Corner crossers: Halt of court ruling would harm public’s land access

The public interest will be substantially injured if a judge temporarily suspends his own decision that corner crossing is not trespassing, four Missouri hunters argue in a new court filing.

In a 12-page motion filed Friday, the hunters contest an effort by the owner of the Elk Mountain Ranch in Carbon County to stay the June 1 judgment by U.S. Chief District Judge Scott Skavdahl.

Ranch owner Fred Eshelman wants Skavdahl to put the judgment on hold while Eshelman appeals the ruling to the 10^th Circuit Court of Appeals in Denver.

“A stay will substantially injure the public who have an interest in public access to public lands,” the motion by hunters’ attorney Ryan Semerad states. That interest is “distinct and deep,” the motion reads.

By stepping from one piece of public land to another at the intersection with two pieces of private ranch property — all arranged in a checkerboard pattern — the hunters accessed thousands of acres of public land enmeshed in Eshelman’s 20,045-acre wildlife-rich property. They never set foot on private land during hunts in 2020 and 2021.

Until the Missouri challenge and a 2022 not-guilty verdict in a criminal trial, many landowners and officials, plus segments of the public, considered corner crossing to potentially be trespassing, threatening actors with criminal charges and civil suits.

Eshelman filed a $7.75-million civil trespassing suit against the men last year. But Skavdahl ruled against him this summer, concluding corner crossing by foot without touching private land or causing damage is not trespassing.

The judge recognized “the legality of corner crossing with great care to access public land in the Checkerboard,” Semerad wrote.

The prevailing party — the hunters in this case — can immediately act in accordance with a judgment, according to common legal practice. A stay would stall the application of Skavdahl’s “not-trespassing” judgment that has been in effect for about seven weeks.

The court victories give limited but uncertain protection to corner crossers, attorneys say.

Ruling ‘did not change’ law

Eshelman’s request for a stay contends that he and ranch employees were at risk for harm from the ruling, citing hateful letters, other vitriolic communication and a postcard from “Satan”. The ranch is bracing for an influx of corner crossers, some of whom may trespass, seek revenge, damage property or threaten ranch employees, according to the request.

The hunters “abhor and decry this childish and wholly inappropriate behavior,” Semerad wrote about the menacing messages and vulgarities. “To those paying attention, please stop.”

But a stay isn’t the answer to the uncouth criticism, the hunters’ motion states.

“Defendants do not see how the bad acts of others can be attributed to this court’s ruling,” the hunters’ motion reads. There’s no evidence bad acts would grow from the court’s order rather than individuals’ opinions and beliefs, Semerad wrote.

“Plaintiff’s bald assertion that people will not follow the letter of this Court’s careful and limited order but will instead use that order as a license to run amok on Plaintiff’s property is speculative,” the motion states. Further, “[s]tays are not granted as messaging tools,” Semerad wrote.

Backcountry Hunters and Anglers outlined the public’s interest in an amicus brief the hunters referenced in their latest motion. The Wyoming chapter of the national group helped raise funds for the civil and criminal defense of the four; Bradly Cape, Phillip Yeomans, Zach Smith and John Slowensky.

Backcountry hunters, which boasts 359,000 members, is committed to “fair and equal public access to our public lands and waters,” the group’s amicus brief states. “Individuals should not have to roll the dice and potentially subject themselves to the mercy of litigious landowners or local prosecutors just to recreate on public land that they legally are allowed to use.”

Across the West, 8.3 million acres of public land are “corner locked” and inaccessible to the public if corner crossing is not considered legal.

Eshelman, a North Carolina pharmaceutical magnate, contended the hunters trespassed by passing through the airspace above his property. The four said the federal Unlawful Inclosures Act of 1885 prevents Eshelman from blocking their — and the public’s — access to public land.

A lock and chain that Elk Mountain Ranch staff placed between fence posts and across one corner “constituted an improper attempt to ‘prevent or obstruct … any person from peaceably entering upon … any tract of public land’ in violation of the UIA,” the judge wrote.

Skavdahl didn’t create a new law with his ruling, the hunters’ attorney said. Instead, the ruling “provided much needed clarity that pre-existing law affords public access to otherwise ‘corner-locked’ lands in the Checkerboard by careful corner crossing,” Semerad wrote.

Appeal ready

Eshelman has not made a strong showing he is likely to succeed on the merits of his pleading, the hunters argue in their case for keeping Skavdahl’s ruling in place during an appeal. It’s not known when Skavdahl might rule on the request for a stay.

Meantime, Eshelman’s appeal itself in the 10^th Circuit ran into a speed bump when the court found a “possible jurisdictional defect” in Skavdahl’s order and judgment. Skavdahl appears to have cured that with an amendment that would now allow the appeals court in Denver to begin considering the ranch owner’s challenge to the judge’s “not-trespassing” decision.