Hunters fighting a $7-million corner-crossing suit on Wednesday rejected an assertion that a digital “waypoint” marker set in a mapping program on one of their cellphones proves they trespassed on the Elk Mountain Ranch.
Carbon County ranch owner Fred Eshelman claimed last week that data subpoenaed from the onX digital mapping company showed that one of four Missouri men named in the suit was on his property. Zach Smith in 2020 digitally marked a location that’s on the North Carolina businessman’s 22,045-acre ranch, Eshelman contends in court filings.
“Mr. Smith marked a waypoint at geographic coordinates that place him on real property, owned by [Eshelman’s] Iron Bar Holdings, LLC,” Eshelman’s legal team states. The waypoint “proves he trespassed,” the filings say.
The hunters assert they never touched Eshelman’s private land as they corner crossed — stepping from one piece of public land to another — in a checkerboard of publicly and privately owned land. Eshelman has claimed that passing through the airspace above his property constitutes trespass.
“One could drop a waypoint for any reason at all and one has not necessarily been to the places where he or she has dropped a waypoint.”
onX representative Joshua Spitzer
Last week, apparently for the first time, the businessman asserted that the hunters actually set foot on his land.
But the hunters state the waypoint could have been created without standing at the site it marks on private land. They cited deposition testimony from an onX representative to make their case.
“One could drop a waypoint for any reason at all and one has not necessarily been to the places where he or she has dropped a waypoint,” Joshua Spitzer, a representative for the onX company that makes and sells the hunting app, stated in a deposition.
At issue is public access to thousands of acres of public land enmeshed in Eshelman’s ranch and accessible only by corner crossing, trespassing or the ranch owner’s grace. Across the West, 8.3 million acres of public land are “corner locked” by any definition that corner crossing is illegal.
Waypoint 6
Both Eshelman and the hunters have asked Chief U.S. District Judge Scott Skavdahl to decide in their favor without a trial. The hunters want the suit dismissed while Eshelman wants the judge to declare that they trespassed — whether by passing through airspace above his property or actually standing on his land.
In a Wednesday filing, hunters’ attorney Ryan Semerad wrote that Skavdahl can dismiss the case regardless of Waypoint 6. Eshelman’s “new evidence” regarding Waypoint 6 “requires speculation, and cannot defeat summary judgment,” Semerad wrote.
Evidence to defeat summary judgment “must be based on more than mere speculation, conjecture, or surmise,” his filing states.
“Defendants do not dispute that Defendant Smith’s onX Hunt user data shows this waypoint was created on private land,” the filing states. “But the existence of a waypoint or other marker on onX Hunt does not demonstrate that a user (or anyone else) physically traveled to the marked spot, only that the user marked that point on the app.
“This assertion — linking the marking of a waypoint with the user’s on-the-ground physical location — lacks foundation, and is factually wrong,” the filing states.
The latest debate included more information regarding the use of the onX tool, including that the hunters did not have the ability to continuously track their moment-to-moment movements and create what’s known as a digital bread-crumb trail. Also, onX does not store data from programs and users that employ such continuous tracking, according to the company representative.
Eshelman’s team said it had asked for all of Smith’s onX data and he failed to produce the 2020 information. Smith said he turned over everything he had, does not remember creating Waypoint 6 and was never at that site.
Phillip Yeomans, another of the Missouri hunters who had the onX Hunt app, said a waypoint can easily be created by accident and without being at the waypoint location it depicts. Finally, Smith restated on April 27 that he never was on Elk Mountain Ranch.
“I am absolutely certain that I never made physical contact with, stepped foot on, or traveled to ‘Waypoint 6,’” he said in a declaration.
Deadline fillings
The hunters corner crossed to reach some 3,000 acres of public land on Elk Mountain in 2020 and 2021. They claim the airspace above the common corners is shared and that they can cross from public land to public land without trespassing. A sheriff’s deputy cited them for the 2021 hunt but a Carbon County jury in 2022 found them not guilty of trespassing and trespassing to hunt.
Eshelman has claimed in his subsequent and separate civil suit that corner crossing devalues his ranch by up to $7.7 million, or even $9.4 million, based on real estate agents’ opinions. Skavdahl has ruled at least one of those opinions irrelevant.
The ranch owner would drop that monetary claim if the judge rules that the hunters trespassed, Eshelman said last week in court filings. Before making that statement, he wanted the judge to declare the men trespassers, followed by a jury trial to determine damages.
Attorneys for the opposing sides made what was to be their final arguments for summary judgment last week, at which time Eshelman’s team unveiled the new waypoint data and claim.
The hunters, who were unable to immediately react, asked for an extended filing deadline. Eshelman’s attorneys unsuccessfully opposed that, saying that they got the raw onX data at the same time the ranch owner did. Skavdahl, however, granted the hunters permission to respond to the new accusation.
According to US Code, The BLM definition of public lands, “Public lands mean any land and interest in land outside Alaska and administered by the Secretary of the Interior through the Bureau of Land Management, without regard to how the United States acquired ownership except–
(1) lands located on the Outer Continental Shelf; and
(2) lands held for the benefit of Indians, Aleuts, and Eskimos.”
BLM definition of multiple use, again from the US Code, in part states, “means the management of the public lands and there various resource values so they are utilized in the combination of that will best meet the present and future needs of the American people;…a combination of balanced and diverse resources that takes into account the long-term needs of future generations, including, but not limited to recreation, timber, mineral watershed, wildlife and fish and natural scenic, scientific and historical values;”…
I have information that Eshelmen is in the process with the BLM to trade for public lands within his ranch or outright purchase those lands. Contact your BLM and voice your opposition.
Hey Daniel Richards (Fred E.), ok….
Private property is just that…private.
Imagine this is your yard and others decide best route is to cross your corners when they have access permission from your neighbors.
The trespassers are trying to manipulate the law for their benefit and to the detriment of the private property owner.
They should lose which is a win for property owners.
In my opinion you have the situation tuned around. Private landowners manipulate the law to their benefit. Preventing members of the public from accessing public lands benefits only the landowners.
Yes
Public land is just that, public land.
Landowners in Wyoming have the right by law to get access even through a neighbors property to their landlocked property. Public lands should have the same access capability. In fact it should be law that anyone leasing public lands for grazing that they provide access as a term of their lease.
Not exactly. You can petition for an easement, pay for it, and maybe get one. On you dime
Dan, no one is trying to take away private property rights. What we all want is public access to public land. Why should Eschelman have exclusive control of thousands of acres of public land? It doesn’t make any sense.
Yup, in total agreement.
👏🏻👏🏻👏🏻
State legislators could of ended this BS years ago by granting easements to landlocked public land. As could of senate/congress. But all are like Chaney and only look out for them selfs
I use OnX and have added waypoints accidentally at places I have never stood. The app defaults to putting the waypoint in the middle of the screen and then you can move it around manually. Also, one can add waypoints on a browser without ever stepping outside of your house…just in case anyone out there was curious and hasn’t used the app.
Exactly. I have several way points on onX Hunt that I put on at my kitchen table, to denote locations I want to scout for hunting.
End this nonsense now and have Eshelman pay the 4 hunters for all of the lost wages and heartache they have incurred because of this sham trial.
This actually sounds like a good idea.
The whole notion that he gets to lock people out of public land as ap result of owning “the airspace” is feudalistic.
Great write up