nephi: The opinions you hear on Your Mountain from individual hosts or guests do not necessarily represent those of Your Mountain, our sponsors, or other entities we're affiliated with professionally or otherwise. You've waited long enough, go listen to the show. Hey everybody and welcome back for another episode of the Your Mountain podcast. I'm your host David Wilms sitting directly next to me, arms length from me in my office. Nephi Cole. I'm doing great. It's good to see you in person. Yeah. It's really good to see you in person. Been a little bit since we've done one of these face to face.

MIC1: Hey everybody and welcome back for another episode of the War Mountain Podcast. I'm your host, David Wilms, sitting directly next to you, arm's length from me, in my office. Dave, how you doing? I'm doing great. It's good to see you. It's good to be in your office. Yeah.

nephi: There are millions of acres of opportunity out there. They belong to you. Every day decisions are being made that affect your land, your water, your wildlife. You should know about them. This is your mountain.

MIC1: Yeah, I'm adjusting. Sounds pretty good. The volume is good. Is your volume good? Okay, we're good. It's gonna be video and this could be for all we know. It might not.

nephi: the volumes. Yeah, the volume is great. Good. ⁓ I'm gonna start by saying we lied last time. Because we said last time we recorded like next time, we're gonna be on video. I don't think it's going to be, I'm not even on the video. We're testing it. We're testing it. We got to figure this thing out. ⁓ And I don't think we're, yeah, but I don't think we're, we're not going to get it right this time. So we lied last time, said it was going to be on video, not going to be on video, almost certainly this time we're recording. It'll be audio only once again, but we're moving in that direction. We're technologically, I don't want to say inept, but we are, are we reaching that age, that crossover point? Yeah. Okay.

MIC1: Yeah. No, will. Because we paid a lot of money for it. So that means that means we're going to fix it. ⁓ More challenged We've been there already like I mean it's it's already happened. It's been a while now Yeah, you don't know how your phone works. Admit it Exactly Exactly Yeah, the rest of your phone like you know how to get dial and now you have to know how to text

nephi: where the world's us by technologically. I know parts of it. Yeah. Then I watched my kid.

MIC1: But most things on your phone, like me, it's a black box. There are things that your phone does all the time or can do that you don't know and it frustrates you. You don't know. And so then you have to Google how your phone works or tell your kid to do it for you. That's it. You're old.

nephi: Yeah, so we're old. So we're still doing this the old-fashioned way, the audio only way.

MIC1: I think so. We'll see when it all gets said and done. It could be that I'm wrong, but you know. Yeah, that's okay.

nephi: No, you're right. Plus, my back is to the camera. Like, I've already given up on recording on this one. We're just going to see if the recording works, but we're not going to use it. That's right. That's right. ⁓ It's been an interesting week. So we released an episode, like this is our second one in a week, and we're going to release this fast, right? Yeah.

MIC1: Yeah, we'll know, but you won't know. general public won't know. in the week. I'm trying to get home and try and download it because I don't have time to do it during the week.

nephi: Yeah, no, I know. We're going to do this fast. We're going to end up with having not had anything in a couple of months and now we're going to go bam bam and have a couple in a couple of days.

MIC1: Yep, because I gotta go to I have to go to Idaho next week

nephi: ⁓ to lobby on a specific bill? Well, tell me all about it. That's a segue extraordinaire.

MIC1: specific bill? Yes, yes Dave. ⁓ There's a bill I'm interested in. them all about it. It's Segway extraordinaire. Yeah well it's just, it's one of those bills like you know you have the junior high school kids who want to make like the soccer, like the red and white soccer ball the official soccer ball color for the state of Wyoming. So this bill actually, Idaho didn't actually have this and now this some young un-enterprising

nephi: Yeah. this.

MIC1: child came up with the idea to make hunting the state sport of the state of Idaho and got a bill done for it. So it's gonna, you know, it's, it's just like the state flower and then it would be what's Idaho state sport would be hunting. And it's such an important thing that why wouldn't you support it? I have to go visit guys anyway, cause that's, it's like, it's like relationship building. Like that's what I, know, like you go and you visit with legislators and just make sure. And that's, it's interesting. And like,

nephi: the idea to make hunting the state's border the state of... So it's just like the state flower and then it would be what's Idaho state sport would be hunting. And it's such an important thing that you're traveling there to support it. I have to go visit guys. I would hope so. It's like relationship building.

MIC1: You know, we haven't really talked about this on there, but that's a lot of what I do is like, work on, you know, I work on legislation in different States and issues in different States. And as you know, a huge part of that, and this is something for our listeners too, that's important. It's like, you can't have something that's important to you and just show up when that thing that's important to you is on the docket. Because if you do, then people ignore you because they've never seen you before. But when you walk into a state Capitol and.

nephi: They've never seen you before. But when you walk into a state capitol and you know people already, like you've talked to your state legislators before, whether it's your constituent or somebody else or representing your organization, if you have a pre-existing relationship, you can get to the issue in a more effective way. I often say this, and it really holds true, when you have a problem that you're working around, there are two ways to work around the problem.

MIC1: You know people already, like you, you know, you've talked to your state legislators before, whether it's your constituent or somebody else or representing your organization. If you have a preexisting relationship, then you're, then you can, you know, ⁓ you can get to the issue in a more effective way. I often say this and it's, really holds true. When you have a problem that you're working around, there are two ways to work around the problem. You sit at a table. If you can picture this.

nephi: You sit at a table, if you can picture this, this is metaphor, you all sit at a table, you take the problem, you set the problem on the table in front of you, and you're on opposite sides of it, and then you argue over the problem from opposite sides of the table. Now, if you can take that problem and you can push it on the table in such a way that you can both sit at the same spot on the table, and then look at that problem from together, from like, it's easier to fix the problem.

MIC1: is a metaphor. You all sit at a table and you take the problem, you set the problem on the table in front of you and you're on opposite sides of it. And then you argue over the problem from opposite sides of the table. Now, if you can take that problem and you can push it on the table in such a way that you can both sit at the same spot on the table and then look at that problem from together from like, it's easier to fix the problem because it's no longer, you're no longer arguing over it. You're talking about it.

nephi: Because you're no longer arguing over it, you're talking about it. And so that is exactly what happens when you already know a lawmaker, when you already know decision makers at a state agency or your local government. Is if you have a pre-existing relationship, then when you arrive to talk to them, you go to coffee or whatever.

MIC1: And so that is exactly what happens when you already know a lawmaker, when you already know decision makers at a state agency or your local government is if you have a preexisting relationship, then when you arrive to talk to them, you go to coffee or whatever. They're like, ⁓ man, this random constituents coming to, to, you know, yell at me over parking spaces or wildlife management policies. No, it's like it's Dave Wilms, right? And I know Dave Wilms. I talk to Dave Wilms all the time.

nephi: They're like, ⁓ man, this random constituents coming to yell at me over parking spaces or wildlife management policies. it's it's Dave Wilms, right? And I know Dave Wilms. I talk to Dave Wilms all the time. I had coffee with him a month.

MIC1: I had coffee with them a month ago or whatever. And then you can show up and say, Hey, I have this concern. I want to talk with you about wildlife corridors. Is that okay to you have time? Well, now your personal relationship has given you an avenue to be able to effectively talk about that subject and it makes you better at it. And that's what, you know, it's part of what I do is like, go out and I, I visit with these agencies and these lawmakers and all these people. hopefully they know me and we have a relationship of trust where

nephi: and then you can show up and say, I have this concern. I want to talk with you about wildlife corridors. Is that okay? Do have time? Well, now your personal relationship has given you an avenue to be able to effectively talk about that subject and it makes you better at it. And that's what, you know, it's part of what I do is like a go out night. visit with these agencies and these lawmakers and all these people so that hopefully they know me we have a relationship of trust where I can be trusted when we talk about these issues and it's what we should all be doing as we deal with natural resource and wildlife issues is we should be you know familiar enough with the decision makers that we're not just you know showing up and demanding something because if you have that relationship people care about you know they don't what is it they don't people don't

MIC1: I can be trusted when we talk about these issues and it's, what we should all be doing as we deal with natural resource and wildlife issues is we should be, you know, familiar enough with the decision makers that we're not just, you know, showing up and demanding something because if you have that relationship, people care about, you know, they, don't, what is it? They don't, people don't care about what you know until they know how much you care. I mean, it really is true with people. And so, yeah. So,

nephi: care about what you know until they know how much you care. mean, it really is true. so, yeah, so I'm actually going to visit with some lawmakers. It's a really easy bill. You're not asking anybody to anything heavy. You're just getting to know them and talking about a child's legislation as they're trying to learn stuff. My question, and not to, I mean, it was all serious and not to get less serious about it. But my question, for those high school students in

MIC1: I'm actually going to visit with some lawmakers. It's a really easy bill. You're not asking anybody to lift anything heavy. You're just getting to know them and talking about a child's legislation as they're trying to learn stuff and move it through the process. ⁓ huh.

nephi: Idaho, if this bill passes. they let her in hunting? Like a ⁓ school sanctioned sport? ⁓ Because normally with school sanctioned sports, those are excused absences, you know?

