Weekly Posting of the Conservative Cow Doctor


Let Me Explain

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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