A map recreated from the Camfield case shows how fencing — indicated by red dots — on private land can obstruct passage to public land in checkerboard ownership landscapes. (BHA)

The U.S. Supreme Court has already established that corner crossing from one piece of public land to another is legal, a hunters’ advocacy group says in a court filing.

Backcountry Hunters and Anglers makes that claim in a brief that the U.S. District Court for Wyoming will consider in Iron Bar Holdings v. Bradly Cape, a civil trespass case that has implications for access to 8.3 million acres of public land in the West. In that lawsuit, North Carolina businessman Fred Eshelman, who controls Iron Bar Holdings, claims four Missouri hunters trespassed in 2020 and 2021 by stepping over a corner of his 22,042-acre Elk Mountain Ranch in Carbon County.

Eshelman’s complaint claims the four hunters — who never set foot on Elk Mountain Ranch land as they crossed from one section of public land to another at a four-corner checkerboard-like intersection with ranch land — trespassed through his airspace and caused up to $7.75 million in damages.

The national hunters’ group BHA has weighed in on the side of the Missourians.

“A private landowner with half the ownership of a corner does not have a veto over access by the owner of the other half of the corner — namely the federal government, and by extension, the people of the United States,” the brief states. “No individual monied interest should have the right to restrict the public from stepping across the corner of one adjoining parcel of federal public land to another, commonly known as ‘corner crossing.’”

Some 8.3 million public acres would be “corner locked” if corner crossing is illegal, according to onX, a digital mapping company. Approximately 2.4 million acres of that lies in Wyoming.

Roll the dice

BHA filed the proposed “amicus” legal memo to aid the court with an informed perspective. The official filing, due in court Monday, was not expected to deviate significantly from the proposed brief filed in the case, a BHA spokesperson said. The official brief had not been posted to a court website by deadline Monday.

No law specifically allows or prohibits corner-crossing, experts say. Nevertheless, landowners and some prosecutors have used the threat of trespass to discourage the public from hop-scotching on adjoining public land sections.

“The upshot is that the UIA plainly prevents private landowners from prohibiting access to public land for lawful purposes, including the momentary crossing of private land/airspace at a corner to access another section of public land,”

Eric Hanson, BHA attorney

“Individuals should not have to roll the dice and potentially subject themselves to the mercy of litigious landowners or local prosecutors just to recreate on public land that they legally are allowed to use,” BHA attorney Eric Hanson wrote in his brief. These individuals [hunters and others] are being discouraged from exercising their rights to recreate on public land … by landowners seeking to claim for themselves land that belongs to all Americans.”

The brief argues that two U.S. Supreme Court decisions and three federal appeals court opinions interpreted the 1885 Unlawful Inclosures Act to favor the hunters and public access by corner crossing.

“Federal law is clear that attempts to bar access to public lands, whether by fences or threats of trespass, are improper nuisances that Congress abated through the UIA,” the brief states.

In a decision in 1893, the U.S. Supreme Court sided for public access and against an irrigation developer who sought to fence public land in Colorado. Daniel A. Camfield, who farmed in Greely, Colorado, and William Drury, erected fences that blocked access to about 20,000 acres of public land, according to a summary of the case on the website Justia.

“In Camfield v. United States, the Supreme Court held that fences put up inches inside private land on the checkerboard border with public land was unlawful…” BHA attorney Hanson wrote.

The Camfield decision relies on a legal maxim that holds that a landowner may use his or her property “in such a manner as to not injure that of another,” the high-court stated. To rule otherwise would be contrary to the supremacy clause of the U.S. Constitution, the opinion stated.

The hunters’ organization offered its opinion with gusto, BHA President and CEO Land Tawney said in a statement. “Since BHA was founded around a campfire almost 20 years ago, we have been proud to fight for the values of the public lands hunter and angler, and we are committed to ensuring that access to our public lands and waters is freely available to us all,” his statement reads.

100 years of access

The checkerboard pattern of land ownership is a relic of railroad-building days when the federal government granted developers every other section along proposed rail lines in exchange for construction of those routes. The grants “took a peculiar form,” one court said in describing the land ownership pattern. In Wyoming the checkerboard eventually stretched for 20 miles on either side of the rails across the southern part of the state.

In the last 100 years courts have continued to uphold the public-access principle, BHA’s Hanson contends. A 1914 federal appeals court resolved a Wyoming case — Mackay v. Uinta Development Co. — involving fences erected to block sheep from grazing public land.

