The Right to Roam: A New Land Ethic for Montana

Space to roam in the backcountry of the Crazy Mountains, north of Big Timber, Mont. Photo by Brent Zundel

By Brent Zundel
For the MSU Exponent
October 11, 2012

Montana has a strong tradition of public lands access. Our lands have united generations of hunters, anglers and hikers, but they’ve also bitterly divided private landowners, out-of-staters and just about everyone in between at some point.

Montana Fish, Wildlife and Parks (FWP) currently estimates that private landowners and businesses own a jaw-dropping two-thirds of the entire state. One need only try to find a patch of public land to hunt deer or elk in the Crazy Mountains or cast a fly in the Ruby or Shields Rivers to feel the stinging immediacy of this dilemma. For a state so firmly rooted in wild places, accessing those wild places can be an exercise in maddening frustration.

Our state government should look to a common philosophy in Scandinavia and other parts of Europe for a potential solution. Swedes call it allemansrätten, loosely translating to “every man’s rights.” The translations of other countries’ terms give us a better idea of the subject: “freedom to roam,” “right of public access” and the pithy “right to roam.”

In its purest form, the right to roam asserts that everyone has a right to access nature — even when that nature is privately owned, within reasonable restrictions.

Sweden provides a perfect example, emphasizing the fundamental right that everyone has to access nature, while simultaneously underscoring a responsibility to look after the countryside. Swedes can take part in almost any non-motorized activity, including walking, cycling, skiing and camping on private lands provided they follow a few basic courtesies like not tramping across fields in cultivation and camping out of sight of homes and gardens.

Though Scandinavian countries like Finland and Norway uphold similar rights, many other European nations like Estonia and Austria offer their own versions. After a hard-fought battle, the UK passed a limited right to roam in 2000, which expanded public access but did not offer landowners any financial compensation.

It’s important to note that most of these countries require landowner permission for hunting and fishing, although picking wild berries, flowers, or mushrooms is within a wanderer’s rights.

Montana’s history of public access

At the offset, this is likely to start many Montanans foaming at the mouth about the perceived evils of “socialism,” but a little thoughtful consideration should be able to convince even the most skeptical landowner of the merits of this concept.

Many of us might not be aware that much of our state’s history could peacefully coexist with such a land-use ethic. Between 1965 and 1999, only big game hunters had to obtain permission to hunt on private fields that were posted against trespassing or hunting. For example, upland bird hunters could simply walk onto a private field and hunt if the owners had not put up a “Keep Out” sign or orange paint.

FWP employees indicated that 30 years ago, Montana’s culture was different, and trespassing wasn’t conceptualized the same way it is today.

Currently, FWP manages cooperative programs between hunters and private landowners, like the Block Management and Open Fields for Game Bird Hunters programs.

Our stream access laws are also arguably the strongest in the nation, providing access to any navigable body of water up to the high-water mark, in addition to a slew of other benefits, like public access at state or county bridges.

An American approach

Scandinavian countries developed this ancestral right over the course of centuries, with a common practice crystallizing into a recognized right relatively recently. The American land ethic, in contrast, has been hard won: Alexis de Tocqueville, a French commentator on American democracy, contended that early Americans lacked any sense of conservation.

This reality suggests that a uniquely American approach to roaming might be most effective. In order to incentivize participation in such a program, tax breaks could be offered to landowners in exchange for allowing the public access to certain lands. An easy exit could be provided to encourage landowners to try out the program: If they don’t like it, they can withdraw and simply forfeit their tax break.

Sean Gerrity, President of the American Prairie Reserve, further argues that land trusts should “more aggressively advocate for a public access component when putting lands under new conservation easements.”

Currently, many conservation easements, in which the landowner agrees not to construct roads or buildings or to farm the soil, give the owner a tax break. The tax break is paid for by all of us, but the land is often still fenced in and posted, charges Gerrity. If we’re going to pay for a tax break, the public should also have an option to access the land.

The importance of wild places

More than ever, Americans need access to wild places. Peer-reviewed scientific studies have linked physical outdoor activities to increases in children’s test scores, lower rates of attention and mood disorders, and decreased obesity rates.

Access to nature and time spent outside has demonstrable and sometimes quantifiable benefits, but public access has an intrinsic value that is worth protecting on a philosophic basis. An oft-overlooked boon to this proposal is that it would allow Native Americans access to some of their sacred lands that have been locked up by private owners.

While this proposal would admittedly take significant effort to get off the ground, it’s something the upcoming Montana Legislature should consider this spring. The dedication of a group of active citizens could dramatically impact such a proposal.

Furthermore, it’s time for Montanans to re-conceptualize the importance of public access to nature. Our state’s history is tied to the land, and it’s time that we actively work to provide access to wild places for future generations.