MIC1: in bute high love that. I think that's a great question. Like a school sanctioned sport? I'm in. Because normally with school sanctioned sports... This is getting to be a better idea all the time. So you could have a hunting coach at your high school and put together a hunting plan or even a training plan. Like you could have a training plan for hunting. This just got way deeper than I think that the child intended, but it's, yeah, it's a great idea.

nephi: Yeah. Right? Like all of a sudden, October just becomes a ⁓ school sanctioned sporting event and nobody's in the classroom. Nobody on the hunting team is in the classroom. And then like how do you letter? Is it the number of days participated or do you have to be successful? Like lettering is usually, it's more than showing up. Like sometimes for track it's you to be all district or all state and

MIC1: Yeah. Well, nobody on the hunting team. Is it the number of days participated or? I would think so. Successful. Well, I mean. Showing up? Well, but in football you don't have to win, you just have to be out on the field.

nephi: And what are the scoring metrics for this? Like, do you have to use the? Well, yeah, but you have Yeah, I don't know. I guess it depends on on the sport, but.

MIC1: Yeah, well, I guess we're going to have to deal with this. Good luck Idaho's high school athletics commission. Yep. Well, ⁓ we can be hired as consultants. ⁓ Yeah, for it's not cheap, but our expertise is ⁓ relevant.

nephi: And then I think we're onto something here. Now, in Idaho, on this hunting team, after this law passes, ⁓ they can use corners to access some public lands for hunting, right? I'm just working on awesome segues today. Working on him? I thought it was pretty good transition. Yeah, we want to talk, I know we've talked about it a lot, ad nauseam on this.

MIC1: law passes. ⁓ They might yeah, yeah, we're talk about corner crossing Well, maybe working on segues is a better way to put it Yeah, not like working on awesome segues. Maybe it's just working on segues Yeah Everybody wants to talk about corner crossing, you know why Attorneys

nephi: But, it's a big deal.

MIC1: That's why I've decided that the whole issue with corner crossing is attorneys.

nephi: Maybe. Why?

MIC1: Well because

nephi: I gotta hear this.

MIC1: Because if you just ask a regular person and there were no attorneys present in the room, they would just walk across the corner and it wouldn't be a big deal. But the problem is some attorney somewhere looked at the word and then two attorneys, this is the law of conservation of expertise comes into play. For every expert, there's an equal and opposite expert. And so now you get two experts and they're going to argue over whether or not you can do something that we all, if we could step back and not be attorneys would agree is relatively simple, which is of course you can cross it.

nephi: They've just. The is, some attorney somewhere... of expertise comes into play. For every expert there's an equal and opposite expert and so now you get two experts and they're gonna argue over whether or not you can do something that we all, if we could step back and not be attorneys would agree, is relatively simple which is of course you can cross it to quarter, it just makes perfect sense. But if you get two attorneys to argue over it, then it becomes more complex and you can't help but falling into the complexity and you start to agree with one attorney or the other.

MIC1: It just makes perfect sense. But if you get two attorneys to argue over it, then it becomes more complex and you can't help but falling into the complexity and you start to agree with one attorney or the other because their job is to argue their point and they're, you know, they're good at it. They're good at it. And so they're going to argue their point and they're going to go to court over it, but that's their job. It's attorneys. Now in court, who decides the decision, you know, who makes the decision? The judge. Why?

nephi: because their job is to argue their point. they're good at it, they're good at it. And so they're going to argue their point and they're going to go to court over it. But that's their job, it's attorneys. Now, in court, decides the decision, who makes the decision? The judge. Why? Because what you're hoping for, and this is why people take stuff to court, you're actually hoping that the judge in this case can rationalize things like a normal human being.

MIC1: Because what you're hoping for, and this is why people take stuff to court, you're actually hoping that the judge in this case can rationalize things like a normal human being. And so both attorneys from opposite sides are arguing over the issue in front of the judge, hoping that the judge will think like a rational person and then will help clear things up. Because that's the judge's job is to listen to both of these arguments that are coming from.

nephi: And so both attorneys from opposite sides are arguing over the issue in front of the judge, hoping that the judge will think like a rational person and then will help clear things up. Because that's the judge's job, is to listen to both of these arguments that are coming from the left field and right field. And the judge sitting in the center can make the logical decision. And this typically works very well unless the judge was an attorney.

MIC1: the like left field and right field and the judge sitting in the center can make the logical decision. And this typically works very well unless the judge was an attorney, which they always were. So then you run into an issue where you're hoping that the judge will think more like a regular person than an attorney. And if they don't, then you move to the next level up, which is, when people, you have to do something like a trial by jury, in which case you're like, you know what? can't, it can't all be attorneys.

nephi: Which they always were. So then you run into an issue where you're hoping that the judge will think more like a regular person than an attorney. And if they don't, then you move to the next level of, which is, people, have to do something like a trial by a jury, in which case you're like, you know what, can't, it can't all be attorneys. We gotta get a bunch of regular people in here to see how regular people think because we've had too many attorneys in the world. I don't even know where you're going right now.

MIC1: We got to get a bunch of regular people in here to see how regular people think because we've had too many attorneys.

nephi: You're taking me on this journey and I don't even know what the destination is.

MIC1: I just... It just came to me Dave while I was driving. was trying to figure out why we spend so much time on corner crossing and I was like Dave.

nephi: It is what it's that whole thing just so could try and blame people like me. ⁓

MIC1: You. Yeah, just so could blame you for the fact that this is not solved already. Because I'm like, it's like when you went to Elkmountain, I think we talked about this, but everybody, if we haven't, we're going to rehash it. Like you went with a group to Elkmountain and you were telling me the story. You're like, you know, we were hiking up this thing and we were doing the corner crossing. We'd go to each corner and then we'd take out a compass and then our survey gear. And we would basically survey every corner. And then you'd look up at the moon.

nephi: So Yeah. take out a compass and then our survey gear and we would basically survey every corner and then you'd look up at the moon and then you'd set up like an elaborate thing for how you were gonna cross each corner to make sure you were in the center of everything as you possibly could and then you got to one spot you told me and we were stopped because there was a tree and we weren't quite sure where the pin was

MIC1: And then you'd set up like an elaborate thing for how you were going to cross each corner to make sure that you were in the center of everything as you possibly could. And then you got to one spot, you told me, and when we were stopped, because there was a tree and we weren't quite sure where the pin was. And I said, well, did you just run and jump across it? And you said, no, we turned back. I was like, that's such an attorney thing to do.

nephi: And I said, well, did you just run and jump across it? And he said, no, we turned back. I was like, that's such an alternative thing to do. Yeah, you almost got that right. But let me say a couple of things. The reason we're talking about this is because, well, one, you heard us talk about, you've read stories, everybody in the outdoor space has talked about the

MIC1: Well, it's close enough.

nephi: corner crossing case in Wyoming that the 10th circuit court of appeals decided last, early last year. And 10th circuit found in favor of the hunters that were being sued by this landowner ⁓ for crossing from one public piece to another without touching private land and momentarily passing their shoulder through the airspace of the private landowner. And the court said,

MIC1: and 10th circle. landowner. blessing. without touching private land and momentarily passing their shoulder through the airspace of the private landowner. And the court said, you can do that. And I wanted, so it seems so simple on paper.

nephi: You can do that. Right. And I wanted, so it seemed so simple on paper. It seemed like, okay, this is easy. You can, you can corner cross. And so the story you were relaying is I wanted to see how easy that was on paper by going right back to that same mountain, Elk Mountain in South Central Wyoming, which is if you drive I-80 across the state, it's really the most prominent mountain you'll see across the entire state of Wyoming. Uh, and went with.

