A fence guards private property at the Elk Mountain Ranch, site of a corner-crossing controversy. (Mike Koshmrl/WyoFile)

A North American nonprofit that claims 350,000 members and supporters wants to join a civil suit on the side of four hunters accused of trespassing by corner crossing at Elk Mountain Ranch in Carbon County.

Backcountry Hunters & Anglers filed papers in Wyoming’s U.S. District Court asking that it be allowed to join the civil suit brought by the ranch owner against four Missouri men who corner crossed to hunt public land in 2020 and 2021.

“BHA and its members have a strong interest in seeing the issues surrounding ‘corner crossing’ resolved under federal law to clarify nationally the legality of moving across federal public lands that intersect private lands at a corner,” BHA attorney Eric Hanson wrote in his request to join the civil case.

Corner crossing is the act of stepping from one parcel of public land to another at the common corner with two parcels of private property — without touching private land — where the parcels are arranged in an ownership pattern resembling a checkerboard.

BHA would draw on its experience and proposed that it be allowed to officially file a brief that “offers a perspective that will assist the Court” as the court decides whether to retain the case or send it back to Wyoming District Court in Carbon County where it was originally filed. Iron Bar Holdings, a company owned by North Carolina businessman Fred Eshelman, filed the civil suit in February in state court asking for a judge to declare that the hunters trespassed and to empanel a jury only to assess damages against them.

“We’re going to make sure we carry this case through to the end.”

Land Tawney, BHA president and CEO

Until BHA filed the legal papers, the hunters funded their defense with the help of only the Wyoming chapter of the BHA. Wyoming BHA raised $71,460 through a GoFundMe campaign to support the hunters after they pleaded not guilty to criminal trespass charges brought by the Carbon County prosecutor.

A jury found them not guilty of those criminal charges April 29, leaving Eshelman’s civil suit as the remaining action in the legal arena.

If the larger BHA becomes involved the hunters would have broader support. The organization has chapters in 48 states plus three Canadian provinces or territories.

“We’re a larger organization,” Land Tawney, president and CEO of BHA said Wednesday. “This is a priority. We’re going to make sure we carry this case through to the end.”

Public lands

BHA touts the slogan “keep public land in public hands,” as it states in its request to be allowed to join the federal civil suit. The brief it proposes to officially file “highlights the amount of federal land across the country rendered inaccessible by [trespass] allegations like [Eshelman’s],” attorney Hanson states.

The brief would aid the federal court because it “explores the legal landscape of federal law from past to present related to corner crossing, including those [issues] involving questions of trespass, and examines the policy implications of deciding the issue based on federal law.”

Corner-crossing defendants wait for their trial to begin in Rawlins on April 27, 2022. They are Phillip Yeomans, second from left and partly obscured; John Slowensky, foreground in the front row, Bradly Cape, second from left in back row and Zach Smith, right. (Angus M. Thuermer, Jr./WyoFile)

The proposed brief, which Hanson filed along with BHA’s request to join the suit, argues that the case should remain in federal court. Eshelman wants the case returned to the Wyoming court system, saying he only raised claims under Wyoming law.

BHA disagrees.

Despite the not-guilty criminal trespass verdict in Carbon County Circuit Court, “the legality of corner crossing is an unresolved issue” across the West, the proposed brief states. The federal court “is in the best position to resolve the dispute,” the brief states.

Eshelman’s arguments that the men were trespassing “necessarily implicate any attempt to move between public land at corners,” BHA states. Consequently, the civil case should be resolved “using the lens of federal law as it applies to public land access.”

BHA comes down on the side of the public. “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,” the proposed brief states.

Hanson outlines settled cases and laws that could have a bearing on accessing 8.3 million acres of public land across the West by corner crossing, some 2.44 million acres in Wyoming. Those cases and law stretch across time from the 1885 Unlawful Inclosures Act to cases in 1897, 1914 and 1985.

Eshelman’s civil case raises the “significant and complicated question of whether federal law allows private landowners to close access to millions of acres of public land by threat[en]ing or suing for trespass” in corner-crossing situations, Hanson writes.

“A private landowner with half the ownership of a corner should not have a veto over access by the owner of the other half of the corner — namely the government, and by extension, its citizens,” the brief states. “Many thousands of BHA members, as well as millions of public land recreators, have an interest in the determination of Plaintiff’s and Defendants’ respective rights in this case under federal law.”

In supporting the hunters in federal court, Tawney said his group is not in the business of steamrolling over private property.

“We’re just trying to find a solution to corner crossing,” he said. “We want to make sure we maintain and respect private property rights and at the same time the rights of the public to access their public land.

“While we don’t necessarily have that solution today, we’re definitely stepping up our efforts here,” he said. “There’s a high degree of interest outside of Wyoming.”

