No right to roam in America

Fenced-off land or areas marked private in the US are out of bounds to "roamers", unlike in some European countries, where walking almost wherever you want is not only ordinary but also perfectly acceptable.
Fenced-off land or areas marked private in the US are out of bounds to "roamers", unlike in some European countries, where walking almost wherever you want is not only ordinary but also perfectly acceptable.PHOTO: AGENCE FRANCE-PRESSE

Walking across the 'freest country on earth' is fraught with difficulty when 'No Trespassing' signs abound everywhere

A couple of years ago, I trespassed across America. I'd set out to hike the proposed route of the Keystone XL pipeline, which had been planned to stretch more than 1,000 miles (1,600km) over the Great Plains, from Alberta, Canada, to the Gulf Coast. To walk the pipe's route, roads wouldn't do. I'd have to cross fields, hop barbed-wire fences and camp in cow pastures - much of it on private property.

I'd figured that walking across the heartland would probably be unlawful, unprecedented and a little bit crazy. We Americans, after all, are forbidden from entering most of our private lands. But in some European countries, walking almost wherever you want is not only ordinary but also perfectly acceptable.

In Sweden, they call it "allemansratt". In Finland, it's "jokamiehenoikeus". In Scotland, it's "the right to roam". Germany allows walking through privately owned forests, unused meadows and fallow fields. In 2000, England and Wales passed the Countryside and Rights of Way Act, which gave people access to "mountain, moor, heath or down".

Nordic and Scottish laws are even more generous. The 2003 Scottish Land Reform Act opened up the whole country for a number of pastimes, including mountain biking, horseback riding, canoeing, swimming, sledding, camping and most any activity that does not involve a motorised vehicle, so long as it's carried out "responsibly". In Sweden, landowners may be prohibited from putting up fences for the sole purpose of keeping people out. Walkers in many of these places do not have to pay money, ask for permission or obtain permits.

We're not nearly as welcoming in America. Travel across rural America and you'll spot "No Trespassing" and "Private Property" signs posted on trees and fence posts everywhere. And even where there aren't signs, Americans know they don't have the implicit permission to visit their town's neighbouring woods, fields and coastlines.

Our understanding of property and our unquestioned devotion to the right to exclude may need to be reconsidered in an age when America is increasingly characterised by growing populations, sprawling cities and suburbs, and far less green space.

Long gone are the days when we could, like Henry David Thoreau on the outskirts of his native Concord, Massachusetts, freely saunter "through the woods and over the hills and fields, absolutely free from all worldly engagements".

Might we be better off if we could, like a Scot or a Swede, legally amble over our rolling fields and through our shady woods, rather than have to walk alongside unscenic, noisy and dangerous roads?

The organisation Smart Growth America reported that from 2003 to 2012, more than 47,000 pedestrians were killed and an estimated 676,000 were injured walking along roads. Our lack of safe and peaceful walking places may also contribute to the nation's status as one of the more sedentary countries in the world. According to a 2012 study by The Lancet, more than 40 per cent of Americans don't get the recommended amount of exercise per week.

If we want to create more safe and scenic walking spaces, we should look to Europe's roaming laws for ideas on opening up our countryside. But would a European "right to roam" law work in the US?

Drake University Law School professor Jerry Anderson says emulating Britain's right-to-roam laws would be difficult because of the takings clause of our Fifth Amendment, which declares that private property cannot "be taken for public use, without just compensation".

"It's not impossible," Prof Anderson said. "You would have to compensate the landowners, and then the question would be, 'How much compensation is a public right of access worth?'"

The amount of compensation is difficult to determine as Britain and other countries with roaming laws don't have anything like our takings clause. In Britain, landowners were not compensated when their exclusionary rights were compromised by roaming laws. Laws like those in England, Wales and Scotland would probably be declared unconstitutional here.

America, though, started off with an expansive set of roaming rights and traditions. Visiting scholar Brian Sawers at Emory University School of Law says the right to roam - specifically the right to hunt on private, unenclosed land - was cherished by early Americans because it distinguished them from the English, whose aristocracy held exclusive hunting rights and owned the great majority of the country.

The right to roam "was something we had and lost", he said.