MIC1: Yeah. seemed like, okay, this is easy. You can, you can corner across. And so the story you were relaying is I wanted to see how easy that was on paper by going right back to that same mountain, Elk Mountain in South Central Wyoming, which is if drive I-80 across the state, it's really the most prominent mountain you'll see across the entire state of Wyoming. and went with a writer for, that was writing for Outdoor Life and- Who's a high school friend of my wife's by the way.

nephi: ⁓ writer for that was writing for outdoor life and such a small world, isn't it? ⁓ And so went with this writer, and you can go to Outdoor Life and read the whole story, so I'm not going to rehash the whole thing. But what we did find is I wanted to see what it would be like to just follow the absolute letter of the law. What did the court say you could do? I want to be clear, the court didn't put, the court didn't say you can't do all of these other things. It just said,

MIC1: such a small world. Yeah. ⁓ And so what with this ride. I wanted to see what it would be like to just follow the absolute letter of the law. What did the court say you could do? I want to be clear, the court didn't say you can't do all of these other things. just said, I'll wait for you to unwrap this thing. It's Christmas. The court just said this very narrow set of facts is something that you can do. So I wanted to say, OK, I know this is what we can do.

nephi: I'll wait for you to unwrap this thing. ⁓ The court just said, this very narrow set of facts is something that you can do. So I wanted to say, okay, I know this is what we can do. Can I do that thing and cross and summit this peak, which is a peak I've wanted to summit my whole life? The short answer, go read the story, but the short answer is no.

MIC1: Can I do that thing and cross and summit this peak? Which is a peak I've wanted to summit my whole life. And the short answer, go read the story, but the short answer is no. I couldn't. And it wasn't from running into a tree. Actually, that was one of the corners, but we figured out a way to navigate that tree and still be able to cross and do it legally. We actually got to a spot where there was a damaged corner pin. And so it's incredibly difficult to know.

nephi: I couldn't and it wasn't from running into a tree. Actually, that was one of the corners, but we figured out a way to navigate that tree and still be able to cross and do it legally. We actually got to a spot where there was a damaged corner pin. And so it was incredibly difficult to know would we be on public land stepping from public to public, right?

MIC1: I rest my case. Your honor, I rest my case. This man made this too complicated.

nephi: So, no, I was trying to follow the letter of the law as written by the 10th Circuit. Now, that leads to this next point, which is, so there's what the court says you can do, ⁓ but the legislature, there are still some unanswered questions. For example, is

MIC1: now that leads to this next point which is okay so there's You later. still some unanswered questions. For example, can you corn across from state land to state land? That's not something the 10th Circuit addressed. They were addressing federal to federal. Yep. So can you cross from state to state? And so we've had a couple of, the reason we want to talk about this is,

nephi: Can you corn across from state land to state land? That's not something the 10th circuit addressed. They were addressing federal to federal. So can you cross from state to state? so we've had a couple of, the reason we want to talk about this is we're right in the middle of state legislative season, right? This is ⁓ your busy time of year, Nephi, really. ⁓ We're right in the middle of these state legislatures and we've got two right now.

MIC1: right in the middle of state legislative season. This is your busy time of year, Nehaui, really. ⁓ We're right in the middle of these state legislatures, and we've got two right now that have introduced bills to try and clarify corner crossing in their respective states. There's a bill that's moving right now in Wyoming.

nephi: that have introduced bills to try and clarify corner crossing in their respective states. There's a bill that's moving right now in the Wyoming legislature, and there's a bill in Oregon as well.

MIC1: legislature and there's a bill in Oregon as well. So we haven't talked about this since yesterday, but did did the Wyoming bill actually move or is it sitting?

nephi: No, it moved out of the Senate committee with another amendment to it. And so we can talk about that. It's gotten really messy in the amendment process.

MIC1: But it had some amendments. Yeah, we should. Because the bills that originally is, yeah, it was, it was originally done. The idea that behind the bill was that they were going to bring the bill and then the bill was, you know, the, the pitch was that this bill is going to help clarify this issue. And the problem with it is a way that it clarified the issue and you're going to be, if I go into more details where it needs to, but what clarified the issue, uh, what it actually was doing.

nephi: issue, what it actually was doing was constricting the window, the Overton window of application. because for example, right now, like what I would have done is it was very specific in how you could cross the corner. And so you couldn't, for example, you know, cross the corner if you have a horse with you. couldn't, you know, there's, I mean, it wasn't applied kind of why. Yeah. So, so a couple of things. One is.

MIC1: was constricting the window, the Overton window of application. because for example, right now, like what it would have done is it was very specific in how you could cross the corner. And so you couldn't, for example, you know, you cross corner if you had a horse with you. couldn't, you know, there's, mean, it didn't apply to kind of walking is what it applied to. I think it was introduced to address to decrease

nephi: I think it was introduced to address, to decriminalize, to officially decriminalize corner crossing. Meaning, I think the thought process, and I don't want to put words in other people's mouths, the folks that were behind writing this bill, but I think the thought process was we have this 10th Circuit opinion that dealt with civil trespass.

MIC1: Meaning, I think... think the thought process was we have this tenth circuit. And we have criminal trespass laws in Wyoming. And so let's have, let's just clean things up and run a bill that decriminalizes corner crossing that's consistent with that 10th Circuit opinion.

nephi: We have criminal trespass laws in Wyoming. And so let's have, let's just clean things up and run a bill that decriminalizes corner crossing that's consistent with that 10th circuit opinion. Right. So write this bill that, says basically if you cross, ⁓ from corner to corner and don't set foot on private land, ⁓ but it does say on foot, ⁓ that, or I think foot was amended in.

MIC1: Right? So, write this bill that says basically if you cross from corner to corner and don't set foot on private land, but it does say on foot that, or I think foot was amended in the house. you cross on foot, then that's not ⁓ a criminal trespass. And then it has similar language for crossing from... ⁓

nephi: in the house. ⁓ If you cross on foot, then that's not a criminal trespass. And then it has similar language for crossing from state land to state land and local land to local land. So the idea was to decriminalize it.

MIC1: state land to state land and local land to local land. So the idea was to decriminalize it. Yeah, but the problem is, right, it only decriminalizes it now. It's more prescriptive in how you have to be crossing it in order for it to be decriminalized. Yeah, so here...

nephi: Yeah, so here's the thing I looked at, or I guess a general thought process is the 10th Circuit when they were looking at this was applying the law to a very narrow set of facts. And they were, the narrow set of facts was there was these posts with a chain across it that were in turn violating the Unlawful Enclosures Act by preventing people from accessing this public land. It was federal land to federal land.

MIC1: is the 10th circuit when they were looking at this was set of facts. And they were, the narrow set of facts was there was this, these posts with a chain across it that were in turn violating the Unlawful Enclosures Act by preventing people from accessing this public land. was federal land to federal land and it was using this ladder to cross over without setting foot on any private land. And based on that narrow fact pattern, the court said, yep, what they did was

nephi: using this ladder to cross over without setting foot on any private land. And based on that narrow fact pattern, the court said, yep, what they did was not a trespass. But they didn't say, for example, what if you run into a tree or an obstruction at a corner and you physically can't cross

MIC1: not a trespass. But they didn't say, for example, what if you run into a tree or an obstruction at a corner and you physically can't cross at the exact spot? Can you walk around that? They didn't address that question. And the reason I think that's important is the court

nephi: at the exact spot. Can you walk around that? ⁓ They didn't address that question. And the reason I think that's important is the court only answered the question that was before it. It didn't set the total bounds on what a legal corner cross might be, meaning there could be a future case at some point down the line with a different set of facts where a court could look at it and say, yeah, that's not

MIC1: only answered the question before it, didn't set the total bounds on what a legal corner cross might be. Meaning, there could be a future case at some point down the line with a different set of facts where a court could look at it and say, that's not a, that's not a, that's a permissible corner cross as well.

nephi: and that's a permissible corner cross as well. And so this bill was putting really tight sideboards on.

MIC1: And so this bill was putting tight sideboards on... was grabbing that tube of possibilities and squeezing it down quite a bit. And so the issue with that, I guess, right? It might be fine. You might make the policy decision and state that that's fine and it matches generally what the law currently says is permissible. But what if a federal court expands that down the road?

nephi: And so the issue with that, I guess, right, it might be fine. You might make the policy decision in state that that's fine and it matches generally what the law currently says is permissible. But what if a federal court expands that down the road in a different case, in a different state, but within the same circuit or within the same state, within Wyoming, in the same circuit? What if you end up with a case like that that expands it a little bit and now you've got a federal opinion

MIC1: in a different case, in a different state, but within the same circuit, or within the same state, within Wyoming, in the same circuit. What if you end up with a case like that that expands it little bit, and now you've got a federal ⁓ opinion that's in conflict with a state law, and under the Supremacy Clause of the Constitution, the federal...

nephi: that's in conflict with a state law. under the Supremacy Clause of the Constitution, the federal law trumps state law. And so it's possible that that be the case. There's also a weird legal theory. I haven't even thought this through, so I'm throwing this out in the ether and I haven't even thought it through, please nobody say that's a dumb idea or a great idea or anything. But the Unlawful Enclosures Act, for example, is written in a way that it...

