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.
“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.
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.”
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.