After four years of legal battles, Fred Eshelman’s trespass lawsuit to block people from corner crossing to reach public property will land Oct. 17 on the U.S. Supreme Court conference table, where justices will likely consider a recent law-school graduate’s recommendation whether to take up the case.
The nine justices won’t necessarily be the first ones to scan the 388 pages filed in the case titled Iron Bar Holdings vs Bradley Cape. A clerk — an early career lawyer — will review the file initially, soon joined by two other clerk colleagues.
Before the justices mull Eshelman’s petition, these “three smart kids in their mid to late-20s are conducting the closest and most important reads,” according to Dan Schweitzer, an expert in Supreme Court processes.
If the high court follows its typical routine, one of the clerks will write a short memo that recommends whether the Supreme Court should take up Eshelman’s case, according to Schweitzer’s 2019 guide for state lawyers. Justices review these “critical initial assessments” and “may take a closer look by reading some or all of the briefs” and perhaps the opinion that is being challenged and appealed.
Before Eshelman’s case made its way to 1 First St. NE, Washington, D.C., the corner-crossing legal wrangling involved four misdemeanor citations, numerous motions, affidavits, depositions and testimonies, two trials plus deliberations, opinions, orders and two appeals.
“[T]hey don’t have a great deal of experience, particularly in some specialized areas of the law.”
Dan Schweitzer
All this debate must now pass through a checkpoint at one clerk’s desk and computer.
If it seems counterintuitive that the gatekeepers at the court’s portico of 16 Corinthian Italian marble columns appear wet behind the ears, Schweitzer and others provide some insight.
“These are individuals who, fairly recently, graduated from law school, typically, at the top of their class from the best schools,” according to the court’s own description. “Often, they have served a year or more as a law clerk for a federal judge.”
Schweitzer recognizes clerks’ likely youth and inexperience — more as a warning to petitioners to be clear and concise in their pleadings than as any dig at clerks’ capabilities or intellect. That clerks make an initial review “puts a premium on clarity,” for the writers of any petition, Schweitzer wrote.
“They are very bright young people,” Schweitzer wrote. Nevertheless, “they don’t have a great deal of experience, particularly in some specialized areas of the law.”
Top of the class
For the Court’s October term, seven clerks each came from the University of Chicago, Harvard and Yale; five from Stanford; two each from Michigan, Notre Dame, the University of Pennsylvania and the University of Virginia; and one each from Columbia, Georgetown and George Washington. Of the 38 clerks, 53% are men, 47% women, according to David Lat, who assembled the roster for his substack column Original Jurisdiction.
Together, the clerks have served 71 clerkships before being selected by one of the justices and have collectively served in those positions under 39 different judges, Lat wrote.
Iron Bar is the name of Eshelman’s company that owns the Elk Mountain Ranch in Carbon County. Cape is a Missouri hunter and fence builder who, with his friends, corner-crossed in 2020 and 2021 to hunt on public land surrounded by Eshelman’s ranch. The Wyoming chapter of Backcountry Hunters and Anglers supported the four Missouri men with fundraisers to ensure they would be heard in court.
Wildlife-rich Elk Mountain rises from the checkerboard landscape of property ownership in southern Wyoming, a pattern that’s a vestige of the railroad-grant era of the mid-1800s. Alternating square-mile sections of public and private ownership characterize the area.
Corner crossing is the act of stepping from one piece of public land to another adjacent public parcel where they meet at a common corner. Eshelman’s lawsuit seeks to defend what he believes is a private property right to block people from passing through the airspace above his land, exposing such folk to potential trespass charges even though they do not set foot on his land.
If corner crossing is illegal, the public can’t reach property owned by all Americans; Eshelman essentially reaps the bounty of that land for himself, the hunters contend. The case has implications for public access to 8.3 million acres of public land across the West.
The 10th Circuit Court of Appeals decided that the 1885 Unlawful Inclosures Act conditionally allows corner crossing in the checkerboard area of Wyoming and five other states. That court noted that corner crossing is the only way for the public to access its public land on Elk Mountain without using an aircraft, suggesting that its ruling applies only to landlocked public property.
Eshelman has petitioned the high court to hear his appeal, asserting that the 10th Circuit functionally allowed trespassing that could affect 150 million acres of private land. Among his claims is that the 10th Circuit unconstitutionally allowed for the taking of private property without compensation.
Eshelman wants the justices to hear his arguments that the 10th Circuit got it wrong when it decided he couldn’t block Cape and his buddies. That would, for the first time, establish that corner crossing is illegal, experts say. The hunters say the Supreme Court doesn’t need to consider Eshelman’s case, but they are prepared to defend their 10th Circuit win.
Eshelman’s case is one of approximately 7,000-8,000 petitions the court expects to receive this term, which runs from now until October 2026. The court will grant certiorari and hear oral argument in about 80 cases.
For Eshelman’s case to advance on Oct. 17, four of the nine Justices must vote to accept it. The justices could instead reject it, in which instance the 10th Circuit ruling for Wyoming, Colorado, Utah, New Mexico, Kansas and Oklahoma would stand.
No reasons given
For four years, the Elk Mountain tumult has taken place in the public arena. Fifty-eight citizens of Carbon County assembled for potential service on a six-person jury in the hunters’ misdemeanor trial, where they were found not guilty of trespassing. Courts have published lawyers’ motions and transcripts and have distributed their own findings and orders freely.
