Hunters fighting a $7-million corner-crossing suit on Wednesday rejected an assertion that a digital “waypoint” marker set in a mapping program on one of their cellphones proves they trespassed on the Elk Mountain Ranch.
Carbon County ranch owner Fred Eshelman claimed last week that data subpoenaed from the onX digital mapping company showed that one of four Missouri men named in the suit was on his property. Zach Smith in 2020 digitally marked a location that’s on the North Carolina businessman’s 22,045-acre ranch, Eshelman contends in court filings.
“Mr. Smith marked a waypoint at geographic coordinates that place him on real property, owned by [Eshelman’s] Iron Bar Holdings, LLC,” Eshelman’s legal team states. The waypoint “proves he trespassed,” the filings say.
The hunters assert they never touched Eshelman’s private land as they corner crossed — stepping from one piece of public land to another — in a checkerboard of publicly and privately owned land. Eshelman has claimed that passing through the airspace above his property constitutes trespass.
Last week, apparently for the first time, the businessman asserted that the hunters actually set foot on his land.
But the hunters state the waypoint could have been created without standing at the site it marks on private land. They cited deposition testimony from an onX representative to make their case.
“One could drop a waypoint for any reason at all and one has not necessarily been to the places where he or she has dropped a waypoint,” Joshua Spitzer, a representative for the onX company that makes and sells the hunting app, stated in a deposition.
At issue is public access to thousands of acres of public land enmeshed in Eshelman’s ranch and accessible only by corner crossing, trespassing or the ranch owner’s grace. Across the West, 8.3 million acres of public land are “corner locked” by any definition that corner crossing is illegal.
Both Eshelman and the hunters have asked Chief U.S. District Judge Scott Skavdahl to decide in their favor without a trial. The hunters want the suit dismissed while Eshelman wants the judge to declare that they trespassed — whether by passing through airspace above his property or actually standing on his land.
In a Wednesday filing, hunters’ attorney Ryan Semerad wrote that Skavdahl can dismiss the case regardless of Waypoint 6. Eshelman’s “new evidence” regarding Waypoint 6 “requires speculation, and cannot defeat summary judgment,” Semerad wrote.
Evidence to defeat summary judgment “must be based on more than mere speculation, conjecture, or surmise,” his filing states.
“Defendants do not dispute that Defendant Smith’s onX Hunt user data shows this waypoint was created on private land,” the filing states. “But the existence of a waypoint or other marker on onX Hunt does not demonstrate that a user (or anyone else) physically traveled to the marked spot, only that the user marked that point on the app.
“This assertion — linking the marking of a waypoint with the user’s on-the-ground physical location — lacks foundation, and is factually wrong,” the filing states.
The latest debate included more information regarding the use of the onX tool, including that the hunters did not have the ability to continuously track their moment-to-moment movements and create what’s known as a digital bread-crumb trail. Also, onX does not store data from programs and users that employ such continuous tracking, according to the company representative.
Eshelman’s team said it had asked for all of Smith’s onX data and he failed to produce the 2020 information. Smith said he turned over everything he had, does not remember creating Waypoint 6 and was never at that site.
Phillip Yeomans, another of the Missouri hunters who had the onX Hunt app, said a waypoint can easily be created by accident and without being at the waypoint location it depicts. Finally, Smith restated on April 27 that he never was on Elk Mountain Ranch.
“I am absolutely certain that I never made physical contact with, stepped foot on, or traveled to ‘Waypoint 6,’” he said in a declaration.
The hunters corner crossed to reach some 3,000 acres of public land on Elk Mountain in 2020 and 2021. They claim the airspace above the common corners is shared and that they can cross from public land to public land without trespassing. A sheriff’s deputy cited them for the 2021 hunt but a Carbon County jury in 2022 found them not guilty of trespassing and trespassing to hunt.
Eshelman has claimed in his subsequent and separate civil suit that corner crossing devalues his ranch by up to $7.7 million, or even $9.4 million, based on real estate agents’ opinions. Skavdahl has ruled at least one of those opinions irrelevant.
The ranch owner would drop that monetary claim if the judge rules that the hunters trespassed, Eshelman said last week in court filings. Before making that statement, he wanted the judge to declare the men trespassers, followed by a jury trial to determine damages.
Attorneys for the opposing sides made what was to be their final arguments for summary judgment last week, at which time Eshelman’s team unveiled the new waypoint data and claim.
The hunters, who were unable to immediately react, asked for an extended filing deadline. Eshelman’s attorneys unsuccessfully opposed that, saying that they got the raw onX data at the same time the ranch owner did. Skavdahl, however, granted the hunters permission to respond to the new accusation.