The fences were built in such a manner that “not even a solitary horseman could pick his way across without trespassing,” according to the court’s decision. “[A]ll persons … have an equal right of use of the public

domain, which cannot be denied by interlocking lands held in private ownership,” the brief states, quoting the appeals court.

The decision addresses private property rights, Hanson’s brief claims. The opinion “lessens in a moderate degree what are frequently regarded as absolute rights of private property,” the court wrote.

A federal appeals court also decided another 1914 case in favor of access, this time in North Dakota where a landowner used fences and natural barriers to prevent passage to public property. In Stoddard v. the United States, the appeals court said the UIA was “intended to prevent the obstruction of free passage or transit for any and all lawful purposes over public lands,” according to court filings.

A photograph purporting to show the corner in question. (GoFundMe)

The cases from 1914 and earlier do not fade with time, BHA attorney Hanson wrote. The UIA figured in Wyoming as recently as 1988 when rancher Taylor Lawrence erected a fence on checkerboard land that blocked the migration of pronghorn antelope. In that instance, the court found that the federal access law applied to wildlife as well as stock.

Finally, Hanson dismisses the relevance of the Carbon County case — Leo Sheep Co. v. the United States — to the Elk Mountain suit against the Missouri hunters. Leo Sheep involved construction of a federal road on private property, not the momentary crossing of private land or airspace to go from one piece of public land to another.

“The upshot is that the UIA plainly prevents private landowners from prohibiting access to public land for lawful purposes, including the momentary crossing of private land/airspace at a corner to access another section of public land,” Hanson wrote. “A finding to the contrary effectively grants the landowner dominion over federal public land he does not own and that he has not paid for.

“The Supreme Court has cast a cold eye on such an outcome,” Hanson wrote, citing the Camfield decision. Justices wrote then that “[i]t seems but an ill return for the generosity of the government in granting these [rail]roads half its lands to claim that it thereby incidentally granted them the benefit of the whole.”

Trial scheduled

U.S. District Judge Scott Skavdahl has scheduled a trial for next summer writing that “several pertinent questions of fact … remain outside the record.” A trial would answer questions about “the physical placement, purpose, and extent of [Eshelman’s] fencing, ‘no trespassing’ postings, and any associated warnings.”

Stock owners submitted their own amicus brief through Karen Budd-Falen, a Cheyenne attorney who filed 41 pages, including attachments, in favor of agricultural groups.

“Questions as to the existence and scope of a person’s property right have long been a creature of state law,” Budd-Falen wrote. She quoted a court decision that “[p]roperty interests are not created by the Constitution, but … are created and their dimensions are defined by … an independent source such as state law.

“Congress did not reserve any means of access to [public] reserved lands in the checkerboard,” the brief reads. “Simply put, the [hunters’] argument that federal law authorizes trespass across private property is patently incorrect. … The Unlawful [I]nclosures Act did not repeal the prohibition against trespass on private lands to access federal lands.”

BHA’s Tawney said the group’s perspective can help the court. “BHA members rely on access to public lands and waters to pursue our passions, and thus we are deeply invested in resolving the issues surrounding corner crossing,” his statement reads.

Angus M. Thuermer Jr.

Angus M. Thuermer Jr. is the natural resources reporter for WyoFile. He is a veteran Wyoming reporter and editor with more than 35 years experience in Wyoming. Contact him at angus@wyofile.com or (307)...

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  1. ALL PRETTY SIMPLE. Lawyers smile on all accounts. They get all schooled up to split hairs and muddy the waters. Shame is not sufficient. Why do so many lawyers end up legislating ? Pays good.

  2. “No law specifically allows or prohibits corner-crossing, experts say.”

    Really? I always thought it was illegal in Colorado per state law. Perhaps they refer to the mixed bag of federal opinion on the matter. Either way, the court’s outcome is unknown. To suggest otherwise is magical thinking.

    Remember, in 2022, the following Wyoming reps tried to take away your access to federal land via corner crossing with HOUSE BILL NO. HB0103:

    Rep. Barry Crago (R-Buffalo), Eric Barlow (R-Gillette), Aaron Clausen (R-Douglas), Jamie Flitner (R-Greybull), Mike Greear (R-Worland), Chip Neiman (R-Hulett), Ember Oakley (R-Riverton) and Tom Walters (R-Casper) plus Sens. Brian Boner (R-Douglas), Ogden Driskill (R-Devils Tower) and Dave Kinskey (R-Sheridan).

    1. The very fact that this bill was drafted and not considered for introduction is prima facie evidence that prohibitions and restrictions do not exist in current Wyoming law. If they already existed, there would be no need to bring the bill draft.

