Conservationists, environmentalists, hunters and minority advocates filed legal papers last week supporting four hunters who were sued for passing through the airspace above a ranch to hunt on public land.
The groups that filed briefs in the potentially precedent setting corner-crossing case, which is in front of the U.S. 10th Circuit Court of Appeals, represent more than 4 million members and supporters. They argue that the owner of the Elk Mountain Ranch illegally tried to block passage to public land, including by filing the ongoing civil trespass suit against four Missouri hunters.
Landowners, especially those with money, power and influence, “gain … undue control over public land with false or misleading signage, threats, and even outright violence,” one new pleading states. Those tactics from the West’s range-war era are used to fight the corner-crossing hunters and others and to maintain exclusive access to millions of acres of public land, the groups claim in their filings.
At issue is access to some 8.3 million acres in the West — about 6 million acres of checkerboard — where public access is blocked by a tradition of trespass claims by ranch owners and others, the Missouri hunters and their supporters say. Corner crossing is the act of stepping from one piece of public land to another, without touching private land, at the common checkerboard corners with two pieces of private property.
“Do we regularly sue children who stick an arm over the sidewalk?”
Backcountry Hunters and Anglers
The hunters corner crossed at the Elk Mountain Ranch in Carbon County in 2020 and 2021, passing through airspace above the ranch without setting foot on private property. A jury in 2022 found them not guilty of trespass but ranch owner Fred Eshelman sued them in civil court.
Wyoming’s Chief U.S. District Judge Scott Skavdahl ruled against Eshelman last year, declaring that corner crossing in the checkerboard area of the state is not trespassing. A Montana landowners’ group and Wyoming stock growers have sided with Eshelman in the appeal.
4 million supporters
One new amicus brief supporting the hunters came from Great Old Broads for Wilderness, GreenLatinos, Sierra Club and Western Watersheds Project. Backcountry Hunters and Anglers, a nonprofit that has invested in public access and also helped fund the hunters’ defense, filed a second.
Collectively, the groups claim more than 4 million members and supporters. Great Old Broads for Wilderness, a women-led organization, also has 40 volunteer-led chapters across the country, court papers state.
The 1885 Unlawful Inclosures Act, which was designed to prevent landowners from blocking reasonable access to public land, is central to the amicus briefs’ arguments. The groups say Eshelman’s ranch, officially owned by the North Carolina pharma magnate’s Iron Bar Holdings company, violated the UIA first by chaining together two fence posts at a common checkerboard corner.
Because the Iron Bar chain hung across federal U.S Bureau of Land Management property, “[i]f any party is guilty of trespass, it’s Iron Bar,” Earthjustice attorney Thomas Delehanty wrote for his clients.
The civil suit against the hunters is another violation of the act, the filings claim. “As plainly as the [fencepost-chain] blockade is illegal, so too is Iron Bar’s trespass lawsuit,” the Broads and their cohorts write. “[B]oth … aim to enclose and block lawful uses on public land.”
While property rights allow a landowner to exclude others from their property, rights to airspace are narrower, hunters’ supporters state. The appeals court decided in earlier cases that the right to exclude others does not also allow a person to “enclose” public land and block others from it.
“Iron Bar lobbies for a … wholly unreasonable outcome in which a claimed right to exclude others from a few inches of airspace allows private landowners to claim millions of acres of public land for themselves,” Delehanty wrote.
BHA would mark corners
Delehanty cites a handful of outdoors folk who say they were harassed, intimidated or otherwise discouraged from using their public property because of the practices of adjacent private landowners. One landowner pleaded guilty to aggravated assault in a case involving a rock climber who had been climbing on BLM property, according to his filing.
In its amicus brief, Backcountry Hunters also cites a Wyoming hunter who successfully used now-legal corner crossing in the Wyoming checkerboard to bag a mule deer. Backcountry Hunters’ attorney Eric Hanson used Guy Litt’s story of a responsible excursion to counter arguments that an appeals ruling against Eshelman would unleash convoys of trespassing ATV drivers, indiscriminate and dangerous shooting and a further “parade of horrors.”
Backcountry Hunters, whose Wyoming Chapter supported the Missouri hunters, has contributed thousands of dollars to successful public-land access programs and stands ready to do more, it says.
The group would collaborate with landowners and BLM “to identify and permanently mark priority corners,” the brief states. Hunters will even raise funds to build stiles at corners where landowners believe their private fencing is necessary.
The Missouri hunters’ supporters cite liberally from the filing cabinet of historic federal public land trespass cases to buttress their call to support Skavdahl’s ruling that corner crossing is not trespass. Backcountry Hunters also put the issue in ordinary language.
“The assertion that a person trespasses by momentarily passing through the airspace over private property is both radical and absurd,” Backcountry Hunters’ brief reads. “Do we regularly sue children who stick an arm over the sidewalk, … [o]r go after Girl Scouts or trick-or-treaters?”
“Iron Bar’s claims of trespass,” the brief reads, ”are a nuisance that the UIA is designed to abate.”
Correction: We have corrected the spelling of Western Watersheds Project — Ed.
Just take every checkerboard corner and make a 5foot circle of easement property . problem solved.
