Now we have a better understanding of the dearth of federal public lands in Texas, the historical reasons for this dearth and why, in the future this could be a problem. We can now better explore some of potential policies that could provide the public with greater access to public lands.
The most simple and direct way would be to do what the federal government has already done in Texas, albeit on a limited scale, purchase land on behalf of the public from private citizens. As stated earlier, current federal land holdings in Texas were either purchased from (or donated by) the original owner. Acquisitions could include purchasing the property in fee, purchasing easements across property or a license on property on behalf of the public. This option of course has the benefit of being less controversial than other policies, especially if the acquisition is done through an arms length transaction. The major draw back of this method is obviously the cost involved.
Another option uniquely available to government bodies is condemnation proceedings through eminent domain. The Takings Clause of the 5th Amendment states, “…nor shall private property be taken for public use, without just compensation.” Case law interpreting the “public use” doctrine in the Takings Clause has found that governments have great discretion in the application of this eminent domain power. See the relatively recent Kelo v. City of New London case for evidence of that. It seems pretty clear that condemnation of property that will be held by the federal government and open for public use would be within the powers granted under the Takings Clause, assuming “just compensation” was provided the owner.
Another possible option would be the acquisition of an easement through private property for use as a public hiking area or byway. As suggested earlier, such an easement could be acquired through negotiation or condemnation (or a combination of the two). Private landowners could be provided tax incentives if they allow an easement across their property for use as a public trail. The Calumet Trail in Northern Indiana (picture below) is an example of just such a situation.
An argument could be made that, in the case of ancient trails and byways, an implied easement already exists and has existed back to first possession of the property. An easement by implication would mean that current property owners would have to allow persons to use the trail bisecting their property, just like any other road. The Natchez Trace, a trail originally used by Native Americans roughly spanning Natchez, Mississippi and Nashville, Tennessee would be one example of such a trial. El Camino Real de los Tejas, an old road originally used by Spanish missionaries in Texas and Louisiana might be another example.
The potential flaw in attempting to use implied easements would be that generally such easements require continuous use to be enforceable. Many segments of ancient trails have subsequently been converted to roads and highways. Other segments have fallen into disrepair or have been abandoned. That being said, for segments that are currently used as trails, even unofficially, it could be argued that an implied easement exists perhaps preventing the landowner from objecting to the expansion of the trail or the connection of the trail to a larger system.
Another option, used in other countries, would be to pass laws giving the public certain rights to roam privately held property. Such laws exist in other countries where, historically, land ownership was concentrated in a minority, land owning class of society.
The Nordic countries (Norway, Sweden, Denmark, Iceland and Finland) have a long tradition of giving the public limited access to private lands. Although they vary by country, most allow a person to travel across privately held land for recreational purposes. In Sweden, the concept is called Allemansrätten, meaning “everybody’s right.” It gives persons the right to hike, cycle or ski across private land as long as that land is not within public site of a building or structure and as long as the land is not under cultivation. Cars and driving on private roads is illegal. Persons may camp overnight for one night and may build a limited fire but cannot bring campers. Fishing is generally not allowed except for along the ocean and in certain designated large lakes. Hunting is entirely private and not allowed by the roaming person.
It is important to realize that the entire system places equal emphasis on the responsibilities of the roaming person to not disturb the landscape and to not leave rubbish or anything else behind. Persons generally must not make any loud noises or do anything else that may disturb the peace of the land. “Do not disturb, do not destroy.” is very much the rule.
Perhaps surprisingly from the American perspective, the system works rather well. The Allemansrätten is regulated by the Swedish environmental protection agency. The agency takes complaints from both the roamers and landowners related to the system.
There is a more limited but similar system in place in England and Wales. The Countryside and Rights of Way Act of 2000 granted Jus Spatiendi or a “right to roam.” The law granted such roaming rights over certain uncultivated lands designated as “access areas” and updated and expanded the footpaths and other trails along common land in the countryside. There are extensive footpaths and other trails in England and Wales open to the public. Unlike in Nordic countries, the public are generally prohibited from straying from the path. Landowners may bring trespass actions and sue for damages against persons who deviate from the path or damage the property. Paths are clearly marked and special gates are used along fences to prevent livestock from escaping.
A full right to roam in Texas, although something I would find exciting, is probably not realistic at this time given the areas history and politics. I don’t think that we have the same sense of community and social responsibility in this country for such a system to work. I’m afraid way too many people would duck their responsibilities under such a system and many landowners would be highly resistant. That being said, as our society becomes more urban and fewer and fewer people own or have access to rural land, perhaps political pressure will change. If a right to roam were granted here, I think issues on whether such rights are takings under the Takings Clause may be raised.
I think increased public trails and hiking paths would work great here in Texas. We already have the Lone Star Hiking Trail which is well marked and a great trail. Sadly, it is the only long distance National Recreational Trail in the state. The El Camino Real de los Tejas, mentioned earlier, is currently designated as a National Historic Trail. Much of the historic trail is now Highway 21 in Texas and Highway 6 in Louisiana. Yet there are sections of the old trail that remain. The National Park Service is currently in the process of evaluating the potential of upgrading the trail and possibly providing hikers with an additional option.
One of the best long distance trails in the United States is the Appalachian Trail. Running over 2,000 miles between Maine and Georgia, the trail features a well defined trail, bridges, lodges and services throughout the route. It even has its own train station on the MTA’s Metro North Harlem Line commuter rail north of New York City! The Appalachian Trail also has many trail towns or towns and villages along the trail that cater to hikers and see the trail as a source of revenue and part of the region’s culture.