Roaming rights began to erode in the late 19th century, according to Mr Sawers. In the South, states passed trespassing laws for racial reasons, seeking to keep blacks from hunting and fishing so as to starve them into submission. Elsewhere, wealthy landowners of the Gilded Era became concerned with game populations, and trespassing and hunting laws were passed to restrict immigrants, he said.

In 1922, the Supreme Court in McKee v Gratz ruled that in areas where there is a "common understanding", the public may be permitted to hunt, fish and travel unenclosed land. However, this right is revoked the second the landowner posts a "No Trespassing" sign, according to Prof Anderson. This is referred to as a landowner's "right to exclude", which, over the years, has grown only more powerful and absolute in a series of Supreme Court decisions.

But our understanding of property and our unquestioned devotion to the right to exclude may need to be reconsidered in an age when America is increasingly characterised by growing populations, sprawling cities and suburbs, and far less green space.

According to the Department of Agriculture, from 1982 to 2007, 41 million acres (16.6 million ha) of American forest and farmland were developed, roughly the size of Wisconsin. A report by the Forest Service predicts that the urban and developed area in the country will increase between 41 per cent and 77 per cent by 2060, which means that as many as 69 million acres of additional farm, range and forest land could be developed, about the size of Colorado.

While by my count about 28 per cent of the US is publicly owned and thus potentially good roaming land (in the form of national parks, national forests, Bureau of Land Management property, as well as state parks and recreation areas), much of this land is inaccessible to people longing for a morning stroll from their front door. By my count, the five states with the highest percentages of land owned by the state and federal government - Nevada, Utah, Alaska, Idaho and Oregon - have more than half of the public land in the nation, but only about 2 per cent of the population.

The far more densely populated states on the East Coast - say the original 13 colonies plus the District of Columbia - have about 30 per cent of the nation's population but only a tiny percentage of its public land. And several Midwestern states are almost entirely owned by private landowners. About 1 per cent of Kansas and Iowa, for instance, is owned by the state and federal government. Even if a national right to roam law is unlikely, there are ways that state governments can create better green and coastal walking spaces now.

The Surfrider Foundation, a non-profit organisation that advocates better beach access, reports that several states, including Maine, Massachusetts and Virginia, have favoured the interests of beachfront property owners by limiting public access to shorelines. Hawaii and Oregon, on the other hand, have granted generous public access to their coasts.

Some landowners might bristle at the thought of walkers invading their privacy. But even right to roam laws are not free-for-alls for walkers. In Sweden, walkers are required to stay at least 65 yards (about 60m) from homes and could be sentenced to as many as four years in jail for destroying property. Scotland's right to roam does not give a right to hunt, shoot or fish.

These laws are often friendly to landowners because, under many circumstances, landowners are given immunity from suit if the walker has an accident resulting from natural features of the landscape on the landowner's property. In the US, landowners can be held responsible if someone gets hurt on their property. Our neighbours' "No Trespassing" signs haven't all been posted to serve as unfriendly messages. Often, they're legal suits of armour.

As popular as a right to roam might be in America, there has never been a mainstream conversation about one. There are a few advocates in law journals, but none have made a splash outside of their field. It's more or less off the radar of America's leading walking organisation, America Walks, a non-profit that works for better walking communities.

Spokesman Ian Thomas says his organisation is "exploring this issue and plans to develop an official stance in the near future".

On my hike, I walked over Montana grasslands, through South Dakota canyons and across Nebraskan cornfields. I watched Kansas sunsets and Oklahoma sunrises and camped on soft beds of Texas pine needles. I saw my country the way a Scot or a Swede might see his - so peaceful and pretty I often felt like I was deep in a national park.

While the Bundy family and radical ranchers out west talk of seizing public land for themselves, we should be having the opposite conversation - about opening up the country for everyone. Something as innocent and wholesome as a walk in the woods shouldn't be considered illegal or intrusive. Walking across the so-called freest country on earth should be every person's right.

NEW YORK TIMES

  • Ken Ilgunas is a journalist and the author of Trespassing Across America.
A version of this article appeared in the print edition of The Sunday Times on May 01, 2016, with the headline 'No right to roam in America'. Print Edition | Subscribe