An attorney for one of four hunters charged with criminal trespass in a corner-crossing case in Carbon County has asked a judge to dismiss the count against his client and the three other defendants.
The motion is one of two that attorney Ryan Semerad of Casper filed in the case in which the four Missouri men used a ladder to cross from one public U.S. Bureau of Land Management section to another. The four avoided “actually entering into or intruding upon any part of the private sections of land at the corner,” the dismissal motion states.
Semerad’s second filing seeks to consolidate the four trespass cases for trial. The filings indicate that the men, who all pleaded not guilty, intend to fight the charges that bring a maximum penalty of six months in prison and a $750 fine.
Authorities charged Semerad’s client, Phillip G. Yeomans, along with Bradly H. Cape, John W. Slowensky and Zachary M. Smith on Oct. 4.
“Federal law prohibits any person or group of persons from preventing Mr. Yeomans, his friends, or others from freely passing through public lands,” the motion for dismissal states. “Consequently, private landowners cannot prevent or obstruct free passage from one section of public land to another by claiming that the common corner where two private sections of land and two public sections of land meet is their exclusive property, land, or premises.
“Accordingly, the State of Wyoming cannot prosecute Mr. Yeomans or any other person for criminal trespass when Mr. Yeomans or another person travels from one section of public land to another section of public land at a common corner with two sections of private land,” the motion reads.
The case arises out of the checkerboard pattern of land ownership that grew from the divvying of property during western settlement, including railroad construction land grants the federal government made in the 1800s. The ownership pattern creates common corners where four sections of property intersect, private sections kitty-corner from one another and the public sections also diagonally opposite one another.
The charges allege that stepping from one public parcel to the other — chess-bishop fashion — constitutes a criminal trespass under Wyoming law. Hunters and others are effectively barred from 1.6 million acres of public land in the West by such interpretations.
One corner in question was apparently guarded by two fence posts erected on the private parcels and connected with a chain and wire. A photograph posted on a GoFundMe webpage supporting the hunters shows “no trespassing” signs for the Elk Mountain Ranch hanging from the private-land fence posts. A survey marker in the photograph presumably indicates the four corners’ common point.
The motion gives the following summary of the events.
The four hunters set up camp on public BLM land on Sept. 26. On Sept. 30 Steve Grende, land manager for Elk Mountain Ranch, called Wyoming Game and Fish officer Jake Miller to report a trespass.
Miller found the hunters, clad in camo and carrying bows, used a fence ladder to cross a corner. The hunters gave Miller a cell-phone depiction of their route tracked on the onX hunt-mapping cell phone app. “This ‘picture’ … does not show that the hunters had ever entered into private sections of land owned by Elk Mountain Ranch,” the motion reads.
The hunters did not rely on the GPS device, which they “understood to only be accurate to 30 feet.” Rather they “sought out the corner marker at every corner of public land before crossing the corner using their fence ladder,” the motion states.
At that point, Miller “in conjunction with Mr. Grende, granted the hunters permission to recover certain elk meat that they had harvested from public land across the corner from the section of public land where the hunters’ base camp was located due to the perishable nature of that meat in the field.”
But Grende was dissatisfied and said, after discussions about the law, that if the Wyoming Supreme Court deemed corner crossing legal, the ranch owner would take extra steps to obstruct, prevent or block access to public lands. A body camera worn by a sheriff’s deputy recorded conversations, the motion states.
Later Sgt. John Moore of the Carbon County Sheriff’s Office notified Deputy Patrick Patterson that the Carbon County attorney “wanted citations issued,” the motion states. Ashley Mayfield Davis is the Carbon County attorney.
Federal law trumps
Dismissal is warranted because federal law “prohibits any person from preventing free passage over or through public lands,” the motion states. “Of course, then, a person must have the freedom to travel from one section of public land to another distinct, but physically adjoining section of public land,” the filing reads.
“[T]he state’s application of trespass law actually conflicts with federal laws,” Semerand wrote. “Accordingly the State’s application of Wyoming’s criminal trespass statute here is preempted by the federal law on point such that this prosecution ought to be dismissed.”