  3. Magagna and the wanna be feudal lords that make up the ranks of the Stock Growers Association are claiming that allowing corner crossing hurts their property values. Having a lease to graze animals on state or federal land allows you to let your animals hang out and eat there, nothing more. They don’t own the land. If the value of your property goes down because someone can go on land next door that isn’t yours then you were either a fraudster or defrauded in your real estate transactions. If someone else can walk on land that isn’t yours doesn’t stop you from grazing cows on it. It’s ridiculous how ranches are marketed. They will advertise say 5000 acres, 2500 deeded and 2500 leased. This is very common. You are only getting 2500! The other 2500 is owned by the government and people have a right to go on it, just the other people can’t plop their livestock on it . That is the only thing the lease gives you control over. The idea of ownership of leased land being advertised in a sale was absurd from the beginning. The Stock Growers talking about controlling a “certain amount of air space” is comical and an attempt to control land not owned by them. It just sounds silly, a certain amount of space. Ha..

    1. Ezra: The BLM and USFS made a big mistake by letting the lessees ( ranchers ) make improvements on Federal surface estate. That is, the ranchers paid to build two track roads, fences, wells, stock dams and extend power to the wells. This put them in a position of almost being a partial owner of the leased grazing land. This issue came to a head in Nevada in the Hague or Hage case where a Federal judge recognized the lessees have some legitimate claim to an “interest” in the land. Since then, the BLM will not let a lessee pay to drill a well or build a stock dam – if one is to be built, the BLM will pay the cost such that the lessee does not have a claim to partial ownership. This is a very controversial aspect of leasing Federal lands in the west which hasn’t been fully resolved. What is known is that the rancher has a right to recover the cost of improving the Federal land which he has paid for. However, many of the water improvement projects were partially funded by USDA water improvement funds that were matched by the rancher – cost sharing. For private property, its oftentimes results in a lien being placed against real property you have paid for the improvements while leasing the property.

      1. Continued: I may have opened a can of worms folks. What if Iron Bar Holdings is a partial minority interest owner of the Federal grazing lands it holds grazing leases on due to the improvements ranchers have made to the Federal land??? Is Iron Bar a co-owner of the Federal land??? Lots of worms in this can.

        1. Lee, shouldn’t be an issue. As you stated earlier, many of these “improvement” project were either cost shared or wholly paid by the Feds. You, myself, Fred Eshelman (as a private citizen), etc., are equal partners when it comes to ownership of Fed land. As far as the public being able to access their “public” land…and that act alone devalues adjacent private property…uh, hmm, what’s the word? Oh, yea, BALDERDASH!

  4. Private land to private land at corner= private “airspace”, public land to public land at corner= public “airspace”.

  5. Getting down to the real facts and not emotions in the courts – awesome information about previous court cases and their relevance. Sometimes the courts are the only way to clarify the underlying issues and bring the facts out in hardcopy written form publicly filed. Federal Judge Skavdahl will be very keen to the previous precedence setting cases. Progress is being made.

  6. LONG LIVE THE UNITED STATES CONSTITUTION AND THIS REPUBLIC OF AND FOR “WE THE PEOPLE”…

  7. Sheridan County had an interesting case a few years ago when a hunter flew an ultralight aircraft over a landlocked parcel. The airspace argument doesn’t hold water.

  8. This is Ethan from Wyoming. It is about time that someone is going to bat on behalf of public land owners without worrying about the money. As for the lawyers siding with the private landowners and wrongfully written state trespass laws, they must be ignoring the plain fact of congressional law that states clearly that federal law supercedes state law . Or, they are just trying to lobby that it shouldn’t, regardless of what is written in federal law. That sounds better than saying that they are stupid. Or, they are very aware of the federal law, and like the money that they receive by contending against the law.

  9. Thanks to the Backcountry Hunters and Anglers members for weighing in on this important case. Unfortunately, Wyoming residents are experiencing more of this egregious practice – someone from out-of-state who purchases large amounts of land to create their own Kingdom, installs fencing which impedes traditional migratory patterns and overall, failing to be neighborly – every year. The Backcountry Hunters and Anglers group is doing Wyomingites, who love outdoor recreation, a big favor.

  10. The opioid billionaire down in Carbon County opened up a big ole’ can of worms and the near future might prove that he singlehandedly swung the gates open to millions of acres of public land for access. The other feudal land barons along with the welfare, 4 cents per day cow/calf public land grazers have been cringing in unison.