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.

“A federal … decision is necessary to protect and preserve the limitation on private landowners’ ability to control or restrict access to federally owned public lands.”

Ryan Semerad, hunters’ attorney

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.

The checkerboard pattern of land ownership around Elk Mountain in Carbon County, as depicted by a GIS program. The unshaded 640-acre sections are BLM lands. (Carbon County)

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.

The fence ladder used by hunters in the corner-crossing case. (Wyoming Game and Fish)

“[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 10th 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.

Angus M. Thuermer Jr.

Angus M. Thuermer Jr. is the natural resources reporter for WyoFile. He is a veteran Wyoming reporter and editor with more than 35 years experience in Wyoming. Contact him at angus@wyofile.com or (307)...

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  1. It is interesting that the Carbon County Prosecuting Attorney is so eager to support the wealthy rancher by prosecuting alleged trespass but has yet to file charges under W.S. 23-3-405 for hunter harassment. If one didn’t know better, they might see a bit of favoritism there. Perhaps Game and Fish needs to step up and request the enforcement of that section of law.

  2. Hopefully this case will go in favor of the hunters and once and for all, open up these public lands. then, I’d suggest a few more things: It’s time to either charge the welfare rancher the going private rates to lease the grasslands or just plain eliminate them from the landscape. it’s also high time, we’re in the year 2022 by god, to eliminate outfitting and guiding. It’s not needed and nearly no one in this state, (except for the welfare outfitter) want’s to keep seeing WYOGA monopolizing the land and their almost free inventory of wildlife. Can’t forget the Wyoming game and fish and the need to severely downsize this organization. Under their watch, the hunting and fishing opportunities have gone in the toilet, yet this agency is severely over staffed and over paid. G and F has always heavily sided with the big landowners as well as the outfitters. Simply put, the people of this state need to take back their lands and wildlife.

  3. Like my T-Shirt says, “ Public Land Owner “, every person should have one! I hope that sportsman clubs will support these hunters in this case… trying to block people off of public land, this is close to Anti Hunting,,,,

  4. There was a corner crossing case in Wyoming in Carbon County in 2018. The judge ruled that the hunter had no intention, and showed no intention of trespassing on the private property by going from public land to public land. The issue of airspace wasn’t even entertained as an argument. The private property owner lost the case. This should set an example of common sense. I would think that this case will be brought up in court. The private property owner doesn’t own the wildlife. They want to claim crop damage and get paid, but also want to keep people from accessing the public sector to control the animal they complain about. Doesn’t make sense.

  5. It would be an excellent outcome if backward states like Wyoming had NO SAY WHATEVER regarding this issue. Wyoming government always sides with livestock farmers. It needs a wake-up call, and badly.

  6. The public land bubba needs to realize that they do not own public land, the rancher who has the lease lords over the BLM parcels. It’s because of the conservation work done by the rancher that there is abundant wildlife on public land. the rancher created and owns the wildlife yet you want to trample all over his lease so you can satisfy your inner bubba. This pertains to all public lands, not just checkerboarded parcels. Want to access public land? Be a good neighbor and first ask the rancher. If he’s not outfitting he might let you on, I said ‘might’ as the rancher is in no way obligated allow you bubba’s access

    1. I know the level of propaganda we are experiencing in this sad country is at an all-time high, but your comment wins the prize. Grazing on public land is a privilege, NOT a right.

    2. The wildlife are free ranging unless privately purchased and raised herds. Wildlife belong to the state, not private landholders. The act of keeping public hunters off public lands is illegal. Water in a river or stream does not become private water once it flows from public land to, over private land. If I do not step out of my water craft I am not trespassing. Private landholders have unfairly kept people off public land for their financial gain in thousands of locations throughout the west. Will be paying attention to the outcome of this case.

  7. “Both the civil and criminal cases against the hunters … 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.”
    This highlights a problem going back to the dawn of aircraft. While federal precedent holds that landowners have some right to the airspace above their land, there is no bright line stating how high, or low, it goes. I asked my state legislators to consider a bill to establish in law some height for landowners in Wyoming, to establish and preempt a federal move to do so. They have done nothing.

    In this case, the problem can be resolved without resorting to airspace. The federal government could use eminent domain powers to take access rights at such corners. But establishing airspace rights for private landowners is needed too – unless you enjoy seeing camera equiped drones flying outside your bedroom window or looking down through your skylights.

  8. This is David against Goliath, Goliath has a very deep pocket. If you are concerned about access/management of OUR public lands please consider a donation to help with the legal expenses of the hunters that have brought the issue forward for all of us.

  9. It is pure greed on the land owner. Too much of BLM land is landlocked, and privatized for the ranchers use. Ranchers pasture their live stock for a fee, then charge large amounts of money for their guided hunts on the same land. My question is, are they paying for the pasture rights or the hunting rights? I’m sure the government gives the ranchers access easements, and cattle guards for their convenience? It’s been a good relationship to pasture the BLM land with ranchers, but don’t get greedy with the public. Ranchers wanting a trespass fee, to keep public land private for their use?

  10. Years ago the same legal situation occurred and evidently, nothing came of it. The argument of airspace was given. For some reason, the outcome came that aircraft should pay for the right to enter the airspace of landowners. The aircraft industry got involved because they could see having to pay the landowners’ trespass fees. It got kind of ridiculous. The same rules applied to people trespassing on rivers. I believe the outcome was that as long as fisherman never step on the banks of a river it was legal for the fisherman to trespass as long as they didn’t set foot outside the edge of the water.

  11. It’s the states right to help preserve the freedoms to allow statesman to the due rights. Big money people will fight every way to make millions, More.
    Sad.