The motion makes other points regarding the supremacy of federal law over state statutes and cites the Unlawful Inclosures of Public Lands Act of 1885 as one cornerstone in the hunters’ defense.
“[T]his common corner is literally composed of equal parts private property and public property,” the motion reads. “Consequently, the public retains, as both a matter of course and logic, a correspondingly equal right to use and access this common corner.
“Yet, Elk Mountain Ranch and other similarly situated private landowners claim the common corner as their exclusive property alone,” the motion reads. The ranch claim is “an unlawful enclosure or obstruction to free passage through public lands by another name,” the filing states.
“Elk Mountain Ranch and other private landowners may not want the public to access public lands by crossing common corners their property shares with public lands,” the motion says. Landowners “may extract great riches out of their perceived monopoly over public land adjacent to and ‘landlocked’ by their large real estate holdings. They may strongly wish to retain the ability to keep making money from the wealthy elite by granting special access to what is, in reality, a public treasure gifted to all Americans.
“However, in the American legal system personal interest does not and cannot trump the law.”
Semerad also argues that Wyoming’s criminal trespass law does not explicitly state that corner crossing is illegal — the law itself is conditioned by several factors, the motion states. The filing contests that the act of “disturbing an indiscernible segment of private air space for a moment or two is sufficient to have ‘entered’ or ‘remained on or in’ private property,” as required for conviction under Wyoming law.
“The state should not be permitted to bring a charge or secure a conviction based upon some hyper-technical, absurdly literal meaning of ‘enter’ wherein a person is guilty of a misdemeanor offense for momentarily and harmlessly passing through the airspace over another person’s property,” Semerad’s motion states.
The spelling of of deputy Patterson’s first name and Semerad’s last have been corrected — Ed.
I’m doing background research on cross-cornering and came across this extremely well written piece by Mr. Thuermer. Thank you, I appreciate good writing.
I think that the public land corners like these should have a ramp connecting the two pieces of public there for allowing all to access the public land it would not impead on the ranchers land because they can legally use the public. But I understand them wanting to limit the access to the public because they can keep the wildlife too themselves. And they might sell access which is money in the bank at the expense of public lands which is not fair too all of the taxpayers.
If the hunters entered the “air space” of private property, they are guilty of trespassing.
I’m not a rancher. I’m not a hunter. And I sure am not a mathematician.
But this debate raises a sort of mathematical question.
The public and private lands meet at a corner. And that corner is a point, which has no size and no dimensions, smaller than the smallest dot. So anything that passes over it, it seems to me, will be bigger than that point. In this case, that includes people and ladders.
I’m not taking sides here; I have no dog in this fight.
But I’m curious what others think of this.
If airspace is included would not planes also be subject to trespass might change the way air travel is planed lol
THERE IS A PROCESS TO OPEN UP LAND FOR THE PUBLIC: Wyoming Statutes continue provisions for establishing and also vacating/abandoning county roads. If I remember right, 5 or more landowners/citizens living within 25 miles of a proposed road can sign an actual PETITION and submit to the Board of County commissioners to create a new road or abandon a road. Doing so sets off a statutorily defined process of identifying the route, appraising, possibly surveying and open public meetings advertised in the paper. This method was widely used about 100 years ago but not so much lately. However, the petitioners had better have a very compelling reason to open up an area by county road – most petitions will be denied. Make no mistake, this determination is based entirely on the vote of the county commissioners and the makeup of the board is crucial. Commissioners must also consider the cost of a new road and how it might affect school buses, mail delivery, law enforcement, fire fighting, EMT, snow removal and future subdivisions. Just because you might want to hunt and fish in there is just one consideration.
If these advocacy groups you are depending upon to open up more public land are not getting the job done, its because they are not the board of county commissioners who have the authority to do so in many cases. You might be talking to the wrong people – keep in mind they don’t have a vote – only the duly elected county commissioners are authorized by the legislature to make these decisions. Advocacy groups can only advocate – not vote.
