proponents argued:
1. HB235 was not an unconstitutional taking “when
the state has a legitimate health, safety, welfare
or moral interest.” (Penn Central Transp. Co. v City
of New York, 1978)
2. Decriminalizing an alleged trespass does not
create a nuisance on private property and stepping
over an infinitesimal corner of private land does
not interfere with the use and enjoyment of land.
The opponents of HB235 brought forth three
applicable points:
1. Prior to 1903, common law held property rights
extended from the surface to the periphery of the
universe. Wilbur and Orville Wright made this
problematic, because transcontinental flights would
result in trespass violations across millions of
parcels of land. The Air Commerce Act of 1926
declared the air above the minimum safe altitude of
commercial flight a public highway, thereby lowering
property rights of airspace closer to the surface.
2. In 1925, the Montana Supreme Court determined a
Mr. Sutherland firing a shotgun over Mr. Herrin’s
land represented a trespass simply by the shot
traveling through the airspace above Herrin’s
property.
3. In 1946, the US Supreme Court in US v Causby,
held property rights extend above the surface with
Justice Douglas writing “If the landowner is to have
the full enjoyment of the land, he must have the
exclusive control of the immediate reaches of the
enveloping atmosphere. Otherwise buildings could not
be erected, trees could not be planted, and even
fences could not be run.” Invasions of the airspace
“are in the same category as invasions of the
surface.”
Prior to the committee vote on Wednesday, I
explained the reasons I would be voting “No” on HB
235.
1. Proponents offer a trespass is occurring, but is
of such a small nature it is not a taking and we are
just decriminalizing the act.
2. Opponents argue the trespass is a taking.
3. Montana’s non-partisan Legislative Services Legal
Division offered a review stating HB 235 may
represent a taking.
4. Stepping across a specific corner would require
the precise identification of the point in space.
This is not possible with current GPS technologies
operating on limitations of plus or minus five feet.
5. In interest of full disclosure, I revealed I
would be directly affected by the outcome of HB235
as I own an easement leading to the corner of a
school section. It was in my personal interest to
vote “Yes,” yet I would be voting “No.”
The House Judiciary Committee tabled HB235 by a vote
of 12-8. If I were a politician strictly basing my
decision on the wishes of 170,000 sportsmen over 500
affected landowners, the easy, popular vote was to
pass the bill. I am not a politician and we are not
a democracy. Instead, we are a constitutional
republic where the primary function of government is
to protect the minority from tyranny of the
majority. I yielded to my oath of office to support
the constitution; my core principle. (If you
understand this previous paragraph, you realize why
democracy, mob rule, is inherently dangerous and why
the framers of our Constitution established a
republic.)
The firestorm around HB235 reveals the bigger
issue—Montana landowners and sportsmen are being
used as a pawn in a very dangerous game. They share
the common enemy of a tyrannical federal government
and while they are busy squabbling, both are about
to be squashed. Do you see what is happening in
Washington D.C.?
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