Elk Mountain Ranch owner Fred Eshelman will have to convince four of the U.S. Supreme Court’s nine justices to take up his appeal of a lower court’s decision that corner crossing is not trespassing.
His attorneys have until July 16 to file their reasons why a ruling by the 10th Circuit Court of Appeals merits Supreme Court review. On Wednesday, Supreme Court Justice Neil Gorsuch rejected without comment a request by Eshelman’s attorneys for a second 30-day extension, leaving July 16 as the deadline. Gorsuch granted the initial extension in May.
“A 30-day extension would allow counsel sufficient time to fully prepare the petition for filing,” Eshelman’s attorney Robert Reeves Anderson wrote in his unsuccessful bid. “Counsel will not seek a further extension.”
The Denver appeals court found in March that four Missouri hunters, Bradly Cape, Phillip Yoemans, Zachary Smith and John Slowensky, did not trespass when they passed through the airspace above Eshelman’s ranch in the checkerboard pattern of land ownership in Carbon County.
Corner crossing is the act of stepping from one piece of public land to another where ownership resembles a checkerboard. Three of the men in 2020 and all four in 2021 crossed a corner abutting Eshelman’s ranch to hunt on Elk Mountain.
They never set foot on Eshelman’s ranch, but he sued them claiming they trespassed by passing through the airspace above his property. The hunters and the appeals court said that an 1885 law granting public access to public land in the checkerboard areas of the West allows corner crossing when private land is not touched or damaged.
Three favorable conditions
Eshelman will file a petition asking the Supreme Court for a writ of certiorari, which, if granted, would open a review of the 10th Circuit decision.
A writ of certiorari means that the Supreme Court will hear the appeal. (A writ is an order, and certiorari is Latin for “to be fully informed.”) To obtain one, Eshelman must convince four of the nine Supreme Court Justices that the case merits review.
The Supreme Court lays out three conditions in its rules that would favor taking up the case. It will grant a writ “only for compelling reasons,” the rules state.
One reason could be when an appeals court — like the 10th Circuit — issues a decision that conflicts with one of the nation’s other 12 appeals courts.
The justices would favor a case in which a federal appeals decision conflicts with a state supreme court decision. Justices also favor reviews of outlier decisions.
An instance might be when a lower court “has so far departed from the accepted and usual course of judicial proceedings,” that the Supreme Court should exercise its “supervisory power.”
Other acceptable cases could involve different states’ supreme court rulings that conflict with one another and other conflicts between a state’s high court and a federal appeals decision.
After the expected petition is docketed, the hunters will have 30 days to respond and Eshelman can file a short response, according to Dan Schweitzer, who outlined the process in a paper for the National Association of Attorneys General. Within 14 days of the hunters’ response, the file goes to the justices for their review.
The earliest the justices would debate the petition is on Sept. 29, when a “long” or “opening” conference is scheduled.
Eshelman’s attorneys have given a preview of their reasons for a petition in the extension requests. The case, they said, could have major implications for millions of acres of property in the West.
“This case raises exceptionally important issues at the intersection of private property rights and public access that warrant this Court’s review,” they wrote. “Principally, this case addresses the scope of a landowner’s right to exclude—here, whether a private landowner’s lawful trespass action to exclude a corner crosser from his property is preempted implicitly by the federal Unlawful Inclosures Act.”
“This case presents an ideal vehicle to clarify the scope of the Unlawful Inclosures Act and its restrictions, if any, on a landowner’s right to exclude trespassers,” the filings state.
Sadly , Mr. Eshelman will probably win. Why — this is the gilded age where billionaire bros rule in the US and a SCOTUS who always sides with the rich. I used to think the SCOTUS where amazing, our best and brightest lawyers who makes their best attemp to interpret the law and situations as it applies to the constitution. Those days are gone.
This nonsense must stop. The entitled billionaire Mr. Eshelman has had his day(s) in court and he lost. He will likely lose this final one as well. I’m sure he is accustomed to getting his way, resorting to such ridiculous arguments as maintaining that he owns the airspace above his ranch. Mr. Eshelman never learned that important lesson most of us got from our parents: you don’t always get your way, and when you don’t, get over it. As my late mother-in-law used to say: “you git what you git and you don’t throw a fit”.
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The first extension shouldn’t even of been given and this last minute shyster move is just another big laugh. Anyway, Freddie E., dig this: tick tock, tick tock…
I’m curious if any of the major airlines have been contacted to pay a trespass fee for using Mr. Eschelman’s air space. That sounds silly, but at what height above the ground does airspace occupancy cease to be a perceived problem?
One good reason to sell off these ‘public land’ tracts and consolidate the use of these landscapes. Public can’t use them or easily access them. No tax base for the states and counties with all these checkerboard land locked up in Federal control. So sell these landlocked parcels. Idiots who came up with this checkerboard idea in the first place is another debate. Corner crossing for access is for foot only. That is super restrictive use of the so called public land in debate. Just sell it!!
And just think you can then drive up the price of beef by limiting where it can be raised (produced) and cut down on the amoyunt of meat for food available. That’ll show those food producers mwho is boss!
Interesting. This seems to be the new normal, continuing to file lawsuits in an attempt get your way. You do not have to look outside DC or Wyoming to see this. I would like to have some control of who/what is over some of the airspace over my small property. I value my privacy.
I am of two minds on this. On the one hand it would be kind of nice if SCOTUS took up the case, because then if they ruled in favor of the hunters it would open up all the checker board in all the states to corner crossing, where as right now, it’s only allowed in the states covered under the 10th district. However, on the other hand, I do not trust this SCOTUS to rule in favor of the hunters so I don’t really want them to have the chance to rule on it. So I will hope that they don’t take up the case, then at least corner crossing will still be allowed in Wyoming.
eshelman only needs to buy someone a new motorhome and take him on a trip or two. clarence is cheap
Sad but true.
HA! it looks like all hope is waning for the Eshelman shyster team. If they had any substantial basis for having SCOTUS review the appeal, the shysters wouldn’t need any time extensions. On the evening of July 16th, we’ll be popping corks and pouring champagne in honor of Eshelman’s final defeat!
Another out of state millionaire who thinks that he owns Wyoming including the air that we breathe.
It is not only mostly absent out of state land owners involved in this . Magagna and all his Wyoming hobby farm buddies support keeping everyone off public lands as well.
These billionaires have a bottomless pit of money, and they’re willing to spend it in order to take our rights. In the end, we the people have the power, but we have to be willing to use it.
This property rights question has zero standing as the air does not belong to the owner of the physical property. This again emphasizes the very reason properties should be cautiously sold. The greed and power and control demanded by these autocratic elite egocentric men and corporations do not and should never supersede the rights of the the common, but equal man. Justice has been served. The Supreme Court has no reason to take this matter up.