A ranch gate at Elk Mountain. (Mike Vanata/WyoFile)

A wealthy ranch owner wants a federal appeals court to overturn a Wyoming judge’s ruling that corner crossing is legal, arguing it relied on a 1914 court decision that is “not binding, persuasive or even good law.”

 Elk Mountain Ranch owner Fred Eshelman made that argument to the U.S. Court of Appeals for the 10th Circuit in papers filed Monday by his attorneys. The appeal counters Wyoming Chief U.S. District Judge Scott Skavdahl’s ruling from earlier this year that federal law prevents Eshelman from blocking access to public land and that corner crossing in Wyoming’s checkerboard area is not trespassing.

At issue is whether a person can step from one piece of public property to another at the common corner with two pieces of private land, all arranged in a checkerboard pattern. Skavdahl ruled that corner crossing is not trespassing, even though four hunters from Missouri passed through the airspace above Eshelman’s ranch. The men never set foot on Elk Mountain Ranch. 

The case has implications across the West where an estimated 8.3 million acres of public land are considered “corner locked” by any interpretation that corner crossing is trespassing.

Eshelman sued the men in civil court in 2021 claiming they trespassed when they hunted on public land in 2020 and 2021 after corner crossing. A Carbon County jury in 2022 found the men not guilty of trespassing in a parallel misdemeanor criminal case. In the separate federal civil suit against the hunters, Skavdahl ruled in their favor.

“That was an error.”

Eshelman attorneys on Judge Scott Skavdahl’s reliance on a 109-year-old case.

The hunters relied in part on the Unlawful Inclosures Act of 1885 that they say prevents a private landowner from blocking public access to public land. Eshelman’s 22,045-acre Elk Mountain Ranch has some 6,000 acres of public land enmeshed within its exterior boundaries — public land that can be reached without his permission only by corner crossing.

Private property rights come with restrictions, Skavdahl ruled. The hunters had “‘the right to the benefit of the public domain,’ which necessarily requires some limitation on the adjoining private landowner’s right of exclusion within the checkerboard,” Skavdahl ruled.

In other words, even though Eshelman owns the airspace above his property, his private property rights don’t allow him to exclude others from passing through his airspace when they are corner crossing.

109-year-old ruling

In reaching his decision, Skavdahl relied in part on a U.S. appeals court ruling in a case known as Mackay v. Uinta Development Co. from the early 1900s. John Mackay trailed sheep across private property to reach public grazing land.

But Eshelman’s attorneys said the judge was wrong.

“That was an error,” they wrote in their appeal. “Mackay is not binding, persuasive, or even good law.”

In siding with Mackay in 1914, the appeals court at the time cited the “custom of the open range,” and the Unlawful Inclosures Act, according to Eshelman’s lawyers. But that 109-year-old opinion “is not binding,” they argue, because it was made by the 8th Circuit Court of Appeals, which Congress in 1929 split into two courts, creating the new 10th Circuit.

The 10th Circuit “never held that the decisions of [its] predecessor circuit [the 8th] are controlling,” Eshelman’s lawyers wrote, quoting the 10th Circuit itself.

Skavdahl decided the 8th Circuit ruling was relevant in part because the Mackay case originated in Wyoming.

“At the time of Mackay, Wyoming was part of the Eighth Circuit,” Skavdahl wrote. “Because Mackay originated from the District of Wyoming … this court can find no reasonable basis to believe it is not bound by Mackay’s decision.”

Eshelman’s attorneys, officially representing the North Carolina millionaire’s Iron Bar Holdings company, said it “would be shocking” to learn that the 10th Circuit “secretly” adopted all of the 8th Circuit’s pre-1929 case law.

U.S. District Judge Scott Skavdahl. (Wyoming Supreme Court)

Eshelman’s team also wrote that the appeals court decided Mackay “at the apex of the open-range era” and the decision was “an application of the custom of the open range.

“Given that context, Mackay has no relevance to the legality of corner crossing today,” they wrote. “Congress closed the open range shortly after Mackay was decided, and private landowners are no longer understood to extend implied licenses that permit others to graze across their land.”

Further, the Leo Sheep Co. case of 1979, in which landowners successfully challenged construction of a federal road across a common checkerboard corner, makes Mackay irrelevant, Eshelman’s team maintains. Leo Sheep held that “the government lacks any affirmative right of access under the Unlawful Inclosures Act,” according to Iron Bar lawyers.

