The U.S. Supreme Court justices are scheduled to confer behind closed doors on Oct. 17 about whether to take up a Carbon County landowner’s lawsuit that challenges public access to public land at checkerboard corners in Wyoming.
The court listed the case Tuesday for its long conference later this month. Justices could decide within days of the conference whether to hear the appeal by Elk Mountain Ranch owner Fred Eshelman and his Iron Bar Holdings company. The court could alternatively push back its consideration to another conference or deny his petition.
Eshelman, owner of the 20,00-plus acre ranch, on Wednesday filed the last pleadings before the conference, urging the justices to take up the case and resolve “a 150-year conflict touching on the core of property law and, simultaneously, defining the American West.
“The question is whether the Unlawful Inclosures Act of 1885 implicitly preempts private landowners’ state-law property right to exclude. The answer affects property rights in 150 million acres of land in the Western United States.”
Fred Eshelman’s attorneys
“The question is whether the Unlawful Inclosures Act of 1885 implicitly preempts private landowners’ state-law property right to exclude,” Eshelman’s attorneys wrote. “The answer affects property rights in 150 million acres of land in the Western United States.”
Eshelman sued Missouri hunter Brad Cape and three of his companions in 2022 for trespassing when they corner crossed to hunt on public land surrounded by his ranch. Wyoming’s Chief U.S. District Judge Scott Skavdahl found that corner crossing in the checkerboard area of Wyoming is not trespassing and the 10th Circuit Court of Appeals in Denver backed him up in March.
Eshelman wants the Supreme Court to reverse the 10th Circuit decision. Cape and his hunting companions say the appeals court was correct and that the Supreme Court does not need to take up the case. But if it does, they are prepared to fight.
Public land for himself?
Eshelman’s ranch enmeshes some 6,000 acres of public land on wildlife-rich Elk Mountain, land that can only be reached with his permission or by corner crossing. By blocking the public from corner crossing, Eshelman essentially reaps the bounty of the public property exclusively for himself.
The public and private property is arranged in a checkboard pattern of square-mile sections of alternating ownership. The hunters several times stepped from the corner of one public section to another, passing through the airspace above Eshelman’s property.
Eshelman, a wealthy North Carolina pharmaceutical magnate, sued the four for trespassing, even though they never set foot on his land. Wyoming Backcountry Hunters and Anglers aided the four hunters with fundraising drives to ensure they had the resources to be heard in court.
Wyoming’s checkerboard landscape runs along the southern third of the state in a 40-mile-wide band. The 10th Circuit decision applies to Wyoming, Colorado, Utah, Kansas, Oklahoma and New Mexico.
About 2.4 million acres of public land in Wyoming and 8.3 million acres across the West are considered “corner locked” and inaccessible to the public if landowners can block corner crossing.
The 10th Circuit’s decision contravenes court precedent, “tramples state trespass law, and grants easements across thousands of checkerboard properties — without paying a dime of compensation,” Eshelman’s attorneys R. Reeves Anderson, Brian M. Williams and Samuel F. Callahan wrote. “[T]he Tenth Circuit’s interpretation ‘functionally’ granted respondents — and millions of others — a perpetual easement across private land.”
The hunters successfully argued that the 1885 Unlawful Inclosures Act prevents landowners in the checkerboard area from blocking public access to public land. Eshelman argues that the statute applies only to fences and unlawful acts.
“Iron Bar neither erected a fence- like barrier ‘inclosing’ public land nor used an unlawful means to obstruct access,” the latest filing reads. Suing the hunters is not an unlawful act, Eshelman contends.
Uncompensated taking?
The appeals court’s decision amounts to an unconstitutional taking of private property without compensation, Eshelman argues. “If a 140-year-old fence statute can be read to extinguish [state trespass laws], then no realm of traditional state property law is secure.”
The 10th Circuit wrongly “decreed that Congress in 1885 granted the public thousands of easements free of charge, abrogating ‘a cornerstone of the liberties enshrined in the Constitution,’” Eshelman’s attorneys wrote. That cornerstone is the property right to exclude others from one’s land.
Even Mr. Obvious would not hear this rubbish for the 3rd time, why on God’s green earth would these trespassing charges even be heard especially is his tax records state 20,000 acres. So are properties owners liable for taxes on checker board land they they don’t own, can USA come and take land of theirs for non payments for hundreds of years past? Greed is the only thing this case is about.
He (Eshelman) talks about private landowner rights and that if corner-crossing is upheld as lower courts have deemed its legal, his private property is being taken away. I fail to see how, what he is wanting is full and exclusive access to the thousands of acres of PUBLIC land, for basically nothing, just the grazing lease, which is pennies on the dollar. If he were to list the the property, he would be getting compensated for the public land, its not his, but he would still get compensated just as it is. Look at some of the ranches for sale, 10 maybe 20% is private, the rest is public, if you take the private acres and divide into the sale price, its very high, but you bring in the total acres private and public and the price per acre comes down into the market price. No Sir Mr. Eshelman, you are taking public land and making it private. As long as the public does not touch your land, they should be able to, at a minimum, step from public to public, ie.. corner crossing without fear of prosecution.
Politicians in Robes.
I dont know if SCOTUS was ever impartial. :-/
Years ago, I used to think that the SCOTUS was fair and impartial. However, if you look at the history of their rulings since Mitch McConnel and Trump got their justices installed, it has been anything but fair and impartial. No wonder their public ratings are so low.
It’s a dog and pony show.
5-4 decisions help keep the public thinking the court is legit.
It isnt, and the kayfabe of R vs. D keeps the partisan/divided public always pointing their finger at “the other team”.
The same way you have done with your multiple names. You are not as innocent and guilty free as you claim to be. Instead of speaking against today’s authoritarian behavior, you cry about what about-isms from decades ago. You are part of the problem chad/jack/doug/paul
Citizens United, Kelo v. City of New London, etc. most recent cases of completely biased opinions in the defense of Government against-over The People.
Maybe you can start discussing the actual issues instead of irrelevant diversions, Chuck/Bill/George/Tim/Oscar
I find it most interesting that of the nine justices who may consider this case, only one (Goresuch) was born and raised west of the Mississippi and only one spent a significant part of his professional life before his high court appointment in the trans-Mississippi West. I wonder how that geographic fact of life might affect the outcome of this case.
interesting !
Owning property which includes and surrounds public lands essentially makes those public lands your own under current law. This means that the public lands add to the value of your holdings even though they are not patented, and, more importantly, are not taxed as your land. It’s an advantage over the public which I see as greedy, given the idea that ranchers want us kept out. Out of our land.