MIC1: law, Trump's state law. And so it's possible that that be the case. There's also a weird legal theory. I haven't even thought this through. So I'm throwing this out in the ether, I haven't even thought it through. So please, nobody say that's a dumb idea or a great idea or anything. But the Unlawful Enclosures Act, for example, is written in a way that it, I don't have the exact words in front of me.

nephi: I don't have the exact words in front of me, but it's something to the effect of you can't use intimidation or, you know, there are certain acts in addition to constructing a barrier or that, that effectively lock somebody out. so there, you know, is there an argument that a state passing a law, uh, that, effectively prevents people from accessing public land in, in other ways that might otherwise be legal.

MIC1: but it's something to the effect of you can't use intimidation or, you know, there are certain acts in addition to constructing a barrier that effectively lock somebody out. And so, is there an argument that a state passing a law that effectively prevents people from accessing public land? in other ways that might otherwise be legal? Is that a violation of the Unlawful Enclosures Act in and of itself? I don't know. I'd have to ask an attorney. Yeah, I'd have to actually spend some time in it. just making it up as we're talking. No, I'm just kidding. Sort of. But that's the issue, right? You're making these things more complex. This would make things more complex rather than clarifying it and making it more simple.

nephi: Is that a violation of the Unlawful Enclosures Act in and of itself? Might not be. Yeah, I'd have to actually spend some time in it. I'm just making it up as we're talking. So I am throwing a theory out there that I'm just totally making up. But the... Well, I don't know about that. would make it simple. It would make it simple in one respect in that you'd know if I'm crossing on foot, doing it this way, I'm not going to be criminally prosecuted. Right?

MIC1: Meh. Yes. But you're creating, but you're also creating the, to me, the confusion becomes because you're creating this new thing around the backside. Like because you're, you're probably going outside of your throat. As you talked about the supremacy class and you actually see this quite a bit in our current political environment, which is this tendency within States to kind of almost ignore the overarching, you know, some agreements that we've made as a nation between

nephi: state. the overarching, some agreements that we made as a nation between all of our states. Like, okay, we're gonna defer to the federal, some higher authorities than just us on this. And to me, this is one of those issues, and there are others in other areas that are important to me, but where, again, you have states passing laws that you kind of question whether they don't conflict with federal law.

MIC1: all of our states of like, okay, we're gonna defer to the federal, you know, some higher authorities than just us on this. And to me, this is one of those issues. And there are others in other areas that are important to me, but where, again, you have states passing laws that you're kind of questioning whether they don't conflict with federal law.

nephi: Yeah, we don't know. There might not be a conflict. There might be a conflict. It gets resolved down the line. But there are a couple of other things that I wanted to mention that are unresolved issues, but also that might complicate it. There was an amendment added on the Senate side yesterday before it passed out a committee that adds a new complication because now it only decriminalizes at those corners on foot so long as there's an actual ⁓

MIC1: Because now it only decriminalizes at those corners on foot so long as there's

nephi: marker, legally, legal survey marker that's there, right? I can tell you definitively, definitively, that there are corners out there that don't have a marker and haven't had them for years. Somebody's pulled them, they've been damaged, maybe they've been buried and you can't find them. They're lost.

MIC1: don't have a marker anymore ⁓ they're lost they're just they happen to get they get they're lost they were lost in a boating accident

nephi: And I can also tell you that the federal government doesn't have the resources or the manpower to go out there and be resurveying these things all the time and putting new survey pins in all of these corners. They might not even be aware of until somebody brings it to their attention.

MIC1: Shout out to the US Geological Survey. You guys are amazing.

nephi: Yeah, and it's not just USGS that does it, but they are amazing, right? BLM's got their own surveyors that do stuff too. ⁓ They got some good surveyors. But now you've got this new language in there that becomes even more prescriptive and more restrictive on being able to corner cross. And then there's this question of liability. So this bill proposes to decriminalize.

MIC1: They're not as good as USGS. and more respect. So this bill proposes to decriminalize, but it doesn't deal with what I think are some of remaining questions around civil liability. so for example, I'll give you two examples. We'll go duty of care, what's called duty of care, and then we'll go with liability. So duty of care, meaning who is responsible if somebody is injured when they're corner crossing? Here's the thing I would throw out.

nephi: But it doesn't deal with what I think are some of the remaining questions around civil liability. ⁓ And so for example, I'll give you two examples. We'll go duty of care, what's called duty of care, and then we'll go with liability. So duty of care, meaning who is responsible if somebody is injured when they're corner crossing? Here's the thing I would throw out. If somebody is trying to, ⁓

MIC1: If somebody is trying to...

nephi: climb over a fence that happens to be there, for example, and they get their leg caught in the wire and fall and break a leg. You're laughing like it's something you've maybe done before or have witnessed.

MIC1: that happens to be there for example and they get their leg caught in the wire and fall and cut the leg. You're laughing like it's something you've made before. There's some stories I have about people crossing fences in accidents that like we're not gonna go to on this podcast but it's happened. happens right? And so there is a question that is unanswered with this.

nephi: But it happens, right? And so there is a question that is unanswered with this bill of, ⁓ and with the court case.

MIC1: In fact, some of the worst hunting accidents that I know of both humorous and not are when are people crossing fences? Seriously? No, know like everything from the comically, the comical, you know, male problems to like literally people getting shot. Yes. Yeah. Like changing their lives.

nephi: No, I've seen some myself, right? Accidental discharge. Yep. I've seen those kinds of stories. So it's an important question. If it's the landowner's fence, do they become liable for an injury that occurs at that corner? I don't think anybody would want that to be the case, but it's not expressly addressed in the bill. So there's that liability question. There's also, you know, one of the things that caused us to turn around on our height.

MIC1: but it's not expressly addressed in the bill. Also, one of the things that caused us...

nephi: right, when we were trying to summit the peak. Again, go back and read that outdoor life ⁓ story on it. But you get to this spot, we- there was some lack of courage. ⁓ But also we were going to do things by the book, right? And we were crossing at the same place on the same land that those hunters did, right? Like we were crossing at the same place where that landowner owns everything. I wasn't worried about a criminal.

MIC1: Other than lack of courage. and we were crossing at the same place on the same... trusting that the same place where that landowner owns everything. And I wasn't worried about a criminal trespass because in Wyoming law, here's the other thing.

nephi: trespass. Because in Wyoming law, here's the other thing, in Wyoming law, ⁓ if I'm just hiking, the duty is on the landowner to post the property as no trespassing. And if they don't, I'm not going to be cited for a criminal trespass. There is nothing posted past the first corner. But every other corner, there were no signs saying no trespassing, you know, all that kind of stuff. there wasn't going to be, in my situation, I wasn't going to be prosecuted for criminal trespass.

MIC1: If I'm just hiking, the duties on the landowner post the property as no trespassing, and if they don't, I'm not going to be cited for a criminal trespass. There is nothing posted past the first corner, but every other corner, there was no sign saying no trespassing and all that kind of stuff. So there wasn't going to be, in my situation, I wasn't going to be prosecuted for criminal trespass. But if I didn't do things right,

nephi: But if I didn't do things right and I set foot on private land at one of these corners trying to cross, there was a chance I could be sued for civil trespass. And you don't really have to show damage. You can get a nominal damage award of like $100. ⁓

MIC1: and I set foot on private land at one of these corners trying to cross, there was a chance I could be sued for civil trespass. And you don't really have to show damage. You can get a nominal damage of like a hundred bucks. But I'd be on the hook for him to defend myself to the tune of tens of thousands of dollars against this because you have somebody that has the resources to challenge anybody that's cross-eyed. Yeah, just wants to make an example. wants to make it hard and discouraging. Yeah.

nephi: But I'd be on the hook for having to defend myself to the tune of tens of thousands of dollars against this because you have somebody that has the resources to challenge anybody that's crossing and wants to make it hard and discourage other people from going to that place. And there were cellular trail cams on every corner and there was snow on the ground. So camera, footprint, picture of me, if I'm not crossing in the right place, all the evidence matches up.

MIC1: snow on the ground.

nephi: I didn't want that, so I turned it around. But it's an issue that's not addressed through this bill. And so now it's been amended in these multiple ways. And here's the last thing I'll say, and then I want to pivot to Oregon, because it's where the other bill is. So you have this interesting situation where you have a conservation in the West Pole that Colorado College just released about a week and a half ago.

