Everyman’s Right

In many European countries, particularly Northern and Eastern Europe, there is a modern culture and deep history of rambling around the countryside in uninhabited or pastoral lands, regardless of the ownership status of the land—whether privately or publicly held. This ability to freely roam and travel comes with an implied responsibility for the user; wanderers have an ethic to keep—to act courteously, to not disturb the land-owner, and to refrain from exploiting the land or its resources. The travelers have to leave no trace of their passing through, save for the beaten paths of the various travelways that develop along common routes. This freedom—this right to travel—provided a means for the landless commoners of European society to travel and recreate, and neither were landed classes excluded from such benefits of access. The freedom to travel dates back to antiquity as a right of the masses. It survived medieval feudalism, it endured the changes wrought by the industrial revolution, and it thrives today in modern European societies. Known by various different names in their home countries, the common translation for this freedom is the ‘Everyman’s Right.’ Alternatively known as the ‘right to roam’ or the ‘right of public access to the wilderness,’ the Everyman’s right provides every man (as well as every woman) the right to free movement on lands and waters for leisure or recreation.

The European land model of access (or sometimes in-access) developed based on feudalism and the lands known as the commons. In the feudal system, feudal peasants—i.e., the commoners—had property rights to small plots of land only when they were actively being cultivated. Once the crops had been harvested, the land reverted to being part of the commons. In general, the commons were lands that were commonly held by the people, and could thus be exploited by anyone for subsistence or for economic gain. Commoners could graze livestock or harvest plant resources from such common land within established feudal limits, just as well they could freely travel and recreate on such land. However, starting in England in the 15th century, manorial lords sought to increase their harvest of crops and thus began a practice of enclosure, whereby common lands were enclosed by hedgerows (primitive-day fencing) as a means of keeping the common benefits to themselves permanently. The act of enclosure removed the commoners’ access to benefit from the land resources economically, as well as creating a physical barrier for public access. Land enclosure progressed steadily in England until the late 1800’s when the start of the industrial revolution provided a momentum-boost for enclosure; just like the mindset of the industrial revolution, latter-day enclosure was commenced to create greater agricultural efficiency in production. The practice of enclosure eventually spread to continental Europe as well, and by the end of the industrial revolution, most enclosure on the continent—particularly Germany, France, and Denmark—was complete. The commoners of Europe found themselves displaced from the rural landscape and largely forced to migrate to large cities to work in the centers of industry. Though enclosure forced the end of commoners being able to benefit economically from common land, the practice of traveling through common land was retained as it was historically as a right to free movement. In modern Europe today, since the rise of the leisure class has given ample recreation time to the masses, the right to roam underpins the concept of using privately held lands for personal recreation. Though historically a de facto right, the Everyman’s right has only recently been formally legalized as a wave of European countries codified this practice into protected law, starting with the Nordic countries in the 1950’s and more recently with countries in the United Kingdom in the 1990’s and 2000’s.

I have never been to Europe. I have never gotten to practice the Everyman’s Right as it is the culture on that continent. Instead, I live in America where a different land access model developed. Unlike Europe, where residents lived since antiquity off the commons until the commons were enclosed, most American lands were systematically surveyed, partitioned, and essentially given away for free to private citizenry by a strong federal government all for the sake of rapidly settling this expansive country. And the land seemed inexhaustible in the early days of our nation. The outlook at this time by these Euro-american settlers and their government was that these lands were empty and owned by no one, free for the taking for whoever could claim and settle them (never mind the cruel fate of history where indigenous peoples were forced from their ancestral lands, often violently). Private property ownership was a draw for those European immigrants, displaced by the land reforms in the industrial revolution, who wanted land of their own and could find it plentifully in this country. And unlike Europe, where the commoner’s right to travel across land was respected, private property in America developed with the right—indeed the expectation—to exclude others from accessing their privately held lands.