Eshelman wants the Denver-based court to allow attorneys to argue their case orally. The 62-page pleading makes numerous other points that were debated in the lower federal court in Wyoming.

Among those is that Skavdahl’s decision would “erase billions of dollars of private property value.” Owners of checkerboard land “understood that … corner crossing has long been illegal” and a change in that understanding will cost them in new fencing and trespass patrols, among other impacts, Eshelman’s attorneys state.

Skavdahl wrote that Eshelman’s claims of lost property value caused by the judgment were misguided. Such a claim “is based on a fictitious right the Plaintiff never actually held under law,” the judge wrote.

There are other and ongoing ways to ensure access to public land, Iron Bar lawyers argued, saying the solution should be in the hands of politically accountable actors and the public, “not the judiciary.”

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. I Feel the whole thing is a large outta state company, from So. Carolina, trying to keep the Public from reaching the land they should have access to. it seems the “value” of his property was based on the fact that the public couldn’t reach these areas in the past which gave the Customers of The ranch access to many more acres which they are paying more for. in turn if this is the case all the money the Ranch owner has made up until now should be divided back to the Public lands..
    This is simply an act of hijacking land with a silly ass legality, which in no way has been found to be illegal.
    These guys should jus be left alone and this should sent to the BLM, Forrest service or Public land Conversations, and a majority rule should make it so this is no longer a thing.
    Public land should never be kept from the public.

  2. I would say an “airspace compromise” is in order. Say, “the airspace of the landowner is no higher than the landowner’s comfortable reach while riding one of his mounts”.

  3. Other land owners whose holdings prevent public access to federal lands are closely watching to see if being stubborn and wealthy can protect them from losing sole usage of those lands. Would any of them donate money to this legal effort to override the intent of public lands?

  4. What a ridiculous discussion! And I don’t even have to say which side I am on. Any thread of common sense would direct any reasonable person to the side I’m on. Sheesh!!!!!!

  5. WYO-FILE’S and Angus Thuermer Jr.’s reporting on this has been stellar. I wish the headline on this piece was not so misleading. the Subtitle helps but can be overwhelmed. The Title itself ought to reflect that these are merely “claims” made by the landowner in his appeal.

    The Tenth Circuit Court (appeals court) has done nothing –yet. All that happened is that the landowner filed a brief with the Court of Appeals and set forth his arguments –one of which was that the Judge should not have relied on a case that was part of his reasoning. The rancher’s argument is apparently that because Wyoming was within the Eighth Circuit when the case was decided, but has been in the Tenth Circuit since that Circuit was subsequently created, a prior Wyoming decision in the then-governing circuit should not apply. That argument is laughable; the landowner is grasping. Even if the Tenth Circuit were to conclude that it is not strictly bound by the prior Eight Circuit’s decision, courts routinely rely on decisions and reasoning in “other” circuits as persuasive where there is no applicable binding authority within the circuit. That the prior case arose out of Wyoming makes it even more persuasive.

    Thanks for keeping us updated on this greedy effort to effectively privatize what belongs to all of us.

      1. You are right. There are no commercial livestock to be found on that place. Who knows what goes on around there. But there are plenty of people who are commercial ranchers that were born in Wyoming that share his beliefs on this. I’m sure the next article on the subject will have some words from Magagna trying to explain why those with grazing leases are entitled to act as full owners of said land.

  6. This is Ethan from Wyoming. The issue of corner crossing is attempting to put blinders on the actual law that is set in stone and that is the 1885 law. Across America, those who want a different outcome other than what the law states are missing the whole point of what laws are about. They are to make things clear right from the start what is expected. Those that want to mess with and confuse that fact by inputting their own opinion regardless of the law will always do so until death unless they are put in their place , which is that they too must follow the same law that everyone else does. The real fact is not regarding the corner crossing issue, but allowing access to public land because of the law. That is why the law was made, because landowners were doing then what the landowner is doing now- trying to say the public land is for his use only, unless he is paid a fortune to let others use public land. This is why the public official’s approach of paying landowners to allow the public access to public land is all wrong. We all get caught up in all the new and different customs that seem to fill a need, but that happens only when we forget or ignore the original custom and law. New is not better when the old is better and working well. It is only when we try to mess with and change what is working well that we mess up and confuse the issue. Those who have an ear to hear will understand.

    1. Thank you, very well said…

      I was told by a wise ol’ man:
      “That everything IS “FOR SALE” as long as the price is right”.

      Being young that surprised me but what even surprised me even more is when he that humans are for sale because having enough money you can by them too, especially if there’s no HONOR.

