A federal judge has ordered that a civil suit seeking damages from four Missouri hunters for allegedly trespassing by corner crossing on the Elk Mountain Ranch be transferred from state to federal district court. The move puts the issue of accessing some 1.6 million acres across the West in a venue where federal laws favoring access to public land may have more import.

Why it matters

Corner crossing is the act of stepping from one piece of public land to another where the public parcels share a four-way corner with two private parcels — all without setting foot on private land. As interpreted widely across the West, corner crossing constitutes trespass because a person must pass through the airspace over private property in the process.

Under that interpretation, 404,000 acres of public and state land across Wyoming and 1.6 million when also considering Colorado, Idaho, Montana, New Mexico and Utah are off limits to the public. Much of that land is enmeshed in a checkerboard pattern of ownership dating from the era of railroad construction.

History

Carbon County prosecutors filed criminal trespass charges against the four men in Carbon County Circuit Court and also want three of them convicted of trespassing to hunt. The charges stem from hunting trips the men took to Elk Mountain in 2020 and 2021 where they say they crossed corners to hunt on public land without setting foot on private property.

Elk Mountain Ranch owner Iron Bar Holdings, which lists billionaire Fred Eshelman as its manager, also sued the four in Carbon County District Court seeking civil damages. An attorney for the hunters last month filed a petition to transfer the civil case from state jurisdiction to the U.S. District Court for Wyoming where federal public access laws may hold more sway.

Who said what

“The clerk of the district court is hereby advised that jurisdiction over the parties and subject matter of the above-entitled action is deemed removed from the district court to the United States District Court for the District of Wyoming…” Chief U.S. District Judge Scott W. Skavdahl wrote in an order filed Thursday. The order becomes effective once the hunters’ attorney files documents in state district court, and Iron Bar will have an opportunity to ask Skavdahl to send the case back to the state venue.

U.S. District Judge Scott Skavdahl (Wyoming Supreme Court)

Iron Bar “has a right to exclusive control, use, and enjoyment of its Property, which includes the airspace at the corner, above the Property … the surface of the land and the subsurface below it,” the ranch owner states in its civil suit. The hunters, who have asked that the civil and criminal cases be dismissed, say Iron Bar’s interpretation runs afoul of laws passed by Congress, including the Unlawful Inclosures Act that generally prohibits landowners from fencing people out of public property.

“[S]tate legislatures, state executives, and state judiciaries may not grant rights, privileges, or powers to private parties regarding the use of or access to federally owned public lands located within a state that would conflict with federal legislation enacted by Congress pursuant to the Property Clause,” the hunters’ petition to transfer states.

What else you need to know

The Legislature’s Joint Judiciary Committee has proposed that trespass be its No. 1  topic for study before lawmakers begin their next session in 2023.  The overseeing Management Council will consider the request April 8. The committee wants to investigate the issue “including trespass by drone and a comparison of criminal trespass with trespass for hunting purposes.”

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 of the pro public land access folks need to keep in mind is that our legislature, bought and paid for by both the pennies to the cow BLM grazer and the fly in Rich landowners, is a very vindictive group and would undoubtedly seek revenge if the Federal Court sides with the hunters. Our in crowd Cabal would definitely counter with some insane and moronic trespassing laws and fines. Public land recreationalists, BEWARE

  2. The Federal judicial system could obviously see that nothing other than a pre-arranged Kangaroo Court was going to basically “lynch” the alleged trespassers. Iron Mountain’s Fred Eshelman was already celebrating a ‘win’ with Ashley Mayfield of the Carbon Co. Attorney’s office but…….NOT SO FAST MY FRIEND!!!! It’s a new ball game and Eshelman needs to realize that he’s not just going up against 4 measly public land hunters, Eshelman will be facing off with Tens of Thousands of us Public Land Owners. We’re ‘ready to rumble’, Fred!

  3. Way past time to end the charade that property rights extend up “into the heavens.” Welcome to the world of air travel, and space travel. Mark Squillace was right: “ University of Colorado Law School Professor Mark Squillace, based their positions on the 1979 Supreme Court case, Leo Sheep Company vs. United States. In it, the U.S. government was denied a road easement across Leo Sheep Company land; an easement that it claimed was necessary for access tothe federally managed Seminoe Reservoir in central Wyoming.”

  4. This could turn out to be the law of unintended consequences writ large.

    The “rancher” in question may have poked a hornet’s nest when he sicced his hands on the out-of-state boys. Wonder if he figured they would just tuck their tails between their legs, run home and everything would be forgotten?

