“Corner crossing is unlawful, and it would revolutionize property law to hold otherwise,” lawyers for a Wyoming ranch owner wrote in their reply brief to the 10th Circuit Court of Appeals asking the court to overturn a decision by a district court judge.
Attorneys for Iron Bar Holdings owner Fred Eshelman assert that corner crossing—crossing from one corner of public land to another diagonally without setting foot on private property—is trespassing under Wyoming and federal law.
In 2020 and 2021, four hunters from Missouri corner crossed from one piece of public land to another in Elk Mountain, situated amidst Eshelman’s Carbon County Wyoming ranch. A survey marker between the two posts with chains and a “No Trespassing” sign designated which sections were private and owned by the Bureau of Land Management (BLM).
Despite encountering these markers in 2020 and utilizing a ladder to cross into another parcel of public land in 2021, the hunters faced legal repercussions when the property manager, unable to secure trespassing charges from law enforcement initially, sought assistance from the prosecuting attorney’s office. A jury trial found the hunters not guilty in 2022. Iron Bar sought injunctive relief and a declaration that the hunters’ actions were unlawful trespassing.
U.S. District Judge Scott W. Skavdahl for the District of Wyoming identified the dual nature of the lawsuit: Iron Bar Holding’s claim to the airspace over the land and the right to exclude others from it. Skavdahl drew upon legal precedents, such as the 1914 case of Mackay v. Unita Development Co., which emphasized the right of reasonable passage over private lands to access public ones. Additionally, citing a 1974 case from the 10th Circuit Court, Skavdahl highlighted the requirement for trespass into airspace to involve some form of property damage.
Last year, Eshelman and Iron Bar filed an appeal, to which the hunters responded, and multiple groups joined each party by submitting amicus briefs. The reply brief by Eshelman lawyers was filed on Feb. 9 as a rebuttal to the briefs filed by the hunters and the parties supporting them, including the Sierra Club, Western Watersheds Project and Backcountry Hunters and Anglers.
Reply arguments
Eshelman lawyers argued the defendants failed to demonstrate convincingly that Congress unequivocally intended to preempt state trespass claims under the Unlawful
Inclosures Act (UIA) or any other federal legislation. The defendants justify trespassing by contending that Wyoming’s trespass law is overridden by various federal statutes, such as the UIA, the Taylor Grazing Act and the Federal Land Policy and Management Act, as well as a mixture of “tradition, custom … and modern regulations.”
The lawyers continued that under UIA, Congress did not aim to preempt state trespass claims or establish a right to encroach on private property. Instead, Congress focused on addressing concerns regarding fraud, force, and the use of fences to obstruct public access to public land. Citing Congressional records from 1884 discussing the issue of fences and citing numerous instances of fraud and violence against settlers in the report, Congress never referenced private trespass actions, the lawyers contend.
The brief also addressed the arguments made by the defendants on other federal laws, stating they are incorrect in their assertions. The lawyers said the Taylor Grazing Act and the Federal Land Policy and Management Act do not preempt state trespass claims, and the BLM has consistently reaffirmed this for many years. The lawyers argued that while the defendants cited the historical custom of open-range grazing, it did not extend to corner crossings for hunting. It only implied a limited license, not permission for trespass.
Eshelman lawyers lastly argued that corner crossing invariably leads to additional trespasses and property damage. Recreationists relying solely on GPS devices for corner crossing often trespass unintentionally due to inaccuracies, with devices typically off by 5-10 feet and sometimes significantly more. Corner crossing also imposes various costs on landowners, such as poaching, littering, fires, predator disturbances, and accident risks associated with increased public presence near private properties, they said.
Legalizing corner crossing may not substantially enhance access to public lands, as landowners might react by implementing fencing strategies that impede corner crossing. Furthermore, corner crossing threatens animal habitats and migration routes by intensifying human activity, the lawyers continued.
“At bottom, Defendants and their amici do not offer a legal argument so much as a story—the sequel to the range wars,” court documents said. “Defendants cast themselves as heirs of the small-time herders and homesteaders of yore, law-abiders who merely want to use public land for law-abiding purposes,” they continued.
“Standing in their way are private landowners, the modern-day descendants of the cattle kings who once ruled the Plains through fence and force. Defendants invite this Court to play the role of town sheriff, corralling Iron Bar and other landowners and restoring order to the West.” — Charles Wallace, WLJ contributing editor
