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Know the West

5 questions you asked about trespassing through airspace

We recently wrote about four hunters charged with trespassing even though they didn’t touch private land. What the heck?

 

After we wrote a story about four hunters who were recently charged with trespassing on land they never touched in Wyoming, readers had a lot of follow-up questions. In the rural West, parcels of public land and private land are often interspersed like squares on a giant checkerboard. The hunters had used a stepladder to hopscotch over the corners where two of these parcels touched. Moving diagonally across the landscape in this way, often done to access public land, is called corner crossing. By crossing those corners, however, the hunters violated the airspace above the private land, which belongs to the landowner. 

[RELATED:https://www.hcn.org/issues/54.3/north-public-lands-why-four-hunters-in-wyoming-were-charged-with-trespassing-on-land-they-never-touched]

Wait, you can trespass in airspace? Reader responses ranged from “doesn’t make any sense” to “this is wild” and “totally bizarre.” 

We can’t promise absolute clarity — this case is interesting in part because it sits squarely in a legal gray area — but we can offer a little more context. Here’s some additional information to help you wrap your mind around the corner-crossing dispute and better understand the argument that the hunters infringed on airspace above private land.    

Rodeo queens from around the West visiting Cheyenne, Wyoming, wave as the U.S. Air Force demonstration team passes overhead during the annual Cheyenne Frontier Days. In rural areas, airspace below 500 feet from the surface is regulated by individual states.
Andy Cross/The Denver Post via Getty Images

How high does this airspace argument go? Are planes trespassing? 

No. Federal Aviation Administration regulations say that, in rural areas, you are free to fly in airspace above 500 feet from the surface.  

But what happens below that? 

Airspace below 500 feet is regulated by the states. Wyoming law says you can fly over land (and water) as long as you aren’t at “such low altitude” that you interfere with what the landowner is doing on their land, or in a fashion that’s dangerous to people or property. Landing without consent isn’t legal unless it’s an emergency, and even then, you’re liable for damages. 

What’s a “low altitude?” 

Unfortunately for the sake of this discussion, Wyoming law doesn’t give a specific elevation. 

Has the U.S. Supreme Court weighed in on landowners and their airspace?

Yes, but in reference to military planes and chickens, not hunters and stepladders. United States v. Causby is held up by property rights groups as giving landowners “exclusive” control of airspace above their property. The dispute stemmed from a chicken farm near an airport runway. The opinion reads, “The landowner owns at least as much of the space above the ground as the(y) can occupy or use in connection with the land.” However, as our story details, federal law — courtesy of the Unlawful Enclosures Act of 1885 — prohibits people from preventing free passage through public lands. There’s a lot more at play here than just United States v. Causby

What about traveling through water surrounded by private property? Is that trespassing too? 

Nope. River travel is treated differently. In Wyoming, you can float through private property as long as you don’t touch the bottom. That’s because the streambed is the property of the landowner — so stay in your boat! 

As Christine Peterson wrote in Outdoor Life, “Exactly why that isn’t an issue in airspace is unclear, which is where the gray area becomes even grayer.” And access varies across the West: In Montana, for example, stream access law is less prohibitive and allows people to recreate up to the high-water mark.  

The airspace argument is just one piece of the puzzle when it comes to corner crossing. We’ll keep you updated on any newsworthy developments in the Wyoming case.

Kylie Mohr is an editorial intern for High Country News writing from Montana. Email her at [email protected] or submit a letter to the editor. See our letters to the editor policy.