Court victories give limited but uncertain protection to corner crossers

Despite winning two court fights against penalties for corner crossing, hunters are not yet assured they and others can step with immunity through private airspace to reach public property, legal experts say.

The legal corner-crossing victories by four Missouri hunters came in a 2022 criminal trial in Carbon County and a recent civil judgment in federal court. The court decisions may provide guidance in other cases, but they do not yet set a concrete precedent that corner crossing is legal in Wyoming, across the jurisdiction of the 10^th Circuit or throughout the West, where 8.3 million acres of public land are at issue, experts say.

The conclusions provide only some guidance as to whether one is liable when corner crossing. That’s stepping from one piece of public land to another at the intersection with two pieces of private property — all arranged in a checkerboard pattern — without setting foot on or damaging private land.

But the decisions don’t yet guarantee wayfarers won’t be charged criminally or sued civilly when corner crossing.

“In the criminal case it’s up to the prosecutor whether to bring charges,” said Eric Hanson, an attorney for Backcountry Hunters and Anglers, the group whose Wyoming chapter fundraised and supported the hunters in their yearslong legal battles. A person also still could be subject to civil claims for corner crossing, he said.

Furthermore, Fred Eshelman, the owner of the Elk Mountain Ranch where the corner crossing took place in 2020 and 2021, filed a notice June 29 that he will appeal his civil defeat to the U.S. Court of Appeals for the 10^th Circuit.

The two court decisions would be quickly referenced in the legal defense of any person charged or sued for corner crossing, lawyers said.

Criminal exposure remains

In May, the Missouri hunters successfully defended their actions against a civil suit that sought $7.75 million in damages. That victory accelerated broader questions regarding corner crossing’s legality and practice.

Is corner crossing now legal in Wyoming? What about in neighboring states? Can one hunt public land on Elk Mountain now without getting charged or sued?

In Carbon County, home to Elk Mountain, the not-guilty verdict in the criminal trespass trial of the hunters brought little clarity to the risks of prosecution for corner hopping. The jury foreman did not respond to a request from WyoFile to explain the jury’s reasoning.

County and Prosecuting Attorney Ashley Mayfield Davis, who charged the hunters with trespass, did not seek reelection last fall. She stated her policy in court documents, writing that “[t]he idea that corner crossing is illegal and may be [charged] under the Criminal Trespass statute has been a consistent policy of the Carbon County Attorney’s Office at least since 2008.”

Voters elected Sarah Chavez Harkins to replace her, and Mayfield Davis is now listed as a deputy attorney on the Carbon County website. Harkins did not respond to a question regarding whether the 2008 policy remains in effect.

The hunters’ lead attorney, Ryan Semerad, said he believes the potential criminal aspect of corner crossing depends on the ultimate decision in the civil case that’s now under appeal.

The criminal trespass law “uses the power of the state to protect private property rights,” he said. “If you don’t have a right to bring a civil suit yourself [as U.S District Judge Scott Skavdahl decided], you certainly don’t have a right to protect it through the power of law enforcement.

“There’s going to be apprehension until we get an answer from higher courts,” Semerad said.

Meantime, it’s possible that “a rogue prosecutor’s office is going to decide to force a [criminal trespass] citation down someone’s throat anyways,” he said.

Stock growers confused

Skavdahl’s decision befuddled the executive vice president of the Wyoming Stock Growers Association, who said the decision upends tradition and practice among ranch owners and stock growers.

“It’s disappointing to us,” Jim Magagna said. “I think it puts into question the way we’ve done business.”

“I certainly don’t think it resolves the issue” because of seemingly contradictory conclusions in Skavdahl’s decision, he said.

“The court acknowledges very clearly that the private landowner owns the airspace above the land,” he said. “Then the [court’s] next step [was] to say ‘going through that airspace is not trespass.’

“I think that’s going to need some clarification,” Magagna said.

The hunters argue that the federal Unlawful Inclosures Act of 1885 prevents Eshelman from blocking them — including by using threats and intimidation — from stepping from one piece of public land to another. Skavdahl reconciled the two thoughts, writing in his order that property ownership — in this case the ownership of Elk Mountain Ranch — can come with restrictions.

“History, federal case law, federal statutory law, and recent Wyoming legislation demonstrate corner crossing in the manner done by Defendants in this case is just such a restriction on Plaintiff’s property rights,” Skavdahl wrote. “[D]efendants, ‘in common with other persons [have] 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 pattern of land ownership.”

