The obstacles to enacting English land activism measures in the U.S., and a potential path forward in American state courts
Satellite Image of Montana, U.S.A.[1]
In England, a trend with roots back to the early 1900s is suddenly in vogue again – not fashion, not music, but mass trespass. The return of this activism, reminiscent of the 1932 Kinder Mass Trespass by more than 400 ‘ramblers’ on land that later became the Peak District National Park, is the product of efforts by right-to-roam protesters.[2] The right-to-roam is largely foreign to American conceptions of landowner privilege and property rights. In England, however, this right is enshrined by the 2000 Countryside Rights of Way (CRoW) Act, which guarantees legal access to walk over landscapes such as mountains, moors, downlands, and coastlines.[3] In the 20 plus years since its enactment, England has legally protected 140,000 miles of country paths for public use.[4]
While this breadth of land access is impressive for those more accustomed to the frequent no trespass signs and car culture of the U.S., activists in England have pointed out that this still leaves 92% of the island inaccessible.[5] Parts of the country that do recognize the right-to-roam are patchy and are largely concentrated in the north, leaving huge swaths of the population without access to open countryside.[6] This inequality became increasingly apparent during the pandemic, when more people began to realize how severely limited their access to open land and water was notwithstanding the progress made under the CRoW Act.[7] In early 2023, when the right to camp was declared illegal in Dartmoor, a treasured national park, thousands of protesters marched to the privately-owned estate that had sued for the right to remove campers.[8] The Labour party has since pledged to introduce a right-to-roam law in England, inspired by similar legislation in Scotland, if elected in the next cycle.[9]
Although the right-to-roam may seem antithetical to modern American values, historically, Americans did enjoy access to others’ private land. Throughout early American history, the right to hunt on private, unenclosed land was prized, especially in relation to England, where aristocracy enjoyed exclusive access to much of the countryside.[10] However, as with many laws and policies Americans continue to grapple with today, the shift stems from a history of exclusion. The end of slavery and adoption of Jim Crow laws led some states to grow ever stricter with their private property laws, ensuring that a new generation of black citizens would be restricted from previously open land and instead kept on public roads.[11] While mass trespass protests were shaping land use in the U.K in the 1930s, the U.S. Supreme Court was expanding landowners’ power and “right to exclude”.[12]
In the U.S. today, the right-to-roam is uneven and faces growing public scrutiny. In Puerto Rico, where public access to beaches is guaranteed by law, everyone from politically connected landowners to controversial YouTube star Logan Paul relentlessly attempted to block access to shared public coastline.[13] Two billionaire brothers are now the second-biggest private landowners in Montana, notorious for their aggressive acquisitions and outsized political influence in attempting to limit public land access.[14] Even in Vermont, which boasts some of the most generous right-to-roam laws in the U.S., landowners have significant discretion to manage access to their private land; they can simply post a sign to bar access.[15]
Activists and scholars in the U.S. have previously laid out some of the uniquely challenging aspects of integrating a European-style right-to-roam in the U.S. Most notably, takings clause of the Fifth Amendment, for example, asserts that private property cannot be taken for public use without just compensation.[16] On this basis, American courts have limited public access to private property for decades.
The path to expanded public land access in the U.S. may lie in recent judicial decisions favorable to climate action. Land use, private property, and the right-to-roam are intimately tied to the environment, and international activists argue that environmental stewardship and physical and mental health are key outcomes of access to the outdoors.[17] In a landmark climate case decided in August 2023, a state court ordered that young Montanans have a constitutional right to a “clean and healthful environment” and that Montana had violated this right by promoting fossil fuels.[18] For the first time, young Americans have been granted a right to a safe and stable climate in the future.[19] While British-style right-to-roam activism might face significant obstacles in the U.S., a path through the courts might now be possible. Establishing the right to use and explore a clean and healthy environment is essentially the right to roam. The environment is a communal right and responsibility, and Americans may now be able to take steps towards enjoying it freely.
[1] Satellite Image of Montana, in Google Earth, earth.google.com, (last visited Sep. 22, 2023).
[2] The Mass Trespass, Peak District Nat’l Park, https://www.peakdistrict.gov.uk/learning-about/news/70-years-of-the-peak-district-national-park/the-mass-trespass (last visited Sep. 22, 2023).
[3] Right to Roam, https://www.righttoroam.org.uk/ (last visited Oct. 29, 2023).
[4] Brooke Jarvis, The Fight for the Right to Trespass, N. Y. Times, (Oct. 29, 2023), https://www.nytimes.com/2023/07/26/magazine/right-to-roam-england.html.
[5] Helena Horton, 92 Constituencies in England Allow no Right to Roam, Data Shows, Guardian, (May 13, 2023, 1:00 AM), https://www.theguardian.com/environment/2023/may/13/92-constituencies-in-england-allow-no-right-to-roam-data-shows.
[6] Magic Map, https://magic.defra.gov.uk/MagicMap.aspx (last visited Sep. 22. 2023).
[7] Jarvis, supra note 4.
[8] Id.
[9] Helena Horton, Labour Vows to Introduce Scottish-Style Right to Roam Law in England, Guardian, (May 18, 2023, 11:22 AM), https://www.theguardian.com/environment/2023/may/18/labour-scottish-style-right-to-roam-law-england.
[10] Ken Ilgunas, This is Our Country. Let’s Walk It., N.Y. Times, (April 23, 2016), https://www.nytimes.com/2016/04/24/opinion/sunday/this-is-our-country-lets-walk-it.html.
[11] Thomas Elpel, Paying for the Right to Roam, Outside Bozeman, (2023), https://outsidebozeman.com/culture/the-new-west/paying-the-right-roam#:~:text=Anyone%20in%20Montana%20culturally%20had,right%20in%20early%20American%20history.
[12] Ilgunas, supra note 10.
[13]Alexander C. Kaufman & Hermes Ayala Guzmán, The Battle Over the Last Piece of Puerto Rico that Wasn’t For Sale, Huffpost, (Oct. 14, 2021), https://www.huffpost.com/entry/puerto-rico-beaches-privatization_n_6160a321e4b0cc44c50c93e3.
[14] Elpel, supra note 11.
[15] Vt. Fish & Wildlife Dep’t, https://vtfishandwildlife.com/learn-more/landowner-resources/private-land-and-public-access (last visited Sep. 22, 2023).
[16] U.S. Cons. amend. V.
[17] Right To Roam, supra note 3.
[18] Kate Selig, Judge Rules in Favor of Montana Youths in Landmark Climate Decision, Washington Post, (Aug. 14, 2023, 6:13 PM), https://www.washingtonpost.com/climate-environment/2023/08/14/youths-win-montana-climate-trial/.
[19] Nathan Rott & Seyma Bayram, Montana Youth Climate Ruling Could Set Precedent for Future Climate Litigation, NPR, (Aug. 23, 2023), https://www.npr.org/2023/08/23/1194710955/montana-youth-climate-ruling-could-set-precedent-for-future-climate-litigation.
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