Supreme Court shouldn’t take up Wyoming corner-crossing appeal, hunters say

The U.S. Supreme Court should not review the Elk Mountain Ranch owner’s failed trespass lawsuit against four men who corner crossed to hunt on public land in Carbon County, the hunters’ lawyers say in a 39-page document filed Wednesday.

Ranch owner Fred Eshelman’s petition to the high court to take up the case is “procedurally deficient and doctrinally unfounded,” the new filing states. Eshelman’s claim that corner crossing is an unconstitutional taking of private property was not fully and fairly presented to lower courts and is therefore moot, the hunters contend.

Eshelman asserts, among other things, that corner crossing is an unconstitutional taking of private property without compensation. But he and his landowning company Iron Bar Holdings raised that argument late in the legal process, and almost in passing, the hunters say.

For the Supreme Court to consider Eshelman’s takings argument, the ranch owner had to first fully argue the issue in the lower courts, thereby exhausting all his other remedies, according to the hunters’ brief.

“This Court should not take this case to explore Iron Bar’s procedurally deficient and doctrinally unfounded takings theory,” attorneys Ryan Semerad and Lee Mickus wrote.

“Been here before”

Eshelman’s Elk Mountain Ranch covers some 20,000 acres of a wildlife-rich peak that soars to 11,156 feet. The North Carolina owner and pharmaceutical magnate is a hunter whose property surrounds 6,000 acres or more of public land owned by all Americans and controlled by the Bureau of Land Management.

Across southern Wyoming, property ownership is laid out in a checkerboard pattern of public and private square-mile sections, a vestige of the railroad building and land-grant era of the mid 1800s.

“Many public-land squares on these checkerboards are accessible only by ‘corner crossing,’” the hunters’ attorneys explain. That is by “stepping from one public-land square to the next one across the public-private corner without touching the private-land squares.”

To corner cross, one must inevitably pass through the airspace above private property. Based on the common-law “ad coelum” dictum that presumes a landowner also owns the airspace above his or her property, Eshelman contends corner crossing is a trespass.

The onX digital mapping company estimated that 8.3 million acres of public land in the West would be inaccessible to the public if corner crossing is found to be an illegal trespass.

That’s what Missouri hunters Bradly Cape, John Slowensky and Phillip Yeomans did in 2020, and with Zachary Smith again in 2021. The Carbon County attorney cited them for trespass and a jury found them not guilty of the misdemeanor in 2022.

Eshelman sued the four in civil court that year, seeking to bar them and others from corner crossing to reach public land on Elk Mountain. A federal judge in Wyoming decided that Eshelman could not block the hunters from landlocked public land in the checkerboard part of Wyoming and the 10th Circuit Court of Appeals agreed when Eshelman took his case to that venue.

The Wyoming chapter of Backcountry Hunters and Anglers has backed the hunters, saying they needed to have their case heard and required financial support to balance Eshelman’s wealth and resources.

Eshelman’s petition to the Supreme Court said the 10th Circuit decision against him “steamrolls state law, takes easements, and revolutionizes property law affecting up to 150 million acres of private land.”

Disarming Eshelman’s takings arguments was one of several points the hunters made in their response, including that “this [Supreme] court has been here before” and decided in favor of public access to public land. The 10th Circuit Court of Appeals correctly applied the text of the 1885 Unlawful Inclosures Act and the precedent set by other cases that revolved around that law, the hunters say.

Congress passed the 1885 act during checkerboard scuffles to prohibit blocking public access to public land, including by using fences, other physical barriers and even threats and intimidation.

The appeals court’s decision is narrow, doesn’t break new ground and is not in conflict with decisions in other appeals court circuits, the hunters’ response states. Those are all reasons to let the lower court ruling stand, they say.

Eshelman also failed to fully argue in lower courts that the 1885 Unlawful Inclosures Act does not automatically supersede Wyoming’s trespass laws. “Ordinarily, this [Supreme] Court does not decide questions not raised or resolved in the lower court,” the hunters state.

Bye bye Leo Sheep

Eshelman and his landowning company Iron Bar Holdings have argued that courts decided another Carbon County checkerboard case — known as Leo Sheep — in favor of blocking public access to public land across checkboard corners. In that instance, the BLM sought to build a road across a common corner to provide public access to a reservoir.

Courts ruled against the BLM. Eshelman’s attorneys use that decision to argue that the federal government never reserved an easement allowing the public to corner cross.

The hunters disagree.

“As the Tenth Circuit explained, Leo Sheep doesn’t apply to Iron Bar’s claims,” the hunters say. The Supreme Court has already said that the 1885 act, on which the hunters hang their hats, “played no role” in Leo Sheep, Wednesday’s filing states.

“But Iron Bar raises a categorically different question,” the hunters continue, “whether checkerboard landowners can affirmatively extinguish all access to neighboring checkerboarded public land.” The Supreme Court rejected a petition to review a case that “invoked Leo Sheep in the same flawed way,” the hunters say.

The hunters’ response elaborates on a couple of other points, emphasizing the effects of finding that corner crossing is an illegal trespass.

“The UIA supplants conflicting state law since a different rule would place the public domain of the United States completely at the mercy of state legislation,” the filing states. In other words, by blocking the public from public property, Eshelman can enjoy that public land and its bounty for himself, the hunters say.

Semerad and Mickus note that the 1885 UIA was in effect ages before Eshelman ever laid eyes on Elk Mountain.

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“Iron Bar bought checkerboarded property in 2005,” the attorneys wrote. “[Eshelman’s] rights have always been subject to the limits imposed by the UIA.”

Although the 10th Circuit decision is focused, the hunters say Eshelman exaggerates its effects.

“Iron Bar complains that this narrow decision effectively legalized trespassing across the country, destroying billions of dollars in property value,” the filing reads. “The hyperbole is misplaced.”

“The [appeals] court did not immunize a trespasser who marches straight down the middle of private property,” as Eshelman contends, the hunters say. “Rather, the court held only that if access to public lands is otherwise restricted, a checkerboard landowner cannot sue a corner crosser for trespassing so long as they did not physically touch [private] land.”