Supreme Court cements access to millions of acres of 'checkerboard' public land

The U.S. Supreme Court declined to review a lower court decision about public lands, cementing public access to millions of acres of federal land in Wyoming, Utah, Colorado, New Mexico, Kansas and Oklahoma.

As Boris Botchev explains in The Regulatory Review, the Tenth Circuit appellate court decision in the case of Iron Bar Holdings v. Cape approves public access to 3.5 million acres of public lands that are "corner-locked" by private property, connecting only at corners where two lots meet. The practice is common across the West, where public, Native American and private lands are often distributed in a checkerboard pattern. 

According to Botchev, "This checkerboard pattern of land ownership originated during the United States’ westward expansion, with Congress first dividing territory in the Land Ordinance of 1785 and later distributing it to settlers through the Preemption Act of 1841 and the Homestead Act. During this period, Congress also subsidized the development of railroads by granting them ownership of every other parcel in a 10-mile-wide strip as they laid tracks westward."

The case stemmed from several incidents in 2020 and 2021 when elk hunters in Wyoming crossed the corner of a private ranch to move across public lands. The ranch filed a lawsuit, but the court determined that the hunters were not in the wrong. "The appeals court held that, so long as members of the public do not 'physically touch' private property, they cannot be denied access to federal public lands."

While the appellate court decision only applies to the six states within its jurisdiction, the decision will likely impact millions of acres of other public lands. According to Botchev, "If these recent shared advocacy efforts by conservationists and environmentalists are viewed in combination with their joint efforts to open up corner-locked lands, they may signal a deeper alignment across a broader range of environmental issues in the years to come."