Elk Mountain Ranch owner Fred Eshelman on Wednesday petitioned the U.S. Supreme Court to review a lower court decision that corner crossing is not trespassing. The filing asserts that the 10th Circuit Court of Appeals “inverted” legal limits on the federal government that are meant to keep it from trammeling state trespass statutes.
The long anticipated appeal pits Eshelman against four Missouri hunters — Bradly Cape, Zachary Smith, Phillip Yeomans and John Slowensky — who passed through the airspace above Elk Mountain Ranch property to hunt on public land beyond. By corner crossing, they did not set foot on the land itself.
“The [10th Circuit] decision … steamrolls state law, takes easements, and revolutionizes property law affecting up to 150 million acres of private land,” Eshelman’s attorneys state in their petition. The decision has “already created confusion about the new legal landscape,” the petition states.
“Under the Tenth Circuit’s rationale, the UIA necessarily permits the public to access public land even if it requires trekking through dozens of miles of private land.”
Fred Eshelman’s petition
WyoFile obtained the petition from the hunters’ attorney. It had not been posted to the Supreme Court’s website by 4:55 p.m. Wednesday.
The case has implications for public access to public land across the West and, according to the petition, throughout the entire country.
Corner crossing is the act of stepping from one piece of public property to another at the common corner with two pieces of private property, all arranged in a checkerboard pattern of land ownership. Corner crossing does not involve setting foot on private land but necessarily requires passing through the airspace above it.
Eshelman contends that passing through that airspace constitutes a trespass and is illegal.
Eshelman sued the four hunters in 2023 after they corner crossed to hunt public land surrounded by his wildlife-rich private property. That public land was inaccessible without trespassing, corner crossing or flying.
But the 10th Circuit Court of Appeals in March upheld Wyoming’s Chief U.S. District Court Judge Scott Skavdahl’s finding that the hunters did not trespass.
“In addition to erasing billions of dollars in private property value, the decision … will lead to widespread trespasses and property damage,” Eshelman’s 33-page petition states. The 10th Circuit ruling “leaves tens of millions of outdoor recreationists in limbo about how and where they may access public land.”
Supreme Court review would provide “a unique and timely opportunity to provide immediate and much-needed clarity to landowners, recreationists, and public authorities alike,” Eshelman attorneys Samuel Callahan, R. Reeves Anderson and Brian M. Williams state in the petition.
Federal, state laws conflict
The hunters will have an opportunity to respond, and Eshelman yet another chance to rebut that before the petition is distributed to the justices. The court could decide early this fall whether to issue a writ of certiorari commanding the case to be turned over to their jurisdiction.
Other filings and arguments would ensue should the Supreme Court accept the case.
In deciding in favor of the hunters, the 10th Circuit relied on the 1885 Unlawful Inclosures Act that prohibits fencing off and blocking public access to public land in the West. Congress passed it to resolve conflicts in the checkerboard landscape, an ownership pattern created by the government during the railroad construction and land grant era of the 1800s.
Hunters’ attorney Ryan Semerad successfully argued that the act and subsequent court cases prohibited Eshelman from blocking public access to public land, even through threats and intimidation. The hunters did not seek an easement at the corners they crossed. Instead they defended their actions by asserting Eshelman could not prohibit their access, even by filing a lawsuit that seeks to bar them and others from corner crossing.
Eshelman, a wealthy North Carolina pharmaceutical magnate, contests that notion.
The 10th Circuit improperly decided the federal act preempted Wyoming trespass law, Eshelman’s filing contends. There’s a “presumption against preemption” — a presumption that federal law shouldn’t easily overrule a state law — the ranch owner contends.
“The Tenth Circuit inverted the presumption against preemption,” the petition states. “The premise underlying this conclusion was that a state-law trespass action can constitute a ‘nuisance,’ which in turn can be understood as an unlawful ‘inclosure.’
“[A] trespass action is neither unlawful nor an ‘inclosure,’ in its 1885 or present-day sense,” Eshelman argues. “Nor can asserting a valid trespass action under state law constitute a ‘nuisance’; to counsel’s knowledge, the Tenth Circuit is the first court to so hold.”
The 10th Circuit decision extends beyond checkerboard corners, the petition states.
“Under the Tenth Circuit’s rationale, the UIA necessarily permits the public to access public land even if it requires trekking through dozens of miles of private land,” Eshelman’s lawyers state.
Chaos could follow if the 10th Circuit ruling stands, the filing contends. In searching for a corner, even with GPS technology on a cellphone, “a corner crosser will already have trespassed multiple times,” the filing states.
The 10th Circuit ruling “also means that members of the public, some with high-powered rifles, will roam freely within the perimeter of checkerboard owners’ land without notifying anyone of their presence.”
Taking of private property?
Eshelman’s ranch spans more than 20,000 acres and is home to hundreds of elk, plus other wildlife. A hunter himself, Eshelman and his guests would have exclusive access to some 6,000 acres of public land if corner crossing is deemed an illegal trespass.
Similar situations exist in other locations across the West. The group Backcountry Hunters and Anglers, which supported Cape and his partners, contends that private landowners in such locations control for their exclusive use land that belongs to all Americans.
Eshelman’s petition makes numerous other points, including that the UIA refers to physical barriers like fences, ditches, cattle guards and so-on. It says the 10th Circuit interpretation of the UIA effects “an unconstitutional taking” of private property because the landowner is not compensated.
The petition argues that in a case known as Leo Sheep the Supreme Court decided against the federal government having any kind of easement across corners. “The relevant question in Leo Sheep was not about how the public accessed the land but whether the government had an access right at all,” the petition states.
