Coalition representing 4 million members backs corner-crossing hunters

Conservationists, environmentalists, hunters and minority advocates filed legal papers last week supporting four hunters who were sued for passing through the airspace above a ranch to hunt on public land.

The groups that filed briefs in the potentially precedent setting corner-crossing case, which is in front of the U.S. 10th Circuit Court of Appeals, represent more than 4 million members and supporters. They argue that the owner of the Elk Mountain Ranch illegally tried to block passage to public land, including by filing the ongoing civil trespass suit against four Missouri hunters.

Landowners, especially those with money, power and influence, “gain … undue control over public land with false or misleading signage, threats, and even outright violence,” one new pleading states. Those tactics from the West’s range-war era are used to fight the corner-crossing hunters and others and to maintain exclusive access to millions of acres of public land, the groups claim in their filings.

At issue is access to some 8.3 million acres in the West — about 6 million acres of checkerboard — where public access is blocked by a tradition of trespass claims by ranch owners and others, the Missouri hunters and their supporters say. Corner crossing is the act of stepping from one piece of public land to another, without touching private land, at the common checkerboard corners with two pieces of private property.

The hunters corner crossed at the Elk Mountain Ranch in Carbon County in 2020 and 2021, passing through airspace above the ranch without setting foot on private property. A jury in 2022 found them not guilty of trespass but ranch owner Fred Eshelman sued them in civil court.

Wyoming’s Chief U.S. District Judge Scott Skavdahl ruled against Eshelman last year, declaring that corner crossing in the checkerboard area of the state is not trespassing. A Montana landowners’ group and Wyoming stock growers have sided with Eshelman in the appeal.

4 million supporters

One new amicus brief supporting the hunters came from Great Old Broads for Wilderness, GreenLatinos, Sierra Club and Western Watersheds Project. Backcountry Hunters and Anglers, a nonprofit that has invested in public access and also helped fund the hunters’ defense, filed a second.

Collectively, the groups claim more than 4 million members and supporters. Great Old Broads for Wilderness, a women-led organization, also has 40 volunteer-led chapters across the country, court papers state.

The 1885 Unlawful Inclosures Act, which was designed to prevent landowners from blocking reasonable access to public land, is central to the amicus briefs’ arguments. The groups say Eshelman’s ranch, officially owned by the North Carolina pharma magnate’s Iron Bar Holdings company, violated the UIA first by chaining together two fence posts at a common checkerboard corner.

Because the Iron Bar chain hung across federal U.S Bureau of Land Management property, “[i]f any party is guilty of trespass, it’s Iron Bar,” Earthjustice attorney Thomas Delehanty wrote for his clients.

The civil suit against the hunters is another violation of the act, the filings claim. “As plainly as the [fencepost-chain] blockade is illegal, so too is Iron Bar’s trespass lawsuit,” the Broads and their cohorts write. “[B]oth … aim to enclose and block lawful uses on public land.”

While property rights allow a landowner to exclude others from their property, rights to airspace are narrower, hunters’ supporters state. The appeals court decided in earlier cases that the right to exclude others does not also allow a person to “enclose” public land and block others from it.

“Iron Bar lobbies for a … wholly unreasonable outcome in which a claimed right to exclude others from a few inches of airspace allows private landowners to claim millions of acres of public land for themselves,” Delehanty wrote.

BHA would mark corners

Delehanty cites a handful of outdoors folk who say they were harassed, intimidated or otherwise discouraged from using their public property because of the practices of adjacent private landowners. One landowner pleaded guilty to aggravated assault in a case involving a rock climber who had been climbing on BLM property, according to his filing.

In its amicus brief, Backcountry Hunters also cites a Wyoming hunter who successfully used now-legal corner crossing in the Wyoming checkerboard to bag a mule deer. Backcountry Hunters’ attorney Eric Hanson used Guy Litt’s story of a responsible excursion to counter arguments that an appeals ruling against Eshelman would unleash convoys of trespassing ATV drivers, indiscriminate and dangerous shooting and a further “parade of horrors.”

Backcountry Hunters, whose Wyoming Chapter supported the Missouri hunters, has contributed thousands of dollars to successful public-land access programs and stands ready to do more, it says.

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The group would collaborate with landowners and BLM “to identify and permanently mark priority corners,” the brief states. Hunters will even raise funds to build stiles at corners where landowners believe their private fencing is necessary.

The Missouri hunters’ supporters cite liberally from the filing cabinet of historic federal public land trespass cases to buttress their call to support Skavdahl’s ruling that corner crossing is not trespass. Backcountry Hunters also put the issue in ordinary language.

“The assertion that a person trespasses by momentarily passing through the airspace over private property is both radical and absurd,” Backcountry Hunters’ brief reads. “Do we regularly sue children who stick an arm over the sidewalk, … [o]r go after Girl Scouts or trick-or-treaters?”

“Iron Bar’s claims of trespass,” the brief reads, ”are a nuisance that the UIA is designed to abate.”

Correction: We have corrected the spelling of Western Watersheds Project — Ed.