A Carbon County sheriff’s deputy and a Game and Fish officer spent more than 16 minutes with the Elk Mountain Ranch manager during the response to a hunting trespass report, ultimately telling him why they wouldn’t cite four Missouri hunters, a video shows.
The recording — from what court documents say is a body camera worn by Carbon County Sheriff’s Deputy Alex Bakken — shows Game and Fish officer Jake Miller and ranch manager Steve Grende at the hunters’ roadside camp.
In the video, Bakken and Miller tell Grende, who had called to report the four hunters were trespassing by “corner crossing,” they would not cite the men for either trespassing to hunt or criminal trespass because of the unsettled nature of the laws.
As Miller explains the Game and Fish Department and Commission position on the trespassing to hunt law — based on a Wyoming Attorney General’s opinion that corner crossing may not be a violation of the trespass to hunt statute — Grende interjects.
“Do they realize how much money my boss has? …and property?” Grende asks.
Neither Miller nor Bakken issued a citation during the recorded meeting, which court documents say occurred Oct. 1. Officers said they would submit reports to the county attorney who, documents say, subsequently ordered a deputy to charge the men, which happened on Oct. 4.
On that day, Sheriff’s Deputy Patrick Patterson went to the roadside camp and cited Phillip G. Yeomans, Bradly H. Cape, John W. Slowensky and Zachary M. Smith with criminal trespass. The county attorney later requested the Carbon County Circuit Court allow an alternative charge of trespassing to hunt to be considered.
The men have pleaded not guilty and a trial is set for April 14.
Corner crossing involves stepping from one piece of public land to another where two public parcels share a four-way corner with two private parcels. Where such checkerboard ownership patterns exist, it is possible to step over the common corner, chess-bishop fashion, without touching private land.
At issue is access to some 404,000 acres of public land in Wyoming and almost 1.6 million acres when also counting Utah, Idaho, Montana, Colorado and New Mexico, according to an assessment by the Center for Western Priorities.
WyoFile obtained the video from the Circuit Court of Carbon County where it is an exhibit in the hunters’ file. The nighttime video shows the officers and Grende discussing the law and its interpretations before Bakken checks out the hunters’ truck and trailer and finally pages through what looks like a booklet describing legal citations.
The video “was produced by the State in discovery,” court papers state and became part of the case record when an attorney for one of the hunters included it as an exhibit in a motion to dismiss criminal trespass charges. It was made, “around 02:04:37 on October 1, 2021,” according to the court filing.
Officers had observed the men on public land wearing camouflage and carrying archery gear. They appear to have been in the area during both the archery and firearm seasons.
“As far as a Game and Fish trespass, I don’t really think I can do much with it,” Miller tells Grende in the video.
(In the video Elk Mountain Ranch Manager Steve Grende refers to another person who had been in the area saying “I’ve caught him out here a couple of times.” He then appears to refer to that person as being Seith Konrath, stating “he [inaudible] for trespassing.” Seith Konrath told WyoFile that he indeed had been corner crossing in the area in the past and had been checked out by law enforcement but has never been found guilty of trespassing.)
Deputy Bakken states “not going to do anything for it,” according to a hunters’ attorney’s transcript of the video. “We will write it up. But the County Attorney will not prosecute for corner crossing.”
That turned out not to be the case and Carbon County Attorney Ashley Mayfield Davis told the sheriff’s office to cite the men, court papers say. Corner crossing “is illegal” and it’s been “a consistent policy of the Carbon County Attorney’s Office at least since 2008” to cite offenders under the criminal trespass law, Davis wrote in a Feb. 22 filing.
That seven-page document, not counting attachments, is Davis’s response to the hunters’ motion to dismiss the charges. Davis asserts that 2021 was the second year in a row the hunters had crossed corners in the area.
Smith, Yeomans and Cape had crossed at public-private corners in 2020, she wrote. At that time “[t]hey reportedly spun their bodies around the T posts,” marking the private property, Davis wrote in her response.
One of the men contacted Davis after the 2020 trip, the county attorney wrote. Although authorities issued no citations in 2020, “the charges were pending,” her filing states.
In 2021, the men used a fence ladder to climb over two T posts on two adjacent and kitty-corner parcels of Elk Mountain Ranch property. The two posts were chained and wired together, according to a photograph purporting to show the corner in question.
In 2021, “[d]efendant Cape requested a charging decision be made from the Carbon County Attorney’s Office… during his interactions with Game and Fish,” Davis wrote. “The County Attorney’s Office did [sic] law enforcement to issue citations herein.”
Referencing the 2020 incident, Davis said additional charges have now been filed. She requested that the circuit court allow trespassing to hunt be considered as an alternate charge to criminal trespass and stated it should apply to the hunters present in 2020.
Sparring over federal law
In her Feb. 22 filing, Davis knocks a defense motion to dismiss the criminal trespass citations that claimed a conflict with federal law. Defense attorneys said, among other things, that the Unlawful Inclosure of Public Lands Act of 1885 prohibits private property owners from fencing off public land.
“Much of Defendants’ basis for his motion is based upon an improper interpretation of Federal law,” Davis wrote. “The state does not believe there to be a conflict with Federal law.”
Fee ownership of private property is “a defense to this Act,” Davis states. “Marking your own land with a no trespassing sign is in fact legal,” she wrote. Doing so “is not equivalent to ‘enclosing’ public lands,” her filing states.
Davis referenced several court cases and said the United States Supreme Court ruled there is “no implied easement to public land” in the checkerboard ownership landscape. Since 1977 the U.S. Bureau of Land Management, administrator of the land where the men were hunting, has subscribed to a federal solicitor’s opinion that disfavored corner crossing, Davis wrote.
“BLM considers corner crossing to be illegal,” her response states.
The hunters claim they never touched private land. But their critics say they passed through airspace above private land, an act that constitutes trespass.
The four corners in a crossing situation meet at a point that, essentially, has no width. The hunters have argued that any airspace intrusion damaged nobody and nothing and should be disregarded.
“[H]ow a person could go through those points without entering the land of another would be impossible,” she wrote. For a trespass charge to require more than a de minimis entry “is simply unfounded in Wyoming law.
“The state asserts that in this case individuals knowingly accessed corners marked with no trespassing,” Davis’s response reads. “Under the current law and its interpretation, corner crossing legally is physically impossible. As such, actions of the Defendants are in violation of Wyoming Statute.”
This story was updated March 2 with a statement from Seith Konrath (printed in parentheses right below the video) regarding claims made by Elk Mountain Ranch Manager Steve Grende about Konrath’s activities in the area — Ed.