MIC1: Attorneys. But it's an issue that's not addressed through this bill. so now it's been amended in these multiple ways. here's the last thing I'll say, and then I want to pivot to Oregon because it's where the other bill is. So you have this interesting situation where you have a conservation in the West Pole that Colorado College just released about a week and a half ago. And it highlights how much people care about public lands and keeping them public. It's a, I don't want to make up the number, I don't have it in front of me, but it's in that 80 % range. It's a high percentage of people that are like, we don't think you should be selling public lands. So, and access to public lands is really, really important. Well, you are now in an election year and there's another bill going through a resolution going through.

nephi: It highlights how much people care about public lands and keeping them public. It's a, I don't want to make up the number. I don't have it in front of me, but it's in that 80 % range. It's a high percentage of people that are like, we don't think you should be selling public lands. and access to public lands is really, really important. Well, you are now in an election year and there's another bill going through a resolution going through, ⁓ that started on the Senate side that's moving through.

MIC1: that started on the Senate side that's moving through ⁓ to recognize the importance of local input, but also saying a resolution to the federal government basically saying don't sell federal lands and then encourage local involvement and decision making about how those lands are managed. So the public doesn't want to see, they want access, they don't want to see public land sold. You've got this other resolution running through here in an election year. You got a bunch of folks, and this is a very heated issue, particularly.

nephi: ⁓ to recognize, you know, the importance of, of local input, but also saying a resolution to the federal government, basically saying, don't sell federal lands and, and then encourage local involvement and decision-making about how those lands are managed. So the public doesn't want to see, they want access. They don't want to see public land sold. You've got this other resolution ring through, you're in an election year and you got a bunch of folks, and this is a very heated issue and particularly in the hunting community. You don't want to be viewed as taking a non-public access vote. At the same time, you have an ag community that's kind of concerned about how access occurs, and you don't want to be viewed as taking an anti-ag vote. And so you have this bill that creates this tension point between the hunting community and ag and puts these legislators in a spot in an election year where it's like, it's bad either way for them.

MIC1: You don't want to be viewed as taking a non-public access vote. At the same time, you have an ag community that's kind of concerned about how access occurs, and you don't want to be viewed as taking an anti-ag vote. And so you have this bill that creates this tension point between the hunting community and ag and puts these legislators in a spot in an election year where it's like, it's bad either way for them. if they vote in support or against this. So it's tough. then I've heard rumors that there's gonna be, there's some that are interested in potentially amending, throwing more amendments out maybe on the floor to remove the decriminalization of access to state lands. Yeah, which is interesting because you'd have this thing now where you're saying like, what this bill is really gonna do is we're just trying to clarify this. But in saying they're trying to clarify it, what they've

nephi: if they vote in support or against this. So it's tough. And then I've heard rumors that there's going to be, there's some that are interested in potentially amending, throwing more amendments out, maybe on the floor to remove the decriminalization of access to state lands. seeing the

MIC1: what you're doing is potentially ratcheting down on your clarifying, but in clarifying, you're clarifying it at a, to a, at a, to a, at a very small level. You're ratcheting, you're, you know, you're, you're closing the tube on what's possible. But then the other thing is if at the exact same time you're going in and you're saying, and you strip the state lands piece, then like, like you're, it, that's, that's not a, that's not necessarily a good thing for hunters.

nephi: at the exact same time you're going in and you're saying, you strip the state lands piece, like. Then you've lost your clarity, whatever clarity you might get. That's not necessarily.

MIC1: I think it's problematic. Now there's another state that's working on ⁓ a similar bill. There's a corner crossing bill moving in Oregon, correct? And it's, I mean, you could tell me how, but I think it's a significantly, ⁓ I don't know if it's like, I don't see, I don't think more complex is way to put it. think it's more holistically, there's more to it. I would say it's more comprehensive. Yes, that's the word I was looking for.

nephi: There's another state that's working on a similar bill. There's a corner crossing bill moving in Oregon, correct? And it's, I mean you could tell me how, but I think it's a significantly, I don't know if it's like, don't see, I think more complex is way to put it. think it's more, holistically, there's more to it. I would say it's more comprehensive. Yes, that's what we were asking. It's been introduced and it's in committee right now. I don't know what's going to happen with it. I know there's some bipartisan support there, but I don't know, haven't followed it quite as closely, but from a textual standpoint, ⁓ it decriminalizes, it defines public land, first of all, very specifically as federal lands, state lands, local lands, it excludes

MIC1: It's been introd... some bipartisan as closely, but from a textual standpoint, ⁓ it decriminalizes, it defines public land, first of all, very specifically as federal lands, state lands, local lands, it excludes tribal lands. So our bill doesn't even address the tribal lands piece, which might be a blind spot in our own bill in Wyoming. ⁓

nephi: Tribal lands. So our bill doesn't even address the tribal lands piece, ⁓ which might be a blind spot in our own bill in Wyoming. ⁓ And then it addresses things like the civil liability, the civil trespass concern. And I just want to read that piece really quick because it's a piece that doesn't exist in the bill that was proposed here in Wyoming, but it's in here.

MIC1: And then it addresses things like the civil liability, the civil trespass concern. And I just want to read that piece really quick because it's a piece that doesn't exist in the bill that was proposed here, in Wyoming, but it's in here. it says an owner of private.

nephi: ⁓ it says an owner of private land may not bring an action for trespass. So this means no civil trespass against a person that corner crosses provided that that person is authorized to enter and remain on public land. Okay. ⁓ so that basically the federal government hasn't prohibited people being on, on those lands be that that person does not cause physical harm to the private landowners, real or personal property. So you.

MIC1: may not bring an action for trespass. So this means no civil trespass against a person that corner crosses provided that that person is authorized to enter and remain on public land. Okay. So that basically the federal government hasn't prohibited people being on those lands. that that person does not cause physical harm to the private landowners, real or personal property. So you, there's not an articulable damage there, right? And three, ⁓ does not unreasonably interfere with the quiet enjoyment or use of the private landowner's property. ⁓ And then there's a third piece of this that says a person that corner crosses may not bring a claim for negligence or gross negligence against a private landowner for damages arising out of the act of corner crossing. So remember that fence injury we were talking about?

nephi: There's not an articulable damage there, right? And three, ⁓ does not unreasonably interfere with the quiet enjoyment or use of the private landowner's property. ⁓ And then there's a third piece of this that says a person that corner crosses may not bring a claim for negligence or gross negligence against a private landowner for damages arising out of the act of corner crossing. So remember that fence injury we were talking about?

MIC1: This bill addresses that saying if you're a corner crossing the landowners not not liable. You can't bring a negligence claim or gross negligence claim like there's So so this bill goes through and then it actually goes through and it has another section About the so that was the civil piece and then it has another section that's decriminalizing the act so saying you're this doing this isn't subject to To state

nephi: this bill addresses that saying if you're corner crossing, the landowner is not liable. You can't bring a negligence claim or gross negligence claim. So this bill goes through and then it actually goes through and has another section about the, so that was the civil piece and then it has another section that's decriminalizing the act. saying doing this isn't subject to ⁓ state ⁓ criminal.

MIC1: criminal statute. It also talks about what corner crossing is. So it defines corner crossing as meaning to cross on foot from one parcel of public land to another parcel of public land by stepping across the corner where the two parcels of public land and one or more parcels of privately owned land meet. ⁓ Which is pretty close to what ours says, but it says stepping over, but it doesn't say by foot.

nephi: statute. But the, ⁓ it also talks about what corner crossing is. So it defines corner crossing as meaning to cross on foot from one parcel of public land to another parcel of public land by stepping across the corner where the two parcels of public land and one or more parcels of privately owned land meet. ⁓ Which is pretty close to what ours says, but it doesn't say, it says stepping over, but it doesn't say by foot. The one thing ours does is it pretty much prohibits, like you couldn't take your dog unless you carry your dog across, right? Can't take horses, couldn't take any stock. Yeah. So here there might be an opportunity for that. Because what if you have a, maybe you can build a ramp for your horse to walk over these corners without touching the private land. Or maybe what this one's saying is, if you set foot on private land, you didn't cause any damage or.

