A wealthy Carbon County landowner who has tried to block public access to public land enmeshed in his sprawling ranch has hit a legal snag. The 10th Circuit Court of Appeals has told the Elk Mountain Ranch owner Fred Eshelman he cannot yet appeal a federal judge’s decision that corner crossing is OK.
The appeals court “identified a possible jurisdictional defect” that will stall, or possibly prevent, the North Carolina resident from contesting his loss in a civil suit. Eshelman had initiated the suit claiming that corner crossing is trespassing and that four hunters caused him millions of dollars in damage by stepping from public land to public land through his airspace, without ever touching his land. Until Eshelman explains or corrects the possible defect, “briefing on the merits is suspended,” the order filed Friday states.
The possible defect lies in a trespass allegation Eshelman made and withdrew — but a claim that was never permanently dismissed — in his $7.75 million civil suit against the four Missouri hunters.
The appeals order gives Eshelman until July 28 to either explain away the possible defect or to go back to U.S. District Court in Wyoming to “establish finality,” of a lingering trespass allegation associated with a digital marker called “Waypoint 6.”
The procedural setback was the second of two recent blows to the pharmaceutical magnate’s campaign against corner crossing at his Carbon County ranch.
The first came earlier this month when Eshelman ended a legal fight against Google that sought to unmask an anonymous critic. Eshelman wanted to sue that person — identified as J. Doe — for defamation in Germany or India after Doe wrote that the billionaire “abused police resources” in the corner-crossing incident.
Meantime, the decision by Wyoming’s Chief U.S. District Judge Scott Skavdahl remains unchanged and legally unchallenged. He ruled that “[c]orner crossing on foot in the checkerboard pattern of land ownership without physically contacting private land and without causing damage to private property, does not constitute an unlawful trespass.”
Eshelman, a hunter, would have the exclusive use of some 6,000 acres of public land enmeshed in his 22,045-acre, wildlife-rich Carbon County ranch if corner crossing is deemed and enforced as trespassing. Corner crossing, as described by the judge above, is the act of stepping from one piece of public property to another at the common corner with two pieces of private land, all arranged in a checkerboard pattern and without setting foot on private property.
Eshelman claims the hunters trespassed in 2020 and 2021 when they passed through the airspace above a corner of his ranch. The men claimed the federal Unlawful Inclosures Act of 1885 that generally prohibits blocking passage to federal property ensures their right to corner cross.
Eshelman wants that Skavdahl decision reversed by the appeals court in Denver. But the court stymied his appeal plans.
Because of the possible defect, the court is “considering this appeal for summary disposition,” meaning the court could throw the appeal out.
At issue is an unresolved claim that one of four Missouri hunters did more than pass through ranch airspace. Eshelman alleged hunter Zach Smith was actually on ranch property when he logged a digital marker called “Waypoint 6” on a smartphone mapping app.
Smith and others have said “Waypoint 6” could have been created from anywhere and is not proof Smith was on Eshelman’s property. Eshelman withdrew the claim, but apparently not permanently, according to an order from the clerk of the appeals court.
“[T]here is no indication whether the ‘withdrawal’ of the last claim was with or without prejudice,” whether it was permanent or temporary, the clerk wrote in an order filed on July 14.
Eshelman’s challenge appears unripe, “because the case has not been fully disposed of in the lower court,” the appeals court clerk order said.
The allegation regarding “Waypoint 6” appears to have little bearing on corner crossing itself. The hunters and ranch owner had already agreed the issue at hand was whether corner-crossing through airspace was trespassing.
Eshelman’s attorneys discovered the “Waypoint 6” digital marker as his civil suit was making its way through Skavdahl’s court. The lawyers added a new trespass allegation — trespass by actually stepping on land — to the case. They later withdrew the allegation but retained the right to pursue the claim again.
Earlier this month Eshelman stated in court filings that he is withdrawing a subpoena he obtained against Google to unmask an anonymous critic. Google and the critic, referred to as J. Doe, had fought Eshelman’s application for the subpoena.
Eshelman claimed the critic interfered in his pharmaceutical business. Revealing Doe’s identity would have allowed Eshelman to sue him or her for defamation in Germany or India, according to the application.The subpoena was an end run around the First Amendment protection of free speech, J. Doe’s public-interest attorney opined in a blog.