  12. Great journalism! I’m praying this isn’t tried in Wyoming. If so, there is no justice. It’s simply the best for those with the most.

  13. Several years ago I was locked out of a BLM road by Alabama “rancher” landowner and megadoner to GOP (John Robbins) when we were trying to gain access to climb Washakie Needles from Thermopolis side.
    https://www.hcn.org/issues/259/14272

    This landlock lasted years all the way to the US Supreme Court – big out-of-state dollars don’t mind paying legal fees, using their considerable political influence and are not used to losing.

    https://www.westernwatersheds.org/news-media/online-messenger/wyoming-ranchers-special-settlement-profiled-casper-star-tribune-today.htm

    Kind of reminds me of the Campbell Soup heir (John Dorrance III) in northeast Wyoming (Devils Tower) in the early 90’s who just could not stand it that Wyoming would not let him have his exotic game ranch.

    https://apnews.com/article/52909a0c03814a526d8f176b46fbeb4f

    This too was litigated ad nauseam as well, before he understood, No means No.

    Eschelman doesn’t appear to be much of a “rancher” in the usual term; but is more in line with the above mentioned individuals. But he is not unfamiliar with law suits, and political influence either:

    https://www.washingtonpost.com/investigations/true-vote-lawsuit-fraud-eshelman/2021/02/15/a7017adc-6724-11eb-886d-5264d4ceb46d_story.html

    And there seems to be plenty of $ to spread around:
    https://theintercept.com/2021/02/06/election-deniers-profit-lawsuits/

    May the small guys and gals prevail again against the out of state $$$,…. ranchers?!

    1. Chuck: The Hot Springs County Commissioners have had several opportunities to establish public access up the South Fork of Owl Creek which would go a long way towards improving public access into that area. However, they have declined to do so; therefore, the private landowners including the High Island Ranch control access via that route. In the early 1990s about 800-900 people signed a petition to establish access and that wasn’t enough to persuade the commissioners. The Washakie Needles area is critical habitat for grizzly bears in that they feed heavily on migrating moths in the talus slopes; and, this area is wilderness area. The High Island Ranch and several other ranches in the western part of Hot Springs County are protecting from development the largest remaining unspoiled segment of the Absaroka Front – no subdivisions out there. The County is not interested in providing school bus routes, mail routes, county road maintenance, fire protection, law enforcement, and ambulance response in this remote area.
      The county has established access to the National Forest and the wilderness areas via the Grass Creek road which is the only public access and trailhead in the western part of the county. This was a contentious issue since access across the LU Ranch would need to be acquired; however, in this case the county commissioners determined it was in the public’s best interest to have some access to the public lands. Horse packing is the only reasonable way to access the wilderness area at the risk of meeting the resident grizzlies who rule supreme out there. So, there is some access into that area of the county but its logically restricted to the well equipped and experienced. Creating easy access to the Washakie Needles just isn’t in the cards and the ranchers do control access. The BLM attempted to acquires access in this area but did not include the county in the attempt which was a mistake – this won’t happen again and the county now insists on being involved in the decision making process.
      There are many similarities to the ELK Mountain access issue. The public needs to realize that a lot of the authority to establish access rests with the Carbon County commissioners; and that, access is a local issue determined by vote of the duly elected Carbon County commissioners. These commissioners know their county thoroughly and are well qualified to make these public access decisions. If there is a compelling public purpose(es) they might acquire access but the arguments in favor of acquiring access must be very compelling – to say the least.

  14. I don’t believe the Civil Trespass case will be moved to Federal Court. Trespassing is a State Statue, not a Federal law, therefore the case will remain in the State of Wyoming courts.
    If by chance, the case is moved to Federal Court, it will be heard in the same Federal District, as the State Court- meaning Wyoming District Court.

  15. Hopefully this case gets moved to Federal jurisdiction; and a jury trial! This case sets precedence (IMO) for all federal lands that are blocked by private. I’m quite certain if another case such as this arises in the future that this case will be used as precedent-no matter the state! Sure seems to me the case should be a slam-dunk in favor of ordinary citizens rather than the wealthy out-of-state landowner. But…I’m thinking in terms of what’s right and ethical. Unfortunately, what’s right doesn’t always win…

  16. Approximately 12 years ago the BLM used this same issue to take control of a power line we built, entirely on private land with the exception of corner crossings. There position was that since the wire would be above Federal land, they controlled the entire ROW and when construction could or could not occur. It was wrong then and is wrong now.

  17. A true Wyoming standoff. Who will win, an out of state hunter who has just as much right to public land as anyone, or the billionaire out of state ranch owner?

    Checkerboard is just a small piece of the huge amount of public land thats not accessible by the public, and is treated essentially as private property by the surrounding landowner.

  18. GOOD MOVE! Way to long these ranchers have used taxpayer land for playground or charge huge “trespass” fees to hunt game we support as taxpayers. Plus don’t kid yourself Game/fish quietly support them as cuts their work load. Time to end the monopoly

    1. land owners pay for grassing cattle on blm… and outfitters dont hunt for free on blm or state we pay money every year also it hunt…. nothing is free….

  19. I own a ranch in Lander. Airplanes fly low over the ranch frequently. I feared that they would scare a horse and result in a rider getting tossed and injured. I was informed that I do NOT own my airspace. Planes can fly as low as is “safe”.
    It would seem from this argument that corner crossing should also be allowed

  20. I don’t hold out much hope no matter the law or ethical issues surrounding public land being captured and held hostage by America’s financial oligarchs. Those without power or wealth rarely see win against those with wealth or power. Look at all our state reps who refuse to defend access to public lands and fix Wyoming’s laws to make corner crossing – clearly – the right of all residents without exceptions under Wyoming law.

    Where do we contribute to their defense fund?