MIC1: you the one thing ours does is it pretty much prohibits like you couldn't take your dog unless you carry your dog across right? Can't take horses, couldn't take live animals. Unless you carry your horses across. So here there might be an opportunity for that. Just what if you have a maybe... is This one saying is, you accidentally, if you set foot It's Yeah ⁓

nephi: hurt the enjoyment of the property, so you can't be sued for civil trespass there. So I just think this was a more, it's more comprehensive and covers the whole range of issues around corner crossing. Now it may not go anywhere and there may be some fights about it and it's in the Ninth Circuit. So the Tenth Circuit opinion doesn't apply to Oregon. They're doing something more proactive, not in response to a case in their own state. But I guess my point is when you compare the two, ⁓

MIC1: response to a case in their own state. But I guess my point is when you compare the two

nephi: The Oregon proposal appears to be far more comprehensive and addresses a lot of the issues that the one in Wyoming doesn't yet. And I think there's an opportunity that, I'm, you know, look, I'm grateful to the people that are, that have been working on the bill in Wyoming and that brought it and care, they're passionate about public access and want it to be, you know, want the public people access these corners. It just.

MIC1: appears to be far more comprehensive and addresses a lot of the issues that the one in Wyoming doesn't yet. And I think there's an opportunity. Look, I'm grateful to the people that have been working on the bill in Wyoming and that brought it and care and they're passionate about public access and want the public people to access these corners. ⁓ It just...

nephi: as you're watching this process play out and the amendments play out and the discomfort that some people are having, it just makes you think maybe you can spend a little bit more time and get something a little more comprehensive that everybody feels good with. I don't. I don't. And in fact, I think there's some reluctance to have it be an interim topic.

MIC1: As you're watching this process play out and the amendments play out and the discomfort that some people are having, it just makes you think maybe you can spend a little bit more time and get something a little more comprehensive that everybody feels good with. Yeah, I like it. Do see this being an interrupt topic? So for the interim topic for everybody is if you have a legislature that is not a full-time legislature, a lot of times you'll have committees that will pick up a topic and they'll do multiple hearings on the topic during the year so that they can discuss these kind of nuances that you don't have time to discuss during a fast session. you basically work through and develop, the committee will develop legislation. So that's what interim topic is.

nephi: they can discuss these kind of nuances that you don't have time to discuss. so you can basically work through and develop, the committee will develop legislation. that's what we're Yeah, I haven't heard of there being a ton of appetite for this to be an interim topic, but I think you could make the case that there's an appetite to say, hey, all the various parties that are interested in this, maybe we can just sit down and work together and we don't need an interim topic to talk and to work on language. So, and this is, we didn't imagine it, but this is a cycle.

MIC1: And this is, we didn't measure it, but this.

nephi: So this is a short, short session.

MIC1: So you see the bill passing in Wyoming.

nephi: I it passed the House already. It's out of committee in the Senate. It's going to go today while we're recording. think it's going to go to committee of the whole on the floor of the Senate. ⁓ It's possible it gets amended to the point that it doesn't pass. ⁓ if I had a crystal ball, I couldn't tell you. don't know. It's possible it could pass.

MIC1: It's possible it gets amended to the point that it doesn't pass. Well, I'm gonna say this about the Oregon bill and this is why I think this is, you know, this is a good discussion because you mentioned this issue. It's bipartisan. And here's why I'm saying that Oregon can't agree on anything. Like if you go to that session, you're to watch it and like the, the, level of, ⁓ partisanship that is on display and the arguments there is it's brutal, consider public lands. Now here's an area. This is an issue that is clearly.

nephi: It is. Hahaha center public lands now. Here's an area, this is an issue that is clearly

MIC1: bipartisan or people will work on it on both sides. These are the types of things that we want our lawmakers doing more of across the board. You know, the current political climate has, has lent itself to people choosing fringe topics that are divisive. And unfortunately like that, you know, I can say that in every state capital that I've gone to, and I don't think I'm, I'm, I'm not, I don't think I'm reinventing them. Like I'm not.

nephi: These are types of things that we want. support you know the current political climate has has lent itself to people choosing fringe topics that are divisive and unfortunately like that you know I could say that in every state capital that I've gone to I don't think I'm I'm not I don't think I'm reinventing them like I'm not if people don't know this there's a saying

MIC1: If people don't know this, there's a saying red States have gotten redder and blue States have gotten bluer in the last several years. And that is really the case is that you've had this solidifying of arguments where for whatever reason, the polarization of our politics has led to when you go into a state house, less collaboration across issues that we all share and more of a trend for people to

nephi: Red states have gotten redder and blue states have gotten bluer in the last several years. And that is really the case is that you had this solidifying of arguments where for whatever reason the polarization of our politics has led to when you go into a state house less collaboration across. issues that we all share and more of a trend for people to run to their perspective wings and argue about stuff that we just don't, that we're not going to agree on. And unfortunately it's an election year. So of course, are posturing and doing things like that. And I talked to some colleagues that you and I shared the other day, Dave, I had lunch with with the...

MIC1: run to their perspective wings and argue about stuff that we just don't, that we're not going to agree on. And unfortunately it's an election year. So of course, you know, people are posturing and doing things like that. And I talked to some colleagues, you and I shared the other day, Dave, I had lunch with a number of people from our old office. So anyway.

nephi: I didn't get an invite to this lunch. This is a deeper conversation. Hey, this is different. It is. That is different. That is different.

MIC1: ⁓ it is. I did you have dinner the other night without me? Well, Dave, this looks like there's looks like the shoe goes on both feet, doesn't it? But ⁓ but I will frankly say, I think that we have challenges in leadership. And and why, you know, we talked about it like I think that like nationally and on state levels, our current policies, our current politics are devoid of leadership. Like we have a leadership void overall. Well, what do I mean by that? What is real leadership? Real leadership is being willing to push outside of your comfort zone and to bring people to that table that we talked about at the beginning. to take a real leadership is being willing to take people and to push the problem to the middle of the table and sit on the same side with everybody and to talk collaboratively about how we fix issues. That's real leadership. Real leadership doesn't pick a side of the table.

nephi: ⁓ Real leadership is being willing to take people and to push the problem to the middle of the table and sit on the same side with everybody and to talk collaboratively about how we fix issues. That's real leadership. Real leadership doesn't pick a side of the table and argue and blame everybody else for your problems. Real leadership says, we all share these problems, let's find a way to fix them. And we really, when you find these leaders and you have them in your agencies, when you have them in your...

MIC1: and argue and blame everybody else for your problems. Real leadership says, we all share these problems. Let's find a way to fix them. And we really, if you, when you, when you find these leaders and you have them in your agencies, when you have them in your local state and national politics, cherish them, support them, find a way to keep them doing their jobs and doing good things, because these are the types of leaders that will make a difference in changing the political climate that we're in that is

nephi: local, state, and national politics, cherish them, support them, find a way to keep them doing their jobs and doing good things because these are the types of leaders that will make a difference in changing the political climate that we're in that is, you know, can be toxic. And I just want to encourage you all to do that. Identify those people like...

MIC1: you know, can be toxic and, and, ⁓ just want to encourage you all to do that. Identify those people like who aren't running to the margins and, know, screaming from the screaming from the fringe to get your attention. But people who are saying like, you know what, we got problems, let's work on them together because that's real leadership. And if you're not doing this right now, change and be a leader.

nephi: who aren't running to the margins and screaming from the, screaming from the fringe to get your attention. But people who are saying like, you know what, we got problems. Let's work on them together because that's real leadership. And if you're not doing this right now, change and be a leader. So in that vein to pile on one more thing, and I'm going to come back to this Wyoming bill with it, right? Because if for some reason this bill dies and it might, I can already predict people coming out of the woodwork that are going to claim this legislature's anti-public land, anti-access, not wanting to allow corner crossing. Resist the urge to pile on, to get onto that pile. Resist that urge because it might actually be better in the long haul if this bill

MIC1: is this better because it might actually be better in the long haul if this bill doesn't pass and has an opportunity to be worked out and be more holistic and address all of these various issues in the future. And they might be doing a favor in some ways if they vote no. And they're not being anti-public access. It might be actually quite the opposite of that. And so there's, like with everything, there's so much nuance, right? Don't take the bait of if somebody's out there saying,

nephi: doesn't pass and has an opportunity to be worked out and be more holistic and address all of these various issues in the future. And they might be doing a favor in some ways if they vote no. And they're not being anti-public access. It might be actually quite the opposite of that. And so there's like with everything, there's so much nuance, right? Don't take the bait of if somebody's out there saying, you know, these folks voted no on corner crossing, they're anti-public access. Be careful on that, right? Because they might be...

MIC1: These folks voted no on corner crossing, they're anti-public access. Be careful on that, right? Because they might be surprised, you might have some allies there, you don't want to burn that potential bridge and dissuade them from ever doing anything in the future. So that's just kind of another thought too. I want to pivot to another topic really quick. Is this an amazing segue? No, I don't have a great segue.

nephi: might be surprised, you might have some allies there, you don't want to burn that, that potential bridge and dissuade them from ever doing anything in the future. Right. So that, I mean, that's just kind of another thought too. ⁓ I want to pivot to, to another topic really quick. I don't have a great segue for this, I'm just a new topic. ⁓ Lesser Prairie Chicken.

