A Wyoming ranch owner has appealed a case to the federal court seeking to overturn a district court decision that hunters who corner-crossed from one piece of public land to another over the airspace of private property did not constitute trespass.
Lawyers for Fred Eshelman, owner of Iron Bar Holdings LLC, argued to the 10th Circuit Court of Appeals that the decision by U.S. District Court Judge Scott Skavdahl faultily relied on a 100-year-old decision by the 8th Circuit Court that is “not binding, persuasive, or even valid today.”
Instead, the lawyers argued the Supreme Court in 1979 held that the government does not hold any right-of-way across private land corners to access lands that are landlocked on the checkerboard, as in the case of Leo Sheep Co. v. United States.
The court clarified that private citizens, as government licensees, do not possess access rights superior to those of the government, especially in cases involving property rights.
Background
The case before the 10th Circuit involved four hunters who crossed over a survey marker and steel posts with “No Trespassing” signs from one piece of public property to another on the checkerboard of private and public land. The Iron Bar ranch manager confronted the hunters, stating they did not have permission to cross, and the sheriff eventually issued a trespassing citation. A jury trial found the hunters not guilty in 2022, and Iron Bar sought injunctive relief and a declaration that the hunters’ actions were unlawful trespassing.
Skavdahl ruled the hunters did not trespass or violate the airspace above the ranch’s property, citing two previous decisions. The first involved the 1914 case of Mackay v. Unita Development Co., which concerned driving sheep. The 8th Circuit Court of Appeals held that Mackay should have a reasonable right of passage over the company’s lands to access public lands. In the second case, the 10th Circuit Court of Appeals ruled that for someone to trespass into a property’s airspace, they had to, in some other way, damage the property or interfere with the use of that property—which was not the case for the hunters.
Eshelman’s attorneys argued that relying on the Mackay case was an error, as it is no longer “persuasive” and “was rooted in now-obsolete grazing customs on the open range, and the decision has nothing to say about recreational corner crossing.” The plaintiffs further asserted that the access rights did not survive in the Leo Sheep Co. case, which held that the federal government does not have the right to access public land in the checkerboard.
Eschelman’s attorneys also argued corner crossing is a civil trespass under Wyoming law. They cited a trespasser as someone who enters the land without the owner’s consent and said law stipulates ownership of the space above the land and waters in the state is vested in the owners of the surface beneath.
The lawyers also cited that in the 1980s, the Bureau of Land Management developed a “Wyoming Public Land Access Guide” that explained: “Corner crossings in the checkerboard land pattern area are not considered legal public access.”
According to a report by OnX, a mapping software recreationists use, there are 8.2 million acres across 11 Western states of corner-locked lands. OnX said there are 27,120 land-locked corners and no law explicitly states that stepping over a property corner from public land to public land is illegal.
The lawyers said if the decision is upheld, it would result in one of the most extensive judicial takings of private property in American history. Although in favor of finding ways for people to access land, Iron Bar Holdings argues against forcing private property owners alone—against what the Supreme Court has decided before—to bear all the costs of letting the public use their land. They stressed the importance of respecting existing private property rights and encouraging collaborative initiatives with government authorities.
Amicus briefs filed
United Property Owners of Montana (UPOM), a nonprofit dedicated to preserving property rights in Montana and the West, filed an amicus brief stating increasing public access to federal land is a “laudable goal,” and it must be achieved in a way that respects private property rights.
UPOM argued the case holds significance for landowners and hunters in the West. Despite efforts by public access advocates to change state laws in favor of corner crossing, these attempts have failed. Individual hunters seeking to establish a legal precedent have intentionally corner crossed on private property, hoping for criminal charges or civil lawsuits to create a favorable legal outcome, they said. However, prosecutors hesitate to bring charges due to the lack of clear property damage and more pressing criminal matters. Landowners are reluctant to initiate civil litigation due to costs, negative publicity and alternative options for deterring trespassers, the group said.
The brief further states the case gives the first opportunity for an appellate court to consider alternative legal justifications for recreational hunters to corner cross without civil liability. The decision will determine whether hunters can corner cross in the 10th Circuit’s six Western states.
The Wyoming Stock Growers Association (WYSGA) and Wyoming Wool Growers Association (WWGA) also filed an amicus brief arguing the ruling by the court “will significantly and negatively impact” its members.
The groups argued that the ruling limits a rancher’s right to exclude people from their property and that exclusion will cause significant stress on livestock and result in them congregating on private and state lands, causing parcel degradation. They said the burden of catching trespassers, determining how they reached the checkerboard lands, and absorbing the costs if cattle are stressed or shot will be placed on landowners as the ruling does not require the government to compensate them.
The brief argues the case is more than about hunters and allows anybody the right to trespass onto private lands or over the airspace. WYSGA and WWGA members are trying to make a living in the livestock industry and their land happens to be interspersed with public lands, they said. Congress created the checkerboard system, and it is up to them and not the court to fix it, the brief concluded. — Charles Wallace, WLJ contributing editor