It was not until some visionary leaders around the turn of the 20th century decided that America should hold back some of its lands from settlement to instead be held in the public trust for the good of the people. The influential works of these leaders included the environmental prophecy of John Muir, the scientific land management principles of Gifford Pinchot, and the political resolve of Teddy Roosevelt. John Muir, perhaps America’s greatest wandering vagabond, had a philosophy about land access that reflected his wanderlust-filled Scottish heritage and his first eleven years of life spent in Scotland; Muir’s penchant for free travel would be the underpinnings of his advocacy for recreational travel on wild lands. Political figures like Roosevelt and Pinchot worked to create the Forest Reserve act of 1891, which gave the president sweeping power to set aside vast swaths of public domain lands as forest reserves, and the Antiquities Act of 1906 which granted the president power to preserve public lands deemed as significant archaeological or public resources. These reserved lands would later become our national parks and national forests, the crown jewels of our public land system. As of today, approximately 27.4% of the United States land area is owned by the federal government, primarily administered by four large land management agencies: the Bureau of Land Management, the U.S. Forest Service, the National Park Service, and the U.S. Fish and Wildlife Service; many other agencies also manage smaller parcels of public land. These lands are held in the public trust for the “greatest good for the greatest number for the greatest time (Gifford Pinchot).” When Pinchot uttered those words, however, his intent was for the economic good of the people based on conservative resource extraction. Recreation on public lands as a good in and of itself, and as a governmental priority would not develop in earnest until post-WWII.

 

Federal Land Distribution

Federal Public Lands in America. An astute observer will notice that lands administered by the Bureau of Indian Affairs are shown. Though owned by the federal government, these lands are held in trust for the tribes and leased to individuals in the tribal nations. These lands thus are not universally publicly accessible. Similarly, Department of Defense lands are also shown, which have restricted public access. Lands managed by both agencies constitute a small percentage of all federal lands.

 

As landlord, the federal government makes the laws and regulations pertaining to the use and access of public lands. The vast majority of these lands are open to the public for travel and recreation with few exceptions (see text in the above graphic); the public is free to use and enjoy these public domain lands usually free of charge, or sometimes with a small fee to cover land management costs. As an American proud of the natural heritage of my country and in admiration of the earlier efforts of the heroes to preserve it for the perpetuity of the generations, I look at my nation as a shining example of preserving lands for public use. I am proud at how over a quarter of my country’s area is protected for the good of the people.

But as proud as I am of America’s public land resources and as much as I have enjoyed them first-hand, there is a great and obvious disparity in geography. While more than 27% of America lies in the public domain*, 96% of this land area lies in Alaska and the 11 western states. That means that just four percent of federal lands are shared among the remaining 38 states. This includes states like Connecticut and Iowa where only 0.3% of the state’s land area falls under the purview of the federal government, and thus free public access is limited to those small holdings of land. And, even though the majority of the land in the Western United States is public, not all of it is accessible due to private property rights. Public lands in the west are often interspersed in a matrix of private land ownership, preventing access to some lands in the public domain. Nowhere is this more apparent than in the ‘checkerboard’ lands which resulted from governmental land grants to private corporations in the 1800’s.

 

Who owns the West

There is an obvious geographic disparity when it comes to the distribution of federal public lands.

 

Checkerboard Aerial Forest

The ‘checkerboard’ landscape. It’s not hard to guess which of these square-mile land parcels are publicly owned and which ones are in private hands. Due to trespassing laws on private land, the checkerboard lands, though public, are largely inaccessible.

 

As a Midwesterner, growing up in a landscape of privately-held farm and forest parcels, I am used to a paucity of large expanses of public wildlands. But drawn to where the public lands are, I have spent abundant time exploring our public lands in the western United States. My latest trip in the west, my 463-mile canoe trip down Wyoming, Colorado, and Utah’s Green River, put public land access on the forefront of my mind once again. Though I’ve studied federal land policy quite a bit in college, nothing puts such study directly into practice like trying to plan a long-distance river expedition over a matrix of public and private lands.