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. Lee, you seem to have a grasp on the seldom understood federal homestead land grants, especially the confusing ‘canals and ditches’ provision in the deed language. How would one get ahold of you to further discuss and tap your brain? I’d like to forward your information onto a person that is working on access issues.

    1. Jim: I am not an attorney so the comments I made about reserved items on homestead documents are just things I ran into while owning land, county planner, paleontological collecting, various situations of native or whites being buried on private land. Based on the comments I read on Wyofile, I did look up the ” Unlawful Inclosure Act of 1885″ and found an interesting article by the Land & Water Law Review, 1973, University of Wyoming by George A. Gould entitled”Access to Public Lands Across Intervening Private Lands.” Upon reading it, it became clear what a sticky wicket this whole matter is and the courts constantly rule in different ways – its a legal quagmire at least. Strange, but Mr. Gould did not mention homesteading deeds and the matters reserved to the government and those passed on to new owner by the General Land Office. I do recommend everyone read Mr. Gould’s scholarly article to better understand just how confusing this whole matter is. And, its been addressed in Federal court before so the current case in Wyoming in front of Scott Skavdahl is just one of a history of trying to resolve the matter. The Unlawful Inclosures Act of 1885 seems to utilize clear language but after the courts are done interpreting the act it emerges clear as mud. Some of these old acts have been declared unconstitutionally vague by some Federal judges but then the next judge adds his spin to the matter. The old laws fall far short of the standards we see in modern legislation – just a few vague paragraphs in most cases. Scott Skavdahl has a long history of addressing western natural resource and land issues so we’re lucky to have a true western man ruling on this matter – just lucky to have it filed in Wyoming instead of California, Oregon, Washington, Idaho, Montana or Colorado. We’ll just have to see how Scott wades through all of the confusing arguments he’ll be presented with.

    2. Continued: Jim, Mr. Gould’s 1973 article recognized the rulings concerning beach access in Oregon – it is very interesting and may have some applicability in our current Wyoming checker board corner crossing situation. It seemed to uphold the right of public access but I encourage everyone to read the article yourself. The point is, some prior rulings in other Circuit courts of Appeal may apply in our case but not necessarily – don’t be surprised if the rulings in our 10th Circuit Court of Appeals region is contrary to the thought in other circuits. After all, different circuits can have different rulings and the law can be applied differently depending on which circuit you’re in. Scott Skavdahl will also have to pay particular attention to any prior rulings which were issued in the 10th Circuit Court of Appeals – he certainly wouldn’t want to issue a ruling that is contrary to established rulings in our circuit. This is up to the attorneys to research case law and include in their arguments before Scott Skavdahl. So, since our checker board land ownership pattern is a huge issue in Wyoming but not so much in other states, we could see a completely new vision of how to apply the law in Wyoming and on to the 10th Circuit Court of Appeals. I’m sure Angus will read all of the legal filings and give us his insight into the major issues and elements before Scott.

      1. I suspect Wyoming Stock Growers Association, Wyoming Farm Bureau and Wyoming Wool Growers and perhaps the State of Wyoming will file a motion to intervene in the case.

  2. It seems like it could be written into law or lease contracts for public land that a 10 foot by 10 foot space must be available and open and accessible for a lease to take place at all.

  3. While accessing public lands (including corner crossing) is paramount to most outdoor recreationalists, this Backcountry Hunter’s and Anglers group (BHA) is pretty selective on what challenges to pursue. Fact = many of the Wy state BHA officers are hunters in the SE part of the state and have had their eyes on the checkerboard country around Elk Mountain for quite a while. So, the created a go-fund me page and declared war on the corner crossing issue in Carbon County. Fact = a public lands access dispute that could potentially open up tens of 1,000’s of acres of difficult to access federal land has been brewing in the NW part of the state. Concerned recreationalists reached out to the Wy state BHA people who quickly scoffed at the request and ignored it Hmm, must not of been “sexy” enough for a group that proclaims to champion access. Fact = Wy state BHA is very particular on what public land access battles they join in with a biased criteria of self serving a chosen few vs. the betterment of all members

    1. I think I know of that situation you specify. If so, shame on the BHA for turning it’s back on it. Truth be told, the Wyoming BHA Director is kind of a flake and the Bighorn Basin board members really have never showed serious intentions of representing the m.o. of BHA. Actually, most of these outdoor advocacy “groups” like WWF and TU can be very fickle and flaky. They like to make a lot of noise and drink a lot of IPA’s at those ‘pint nights’ but just you go present them with a viable issue and most say they’ll “check into it” and “don’t call us, we’ll call you”. I guess the best any of us can do it to support them with the issues that you believe in and don’t support them on the fluff. In regards to the Carbon Co Corner Cross fight, good for the BHA but it’s no secret that this has been the pet project of a select few within the organization

    2. The only group to stand up for public access in this case and you bad mouth them. I hate to tell you Matt, but some of your “facts” are wrong.

