Document Type

Article

Abstract

This article explores the problem of inadequate access and why owners of private property abutting public lands cannot fence out the public if their sole or primary purpose is to deny access to public land. The reasons why such landowners should not be allowed to put up fences, even on their own land, if the effect is to hinder the public's access to public land are several. First, it is opportunistic and unjustly interferes with citizens' ability to enjoy the interest they hold in public lands. Second, it denies citizens access rights rooted in the common law. Third, and perhaps most compelling, because of general notions of property ownership and the evolving public trust doctrine, the right to exclude the public to the extent of access to public lands never inhered in the adjoining private land title.

This article begins with a general discussion of what it means to own land privately in our property regime. The second section discusses the United States' landholdings in the country, the differences in ownership rights from that of private ownership, and the obligations imposed upon the federal government as sovereign and as proprietor of public lands. After that discussion, the article examines the historical causes for the lack of access, along with the federal government's responses. This leads into a discussion of some of the legal theories available for assuring access. Finally, the argument presented is that, notwithstanding the Supreme Court's attempt to close the door to implied easements in favor of the government, the expanded concept of public trust may still provide a path through.