Five groups are supporting Elk Mountain Ranch owner Fred Eshelman’s petition for the U.S. Supreme Court to review a 10th Circuit Court of Appeals ruling that he cannot block the public from corner crossing to reach public land surrounded by his ranch.
The groups filed briefs Aug. 18 urging the Supreme Court to take up the matter. The 10th Circuit ruled earlier this year that four Missouri hunters did not trespass when they corner-crossed to hunt on public land on Elk Mountain in Carbon County, WY.
Eshelman wants that ruling overturned, claiming that the hunters trespassed. They did not touch his land but passed through the airspace above his property.
United Property Owners of Montana, The Claremont Institute’s Center for Constitutional Jurisprudence, Wyoming Stock Growers Association, Wyoming Wool Growers Association and Montana Stockgrowers Association joined Eshelman in seeking a high-court review.
Corner crossers step from one piece of public land to another where they meet at the common corner with two pieces of private property. Corner crossers do not set foot on private land, but they pass above it.
At issue is public access to 2.4 million acres of public land in Wyoming and 8.3 million acres across the West that would be “corner locked” and inaccessible to the public if the Supreme Court sides with Eshelman. By controlling access at common corners, a landowner can essentially have exclusive use of public property, the Missouri hunters have said.
The 10th Circuit decision applies to Wyoming, Colorado, Utah, New Mexico, Oklahoma and Kansas. But it leaves a gray area elsewhere in the West, Eshelman’s supporters say.
“The outcome of this case affects 150 million acres of public and private land,” John Gabel Connors wrote in a brief for Montana landowners. “There is a need for a nationwide rule addressing corner crossing, and this case may be the only opportunity for the Court to consider the issue.”
Unconstitutional?
The groups suggested numerous reasons for the Supreme Court to take up the issue. The three ranching associations also urged justices to reverse the lower-court decision.
Attorneys argued that the 10th Circuit decision was an unconstitutional taking of property without compensation. The appeals court, however, said the 1885 Unlawful Inclosures Act (UIA) prevented Eshelman from blocking public access to public land in the checkerboard area of Wyoming.
Eshelman never had a right to exclude others and so there was no taking, according to the ruling.
That rubs Montana landowners the wrong way.
“The fundamental flaw in the decision … is the Tenth Circuit’s belief that the UIA ‘permit[s] limited trespass’ and ‘functionally operates like a limited easement’” the brief states. The lower court concluded that corner crossing was legal and Eshelman “was not entitled to compensation for the property right that had been taken.” That “taking” is unconstitutional, the group said.
The 10th Circuit ruling also opens “previously inaccessible property” to the public, creating headaches for federal and state governments and even limiting the federal government’s power to purchase public access easements, the brief says.
In another brief, the Claremont Institute’s Center for Constitutional Jurisprudence reached back to English common law in its arguments. “[T]he ‘poorest man’ in the meanest hovel can deny entry to the King,” John Eastman wrote of the foundation of the United States’ legal framework.
“The natural right to own and use property … is a foundation of individual liberty,” Eastman’s brief states. “One of the core principles of the American Founding is that individual rights are not granted by majorities or governments but are God-given and inalienable.”
The 10th Circuit decision allows corner-crossing in the checkerboard area of southern Wyoming where the government granted land to enable railroad construction. That created the pattern of alternating square-mile sections of public and private land and the ongoing embroglio.
“Congress created the patchwork mess,” Eastman wrote, “it can fix it as well.” That would be by purchasing easements, he argues.
Ranchers see disruption
Stock growers leaned on potential damage to ranchers and cases known as Leo Sheep and Camfield.
In the Leo Sheep conflict, courts concluded the federal government did not have a right to construct a road across a common corner because the road was partly on private property. In Camfield, fences constructed on private land wrongly prevented access to public grazing pasture, courts decided.
The Camfield decision essentially abated a nuisance and is centered on laws preventing such things, attorney Brandon Jensen wrote for the stock and wool growers. But Leo Sheep addresses implied easements.
The Leo Sheep precedent rejected an implied easement at common corners, albeit for a road. “Certiorari must be granted to provide necessary clarity on the application of existing legal reasoning and Leo Sheep’s effect on precedent under the UIA,” the brief states.
“The [Montana Stock Growers Association] believes corner-crossing is a serious threat to the integrity of private landownership, undermines long-standing property boundaries, and may set a harmful precedent that erodes the ability of landowners to manage and protect their property,” Jensen’s brief states.
The 10th Circuit unleashed chaos, the brief suggests.
“Without a systemic and strategic method to acquire access to corner locked federal lands, the public will have access to lands that the state and federal government may not regulate or maintain,” the filing states.
Public access to public lands “can cause great stress to livestock,” stock growers said. Ranchers will be shouldered with “the burden to absorb the costs to their livestock operation if livestock are disturbed or livestock is lost to an errant hunter’s shot (which certainly happens); the burden to clean up the public lands intermingled with their private lands from trash, empty cartridges, plastic water bottles, gut piles and waste which can attract predators that may also choose to prey on livestock.”
The 10th Circuit decision also creates a gray area with respect to liability, the filing states. — Angus M. Thuermer Jr., WyoFile
Republished from WyoFile.