We really need a national right to wander laws like in Europe. Like if we let this continue we will be lock into little prisons made by wealthy people. We will be reduce to being outlaws like in the days of Ribbon Hood. It makes sense that fenced in residential areas can be areas of private exclusion. But this should not apply for common law innocent passage where one is simply trying to go from one place to another. Yes I have talked to landowners who brag about having exclusive access to thousands of square miles of public land because they have cut off access to public land. Where I live there is an issue of landowners closing off old county roads that hikers and skiers have use to assess public land for years. This wealthy people abuse needs to stop
If the air above private land is private, how high does it go? Will there soon be a lawsuit against Airlines?
Eshleman has a legitimate monetary beef just not with the hunters. It is with whoever sold him the place and told him he had control over all the land (“checkerboard”) included. If all these illegal real estate transactions were uncovered things would look quite different. This has become like a lot of similar things where ‘kicking the can down the road’ just makes things harder to solve. If we get back to original intent we will find that the checkerboard was give poor, hardworking citizens a path to ownership of their own piece of the West. First give title to the Railroad and then make them the land agent so they could sell their land and with homestead laws give their customers a leg up on getting title to some adjoining federal land. If you look at title plats you will find that this mostly worked until it got too high and dry to farm and then we started to end up with remaining ‘checkerboard’ blocks which have lasted and so we have a mess. Under Wyoming law, it is still the hunters’ responsibility to prove that they are in the right place (not trespassing). How they got there???
private to private = private airspace, public to public = public airspace – its not a hard concept to grasp (if the private landowner has rights, so does/do the public land owner(s))
It doesn’t start with D either.
Considering that landowners consider the airspace over a corner “theirs”, my question to them would be ; What airspace over the corner is BLM’S? Surely if it was true checkerboard corner the amount of airspace applies equally, no? The actual point of intersection is infinitely small.
Nice to see Backcountry Hunters using the example I’ve been saying since the beginning. Anyone that walks down a public sidewalk bordered by private property and they stick their arm or foot over the private property has NEVER been charged for criminal trespass. It would be laughed out of the courtroom, but somehow the argument for corner crossing is different?
Since the unlawful enclosures act was passed, a variety of interests have tried to change the checkboard. But, in case after case it was ruled other ranchers, wildlife and humans have access across the checkboard. I think what one judge said makes it clear. Those who buy land in the checkerboard were knowing buyers. Yet, time and again they try to lock it up for themselves.
The tables have certainly turned and the people are getting their public lands back. Many of us are still waiting for the WY Game and Fish to issue hunter harassment charges against Eshelman and his ranch manager that were threatening and hazing the Missouri hunters while they were hunting on public land. Where are you Director Nesvick? Assistant whatever Rich King? Where are you Game and Fish Commissioners?
If I recall history correctly this checkerboard thing was put together for the transcontinental railroad by a young lawyer by the name of Abe…who later became president…..The railroad apparently sold off many of their private holdings….Best thing to do now is a land swap and eliminate the checkerboard…Straighten it out to allow public access..
That will never happen in a thousand years!
First of all the rancher in this case is an Easterner but OK whatever. The way I think about corner crossing and landowners is this. The boundries are on the land. Every time a United Airlines flight flies over some guys ranch is it trespassing? I think not. Every time a hunter climbs over a ladder to corner cross– same deal –he is in the air and not on the guys land. It is time for the courts to put a stop to ranchers locking up public land so they can charge hunters and make money for trespass. This practice also makes it harder to manage wildlife and hunting quotas. I would be interested in the case law about who owns the air above land and to what altitude.
Judging from vomments on this case, Wyomingites are becoming more Democratic, more for the “little man” than the super rich pharmeceutical giant who probably doesnt pay his share in taxes. Hey, there’s a political party on your side and it doesnt start with R.
It doesn’t start with D either.
Right.
It’s about time someone stood up against these landowners who feel so entitled to more land than they need, for their own gain.
another good update, thanks angus.
related question: is it legal to enter blm or fs land that is leased or permitted for grazing? and how would one know–is it posted as such?
Yes Beverly. It is legal to enter BLM and FS land even while it is actively being grazed.
Grazing permits on BLM and FS lands are a privilege NOT a right. They simply give permission for a rancher to rent grass, nothing else. Posting public land is illegal.
This is why I cringe when I hear of, or meet, hot-shot move-ins. They haven’t the slightest understanding of the long-time traditions of neighborliness that is so much a part of Rocky Mountain life.
I’ve been following this story and would like to support this effort. Where can I send a contribution?
https://www.backcountryhunters.org/
“NOT GUILTY” was the verdict of “We the people” in a Court of Law.
Are “We the people” to now truly believe that “JUSTICE” is determined by “wealth only”?
Are “We the people” to believe that the Halls of justice are actually halls of justice to be disrespected, ignored, dishonored until the wealthy can come and shed their wealth to ignore, disrespect, dishonor our fellow Americans and neighbors but more importantly the Constitution of these United States of America or are we seeing first hand what TREASON to the Constitution of these United States of America camouflaged by wealth/the wealthy?
Is the actors in this Hall of Justice disrespecting, ignoring dishonoring the Constitution/”We the people” as would spies/seditionist exposing themselves as such and enemies to and of the Constitution?
Invasion to destroy a Nation need not be by actual force but by sedition and sabotage, again “We the people” in a Court of Law were declared “NOT GUILTY”. SEMPER FI!
https://www.gofundme.com/f/corner-crossing-legal-fee-fundraiser
You beat me to it. Where would I contribute to their legal fund?