RAWLINS — Four bowhunters who pleaded not guilty to criminal trespass in a corner-crossing case in Carbon County are facing a new civil lawsuit and a potential new criminal charge, court files show.
The owner of Elk Mountain Ranch filed a civil suit asking the Carbon County District Court to declare that the four men “committed a civil trespass” by corner crossing. Iron Bar Holdings, the limited liability company that holds the roughly 20,000-acre property around Elk Mountain, seeks repayment “to the fullest extent of the law,” for attorneys’ fees, costs and expenses incurred in the litigation, the civil suit states.
Meantime, a prosecutor has asked the lower Carbon County Circuit Court to add an alternative criminal charge — trespassing to hunt — to the existing criminal trespass citation against the men, according to a Feb. 10 motion. The men entered or remained on Fred Eshelman’s property “to hunt without the permission of the owner…” the motion states.
The circuit court has set an April 14 date for a trial on the criminal trespass charge or charges, court documents indicate. At issue is whether the men trespassed even though they used a fence ladder to avoid setting foot on private property.
Corner crossing involves stepping from one piece of public land to another where the public parcels share a four-way corner with two private parcels. Where such ownership patterns exist, it is possible to step over the common corner, chess-bishop fashion, without touching private land.
The Carbon County attorney’s office identified “Fred” Eshelman as the owner of Elk Mountain Ranch. Fredric N. Eshelman is the manager of Iron Bar Holdings LLC, a New Hanover County, North Carolina, company, according to a 2005 filing with the Wyoming Secretary of State’s office.
Iron Bar Holdings appears as an owner of Elk Mountain Ranch in Carbon County property and tax records. Eshelman “founded and served as CEO and Executive Chairman of Pharmaceutical Product Development (PPDI, NASDAQ) prior to the sale of the company to private equity interests,” a web page for Eshelman Ventures states.
The new civil suit Iron Bar Holdings filed against the bowhunters in Carbon County District Court states that 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 … the surface of the land and the subsurface below it.
“The court should declare the men trespassers,” the complaint says, and should order a trial — but only to determine damages. If the district court declares that the men trespassed, a trial would allow Iron Bar Holdings to prove damages and seek repayment for its expenses and “other just and appropriate relief.”
The civil suit also seeks injunction to bar the men from corner crossing. “Plaintiff 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 district court action states.
“The Defendants are actively carrying out a campaign to solicit funds to defend their improper and unlawful actions, and … may intend to encourage other persons to carry out unlawful ‘corner crossings’ on Plaintiff’s Property,” the suit states.
Wyoming Backcountry Hunters and Anglers launched a GoFundMe campaign to help finance the court action to settle what many argue is a gray area in property trespass laws. The funds would allow the men their opportunity to due process regardless of their individual financial resources, the hunters’ group has said.
To carry out corner crossing, “the person must physically travel across the privately-owned [sic] real property,” Iron Bar Holdings alleges in its civil suit. Iron Bar owns and controls the airspace above its real property, “even if Defendants did not step onto the surface of the Property.
“Adjudication by the Court of the dispute, case, and controversy will resolve any legal questions as to the ownership, possession, and control of the airspace above Plaintiff’s Property…” the suit states.
At stake is access to 404,000 public acres in Wyoming considered “landlocked” — blocked off by adjacent private property — under any convention that sees corner crossing as illegal. A decision could impact almost 1.6 million acres of public land when also counting Utah, Idaho, Montana, Colorado and New Mexico, according to an assessment by the Center for Western Priorities.
Authorities cited Missouri bowhunters Phillip G. Yeomans, Bradly [also spelled Bradley in some documents] H. Cape, John W. Slowensky and Zachary M. Smith with criminal trespass on Oct. 4, 2021. Under that law, a person is guilty of criminal trespass “if he enters or remains on or in the land or premises of another person, knowing he is not authorized to do so, or after being notified to depart or to not trespass…”
The additional or alternative hunting trespass charge the deputy county attorney seeks to bring against the bowhunters may not apply to corner crossing, according to a Wyoming attorney general’s opinion from 2004. That opinion states that corner crossing requires a person “to hunt or intend to hunt on private property without permission.”
The deputy county attorney is apparently challenging that opinion.
The bowhunters claim they hunted only on public land. Their attorneys have asked that the charges be dismissed and recently filed a second dismissal motion and argument.
Some of the wrangling centers on the definition of “enter” in the criminal trespass law, which could be a critical element in the cases.
“It is undisputed that neither Mr. Smith, nor any of the Defendants, ever physically made contact with the private land in question,” the second dismissal motion states. Thus, “[i]t is undisputed that Mr. Smith and his co-defendants did not enter the property in question.”
Laws allow boaters to traverse navigable waters across private property and low-level flight that does not “interfere with the existing use” of the private land, according to the dismissal motion. The filing also claims that “an illegally placed chain” between two fence posts crossed one four-corner point where the bowhunters used their ladder.
Given those circumstances, plus case law and the statutes themselves, a hunter could even strap an unworkable drone on his or her back and legally cross a corner, the motion states. The bowhunters’ attorneys suggest that any reading of trespass laws that allow such an interpretation — a reading proposed by those charging the bowhunters — is absurd, should be rejected and disqualified as the basis of charges.
“A reality where this is actually the case is an absurd reality, and an interpretation of law that creates absurd results,” the motion states. “Such an interpretation would mean that a hiker running from a mountain lion, who swings their flailing arms over a private property line, has committed criminal trespass.”
The hunters’ attorneys asked for a subpoena to obtain grazing permits and special use permits issued by the BLM for public land associated with the dispute. The hunters allege the Elk Mountain Ranch Manager Steve Grende illegally harassed them while they were hunting on public land.
A grazing permit generally “does not allow the permit holder to restrict ‘ingress or egress over the public lands … for all proper and lawful purposes,’” the request for a subpoena states.
A special use permit, the type of authorization allowing the guiding and outfitting of paying hunters, “does not create an exclusive right” and usually states that a permittee “shall not interfere with other valid uses of the federal land by other users,” the request for subpoena states.
The permits are public documents under the Freedom of Information Act but the BLM would likely not produce them by the trial date through only a FOIA records request, attorneys state.
Hunter harassment itself is illegal in Wyoming and aggrieved parties can file a civil suit. “Actual damages recoverable may include, but are not limited to expenditures for licenses, travel, outfitters and guides and special equipment and supplies to the extent the expenditures are rendered futile by the person’s conduct in violation of this section,” the law states.“If the trier of fact finds that the unlawful conduct was malicious, it may award punitive damage to the injured party,” the statute reads.