      It’s quite apparent there’s plenty of money and no HONOR because there’s something’s money can’t buy and to be this B.A.R. Lawyers and I am assuming that they are “AMERICANS” I would be fully ASHAMED OF MYSELF to do what they are attempting to do especially after the decision of the Jury.

      If I were their “siblings” I would be fully ASHAMED and EMBARRASSED to call them family and AMERICAN.

      OF COURSE if this were a life or Death situation there’s never enough money and plenty of HONOR and the collateral of RESPECT to ensure Justice is served but to attempt to dilute my fellow Americans and the decision of NOT GUILTY is an attack on all AMERICANS who served to protect, contribute their earning, time and future to our CONSTITUTION.

      Thank you for your eloquent comment and of course WYOFILE for your continuous follow-up on this VERY important matter within Wyoming and these United States of America!!! SEMPER FI!!!

  7. All I wonder is how much money this poor out of state billionaire has spent on lawyers. It could probably cover that fencing cost and pay for patrols in the middle of nowhere.

    Public land belongs to the public.

  8. “Erase Billions of dollars of private property value” Isn’t that what Trump is fighting now in court? Estimated value of property? Just because they say its lowering values Billions doesn’t erase our Right to access public ground that our tax dollars cover. This case covers Pride, Greed, Envy, Wrath, Lust, Gluttony! And I would say as slow as it’s working through the court systems that Sloth is in there also!

  9. So apparently the United States should return to “law of the Crown” …or so this wealthy rancher says. My friends and I have an ongoing argument regarding “Capitalism” because in my opinion Capitalism has morphed back to where it all began, ownership of a “country”. From “the land of opportunity” to whoever can afford the most attorneys and which attorney swings the most sway in a court full of rich people wins, even if it stomps on the open rights of other CITIZENS….THAT was never how Capitalism was meant to work but with the “money is everything” bunch it sure seems to

  10. I have a question for the U.S. Court of Appeals for the 10th Circuit: If I use my Mosquito XE Ultralight Helicopter to cross a “sparsely populated” corner of public land to another “sparsely populated” corner of public land under VFR conditions, at what altitude must I fly to be above Mr. Eshelman’s airspace?

  11. It appears the gist of the argument of Eshelman’s lawyers is that he, Eshelman, must have exclusive right and access to property which he does not own, which he does not pay to maintain, on which he, solely, apparently does not pay taxes — said property being that of the United States and thus owned BY ALL THE PEOPLE, including but not exclusively by Eshelman. And then, of course, there again is the argument over “ownership of airspace” which seems an imaginary rather than a measurable entity. That must be what is called “lawyering”?

  12. Maybe Eshelman should hire Trumps legal team, they seem to be doing really great in NY currently…..

    Seriously done with hearing about this billionaire crybaby. It’s not his land. The end.

    1. + he’s just said his property has lost value, maybe the state could scoop it up at such a bargain price.

    2. An “AMERICAN Jury declared/found them: “NOT GUILTY” period…

      Is this B.A.R. team of Lawyers trying to set a NATIONAL precedence that “We the people” of the CONSTITUTION can not make a correct decision according to facts presented and good ol’ human common sense?

      The Judge did what was presented to him the “Law was still in place for the Judge and JURY to proceed from and did accordingly…

      If the “Law to old to be good enough then why was it not removed, amended, revised and the is this B.A.R. team trying to imply that for some reason because “jurisdiction” changed the Sfate of Wyoming and the people of Wyoming became seperated because of curuit courts and the circuit’s court decisions?

      WOW!!!! WOW!!! Who do they believe are the people of the JURY that found them NOT GUILTY but of course from the State of Wyoming!

      Could it be the B.A.R. lawyers are confused by the word “STATE”?

      Could it be they are attempting to dilute the word state with a STATE within the UNITED NATION’S term of STATE, please think about that, please. BECAUSE if that’s the premises then the precedence to be set erodes our Judiciary system UNDER our CONSTITUTION because Wyoming is going to be considered a Nation State within these United States of America???? NO WAY, then the decision of the American jury holds no weight and was is the judges roll then!

      THIS IS VERY DANGEROUS WATERS that is being stirred up, the AMERICANS from the State of Wyoming found these AMERICANS from another STATE of these United States of America: NOT GUILTY because they are our neighbors within this REPUBLIC of these United States of America and a Nation Under GOD. God Blesses AMERICA, Semper Fi!!!