Only nine people, however, will be in the Supreme Court conference room on Oct. 17, and its doors will be closed. It is a room “as secret as any in government,” the Supreme Court Historical Society states.
“No outsider enters the room during conference,” the historical society explains. “The junior Associate Justice acts as ‘doorkeeper,’ sending for reference material, for instance, and receiving it at the door. The Court keeps private matters private.”
Justices do not have to give a reason when they accept or reject Eshelman’s appeal. Alternatively, the court also could “relist” Iron Bar v Cape for more discussion later. Experts say that’s an indication that at least one justice is interested in pursuing the issue.
An official will summon the justices to the conference room five minutes before the long discussion starts Oct. 17. The justices will shake hands.
The 36 ritual handshakes are a reminder “that differences of opinion on the Court did not preclude overall harmony of purpose,” the Supreme Court states.
The historical society explains the apparent paradox of secrecy at the highest level of public interest.
“[I]n light of the complete confidentiality of the conference, the Supreme Court is one of the most open of government agencies and one of the most public of courts,” the group explains. “It acts only on matters of public record; it hears counsel’s arguments in public; all its orders and opinions are on the record; all materials presented to the Court for reaching its decisions are available to the public.”
The court usually releases a list of the cases the justices will take up within days of the conference.
Well, if you want to screw things up royally, get a bunch of lawyers involved. Eshelman’s contention that he owns the air above his property and the air above the BLM property as well is about as dumb as you can get, but apparently the 350+ pages his legal team filed seem to think there is legitimacy within. He took this idea straight out of wind energy developers in Wyoming back in the early 2000s when that same idea was being used so that private land owners would have no say about turbines being put on their land. The wind companies wanted the air to be treated just like mineral rights. Fortunately, this didn’t fly back then and neither should it now. Mr. Eshelman, go back to where you came from. Wyomingites aren’t as dumb as you seem to think they are. It only points to your pitbull mentality, let it go and quit wasting people’s time.
I appreciate the educational and informational value of this piece – thank you, Mr. Thuermer and WyoFile. Just for further clarification, the headline and tone seem oddly misleading and imply there is something unique about this case. This is how the Supreme Court always works: clerks read and research cases, make “critical initial assessments” and prepare memoranda, drafts, etc. to support the justices’ work on the cases. This is the norm.
Ever since the unlawful inclosures act was inacted private property owners in the checker board have been try to nullify it and annex public lands. So, we shall see.
Supreme Court Clerks, like Justices, are selected more for their political views than for their academic achievements. The Heritage Foundation and other groups are very active in recruiting at the law school level. That’s how we got in this mess.
This has absolutely nothing to do with a D versus an R, as it is rather one of simple common sense logic which seems sorely lacking. You are not required to be a genius to see the only reason for buying land in a checkerboard fashion is to do exactly what you see the wealthy individual who is making every effort to do in this case, and that is to control public land to his benefit without having to pay taxes on same, while at the same time keeping out the average citizen. A simple solution would be to require a 12 foot easement for public access, where every corner blocks of land touch, allowing access to public land automatically, following the already established law of not being able to landlock a person’s private property and not allowing access as an easmeant is required. I submit this individual would have bought all of his property in a contiguous fashion if that was already clearly established. Case closed!
Here is the Unlawful Enclosures Act of 1885. https://www.congress.gov/48/plaws/statute/c48s2ch149.pdf. The language prohibiting any and all enclosures of public lands by private entities for any purpose is very clear.
Further, as a matter of precedence over the last century and more, SCOTUS has also found that the US Constitution grants Congress full sovereign authority over the ownership, management, and final disposition of public lands. I briefly discuss this elsewhere. https://www.wyomingrising.org/2025/04/12/build-a-yellowstone-nation/.
In short, the Unlawful Enclosures Act passed by the US Congress in 1885 is constitutional. That also means that Fred Eshelman has no case. Under normal circumstances, SCOTUS would not take the case, as the issues Eshelman raises have long since been decided.
Our problem is that the current SCOTUS has shown considerable contempt for precedence. Should SCOTUS unreasonably find for Eshelman, it also necessarily rules that Congress does not have full sovereign authority over and title in public lands. The most likely consequence would be a feeding frenzy by the rich to grab up desirable public lands and turn them into private landed estates–with armed guards. That would benefit landowners and harm the public in ways that would resemble medieval feudalism in Old Country Europe. Lords and peasants, and we the people are the peasants.
We do not want this. Let’s hope the SCOTUS clerks do their job.
Seems to me like this case should be over carbon County found that the men were not trespassing. Mr.Eshelman claims that unconstitutionally the law allows for the taking a private property without compensation. The law was in place of way before he ever purchased that property even before he or his lawyers were born. Seems to me he has been violating the unlawful enclosure act of the 1800s and he is the one who should be fined as he is the one that is violating the law.
i just hope the law clerks can help explain what an “abatable federal nuisance” is
If this were a middle class land owner that owned only 2 squares in the checkerboard, the case would have been dead long ago.
The elite with the $$$$$$$$ decide what goes in the U$A.
The people squabble over meaningless R vs D partisan political nonsense when the true division, is on a class level.