Enshrined in the United States Constitution, under Article 1, Section 8, is the Commerce Clause, which establishes the doctrine of Navigable Servitude. The Commerce Clause establishes that the United States Federal Government holds the property rights of all the navigable surface waters in the United States, and Navigable Servitude stipulates that these waters be held in the public domain for the sake of interstate commerce. Later case law—in a 2013 decision by the 4th Circuit Court—determined that paddling is not a federally protected right. Yet, where not specifically prohibited by law, boating is an acceptable action on public waterways. The land underlying the surface of navigable waters, however, does not fall under the purview of the Commerce Clause, and as such is able to be privately owned. Thus, on my Green River expedition, so long as I was paddling on the surface of the river, I was on public property.

The challenge of a long canoe trip, though, is that a paddler can’t spend the entire time canoeing. Eventually you have to land to take care of basic biological needs and to rest. On the Green River, in the very upriver-most sections where the river flows through the Bridger-Teton National Forest (i.e., federally-owned public land), it was easy to paddle the river and always land on public domain lands which were open to recreation. But once the Green left the National Forest, it entered a matrix of publicly and privately owned land, and in those upper reaches there were long stretches of river with no access to public land. Wyoming state law extends private property ownership rights to the land under the river itself (remember, the river itself is federally owned). So every time I stepped my foot out of my canoe, I was technically trespassing!

Fortunately, with me through this challenging mosaic of private land was my ever-heedful friend Jon, who is extraordinarily conscious about not trespassing. Though along this stretch of river we saw few people and even fewer buildings, most of this land was still privately-held rangeland. Whereas I personally had fewer reservations about stopping to rest on an isolated cow pasture, Jon was adamant about not infringing on the property rights of others. Though it was a constant challenge and concern, we were able to find parcels of public domain lands every night to camp on. And thanks to the tone set by Jon’s vigilance, all 24 nights I spent on the river ended up being on some sort of pubic domain land. In these areas, the federal lands fall to ‘shared-use’ management policies, which meant that grazing interests had a right to use the land for economic exploitation just as much as I had a right to use the land for personal recreation; the result was that my campsites were often shared by grazing cattle. Identifying the federal land in the upper stretches of the Green River proved not to be too difficult either; while the majority of the river corridor was flat rangeland, there was the occasional steep, unvegetated butte that always lined up perfectly with the land ownership boundaries. These public lands were of those administered by the Bureau of Land Management, colloquially known as ‘the lands that no one wanted.’ Paddling down the river, it was easy to see why certain land parcels ended up in the public domain.

 

_DSC0495

In the headwaters of the Green River in Wyoming. Take a guess as to what land in the picture belongs in the public domain.

 

On my Green River Expedition, I successfully spent each night camped on federal or state land instead of on private land, which is a small moral victory in terms of doing things legally. However, the view from the ground showed little distinction between public and private lands. Sure, there were a few derelict fences marking boundaries. But cattle grazing occurs on both public and private land, and little to no structural improvements were seen on the private land along the course of most of the river. The type of place the Green River flowed through, even if it was completely private land, would have been such that I would have felt comfortable traveling and camping on such land despite its private ownership status. If the Green was a European river, it absolutely would have been the kind of place where recreational access would have been granted under right to roam laws.

In America, where right to roam laws do not exist, I have had to practice my own right to roam access where public lands are not as plentiful. I try to avoid this whenever possible, but the few occasions I have resorted to this self-granted right have been on biking or hiking trips in the eastern U.S. where sections of private land are expansive and public resources hard to find. Instead of benefiting from a universal right to roam granted by the United States government, I call my practice guerrilla camping, where I bed down for the night hidden away on private land. My knowledgeable and intentional trespass onto private property is not done without its own moral code, however; akin to the ethics codified in the Everyman’s Right, I camp as far away from development as possible, do no damage to the land, and leave no trace of my ever being there. In the few dozen times I have had to resort to guerrilla camping, I have never been caught in the act, and I remain doubtful that the landowner is any wiser to my being there. It is my own first-hand experience that an Everyman’s Right is feasible in America.