Again, there is a legislatively authorized process to gain or vacate access and I highly recommend you search the state statutes to read for yourself.
Continuation of above comments: When petitioners file an actual petition with the board of county commissioners they are requesting the commissioners use public funds ( tax payer funds such as property taxes ) to establish a new county road. In order to do so, the proposed road must have a well defined PUBLIC PURPOSE not a private purpose. This is how the commissioners weigh the request – is the public purpose so compelling that it surmounts the property rights of the private land proposed to be taken for the road. Therefore, establishing a new county road by petition is basically a condemnation action whenever the private landowner proposed to be crossed opposes the action. In Hot Springs County we had a new county road established by acquiring easements across the LU in order to gain access to the forest service lands – in this case, it was the USFS that encouraged the board of county commissioners to create a new county road which is now our only public access to the forest – the vote of the board of county commissioners was 2-1 in favor. This is the Grass Creek Road. Today, the public uses this road extensively ( especially elk hunters and loggers ). This was a very recent action.
Too many of our elected reps are tied to the ranching industry and will put the interests of a few against the majority of residents who outnumber ranchers by 1000 to 1 if not more. This activity should be legal. It is literally one rancher wanting to claim ownership of public lands to enrich themselves at everyone’s expense. Ranchers aren’t doing themselves any PR favors.
This is one of the most fascinating articles I’ve read in Wyofile! Completely absurd!
While the situation isn’t quite the same in NE Wy, it still exists. Large landowners think since they lease these huge areas of PUBLIC land for cattle grazing, that this land belongs to THEM.. And yes, they reap large profits from subleasing their lands as well as these sections of PUBLIC land to hunting outfitters, locking out the PUBLIC from PUBLIC LANDS.
A very frustrating issue for born and raised WYOMING RESIDENTS as well as others who would like to enjoy these PUBLIC LANDS.
Phil: I noticed western Wyoming outfitters moving their business to eastern Wyoming because they didn’t have exclusive hunting rights on the largely federal lands in western Wyoming. In eastern Wyoming they could get exclusive hunting rights on sizable ranches and thereby guarantee their customers a better hunting experience for their money. some of my neighbors were getting $1,000 for each deer or antelope harvested on their ranch and they didn’t have to do anything – 25 harvested animals a year is a lot of money to a rancher. True, there is some federal land enclosed within the boundaries of their ranch; however, access is almost completely a matter of whether or not a county road goes through the federal land. If a county road ( public road ) goes through the federal lands, the public has access – if, not their is no access. What I’m trying to say is that is basically a road issue and doesn’t necessarily reflect on the ranchers intentions. A PUBLIC ROAD MEANS JUST WHAT IT SAYS – PUBLIC ACCESS. If its a private road, you need the landowners permission to cross his land to get to the federal land. There are huge blocks of land in Wyoming with no PUBLIC ROADS simply because the counties can’t afford to own and maintain any more roads – that’s all it amounts to. Please note that the BLM has their own road network which accesses the large blocks of federal land but can’t be expected to provide public access to the smaller parcels of public land, and if they did attempt to build roads to these smaller tracts, they would have to buy easements/right of ways from the private land owners or condemn the private land and reimburse the landowners via condemnation.
I had a friend at Lance Creek who had undercover FBI agents approach him about hunting on the federal land within his ranch – he told them no problem at all, they were more than welcome to hunt on the federal land, and, they could cross his land to get to the federal land. Later he found out they were FBI agents investigating him. When the FBI agents left, they were the best of friends. One of the FBI agents had lost his service revolver and the ranchers son mounted up and rode until he found it and returned it to the agent. Most ranchers don’t want to be involved in access controversies and worry they could loose their federal leases if found to be restricting access – my friend in Lance Creek fell in this category of ranchers.
This corner crossing situation is being backed by the Backcountry Hunters and Anglers group (BHA). Rumor has it that one of the Wy BHA board members has had an axe to grind with this particular ranch and persuaded the rest of the BHA members to create this gofundme page.