MIC1: ⁓ okay. New topic. Yep. That's exciting! ⁓

nephi: Isn't it exciting? can just the name alone sounds exciting.

MIC1: You know what I had? I had some hot wings last night.

nephi: Were they lesser prairie chicken hot wings? That's why you were saying they were hot wings. Because as of yesterday, I guess you probably could have had lesser prairie chicken hot wings because they're not listed as a federal threatened or endangered species anymore. Well, ⁓ so here's the deal. I don't know if it's good news or not, or not good news. Lesser prairie chickens are one of those species that

MIC1: I don't think so. No, but just reminded me of that when you said lesser prairie chicken. That's exciting! That is the best news I have heard today.

nephi: You know, we talk where we live a lot about sage grouse and grizzly bears and wolves. And there's a lot of political division and controversy around those and lot of controversy on the ESA around those. If you're in Texas, Oklahoma, New Mexico, Colorado, Kansas, lesser prey chicken is one of those. Like it's one of those kind of controversial ones. So lesser prey chickens were initially.

MIC1: around those. Lesser prey chicken is one of those. Like it's one of those kind of controversial ones, right? So Lesser prey chickens were initially in 2014. I wish I had a... I'm trying to go on memory here, so forgive me. But I think it was about 2014 they were originally listed. Because I was actually involved in the first round of litigation involving lesser prey chicken.

nephi: 2014, I wish I had a, I'm trying to go on memory here, so forgive me, but I think it was about 2014 they were originally listed because I was actually involved in the first round of litigation involving Lesser Perchick in a prior career, prior life. So they were originally listed, then you had five different lawsuits filed and venue fights and so forth. And I was actually one of the ones I was involved in. was, I think it was

MIC1: So they were originally listed and you had five different lawsuits filed and venue fights and so forth. I was actually one of the ones I was involved in. it was, I moved to intervene in a case in Washington DC and then there were two cases filed in DC and there were two cases filed in Oklahoma and there was a case filed in the West, District of West Texas and there was this whole venue fight in Oklahoma and DC and everybody was fighting about where this case should be heard. Should it be in DC where the decision was made or should it be in Oklahoma where the birds are?

nephi: I moved to intervene in a case in Washington, DC, and then there were two cases filed in DC, and there were two cases filed in Oklahoma, and there was a case filed in the West District of West Texas, and there was this whole venue fight in Oklahoma and DC, and everybody was fighting about where this case should be heard. Should it be in DC where the decision was made, or should it be in Oklahoma where the birds are, all that kind of stuff, right? And it wound up at the end of the day that the two cases that were in ⁓ oklahoma got transferred to dc in the two cases that were in dc got transferred to oklahoma and all that stuff was going on the judging west texas like i'm just gonna decide this and ⁓ so that that judge vacated the that listing rule on grounds we don't need to go into right now

MIC1: Let's just fix this that listing.

nephi: And then that led to ⁓ another petition in 2016 to list lesser prey chicken as threatened or endangered, and if threatened or endangered, using distinct population segments, which we've talked about. I don't want to go into all the wonkiness about it, but basically they're separate islands of population that are totally genetically separate from the other islands of population. And so they can be listed as entities on their own.

MIC1: And if threatened or endangered using distinct population segments, which we've talked about, I don't want to go into all the wonkiness about it, basically they're separate islands of population that are totally genetically separate from the other islands of population. And so they can be listed as entities on their own. And that petition was received. And then after.

nephi: All right. And that petition was received. And then after litigation and so forth to push the service to make a decision on whether or not to list the service in 2022 made a decision to list two entities of lesser prey chicken. One, both as distinct population segments. One is threatened. One with a 4D rule, which we also won't talk about. And one as endangered.

MIC1: litigation and so forth to push the service to make a decision on whether or not to list the service in 2022 made a decision to list two entities of lesser parochic and one both as distinct population segments one is threatened one with a 4d rule which we also won't talk about and one as endangered and of course that drew additional litigation

nephi: And of course, that drew additional litigation. that litigated, know, states were challenging it, industry folks were challenging it. There's this big fear about it's going to shut down. Like if you know anything about where lesser prey chickens are in particularly in New Mexico and Texas, if you know where the Permian Basin is and what that is, there's an awful lot of oil and gas that comes out of the Permian Basin. So there's a huge risk of shutting down a big industry there. ⁓

MIC1: And that litigated, states were challenging it, industry folks were challenging it. There's this big fear about it's gonna shut down. Like if you know anything about where lesser prey chickens are, particularly in New Mexico and Texas, if you know where the Permian Basin is and what that is, there's an awful lot of oil and gas that comes out of the Permian Basin. So there's a huge risk of shutting down a big industry there with this listing decision. So there's litigation around it.

nephi: with this listing decision. So there's litigation around it. And in August of last year, trying to think, I think it was West Texas actually, but a district court on a motion from the Fish and Wildlife Service. So here's what happened. So we have this litigation ongoing and then we have an administration change at the federal level, right? And so the Trump administration comes in in January of 2025 and about

MIC1: In August of last year, district court on a motion from the Fish and Wildlife Service. So here's what happened. So you have this litigation ongoing and then we have an administration change at the federal level, right? And so the Trump administration comes in in January of 2025 and about...

nephi: five days into the administration, the US Fish and Wildlife Service sends a petition to, or a motion to the, to the court saying, we think we made a mistake in the, in setting up this distinct population segment, these distinct population segments, and we want you to vacate the rule and then remand it back to us to redo. Right? And so in August of last year, the court said, well,

MIC1: days into the administration the US Fish and Wildlife Service sends a petition to or motion to the to the court saying we think we made a mistake in the in setting up this distinct population segment these distinct population segments and we want you to vacate the rule and then remand it back to us to redo and so in August of last year the court said Well, the experts are saying they made a mistake, so we're going to remand it back. They didn't give a deadline in that remand, by the way. In the opinion, the Fish and Wildlife Service says, think we can get a new finding done by November 30th of 2026. Order. Yeah, 2026, so this November. But the court doesn't order them.

nephi: They, the experts are saying they made a mistake. So we're going to remand it back. They didn't give a deadline in that remand, the way. Fish and, in the opinion, the Fish and Wildlife Service says, we think we can get a new finding done by November 30th of 2026. Order. Yeah, 2026. So this November. But the court doesn't order that they do a new 12-month finding by November 30th. The court just says,

MIC1: that they do a new 12-month finding by November 30th. The court just says remanded to the agency. That was in August. Well, this week, the agency finally published in the Federal Register a notice that it was moving forward with initiating its 12-month review. So six months after...

nephi: remanded to the agency. That was in August. Well, this week, the agency finally published in the Federal Register the notice that it was moving forward with its initiating its 12-month review. So six months after the rule was remanded, which means six months after the species was removed from the Threatened and Endangered Species List, it gets this this ⁓

MIC1: the rule was remanded, which means six months after the species was removed from the Threatened and Dangerous Species List, it gets this notice saying, we're gonna start this 12-month process. And all I could do when I looked at that, just as a guy that has followed ESA stuff forever, is be like, I think I see the strategy here. And...

nephi: this notice saying we're going to start this 12 month process. And all I could do when I looked at that, just as a guy that has followed ESA stuff forever, is be like, oh, I think I see the strategy here. And it's under the law. So all right, under the law, under the Endangered Species Act, when you start a 12 month

MIC1: It's under the law. Okay. I want to understand the strategy better. Under the law. Okay. Under the Endangered Species Act. Okay. When you start a 12 month review, when you initiate a 12 month review, when the service initiates that. Okay.

nephi: Review when you initiate a 12-month review when the service initiates that You have 12 months you have 12 months not 12 months in one day not 12 months in a week not 13 months Not two years you have 12 months To do the review and make a determination on whether Whether the species warrants being listed or not, right? It's a shall thing you got to do it now

MIC1: ⁓ review and make a determination on whether... Yep, set in the statute you got to get it done in that time period. Yep, you will you're doing it

nephi: The Fish and Wildlife Service has a history of not meeting those deadlines and getting sued. And a lot of the histories you hear the sue and settle we've talked about it before. So.

MIC1: Yeah, they sue him because of that you didn't get to the deadline in time and so then you're like you're gonna lose that lawsuit because you didn't comply with the law so now you're in the settle mode

nephi: Right. Well, and in the context we've talked about it in the past on this podcast, it's like you have somebody like Center for Biological Diversity that it'll flood the zone. They'll submit 500 petitions to list species. Too many. There's no way. No way.

