Corner crossers reach for federal court, access to 1.6M Western acres

Four hunters charged with trespassing in Carbon County seek a federal court where their case could resolve the legality of corner crossing to access 1.6 million acres of public land across the West.

An attorney for the four Missouri men filed a petition in U.S. District Court for Wyoming on March 22 asking that judges move a civil case against his clients from Wyoming’s Carbon County District Court to the federal venue. Iron Bar Holdings LLC, which owns Elk Mountain Ranch and is managed by North Carolina mega-millionaire Fred Eshelman, filed the civil case earlier this year.

It alleges that the hunters trespassed by corner crossing — stepping from one piece of public land to another where the public parcels share a four-way corner with two private parcels in a checkerboard pattern.

A transfer to federal court could bring the issue of corner crossing into a realm where federal access laws hold more sway.

Along with the transfer of the case, the petition to the federal court also asks for a jury trial.

The hunters also face counts of criminal trespass and trespassing to hunt brought by the county attorney in Carbon County Circuit Court. They have pleaded not guilty to those charges, asked that their cases be dismissed and complained that the ranch manager harassed them illegally while they were hunting on public land.

But the separate civil trespass issue falls under the jurisdiction of the federal court because of the national interests at stake, among other reasons, a 35-page petition filed by the hunters’ attorney Ryan Semerad states.

A federal court should hear the matter because it grows from “the basic property claim made by private landowners across the United States that impedes both the federal government and the general public from accessing, using, and enjoying an enormous public asset,” Semerad’s petition states.

“A federal rule of decision is necessary to protect and preserve the limitation on private landowners’ ability to control or restrict access to federally owned public lands,” the defendants’ “petition for removal” states.

West-wide precedent

At issue is access to 404,000 acres in Wyoming and another 1.2 million acres in Colorado, Idaho, Montana, New Mexico and Utah for a total of almost 1.6 million acres across the West. That’s the area “landlocked” by any interpretation that corner crossing is illegal and a trespass.

Much of the public land in question is part of a checkerboard pattern of private-public ownership originating in the era of land grants given as part of railroad construction.

Both the civil and criminal cases against the hunters, who traveled from Missouri to Carbon County last fall, allege that the men trespassed even if they did not set foot on private property. The theory behind the court actions holds that the hunters’ intrusion into airspace above the private Elk Mountain Ranch constitutes trespass.

Iron Bar Holdings has “a right to exclusive control, use and enjoyment of its Property, which includes the airspace at the corner, above the Property,” the civil suit states.

But the hunters’ quest for a federal forum could bring a longstanding range law to the foreground — the Unlawful Inclosures Act of 1885. Passed by Congress, it generally prohibits landowners from blocking access to public lands.

“It is assumed [by the hunters] that the federal court will be more sensitive to the federal issues at stake,” Sam Kalen, an associate professor at the University of Wyoming’s College of Law, wrote in an email.

The civil case qualifies for federal jurisdiction even though Iron Bar and Eshelman filed the suit based only on Wyoming laws, attorney Semerad wrote. In fact, Iron Bar specifically sought to avoid the federal question, the hunters claim.

The civil suit is “artfully pleaded to avoid or conceal the federal nature of the issues contained therein,” Semerad wrote.

Regardless of that so-called artful pleading, “Congress provided an exclusive federal remedy for the [Iron Bar] claims,” Semerad wrote. Congress “intended for claims of this nature to be addressed solely in federal court.”

The Wyoming civil suit is “completely preempted by federal law,” the hunters claim.

WyoFile did not receive a comment on the issue from an Iron Bar attorney, and court records don’t appear to show any response filed in the U.S. court by Monday morning either.

Meeting legal tests

The civil case should be moved to federal court because the suit has federal law as its foundation, the hunters assert. Iron Bar’s claims “hinge entirely on … federal laws concerning public lands,” Semerad wrote.

Iron Bar’s claims “run against the express terms of the [Unlawful Enclosures Act], which prohibit private landowners from excluding others from the public domain, as well as federal caselaw…” the hunters’ petition states. The UIA grows from the U.S. Constitution’s Property Clause, which takes precedence over state law, Semerad argues.

“[S]tate legislatures, state executives, and state judiciaries may not grant rights, privileges, or powers to private parties … that would conflict with federal legislation enacted by Congress…” the petition reads.

The civil suit also should be transferred because it meets other legal tests including that it involves more than $75,000 in value and entangles parties from different states. The hunters base the different states’ argument on their being from Missouri, Eshelman and Iron Bar being from North Carolina and the Elk Mountain Ranch being in Wyoming.

The hunters propose that the value of the issue at stake exceeds $75,000 in part because of a $30 million mortgage secured by Iron Bar and Eshelman in 2017 from Bank of America.

Resolution of the hunters’ case could reverberate across the West, law professor Kalen opined.

“The defendants are seeking to establish a precedent that, at the very least, the UIA does not allow the type of barrier to access to the public lands [a pair of fence posts] that the landowner here employed,” he wrote.

If the case is transferred to and decided in federal court, it would “serve as precedent for any similar disputes occurring within that district court,” Kalen wrote. “And if it gets appealed and affirmed it would be precedential for any similar dispute in [the] region governed by the 10^th Circuit.”

Iron Bar brought the original civil suit that asks a District Court judge to simply declare that the four men trespassed and order a jury trial to only determine the amount of damages they should pay. Iron Bar seeks repayment “to the fullest extent of the law,” for attorneys’ fees, costs and expenses incurred in the litigation.

The Elk Mountain Ranch covers more than 20,000-acres around Elk Mountain just south of Interstate 80. The Missouri men claim they were hunting on public land and said in court filings that they never set foot on private property. Instead, they used a fence ladder to climb over two posts erected at the corner in question.

Iron Bar has stated that it “fenced or otherwise marked the common corner in a manner intended to prevent others from accessing the public land…” the hunters’ petition states.