      1. I can’t speak for the corner crossing issue in Carbon county but I can vouch for Matt’s “facts” regarding the Powell wyoming area public land access issue being scoffed at and ignored y the local BHA reps. I went to one of those ‘pint nights’ in Cody and was not too impressed with the local BHA’s who seemed to actually take their IPA’s more seriously vs the access issues

  4. If an airplane flies over corners at 10,000 feet, or even over the middle of private property, it is trespassing? I guess so! The logical conclusion of the landowners’ argument.

    1. Calvin it doesn’t apply to high flights. Now maybe a hot air balloon or low flying plane. But unlikely. Let’s see where the federal lawsuit goes. If loss for landowner. There will be appeal. And land swaps? They never or seldom work out well to public’s benifit. All state/Feds do is pass more laws. Never or seldom do they go back update or toss bad laws. That is one reason we have issues we do. It simple. Common sense isn’t so common these days.

  5. This is Ethan call from Rawlins. It is those that want us to have a short memory that say the existing federal laws don’t carry any weight when put against a state law such as the criminal trespass law in Wyoming. On the contrary, the states that make such a trespass law have a short memory in acknowledging that the federal law holds first rite over the corner crossing issue. That right specifically states that free access to all federally owned public land shall be guaranteed to all citizens, and that it does not only apply to the corners. The corner crossing words are just made up, whereas the federal law states it’s citizens can cross anywhere on private land to access the public land beyond, as long as they do so only to get to the public land beyond to enjoy it’s benefits. This is definitely a federal issue that will not be settled anywhere but in the federal court system.

    1. Ethan: Very,very interesting comments which insinuate the importance of the upcoming federal case in front of Scott Skavdahl. As far as I know, you’re right – Wyoming statutes do not apply in a Federal court case and Scott Skavdahl will be weighing Federal laws going all the way back to include any Federal court cases which may apply in this case. He will need the benefit of scholarly arguments – documentation – of previous Federal land cases and it seems this is what BHA is trying to bring to the court. Obviously, Wyoming statutes only apply in Wyoming District courts and do not cross state lines; therefore this has to be a Federal court because of its interstate repercussions. The ruling by Federal Judge Skavdahl could be a real bomb shell – we’ll just have to wait and see – I do anticipate he will have to take his time and be very thorough since this case is so important. He will need all of the relevant case law and precedence setting prior cases before he can issue his ruling.

    2. Ethan: When one examines the old original homestead titles issued to homesteaders you will find on the bottom certain rights reserved to the Federal government; that is, not passed on to the new owner. Most commonly reserved is “D&C” which stands for ditches and canals – this means that irrigation districts can cross private land for legitimate irrigation purposes. Of the most importance is mineral rights which early on were transferred to the homesteader but after about 1913 were retained by the Federal government. Conspicuously absent on the bottom of most titles is roads; that is, the right to cross private land acquired by homestead filing. There are other Federal laws which appear to grant road access across private land and Scott Skavdahl will be closely examining them. The Federal government also did not reserve archaeological and paleontological rights to the original homesteaders and this is why most western private land owners actually own the dinosaurs on their land and the Indian artifacts. If I understand the interpretation of these homestead titles, if the government did not specifically reserve the right to the government, it was deemed to have been passed on to the homesteader – thus road access might be interpreted to have passed to the new land owner and government and/or the public cannot automatically cross private land. However, other Federal laws seem to say the opposite. That’s why its such an important case.

      1. Correction: …..should read” did not reserve rights to the Federal government’ and not read ” to the original homesteaders ” – my mistake.

  6. Good luck to them. Afterward, we can work on river shore access. Everyone would benefit. It is ridiculous that a floater can’t even drop an anchor to fish.

  7. Thanks again Angus – another gem. I suspect Federal Judge Scott Skavdahl will admit BHA in the Federal case since they represent so many members and rightfully point out that the issue transcends state lines and is a much broader issue not just a Wyoming issue. The national members of BHA joined the organization anticipating BHA represent them on important issues and this is surely one of interest. This is how its done folks – and BHA has so much to add to the case.
    However, I would like to point out that the ultimate solution to corner crossing in checker board and mixed ownership land is large land swaps which block up large blocks of Federal land which the public can easily access and also benefit the private landowners who would gain large pastures with minimal or no Federal land within. I encourage the concerned public in southern Wyoming to start exploring the process for land swaps – start with your local BLM District offices. Lee