MIC1: Yep, too many for you to possibly catch all of them. And when you miss one, they're like, aha!

nephi: And so they sue and then they force the Fish and Wildlife Service to settle because they know they're going to lose these lawsuits, right? And at the end of it, then they have these dates certain that they have to make these decisions and so forth. And there's the argument being made that now you have these environmental groups that are kind of controlling the caseload, so to speak, of an agency, like the workload of an agency.

MIC1: Yeah Yeah, they're determining what you're work on when and where and they're gonna tell you that sometimes too They're gonna say like yeah, you're gonna do these. This is our priority. So it better be your priority

nephi: Yeah, then at the end of this, because of the way the statute is written, ⁓ if the suing party prevails, they are entitled to their attorney's fees. So this sue and settle thing has been used in the past, and it's generated a lot of money for some of these organizations from litigation fees, because they're

MIC1: If the se- So this. Because they're able to charge not necessarily what their hourly rate was, but maybe the prevailing

nephi: they're able to charge not necessarily what their hourly rate was, but maybe the prevailing rate of the community in which they lived. So maybe they might be making $75,000 or $80,000 a year in a town, and that would bill out at $35 an hour or something like that. But they're actually able to charge $600 an hour because that's what the prevailing rate is. because you don't know. So that's the model.

MIC1: So maybe they're making $75,000 or $80,000 a year in town, that bill out at $35 an hour or something like that. But they're actually able to charge $600 an hour. DC? Yeah.

nephi: But the thing that fascinates me about this is I can see this in my head, how this is going to play out. You have an administration here that doesn't want to list lesser prairie chickens. And I don't want to get into the science of do they warrant listing or not. That's for the agency to lean into and make that determination. But you have an agency here that maybe doesn't want to because two of its big constituencies

MIC1: You have an agency here that maybe doesn't want to because two of its big constituencies, the energy industry and the ag industry in this area.

nephi: the energy industry and the ag industry in this area could be injured by a listing, right? It could hurt business for sure. And they don't wanna be responsible for hurting that business. So how do you avoid making a decision? Well, you release this 12 month finding right now or start the 12 month finding right now. Gather information until, you know, whatever, you're moving forward.

MIC1: Yeah, yeah At this. Start the 12 month- gather information until... for gathering information, taking comment. A year rolls by, you get to late February.

nephi: gathering information, taking comment. A year rolls by, you get to late February, early March of 2027, you don't make the decision. You just wait. You wait and a few more months might go by. You just wait until one of those groups inevitably sues you for missing that deadline. And then you go through a certain amount of time in that litigation.

MIC1: Seven. Yeah, there's not set in the statute. There's not like it's the 12-month finding is set in statute, but

nephi: before you engage in settlement discussions, and then you negotiate a date at some point in the future.

MIC1: like the resolution after that, the timing is not set.

nephi: Well, yeah, mean, 12 months is 12 months. That's when it's supposed to get done. But if they don't do it, the court order, you can't go back and say, we're not going to fine the agency. We're not going to throw people in jail. We're going to try and say, you missed your deadline. You have to do this. So you need to agree to a date that you're going to get this done and I'll sign off on it as the judge. And so they'll negotiate and come up with the date of here's when we'll have it done.

MIC1: Right? Yep. But that window is flexible now. can that that that windows negotiable now. It's not set as like there's it's it's not set in statute. It's set by parties.

nephi: And based on the way this all plans out. Yeah, and the way that the timing of this all pans out, it appears to me, and I'm just looking at my crystal ball and I'm gonna rub the top of the crystal ball here and look into it and say, this feels like a strategy to avoid having to make an up or down determination before the end of this term. Or if it happens at all, it'll be in the last couple of months of the term, like between a November election, yeah.

MIC1: this administration.

nephi: between like a November election and a January inauguration ⁓ if it happens at all. ⁓ And the irony a little bit of it is we talked about the sue and settle tactics, you know, and some of the same people that might be complaining about these environmental groups getting their attorney's fees paid, they're using that strategy knowing they're going to we're not going to do anything until they make us do something. We're going to let them sue us. So it's almost a strategy. But then at the end, they know we're going to have to pay the attorney's fees. But we're willing to do that because we don't want to have to make a decision on it right now.

MIC1: Yes, you're saying the agencies are thinking

nephi: That's, I'm, it's just a thought that they could be. I don't know what they're thinking. They, might be totally wrong about this.

MIC1: It's just a thought that they could be. could be. Yeah. Because clearly these, yeah, no, but that's very interesting. That is an interesting wrinkle. And then, you know, and arguably like you may get better rates because like, let's just say you have friends who are like on both sides of the discussion. That's pretty interesting.

nephi: So at the end of the day, I don't know what's going to happen at the end of the day. But what I do know is there are a lot of, I do know this, lesser prairie chicken numbers have been in steady decline for a long time. There just aren't a ton of them left. They're not in great shape. There are habitat issues, there's fragmentation issues for sure. What I also know is there are a lot of really smart people.

MIC1: Lesser parrots chicken numbers have been insta-

nephi: really passionate people that have put in place a lot of voluntary conservation programs on the ground. There are mitigation banks, are ⁓ conservation plans, there are candidate conservation agreements with assurances, like all of these things working with industry and landowner communities trying to ⁓ mitigate ⁓ harm to lesser-prey chicken. And just my hope.

MIC1: plans, are candidate conservation agreements with assurances, like all of these things working with industry and landowner communities trying to mitigate... lesser parade chicken and just my hope as this whole thing plays out on the will they or won't they list them in court cases that come that people that are doing that work on the ground keep doing that

nephi: I'll just say it this way. hope is as this whole thing plays out on the will they or won't they list them in court cases that come, that people that are doing that work on the ground keep doing that work on the ground. ⁓ And that they still take seriously the need to conserve less prairie chicken and less prairie chicken habitat ⁓ because it's important. know that sounded wonky. It's just something. I just think it's interesting.

MIC1: and that they still take seriously the need to conserve less chicken habitat. it's important. America needs hot wings. No, that was fun. was good. That was fun. No, that's, that's, that's a fun discussion. All right. Well, we're to end this early. You know why Dave? Because we don't know how long because of this, this new program that we're trying that we got it. We got to make sure we can make everything work before your next engagement.

nephi: I just think it's interesting. So, yeah. Yep, that's fact. So ⁓ the other thing we're going to do before too long is I think we're going to get a new email address. ⁓ stay tuned on that. But for the time being, you can still use your mountain at it'syourmountain.com if you want to send us any emails. ⁓ I think we're going to we're changing some things here. So I think we're going to end up with a new email address before too long. We will get that out to everybody when we have it.

MIC1: Yeah.

nephi: You can go find us on social media too, on Instagram and Facebook in particular.

MIC1: social media too on Instagram and Facebook. We should probably lean into that and away from the website because the website's ridiculous because we don't do it anyway. So that's what that's kind of getting at is we're going to take the website.

nephi: was, I, so that's what I was kind of getting at is we're to take the website down, ⁓ which means that the email address is likely going to go away because it's tied to that. ⁓

MIC1: Yeah. And then we'll be on the gram all the time.

nephi: Then we'll be fully dedicated to IG. ⁓

MIC1: Mm-hmm. And you'll join us at Chipotle as we eat food that's probably not good for you, but sounds like it is in theory.

nephi: No, sounds delicious. They're not sponsored. They should be. All right. But yeah, reach out to us. Send us topic ideas. I got a couple topic ideas in the inbox that I got to look at. There are a couple of interesting ones. ⁓ I can't remember off the top of my head. So I can't share them on the air right now. For those that have you. And yeah, and for folks that have.

MIC1: Yeah, reach out. What were they? Are you going to share them on the air? Well, that's not going to help. Your topic is, see you later buddy. Thanks for emailing. We're getting rid of the email, so glad you sent it, but you better reset it to the new email because it's gone.

nephi: emailed in the last like three months. I'm slowly responding to those. I'm sorry. We got really bad at podcasting and emailing and all the things. anyway, that's that wrap up. Awesome to see you in person, Nephi, as always. I wish we could do more of these in person.

MIC1: Sorry. you too. We're gonna do more in person in those next couple months. We're gonna be hanging out quite a bit, because we're gonna like a lot of the same conferences.

nephi: I think we're going to see more of each other. Yeah, that's true. So looking forward to that. And to everybody else, thank you for listening. As always, deeply, deeply appreciated. And remember that life is about experiences. So go have one.

MIC1: Thank you for listening.