October 2018
In a recent High Country News essay (14 August 2018 ), and in much more detail in his book, "This Land is our Land" (Plume, 2018), Ken Ilgunas advocates for national "right to roam" legislation that would allow public access to almost all private lands. He suggests as a model the Scottish Outdoor Access Code, which doesn't take away all a landowner's control over what can occur on the private property, but severely limits it. Ilgunas feels some such action is necessary because we in the United States have lost our "right to roam," and we need to reestablish it.
Although part of the sub-title of his book promises information on how to "take back" the right to roam, it doesn't seem like Ilgunas is really serious. According to him, the necessary changes in law - and, in some cases, changes in the establishing federal and state constitutions - could only come about if Americans became "more like Europeans" and developed "democratic magnificence," such as he feels is found in Scotland, Sweden, Norway, and Finland. I doubt he'd find many Americans of any political or social persuasion (including the most rabid right-to-roamers) who would accept his assertion that we are failing as a democratically magnificent country. But, setting that aside, he's right; what he proposes would be impossible in the United States. I, for one, am glad.
It's true that, by tradition and by some law, trespass on private land was viewed pretty liberally in early European America. It's also true that a little bit has changed in the United States in the last 250 years. I suspect that in those early years, the average landowner might have trespassers once a week, once a month, once a year, or never. Trespass probably had little effect on the landowner or the land. When Henry David Thoreau was roaming around Boston in the 1840s, there were less than 400,000 residents. Today, the same area hosts four million. John Muir passed through four states on his 1,000-mile walk to the Gulf of Mexico in 1867. After the big city of Louisville, Kentucky, he went in or near only five towns with over 300 residents. Those five communities now have 500,000 people. No doubt, both Thoreau and Muir met occasional fellow rovers; they would certainly meet a lot more, today.
It's likely that neither Thoreau or Muir saw many fences or "no trespassing" signs. They also didn't see automobiles, motorbikes, off-road vehicles, snow mobiles, rifles that could propel bullets up to three miles (if they didn't hit something, first), chain saws, booby-trapped marijuana plantations, aluminum cans, plastic bottles, discarded toilet paper, or used syringes left over by partakers of drugs. Freedom to trespass today would bear absolutely no resemblance to what existed in Thoreau's or Muir's days.
The United States from the times of Jamestown and Plymouth Rock have been all about private property. In many of the original states, ownership of property was necessary to vote and participate actively in community affairs. The move to privatization in the days before the Louisiana Purchase was so complete that, later, when national forests and state parks were desired in places like New York or New Hampshire, the governments had to buy the land back from private owners. On an individual basis, owning property has been a major feature of the "American Dream" - perhaps to have a home that was really your own, or to own a bit of vacation property - a place where, within the limits of the law, you can do whatever pleases you. Few Americans who own property, or aspire to own property, would be enthusiastic about a "right to roam" law that made their "rights" secondary to those of the general public.
But, beyond public and institutional resistance, do we really need a legislated "right to roam" in the United States? In the Western states, every one of them except Montana and Hawaii are over 40 percent publicly owned. (If you consider just the area west of the Great Plains, even Montana joins the group.) The northern parts of Maine and New Hampshire are mostly privately owned, but historically have always had very liberal policies about public use. The southern New England and middle Atlantic states don't have a lot of public land, but through public and private partnerships have developed many excellent roaming opportunities. In the Midwest and Great Plains, there are thousands of miles of county and local roads that allow a person to walk for days without seeing more than a couple people or motor vehicles, and without having to cross any fence lines. Only in the South, from Texas around to the Carolinas, is there little public land and strong laws against trespass. In short, except perhaps in the South, we Americans can already pretty much roam at will without the need for blanket laws.
One growing problem does need to be addressed: landowner closures of access to areas beyond, effectively denying the right to use public property. Federal, state, and many local governments already have the answer: condemnation of just enough of a landowner's rights to guarantee access across the private land. They just have to use the authority. The owner must be paid for the "taking" of his right to prohibit access, but we regularly pay for certain uses of public and private lands. Why should this be different?
In the United States, I think we have a pretty good balance of public lands and private lands, of public needs and private rights. There are those who want to do away with public lands, and those who want to take away private property rights. I hope neither philosophy wins. All our "right to roam" needs is a little tweaking to better serve everybody's desires.
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