 

DSCN1365

Finding public land to camp on in agricultural Illinois is a bit tricky

 

But Americans still have certain attitudes towards private land ownership and its use that is not shared by their European counterparts, particularly where the freedom of passage is concerned. In America, where private property ownership is a near-virtue, we think about possessing the land. We take the libertarian stance that we are free to do as we like to our private property. But we don’t often think about the limitations that are already placed on land ownership; environmental laws and building codes all limit a land-owners freedom to dig a strip-mine or to build a citadel on their land. At its essence, private land ownership is not so much the physical possession of the physical land itself, but a bundle of rights of what one can do on and to the land. For example, private property rights entitles the land-holder to the rights of harvesting plant, animal, and mineral resources found on the land for economic gain within existing legal regulations; likewise the land-holder has the rights to modify the land and to make improvements on the land itself within the bounds of civil building codes. In America, also included in this bundle of property-owners’ rights is the right to exclude others from one’s property. This right sets up a system where trespassing becomes possible and punishable on private lands; this property right to exclude others is often the first right that comes to mind when an American thinks of private property. In European countries, where there is a traditional right to roam, the right to exclude others from property is not a right conveyed by private property ownership.

To the American mind that is accustomed to the notion of private property being the physical space where one can exclude others, the ability to limit the access of others is held sacrosanct. And, it is incredibly easy to distrust others and fear for the worst of what might happen if the right to exclude others from private property is out-legislated like it has in Europe. However, the code of ethics built into the Everyman’s Right legislation should alleviate fears of lawlessness and mass trespass should an Everyman’s Right be passed in America. Everyman’s Right legislation specifies limits to the right of public access. Access to lands and waters are generally only permitted for non-motorized recreational uses such as walking, cycling, and horseback riding. Camping on private land is limited to one night in most places, and most laws specify a certain distance that any recreational activity is to have away from homes, structures, and maintained lawns and gardens. Excessive noise is discouraged and most fires on private property are forbidden. Visitors are in general restricted from harvesting plant and animal resources that are found on the land, and visitors are encouraged to stick to existing pathways while on private property. Lands that can be ecologically damaged or sensitive croplands are also excluded from this right to travel. While the rights and responsibilities codified in these right to roam laws vary according to the specific country, the general theme is to allow public access while limiting infringement upon the property-owner’s rights. Just because the public gains access to your land doesn’t mean they are automatically permitted to start camping in your front yard and harvesting your vegetable garden.

Fortunately there is progress in America as states and localities are gradually making moves towards this more European-style right to roam land ethic. Coastal states like Oregon, California, and Florida have made much, if not all, of their coastal lands and beaches free to public access. States are also passing liability legislation to reduce land-owner liability for injuries sustained by other parties while on private land; such legislation is designed to encourage landowners to open up their land to increased public recreational access. Many non-profit organizations, such as the Land Conservancy, are working with private land owners to grant public access to private lands through conservation easements; such easements are one big step toward allowing limited public access while maintaining the rights of private landholders. As Americans, we cannot rely solely on our legacy of federal public land protection to provide wildland access to all the people in our country. We must continually seek to make free access to land a priority. On the Green River in Wyoming, despite the riparian zone being privately owned, many easements have been granted by private landowners along the river to permit the use of fishing access. It is a good step for ensuring equitable access to our nation’s land and water resources.

I would like to see the day when the United States adopts its own right to roam legislation. I would like to see a future where everyone, regardless of where they live, will have access to travel through our nation’s wild lands. I would like to be able to travel and roam myself and not have to worry about breaking trespassing laws when looking for a place to camp for the night. Until the time comes when America adopts its own right to roam law, we ought to start re-envisioning the greatest good for the greatest number for our privately held lands as well as our public lands.

 

*Additional public lands exist at the state and local government level, which get excluded from this analysis which focuses on federal lands due to various public access differences and due to lack of statistics on other public lands distribution.

 

 

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Posted on December 2, 2018, in Conservation, Environment, Philosophy, Travel, Wilderness and tagged , , , , , , . Bookmark the permalink. Leave a comment.

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