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Ranch owner: Corner crossing would erase billions in private property value

In what could be the last filing in an appeal, Elk Mountain Ranch owner says he’s not blocking access, just preventing trespassing.

Elk Mountain Ranch on Feb. 8, 2024. (Tennessee Watson/WyoFile)

by Angus M. Thuermer Jr., WyoFile

“Corner crossing is a civil trespass under Wyoming Law,” and an 1885 federal prohibition against blocking passage to public land does not override the state’s statute, the ranch owner at the center of a closely watched suit claimed in legal papers filed Friday.

In a 31-page reply, Elk Mountain Ranch owner Fred Eshelman’s attorneys asked the U.S. 10th Circuit Court of Appeals to overturn Wyoming’s Chief U.S. District Judge Scott Skavdahl’s finding that corner crossing does not constitute trespass. The filing could be the last before the federal appellate court hears oral arguments in the sweeping trespass case. 

At stake, Eshelman’s attorneys maintain, are billions of dollars in private property value that could be lost if Skavdahl’s ruling stands.

Corner crossing is the act of stepping from one piece of public land to another, over the common corner with two pieces of private property, all arranged in a checkerboard pattern of land ownership. Skavdahl decided that corner crossing in Wyoming’s checkerboard ownership landscape — without touching private land or causing damage — is not trespassing.

Three hunters from Missouri in 2020 and four in 2021 corner crossed to reach and hunt on thousands of acres of wildlife-rich public land on Elk Mountain enmeshed within Eshelman’s Carbon County ranch. Simply passing through the airspace above a corner of Eshelman’s 22,042-acre property was trespassing, the North Carolina pharma magnate contended in the civil suit he filed and lost.

“[L]andowners do have the right to prevent the public from trespassing on their property, and that is the only right that [Eshelman’s ranch-holding company] Iron Bar has ever asserted.” ATTORNEYS FOR FRED ESHELMAN

In the ongoing appeal, Eshelman’s legal team states that the hunters “try to excuse their trespass primarily by invoking the 1885 Unlawful Inclosures Act, even though the Act does not apply.” It’s true that Eshelman’s rights do not include “a right to exclude the public from the public domain,” the ranch owner’s lawyers state.

“But landowners do have the right to prevent the public from trespassing on their property, and that is the only right that [Eshelman’s ranch-holding company] Iron Bar has ever asserted,” the filing states.

Modern range war?

Corner crossing is trespassing under Wyoming law, and federal law doesn’t authorize corner crossing or preempt Wyoming’s trespass statute, Eshelman argues. Further, Congress didn’t set out to preempt Wyoming law through the Unlawful Inclosures Act, courts have sided with that view and “legalizing” corner crossing is a policy decision, not a court one, the filing states.

Eshelman, his ranching supporters, the hunters and their allies — including Backcountry Hunters and Anglers and conservation groups — agree the case has implications for public access to some 6 million acres of public land in the West. That’s the least amount of public land considered inaccessibly “corner locked” if corner crossing is trespassing.

The hunters’ argument is more the revival of a Western range-war story than a legal point, Eshelman’s attorneys claim, a story that asks the court to play sheriff, defend the little man and “restor[e] order to the West.” In fact, “[r]eality is more nuanced,” the filing states.

A tire marks a property boundary at Elk Mountain. (Mike Vanata/WyoFile)

According to Eshelman, the hunters argue “they are not really asking for the right to intrude on private property,” The filing states. “Rather, they claim only that Iron Bar does not have the right to prevent such intrusions through trespass claims.”

Eshelman’s lawyers state that the hunters “assert that every member of the public has an unfettered right to trespass across private property in order to recreate on any otherwise inaccessible public land that lies beyond it. The hunters’ case “rests on the fallacy that if the government gives the public an implied license to use public land, then the public must automatically have the right to conveniently access that land, even over private property.”

In relying on their interpretation of the Unlawful Inclosures Act, the hunters advance “the extraordinary argument that in 1885, Congress stripped over 150 million acres of private land of the most valuable property right there is — the right to exclude.”

It is even more extraordinary, the filing states, that the 1885 act would make “this sea change in the nation’s property law — what could be the most widespread taking in American History — apparently … without any notice or fanfare.” Allowing Skavdahl’s ruling to stand “would erase billions of dollars of private-property value,” Eshelman’s filing states.

Allowing Skavdah’s ruling in favor of the hunters to stand “would revolutionize property law,” Eshelman’s filing adds.

Swarming hunters

The filing revisits several Unlawful Inclosures Act cases including Leo Sheep Co. v. United States, in which courts determined that the government had no right to construct a road across a checkerboard corner to reach its property beyond.

“Property law does not distinguish between rights of access for roadbuilding and other rights of access, and neither did the Supreme Court in Leo Sheep,” the filing states.

Skavdahl relied on another case, Mackay v. Unita Development Co., in which shepherd Mackay won the right to trail his herd across private property to reach public grazing land. Both Mackay and its interpretation are off-base, the Eshelman filing claims.

In siding with the sheepherder Mackay, “the majority [of justices] cited the custom of the open range,” Eshelman’s filing states, a custom from an era that has passed. “It is not the judiciary’s job to update the UIA’s text to redress modern access problems not foreseen or addressed by the enacting Congress,” the filing states.

If Skavdahl’s ruling stands, a cascade of disruption will follow, the filing states, including “ranchers leading their herds, all-terrain enthusiasts driving their ATVs….” Hunters, “with high-powered rifles, will roam freely within the perimeter [of ranches] without notifying anyone of their presence.”

To protect their property, ranchers will erect more fences that would “interrupt previously intact wildlife corridors and habitats, leading to biodiversity loss and ecosystem degradation,” the filing states.

“If Mackay remains the law … there is no principle that will limit Mackay to corner crossing,” Eshelman contends. People will cross private property willy-nilly to reach public land miles beyond, the filing claims.

Corner crossing is not simple, despite the emergence of GPS apps that provide cell-phone maps of property ownership, the filing states. “Even if a corner crosser manages to find a brass cap [marking a surveyed checkerboard corner] it will often be too late — in the process of searching around, he will already have trespassed on private property multiple times.”

Eshelman and Iron Bar filed their appeal last year. The hunters responded and several groups joined each side in filing amicus briefs. The brief filed Friday is Eshelman’s reply to the hunters’ and their allies’ briefs.

Both sides have asked to argue the case in front of the appeals court, with Eshelman’s attorneys noting “the public significance of the issues raised.”

This article was originally published by WyoFile and is republished here with permission. WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.