Hey all - got an email reply from my local game warden (Colorado).
"Generally speaking, airspace is not owned by anyone.
That being said, there are numerous factors that come into play in this situation, such as the presence of people, buildings, livestock, and the potential impedance or bother of activity on private property.
In the one you have described, it could be viewed as being legal, but every situation is different and if this matter were presented to the courts, I think it would come down to the reasonableness determined by the courts.
I wish I could be clearer, but this is not a black and white interpretation, and I would either consult an attorney for formal legal advice and/or just understand that there is the potential for legal argument/consequences on both sides of this argument."
Probably will make some people upset with my next interpretation, but these remote parcels I am hunting over are not really a threat to any livestock, person, or building. I work in construction management, and when it comes to ambiguity with contracts, having the ability to make an argument in the “gray space” comes down to your own competencies and tolerance for managing risk.
I’d generally err on the side of not taking these shots due to the ambiguity and potential for legal consequences, but in the case of the elk I saw last year I would make that shot now…. Just my $.02.
Plus I now have written proof of the CPW telling me it’s poorly defined!