This Is Our Country. Let’s Walk It.

Rights of access to the outdoors are a big deal. To deny access to the outdoors could exclude sections of society from natural heritage and open air recreation, together with all the (difficult to measure) benefits that flow from that. To allow unfettered access can lead to conflicts between an access taker and landowners, land managers or other access takers. Different legal systems approach this balancing act in different ways. This has been analysed, from a North American perspective, in a recent New York Times piece by Ken Ilgunas.

This Opinion – and a related book – is based on the author’s trek along the route of a proposed pipeline. That allowed Ilgunas to compare the various approaches in Canada and the USA, but Ken did not stop there. He sought guidance from other access regimes, particularly from Scandinavian and UK jurisdictions, to counterbalance the rules he encountered that might be characterised as unfriendly towards access takers.

As readers of this blog will know (see my posts on disputes between access takers, camping, charging for access to a park , a road closure by police after a fitba match, the implications access (and other) laws might have for the reintroduction of wolves, and an older post about a Scottish Government consultation to tweak the law) Scotland has a statutory framework for such access rights. Those rights to cross and to be on land for certain activities overlay long established public rights of way and loose traditions of customary access. I had a very interesting Skype conversation with Ken in the lead-up to his article to try my best to explain this and it is great to see Scotland being held out as something of an exemplar here. (This follows on from the work of Professor John Lovett of Loyola University, New Orleans, who was kind enough to direct Ken in my direction.) Naturally, Ken’s analysis is tailored for an American audience, but it is worth reading by those in the old country and beyond. Without further ado, I will curtail my own blog post and encourage you to read the article.

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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One Response to This Is Our Country. Let’s Walk It.

  1. Matthew Hoffman says:

    Thanks for directing attention to that piece in the Times. As an American outdoors-enthusiast based in Norway, I am very interested in the question of access. I would like to think that the situation in the US might be somewhat less dismal than it appears.

    In the particular US state that I come from — Vermont — the default situation is actually that there is a public right of non-motorized recreational access on undeveloped private land unless the owner takes certain steps to block this. In recent years, an increasing number of land owners are taking these steps, which is a point of concern.

    I think that the barriers to increasing public access are more cultural than legal. While Americans like to talk a lot about “takings,” this idea has fortunately not proven to be an effective tool for shielding private property from legitimate public interest. Private land owner rights are limited by planning and zoning, public accommodations law, environmental legislation, and the public trust doctrine, inter alia, all without need for compensation.

    Property has a lot to do with people’s expectations, and the degree to which other people accept these expectations as reasonable. Or maybe I should say that property in practice amounts to shared expectations. Thus I think the biggest task in establishing greater rights of access in the US is a cultural one: shifting people’s expectations regarding public access on private land. The more it is allowed and the more people like Ken Ilgunas get out there and walk the land, the more it will come to be expected and the more easily it will take on the nature of a right.

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