A wealthy Carbon County landowner who has tried to block public access to public land enmeshed in his sprawling ranch has hit a legal snag. The 10th Circuit Court of Appeals has told the Elk Mountain Ranch owner Fred Eshelman he cannot yet appeal a federal judge’s decision that corner crossing is OK.
The appeals court “identified a possible jurisdictional defect” that will stall, or possibly prevent, the North Carolina resident from contesting his loss in a civil suit. Eshelman had initiated the suit claiming that corner crossing is trespassing and that four hunters caused him millions of dollars in damage by stepping from public land to public land through his airspace, without ever touching his land. Until Eshelman explains or corrects the possible defect, “briefing on the merits is suspended,” the order filed Friday states.
The possible defect lies in a trespass allegation Eshelman made and withdrew — but a claim that was never permanently dismissed — in his $7.75 million civil suit against the four Missouri hunters.
“Corner crossing on foot in the checkerboard pattern of land ownership without physically contacting private land and without causing damage to private property, does not constitute an unlawful trespass.”
Wyoming Chief U.S. Judge Scott Skavdahl
The appeals order gives Eshelman until July 28 to either explain away the possible defect or to go back to U.S. District Court in Wyoming to “establish finality,” of a lingering trespass allegation associated with a digital marker called “Waypoint 6.”
The procedural setback was the second of two recent blows to the pharmaceutical magnate’s campaign against corner crossing at his Carbon County ranch.
The first came earlier this month when Eshelman ended a legal fight against Google that sought to unmask an anonymous critic. Eshelman wanted to sue that person — identified as J. Doe — for defamation in Germany or India after Doe wrote that the billionaire “abused police resources” in the corner-crossing incident.
Meantime, the decision by Wyoming’s Chief U.S. District Judge Scott Skavdahl remains unchanged and legally unchallenged. He ruled that “[c]orner crossing on foot in the checkerboard pattern of land ownership without physically contacting private land and without causing damage to private property, does not constitute an unlawful trespass.”
Waypoint 6
Eshelman, a hunter, would have the exclusive use of some 6,000 acres of public land enmeshed in his 22,045-acre, wildlife-rich Carbon County ranch if corner crossing is deemed and enforced as trespassing. Corner crossing, as described by the judge above, is the act of stepping from one piece of public property to another at the common corner with two pieces of private land, all arranged in a checkerboard pattern and without setting foot on private property.
Eshelman claims the hunters trespassed in 2020 and 2021 when they passed through the airspace above a corner of his ranch. The men claimed the federal Unlawful Inclosures Act of 1885 that generally prohibits blocking passage to federal property ensures their right to corner cross.
A jury found the hunters not guilty in a criminal trespass trial in Carbon County Circuit Court in 2022 and Skavdahl ruled in their favor in Eshelman’s federal civil suit earlier this year.
Eshelman wants that Skavdahl decision reversed by the appeals court in Denver. But the court stymied his appeal plans.
Because of the possible defect, the court is “considering this appeal for summary disposition,” meaning the court could throw the appeal out.
At issue is an unresolved claim that one of four Missouri hunters did more than pass through ranch airspace. Eshelman alleged hunter Zach Smith was actually on ranch property when he logged a digital marker called “Waypoint 6” on a smartphone mapping app.
Smith and others have said “Waypoint 6” could have been created from anywhere and is not proof Smith was on Eshelman’s property. Eshelman withdrew the claim, but apparently not permanently, according to an order from the clerk of the appeals court.
“[T]here is no indication whether the ‘withdrawal’ of the last claim was with or without prejudice,” whether it was permanent or temporary, the clerk wrote in an order filed on July 14.
Eshelman’s challenge appears unripe, “because the case has not been fully disposed of in the lower court,” the appeals court clerk order said.
The allegation regarding “Waypoint 6” appears to have little bearing on corner crossing itself. The hunters and ranch owner had already agreed the issue at hand was whether corner-crossing through airspace was trespassing.
Eshelman’s attorneys discovered the “Waypoint 6” digital marker as his civil suit was making its way through Skavdahl’s court. The lawyers added a new trespass allegation — trespass by actually stepping on land — to the case. They later withdrew the allegation but retained the right to pursue the claim again.
Google this
Earlier this month Eshelman stated in court filings that he is withdrawing a subpoena he obtained against Google to unmask an anonymous critic. Google and the critic, referred to as J. Doe, had fought Eshelman’s application for the subpoena.
Eshelman claimed the critic interfered in his pharmaceutical business. Revealing Doe’s identity would have allowed Eshelman to sue him or her for defamation in Germany or India, according to the application.The subpoena was an end run around the First Amendment protection of free speech, J. Doe’s public-interest attorney opined in a blog.
Did Mr. Eshelman’s lawyers make another boo-boo? Poor babies!
Just because these people have unlimited resources does not mean they should have unlimited power! Let’s get a fair ruling and let’s move on!
To the larger issue of public access to public land, I think we are way past the time to resolve the issue via eminent domain. I’ve lived in country where every landowner must allow 3 meters of access along the edge of their property if there is property behind theirs inaccessible by other means. Every piece of public land must have access for the public, and that doesn’t mean an 8 mile walk around. Too many creek bottoms were homesteaded and when the road was built it went there too, now there is no public access to all the lands behind. Fifty feet would be wide enough for an all weather two lane gravel road with bar ditches. Public land agencies can trade for similar pieces if a landowner doesn’t want the public crossing his land.