Another rumor has it that the BHA has completely ignored and looked away from a similar trespassing situation in the Cody Wy area that could unlock thousands of acres of public ground. Apparently the BHA picks and chooses it’s battles while pining for their next “Pint Night”. If it’s not a pet interest of a select few Wy board members, then they don’t really care about the big picture mission of opening up public lands. Not a whole lot different then the many hunting-fishing-conversation groups that are more talk vs action
I’ve heard the same story regarding the Wyoming BHA thumbing their noses at the Cody area situation. Wow, a project supposedly right up the alley of BHA yet apparently, it doesn’t “ring home” personally to any board members. Not surprising, most of those outdoor advocacy groups like the Wyoming Wildlife Federation, Trout Unlimited and the TRCP routinely shy away from projects and issues that they suppose tout. These outfits want to have nice little meetings and run their mouths at “Pint Nights” versus actually following up with their mission statements. Yet, they keep on sending emails to Wyoming sportsman wanting their donation money. Go figure.
Chad, what group actually is supporting these hunters and helping their cause: that’s right, Wyo BHA. Where is the Wyoming Wildlife Federation? How about TRCP who uses public land access in their push for donations? Crazy, the only group actually doing anything to help these hunters and you criticize them!
Google has it that you are BHA’s self appointed internet carnival barker. There’s hardly a hunting forum or facebook page where you’re not involved in 24/7. Apparently the Carbon County case is near and dear to your heart and since most of these hunting-fishing-outdoor non profits rarely back up their mantra unless it benefits a chosen few insiders, many of us are viewing this BHA situation as a stunt. Heck, nobody that’s a resident of Wyoming stood up to this, so four Missourians were recruited. Another issue is that the remaining proceeds of the gofundme campaign, that don’t get used to pay legal fees, will be donated to the Wyoming Game & Fish access program. On the surface, “great and golly”….but have you seen some of the garbage piece of lands being leased out their for hunting? Pure plowed up dirt, 100’s to 1,000’s of acres of it. Grasslands absolutely pummeled by over grazing. Drive between Burlington and Basin and you’ll cruise past 1,000’s of acres of pure nothing – all enrolled in the walk-in management program. Something absolutely fishy going on….
No kidding about some of those wastelands enrolled in the Walk In program. A 300 ac bean field plowed into talcum powder by hunting season? Yea, a whole lot of wildlife on that piece of ground and what wonderful hunting opportunities…and to top that off, the Backcountry Pint Drinkers and Flat Brimmers want to donate the funds not used up in the legal battle to the Game and Fish so they can once again invest in the welfare rancher way of life in this state. You can’t make this stuff up!
The rumours you comment on are false.
Ken Miller and Chad Collier, rumors have no credence. That’s heresay and could very well be just another case of intentional misleading of public opinion for some person or group’s benefit or just to stir up more hate and discontent. Perpetuating rumors just perpetuates the problem. If you can provide real evidence I’m sure most readers would appreciate seeing it.
The anti enclosure law was used once in Wyoming against the Warren’s and it was successful.
Keith: Could you provide more information about your statement. Was it a court case? Is more info available on the internet. Details would really help. How old was the Warren matter?
There has to be give and take here. While I understand a ranch wanting exclusive access to checkerboard lands they don’t pay taxes on, if the roles were reversed and a landowner couldn’t access his own ranch lands, there would be holy heck to pay.
While it helps to see other perspectives, at it’s core, it’s hard for me to imagine, legally or morally, how someone could be cited for trespassing on land they never touched.
It’s about time for this faceoff– in fact, long overdue. Elk Mountain’s position is absurd and should no longer continue under Wyoming or Federal law.
I can’t imagine the federal judge won’t grant dismissal – federal law trumps state law and the involvement of federal land means it is a matter for federal court under federal law – not a matter in district court under Wyoming law. Its a no brainer for dismissal in my book and hopefully will put an end to this nonsense and abuse by private land owners in the checker board area.