Magagna said he’s also confused because the judge agreed that states define property law, but then proceeded to redefine them — under federal law — in Wyoming. He also believes Skavdahl misinterpreted the Legislature’s intent when it amended Wyoming’s trespassing-to-hunt law — a law different from simple criminal trespass.

That amendment limited the hunting regulation to persons who set foot on private property.

“That was certainly not intended to be a statement of the state or the Legislature’s position [approving of] corner crossing,” he asserted.

Stock Growers’ attorney Karen Budd-Falen, who filed an amicus brief in the civil case, said the ruling applies to the limited facts of this case, which Skavdahl said involved foot traffic across corners in Wyoming’s checkerboard area when private property is not touched or damaged.

“Right now in Wyoming that’s the rule,” Budd-Falen said. That would remain the rule unless Eshelman asks the 10^th Circuit for a stay or postponement of Skavdahl’s decision, or at least until the appeal is concluded.

“Property rights are always defined by the state,” she said. “The Supreme Court of the United States has said that many times.”

Right to exclude

The corner crossing case is important not just because it has implications for hunters, birders, hikers, rockhounds and others in Wyoming and across the West, but because it could affect a bedrock American principle. That’s the right to exclude others from one’s property, a right the U.S. Supreme Court has called “the most essential” of property rights, according to a law review article.

Diluting that right would be a sea change, writes Kristin Marshall, a student at the California Western School of Law in an article, “Stalemate: The Practical Impossibilities of Public Land Access in Wyoming,” published this year in the California Western Law Review.

Before landing on the implications of the civil case in her essay, Marshall outlines how she sees Eshelman’s actions. His civil accusations are “the cries of outrage from an absentee landowner … [that] appear to be nothing more than a temper tantrum.”

Eshelman is using the suit “as a cudgel, preventing the public from accessing lands designated by the government as belonging to everyone,” she wrote. “[T]hese criminal trespass laws are being used by a wealthy landowner to intimidate, strong-arm, and exclude the public.”

Eshelman’s civil suit “could be viewed as a case of illegitimate leverage, where ‘an owner’s decision to use or to enforce her property rights is based solely on the harm to others,’” Marshall wrote, quoting another legal essay.

Eshelman’s attorneys did not immediately respond to a request for comment on Marshall’s essay. But Eshelman, a hunter, has laid out his position in various filings.

“Our position is that we should have control over who crosses the private land,” including the airspace above that land, he said in a deposition. No-trespassing signs erected at one corner in a manner that obstructed the hunters’ passage “were there to prevent the public from crossing private property to access those [public] sections,” he said.

Elk Mountain Ranch “has a right to exclusive control, use, and enjoyment of its Property, which includes the airspace at the corner, above the Property, ” Eshelman’s suit against the hunters stated. Eshelman “suffered and will continue to suffer damage for the loss of the use, custody, possession and control of the Property as long as Defendants continue,” the filing states.

Actual damages range between $3.1 million to $7.75 million arising from a 10%-25% diminution of the value of Eshelman’s property, according to a disclosure statement. Other damages include $7,500 from interference with a military veterans’ hunting program, interference with other operations and costs incurred through extra employee time, according to Eshelman’s claims.

If Eshelman wins on appeal, that will be “an egregious lack of public access to designated wild spaces,” Marshall wrote.

“The lack of public access is intentionally being frustrated by the incredibly wealthy at the expense of everyone else, at a precise moment in history when our wild spaces are diminishing, and the chasm of wealth disparity is ever-widening,” she wrote.

If the hunters continue to prevail, Marshall acknowledges, “the UIA could be turned into a weapon the public could wield against property owners who keep them from accessing public land.”

Until then, hunters and others should understand that the corner-crossing issue is not completely settled.

“Until we work our way up through potential appeals, we don’t have real precedent,” said Hanson with Backcountry Hunters and Anglers. “I think people still have to be somewhat wary and weigh the risks that something like this could happen to them again.”

BHA has an FAQ page on its website that seeks to answer some of these questions. Hunters’ attorney Semerad has “a much more aggressive opinion” regarding the implications of the cases, he said, but called the FAQ page “appropriately conservative and appropriately careful.”

If waves of corner crossers descend on the checkerboard, Magagna said landowners might revolt. “I would not be surprised if new litigation were to result from that,” he said.A 10^th Circuit decision would set precedent across that court’s jurisdiction — Wyoming, Colorado, Kansas, Utah, New Mexico and Oklahoma. If appealed to and decided by the U.S. Supreme Court, that decision would apply nationwide.