Obviously, the only reason a person buys corner to corner like this is to keep people from accessing public land and I say it’s obvious because it is to anyone with common sense. Rather than make stairs go from one corner of public land to another corner of public land which was suggested earlier and is obviously expensive as well as impractical, why not better yet make a law that says that when you come to a corner like this, “There is a automatically a 12 foot easement between the corners thus allowing for any person or vehicle to pass through to public land for the publics fair use or access to same.” If this were the law, might I suggest this individual and many others would buy all their land as contiguous as possible if they wanted privacy rather than buying in the checker board fashion, which the state and or federal government has already allowed to happen, in my opinion, quite erroneously. I don’t think the average citizen has to be absolutely genius to figure out what’s going on anymore than I think the average person buying property in this fashion should be considered brilliant but instead greedy. After all, are there not already laws on the books that says you can’t landlock people from their property by buying around all of their land and therefore not letting them in or out? Are they not given an easement automatically by law for actesting their property? How is this any different?
State of Wyoming needs to pass legislation to require 12-15 ft easement at every corner of federal land. Stops this nonsense.
My question to the judges would be if the federal governments can claim air space over there lands why can’t a land owner ?. Why can’t they claim the bennifits to what those bennifits to there deeded earth give back to the that close proximity to the Air above it . Shouldn’t a measure of space be considered as it is measured in most government offices for good reason .
The Feds own all the airspace to facilitate air rescues and civil airlines. No one owns the airspace over their lands but the Feds unless that airspace is in use (by a building or tower, etc.) This is based on FAA rules.
William. Generally it is done for security reasons. But you do get exemption from Joe Biden if you are Chinese ballon. Or purchase a trespass hall pass VIA Hunter Biden
When is Wyoming going to charge Eshelman & his employees with hunter harassment?
The facts of the case clearly describe the harassment of the hunters while on public land.
Let’s put the true wrongdoers on the defense for a change.
Well said
The rancher keeps trying to extend this matter out in court and going to rather extreme legal proceedings; however, I don’t think he’s considered the possibility of a severe backlash locally in Carbon County. That is, if he stirs up the natives/hunters/recreationalists too much they might run their own candidates for Sheriff, County Attorney and County Commissioners that are willing to enforce the law from a public access point of view. The Commissioners have the legal authority to force access across private land in order to establish public access to Elk Mountain proper. Fred could be looking at much more than corner crossing – he could be looking at a new county road across his private property . Its up to the voters in Carbon County but they outnumber Fred by a huge margin. Looking at this from afar, it appears the present Carbon County Attorney will definitely be history after the next elections. Have the Carbon County residents already started talking about changes in the Carbon County elected offices – of course they have!!
Over the years I have noticed that Teton County has not been reluctant to challenge billionaires in court over land use planning issues and commonly win. Big bucks doesn’t always get its way in Wyoming especially in front of a Wyoming jury which can be expected to side with the little guy most of the time. Its probably true that landowners/ranchers all over Wyoming would like to see Fred backoff – the eventual outcome will affect many of them.
If Fred goes to court in Germany or India – the backlash in Wyoming will be immediate – Wyoming citizens just won’t tolerate such extreme legal maneuvering. Getting along with your neighbors and fellow citizens is important in Wyoming and not recognizing this could lead to a complete new set of elected officials in Carbon County – and then what???
A major problem with the US justice system is that it was designed to benefit the wealthy, the ones who can afford all the costs associated with winning a case, or appealing a loss.
Modern constitutional law is based on property rights, not on the public at all. That is intentional. Read the Federalist Papers, written by the people we call the Founding Fathers. US law is property law intentionally. Most of the first 10 amendments are about individual rights, not public rights.
Completely bogus on the part of the landowner. I’ve lived in the southwest my whole life and I have richly benefitted from the ability to enjoy nature on land I didn’t own. Public lands are a wonderful gift to those of us who aren’t landed gentry. As long as these gentlemen didn’t throw trash on his property, tear it up in any way, interfere with livestock gates etc, he suffered no harm. The fact that they can’t afford a helicopter to avoid stepping over a few inches of his land should in no way prevent them from enjoying nature on public lands.
Harvey. Seems the justice system is working for little guy in this case
Why not build a set of stairs from public land to public land so there is no future issues with crossing where there is property like this. There is no way public land shouldn’t be accessible. Public land should be available in any state when the circumstances are like this.
not really feasible, that would be thousands of places, all of which would need maintained.
How about ( just like in urban and city areas) there is a right of way of passage clearly marked and enforced.. this ” rancher” should be held liable for ALL court costs and losses due this greed law suit
Every rancher in the state is wishing Eshelman would stop this, they stand to lose a lot more than he stands to gain.
Its time for the public to take back our land
Too many ranchers are keeping people from accessing federal land, either by high trespass fees or no trespassing at all.
If he can trespass hunters for stepping across airspace between the corners of his land, why not trespass aircraft for flying over his land ? Same thing !