Corner-crossing petition to Supreme Court employs successful past strategies

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As Supreme Court justices meet Friday to consider hearing the Wyoming corner-crossing case, attorneys for ranch owner Fred Eshelman are citing reasons that others have successfully employed to get their cases accepted for review.

The Supreme Court should accept Eshelman’s petition and hear the case because, his attorneys say, the 10th Circuit Court of Appeals’ decision on corner crossing “contravenes” Supreme Court precedent. The case also has “profound legal and practical importance,” Eshelman argues.

Eshelman is appealing the 10th Circuit Court’s decision that he cannot block the public from corner crossing to reach public land surrounded by his Carbon County ranch. He sued four Missouri hunters who stepped from one piece of public property to another adjacent one where the two met at a checkerboard corner with two parcels of Eshelman’s Elk Mountain Ranch. The hunters did not touch the ranch owner’s land.

Eshelman, through his ranch-owning company Iron Bar Holdings, maintains the hunters trespassed when they passed through the airspace above his property, a violation of Wyoming law. In seeking a Supreme Court hearing, Eshelman’s attorneys use two of the most successful approaches, expert Dan Schweitzer wrote in a guide, that petitioners have employed to convince the court to hear their cases.

Eshelman’s petition, however, is not based on the first reason the court lists for taking up petitions for a writ of certiorari, or review. That’s when there are conflicting decisions on the same matter between two of the 13 federal circuit courts of appeal.

That’s fodder for the hunters who say they don’t want the court to consider the case, but are willing to fight if it does.

“This petition does not meet this Court’s criteria for granting review,” one of the hunters’ attorneys, Ryan Semerad, wrote in a Supreme Court filing. “Iron Bar doesn’t claim that the decision below implicates a circuit split.”

Because the 10th Circuit Court is the only one to address corner crossing, “No split exists,” the hunters contend.

Only 5% of petitions succeed

The 10th Circuit agreed with the hunters that the 1885 Unlawful Inclosures Act prevents Eshelman from blocking corner crossers. Based on the 10th Circuit’s decision in March, corner crossing to reach isolated tracts of federal public land is now legal in Wyoming, Colorado, Utah, New Mexico, Kansas and Oklahoma.

Corner crossing arises from the public’s desire to reach its own public land in the checkerboard area of Wyoming. The checkerboard pattern of alternating square mile ownership overlays Eshelman’s wildlife-rich, 20,000-acre-plus Elk Mountain Ranch.

By preventing corner-crossing, Eshelman, a hunter himself, reaps for himself the bounty of public property — property owned by all Americans — critics contend.

Obtaining a review of federal appeals court decisions is rare. In 2024, the Supreme Court agreed to hear 5.2% of 1,344 petitions (not counting petitions from indigent appellants, of which there are many), according to an analysis that Empirical SCOTUS writer Adam Feldman published on SCOTUSblog.

Eshelman’s attorneys explain their reasoning that the appeal should be among those rare cases the court considers. They are second- and third-tier reasons, according to Schweitzer’s 2019 guide — lower court decisions that “directly conflict[s] with Supreme Court precedent” and issues that are “extremely important.”

Iron Bar claims the 10th Circuit Court contravened the Supreme Court’s own 1979 decision known as Leo Sheep. (Leo is a rural Carbon County settlement; Leo Sheep was a company named after the place.) In that case, the court ruled that the government did not have an implied easement to build a road across a common checkerboard corner to reach a reservoir used for recreation.

But Leo Sheep doesn’t apply to the Iron Bar case, the hunters, and the 10th Circuit, contend. Among other things, Leo Sheep dealt with a road constructed on private land, and there also was another way to reach the reservoir.

The 10th Circuit’s decision, written by Judge Timothy Tymkovich and agreed to by two other appellate judges, said that “the Supreme Court can also reconsider the scope of Leo Sheep, as it applies to this case.”

Profoundly important

Attorneys who write successful petitions also argue that their issue is an important one and, as Schweitzer puts it, their pleadings therefore “dive into the merits to a far greater degree.” Schweitzer writes that decisions that impair government officials from doing their jobs or that create a devastating impact on an industry can qualify for review.

“If a 140-year-old fence statute can be read to extinguish [state trespass laws] then no realm of traditional state property law is secure,” Eshelman’s attorneys wrote. The 10th Circuit, if its decision stands, creates “uncertainty for millions of landowners, recreationalists, and law enforcement officials across millions of acres of land.”

Stockmen warn that “unrestrained public access … can cause great stress to livestock,” Eshelman’s filings state. Further, the 10th Circuit’s “sweeping” decision affecting property rights across millions of acres is “an important question of federal law,” that the Supreme Court should address.

Hunters say Eshelman has done an about-face.

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When resisting the hunters’ request to move the case from state to federal court, Eshelman and Iron Bar “denied that this case implicates ‘an important question of federal law,’” the hunters state. Instead, the ranch owner described any federal issues as “not substantial.”

Eshelman argued in Wyoming’s civil court that the case concerned “only two sections” of his property and that the controversy involved “well under $75,000,” in value, a hunters’ brief states. Eshelman argued unsuccessfully in 2022 that those limited impacts should allow the ranch owner to pursue his suit in the state court system and not the federal one.

The hunters, however, convinced a federal judge to move the case to the federal court system. “Only after losing [his effort to keep the case in Wyoming courts] did Iron Bar revise its estimated damages from the hunters’ momentary incursions on its airspace upwards to $8 million,” the hunters’ attorneys wrote in a brief to the Supreme Court. Now Eshelman contends the impact is “billions,” they wrote.

Eshelman could benefit from amicus briefs filed to support his petition, SCOTUSblog’s analysis of the last eight years of petitions shows. The United Property Owners of Montana, the Wyoming Stock Growers Association, the Wyoming Wool Growers Association, the Claremont Institute’s Center for Constitutional Jurisprudence and Montana Stockgrowers Association’s amicus filings boost Eshelman’s chances of obtaining a writ because they indicate a “national stake.”

The hunters’ attorneys, however, chose neither to enlist an “elite” and practiced Supreme Court lawyer nor ask for briefs from groups that support their public-access case. Doing either could have signaled to the Supreme Court that the case is indeed nationally significant, contrary to the hunters’ position that the 10th Circuit appropriately took care of all necessary business.

The Supreme Court’s hearing on Friday will be held behind closed doors. Within several days, the court is expected to publish a list of cases that it will accept for review.