Hunters’ attorney Semerad said in a statement that the Supreme Court does not need to hear the case.
“But if it chooses to, it should do so to announce — once and for all — that private landowners cannot prevent the public from lawfully accessing public land … just as every other judge who has heard this case has decided.
“We are ready to defend those correctly decided lower-court decisions to protect the rights of all Americans to access their public lands,” his statement reads.
Ranch for sale ads have advertised so many deeded acres and so many acres under lease as if you are also buying the federal land they control. Little wonder that they are fighting corner crossing so hard when they can no longer buy and sell land owned by all of us.
On another note the property taxes they pay on 640 acre is about the same as the taxes on a very moderate in town house. Pretty sweet deal , no taxes on the federal land that they feel that they are entitled to control and ridiculously low taxes on the rest.
They say we are taking away private property, how is this? If they would win, they would be taking away public property for basically nothing. I dont believe property tax is paid on Federal lease land, only the grazing which is about 10-15% of what is paid for private land grazing, substantial break. Then you notice when a property is put up for sale, the federal lease is included in the deal? so basically they are getting per acre price for public land that they dont own but control access to.
I am a landowner but I just cant agree, I believe one should be able to step from Public land to Public land without trespassing.
Federal land belongs to the citizens of the USA, not private landowners. Let’s end it all. Federal and state legislators need to pass a law that every corner must be given 5 foot easement to cross either by foot or horseback. This is not illegal “taking.” It only requires access without trespass. Time to stop the greed by the ultra rich who block access to the citizens of the nation.
This debate will continue to be waged until we stop allowing Public land to be blocked on all sides without a means of ingress or egress.
An unlawful taking because the private property owner is not compensated. Guess the whole thing comes down to $$$$. It always bothers me about some billionaires, when is enough enough, and why do they have to make sure the rest of us are always made aware of their riches and importance.
I’m willing to bet Eshelman pays property taxes like a rancher when he bought so he could charge for hunting so should pay higher property taxes.
People with high powered rifles will roam freely, oh my! Aren’t we being a little dramatic here?
I actually hope the Supreme Court takes this up and issues a definitive ruling that forbids owners of private land from asserting dominion over who has a right of access to public lands. If anyone is guilty of an unlawful taking it seems that Eshelman and his kind have being doing that for years basically claiming an exclusive right to use adjoining public land to the exclusion of the public.
Fred had a lot of help from local corruption. Wyoming Game and Fish always had his back when he and his thug go’fers were illegally harassing hunters on BLM land plus he had that bought and paid for leggo toy County Attorney in Carbon Co. to help with the dirty work. Can’t leave out the Welfare pennies-2-the-dollar public land grazing Magagna and his fauxboys. Eshelman should of quit while he was ahead as this appeal to the SCOTUS is nothing but a joke
The utterly ridiculous reasons given on this petition are frankly, quite embarrassing. How were these lawyers hired, from a Florida billboard? I’m surprised that Eshelman gave his go-ahead but he’s like a turd that goes round n’ round in the bowl but just won’t flush. It’s all just another bonus laugh track compliments of Fred for us public land users
Eshelman has probably already bribed and paid off Justice Clarence Thomas along with the other corrupt SCOTUS justices to hear his case.
Very pertinent issues made by the Eshelman shyster brigade. Good job! But, you guys missed a few key points: 1) a public land user cannot look at Eshelman’s private property ). a public land user cannot think about Eshelman’s private property 3) a public land user cannot use public land adjacent to Eshelman’s private property 4) a bird cannot fly over or land on Eshelman’s property (or risk being shot). There ya go, Attorney Robert Anderson of Dewey, Cheatum & Howe, add this to your petition and expect victory!
Wow, just when you think that the Elk Mountain ranch legal counsel has maxed out on silliness, they present this trash to the Supreme Court. The scent of desperation wafting in the D.C. air is astounding! The only response from SCOTUS will be uncontrollable laughing! Note to self if in a legal quandary: never hire Eshelman’s legal team. My money is on Ryan Semerad and the Missouri 4
6000 acres of land locked public land… This is exactly why land owners face such backlash from those of us that use public access. It needs to be made law that public right of way is granted. Period.
Some of the quotes listed on this petition will illicit only laughs from SCOTUS as it all reeks of last minute desperation by the Eshelman legal team. Four wittle’ ole’ Missouri boys kicked a billionaires ass and we’re all rejoicing and LOL at this hail mary joke of a petition. Come this fall I’ll be hunting on the checkerboard BLM land adjacent to the Eshelman ranch. Come on out and say “hi” Fred
This is the baseless and laughable rubbish that the Eshelman legal team wanted the supreme court to grant a filing extension? In lieu of some backroom payment to a crooked supreme court justice, it’s all over for Freddie.
Eshelman’s team of shysters are really reaaaaaacching here, what a laff! “Chaos will ensue” they say. In heading to a corner, a hunter will have already ” have trespassed multiple times”. “Heavily armed individuals (on public land) will freely roam the adjacent private land without notifying anyone of their presence”…Even Justice Clarence Thomas would get a chuckle at this feeble whining. I’m beginning to think that the losing podunk Carbon County Attorney who started this garbage is a better lawyer then this clown show that Eshelman sent to SCOTUS.
A giagantic reach at best! This here “Under the Tenth Circuit’s rationale, the UIA necessarily permits the public to access public land even if it requires trekking through dozens of miles of private land,”. Is a joke. Aboslutely no one is talking about walking over miles of private land. Hell no one is talking about stepping a single foot on private land.
Ridiculous!