Corner-crossing appeal: Judge wrongly relied on old case

A wealthy ranch owner wants a federal appeals court to overturn a Wyoming judge’s ruling that corner crossing is legal, arguing it relied on a 1914 court decision that is “not binding, persuasive or even good law.”

 Elk Mountain Ranch owner Fred Eshelman made that argument to the U.S. Court of Appeals for the 10th Circuit in papers filed Monday by his attorneys. The appeal counters Wyoming Chief U.S. District Judge Scott Skavdahl’s ruling from earlier this year that federal law prevents Eshelman from blocking access to public land and that corner crossing in Wyoming’s checkerboard area is not trespassing.

At issue is whether a person can step from one piece of public property to another at the common corner with two pieces of private land, all arranged in a checkerboard pattern. Skavdahl ruled that corner crossing is not trespassing, even though four hunters from Missouri passed through the airspace above Eshelman’s ranch. The men never set foot on Elk Mountain Ranch. 

The case has implications across the West where an estimated 8.3 million acres of public land are considered “corner locked” by any interpretation that corner crossing is trespassing.

Eshelman sued the men in civil court in 2021 claiming they trespassed when they hunted on public land in 2020 and 2021 after corner crossing. A Carbon County jury in 2022 found the men not guilty of trespassing in a parallel misdemeanor criminal case. In the separate federal civil suit against the hunters, Skavdahl ruled in their favor.

The hunters relied in part on the Unlawful Inclosures Act of 1885 that they say prevents a private landowner from blocking public access to public land. Eshelman’s 22,045-acre Elk Mountain Ranch has some 6,000 acres of public land enmeshed within its exterior boundaries — public land that can be reached without his permission only by corner crossing.

Private property rights come with restrictions, Skavdahl ruled. The hunters had “‘the right to the benefit of the public domain,’ which necessarily requires some limitation on the adjoining private landowner’s right of exclusion within the checkerboard,” Skavdahl ruled.

In other words, even though Eshelman owns the airspace above his property, his private property rights don’t allow him to exclude others from passing through his airspace when they are corner crossing.

109-year-old ruling

In reaching his decision, Skavdahl relied in part on a U.S. appeals court ruling in a case known as Mackay v. Uinta Development Co. from the early 1900s. John Mackay trailed sheep across private property to reach public grazing land.

But Eshelman’s attorneys said the judge was wrong.

“That was an error,” they wrote in their appeal. “Mackay is not binding, persuasive, or even good law.”

In siding with Mackay in 1914, the appeals court at the time cited the “custom of the open range,” and the Unlawful Inclosures Act, according to Eshelman’s lawyers. But that 109-year-old opinion “is not binding,” they argue, because it was made by the 8th Circuit Court of Appeals, which Congress in 1929 split into two courts, creating the new 10th Circuit.

The 10th Circuit “never held that the decisions of [its] predecessor circuit [the 8th] are controlling,” Eshelman’s lawyers wrote, quoting the 10th Circuit itself.

Skavdahl decided the 8th Circuit ruling was relevant in part because the Mackay case originated in Wyoming.

“At the time of Mackay, Wyoming was part of the Eighth Circuit,” Skavdahl wrote. “Because Mackay originated from the District of Wyoming … this court can find no reasonable basis to believe it is not bound by Mackay’s decision.”

Eshelman’s attorneys, officially representing the North Carolina millionaire’s Iron Bar Holdings company, said it “would be shocking” to learn that the 10th Circuit “secretly” adopted all of the 8th Circuit’s pre-1929 case law.

Eshelman’s team also wrote that the appeals court decided Mackay “at the apex of the open-range era” and the decision was “an application of the custom of the open range.

“Given that context, Mackay has no relevance to the legality of corner crossing today,” they wrote. “Congress closed the open range shortly after Mackay was decided, and private landowners are no longer understood to extend implied licenses that permit others to graze across their land.”

Further, the Leo Sheep Co. case of 1979, in which landowners successfully challenged construction of a federal road across a common checkerboard corner, makes Mackay irrelevant, Eshelman’s team maintains. Leo Sheep held that “the government lacks any affirmative right of access under the Unlawful Inclosures Act,” according to Iron Bar lawyers.

Eshelman wants the Denver-based court to allow attorneys to argue their case orally. The 62-page pleading makes numerous other points that were debated in the lower federal court in Wyoming.

Among those is that Skavdahl’s decision would “erase billions of dollars of private property value.” Owners of checkerboard land “understood that … corner crossing has long been illegal” and a change in that understanding will cost them in new fencing and trespass patrols, among other impacts, Eshelman’s attorneys state.

Skavdahl wrote that Eshelman’s claims of lost property value caused by the judgment were misguided. Such a claim “is based on a fictitious right the Plaintiff never actually held under law,” the judge wrote.

There are other and ongoing ways to ensure access to public land, Iron Bar lawyers argued, saying the solution should be in the hands of politically accountable actors and the public, “not the judiciary.”