    I’ll be watching this matter with great interest, as will others who hunt and fish in our state. If this case results in a broader interpretation of the Unlawful Inclosures Act, with significant punitive damages for those who essentially abscond with public property through illegal fence-out actions, Mr. Eshelman may go down as a hero if his actions result in the opening of public lands to the public.

  5. This United States District Court is exactly where both the civil and “criminal” cases belong. (Although the criminal side of matters cannot be removed to Federal Court without the appropriate petition that the misdemeanor/violations in question are unconstitutional on equal protection grounds.) The 10th U.S. Circuit Court of Appeals will have review over the eventual decision in Casper, and any decision will likely be appealed by the unsuccessful litigants to Denver where the appellate court is located. Hopefully, whatever the results in Casper may turn out to be, the Denver court will decide what the law of the land is in Wyoming for corner-crossing sportsmen and women. The decision from that appeal will then pertain to the six states of Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah, plus those portions of Yellowstone National Park extending into Montana and Idaho. Such may be the law of unintended consequences for Elk Mountain Ranch and Carbon County prosecutors. who may very well have their cases sadly resolved not only for them, but for much of our checkboard West where folks like them have conspired against foot access to Public Lands for generations.
    As a side note to this access issue, I respectfully submit that the Game and Fish’s recent press release about how hard they are working with private landowners and how much money they are spending on us to obtain access to Public Land the latter lock us out of: G&F is wasting their time and your money for something every taxpayer across the country should already have.

    1. Jack: I was glad to see Chief US District Judge Scott Skavdahl made this ruling. He has an excellent reputation and is really practical. I hope this matter continues in front of him – he’s the type of judge we need in Wyoming.

  6. Not sure what will come of this, but I think hearing the civil case at the Federal level will probably result in an outcome more fair for the defendants. As for the trespass case, I’m not so confident they can get a fair trial in Carbon County. The idea that the county attorney decided to charge someone for trespass even though they never set foot on private land is a real stretch. Seems more like a political decision than a strictly legal one. By this logic, every time some person, or perhaps livestock reach over a neighbors fence, touching nothing, it’s criminal trespass. Of course, if those instances would never be pursued, then why is this being selected out for prosecution? The answer to me is that this isn’t really about trespass as much as it’s about who controls public land.

    1. Mr Crooks, we don’t agree on much. But, this is one of the times that we both agree on the stupidity of the corner cross debate.

      The carbon County prosecutor should quit and become independent counsel for Eshelman. She’s already in his pocket

    2. Robert: Nobody can control a Wyoming jury not even the District Attorney. I have a lot of confidence in the decisions handed down by our jurys – no flakes in this state just clear headed thinking people with roots going back to the land. The ranch doesn’t want to go in front of a Wyoming jury – bad news for them. A billionaires unlimited funds means nothing behind the closed doors of a jury room – just watch and see.

  7. For the last several years I have been hunting in North Dakota. In ND public access to public or private land that is surrounded by other private land is required by State law. The landowner has to provide access through their land. Period.
    In addition, public travel is permitted along most section lines including private land.
    The ND law eliminates nearly all corner crossing issues.

    1. You’re right Vernon, it really helps where travel along section lines is the norm – but that’s farming country where access to fields is necessary. And, they have township boards which oversee these issues on a very localized basis. So much different than the wide open ranching country in the west.

  8. From the jetset robber baron landowners and the local sellouts who work for them, to the $1.35/month grazing lease welfare cowpokes along with the bought and paid for legislators and county attorneys, we, the public, have a message for you: We’re coming for “our” public lands and we’re going to retake them -just try and stand in our way – Your hopes of prevailing in a Wyoming County kangaroo court have faded away – and we, the “public” are just getting warmed up…

  9. About time. For too many years, livestock farmers have ruled Wyoming. I, as stated previously, hope that the state is booted out in terms of controlling access to public lands by the public. Enough of this living in the 19th Century!

  10. Good to hear. Hopefully elk mountain ranch is disappointed in the change of venue and the eventual outcome.

    1. How high do you have to go so that you are not trespassing. One foot, ten a hundred a thousand or more. And if the wind is blowing does the air you went through constitute additional trespassing? Corner crossing should be legal.

      1. Not only should it be legal, but there should be public access roads to get to public land. If welfare ranchers use public land for grazing, they should be required to maintain the road (as allowed by the weather).

        It’s time the state and its people get something from those who are paying pennies for grazing rights.

        1. The abuse of Wyoming taxpayers by wealthy Land Barron’s should end. The High Court should allow citizen access to all Public Lands.
          Stop depriving the Public of access to their property.