Angus M. Thuermer Jr., WyoFile
CASPER—A judge Wednesday said he “has plenty of things to chew on” as he mulls a corner-crossing suit that alleges four hunters trespassed by passing through the air above a private ranch.
In response to an hour and 20 minutes of arguments at a motions hearing, Chief U.S. District Judge Scott Skavdahl said he must decide what rights belong to a landowner as he himself attempts to settle the legal claims.
The hearing marked the first instance conflicting arguments in the civil corner crossing case have been put under rigorous, public and legal scrutiny. Skavdahl questioned whether there is a “genuine issue of material fact” that should be settled by a trial. Attorneys for Elk Mountain Ranch owner Fred Eshelman and the Missouri hunters have each requested that he instead make a summary judgment in their favor.
Rather than immediately rule, he promised a decision on the summary-judgment requests soon in the case that otherwise is scheduled to go to trial in June.
The civil case could establish whether corner crossing — stepping from one piece of public land to another at the four-corner intersection with two pieces of private property, all without setting foot on private land, is permissible. The case has implications for 8.3 million “corner-locked” acres in the West where federal railroad land grants in the 1800s left a checkerboard pattern of land ownership.
Eshelman believes “we should have control over who crosses the private land,” including the air above, he has said in a deposition. The hunters believe passing through the airspace is not trespassing and that a federal law prevents Eshelman from blocking them from public property.
Skavdahl probed the conflicting reasoning behind claims made over the last year by the two sides.
“Is the public land … no longer public? Can the public access the public land?”
JUDGE SCOTT SKAVDAHL
If corner crossing is illegal, he asked, does that mean the public can’t access public land blocked by the ranch? Does Eshelman believe the right to exclude others from some 6,000 acres of public land “corner-locked” by his 22,045-acre Elk Mountain Ranch is worth $7.5 million?
Did two fence posts on Eshelman property — chained together across a common corner with public land — constitute an obstruction prohibited by federal law, the judge wondered. If corner-crossing is allowed, does that damage a property owner by diminishing the value of his or her land?
“I believe the judge asked both parties some hard questions,” Eshelman’s attorney Greg Weisz said after the hearing.
Airspace
The Carbon County prosecutor charged the hunters with criminal trespass in 2021 but a jury found them not guilty last year. In an ongoing civil suit filed in 2022, Eshelman alleges three of the hunters trespassed through his airspace in 2020 and all four in 2021.
Eshelman doesn’t just own the ground, ranch attorney Weisz told the judge, citing a common-law doctrine known as ad coelum. “You own to the heavens,” Weisz said.
Because the checkerboard corners come together in an infinitesimally small point, “it is physically impossible [to corner cross] without physically invading the airspace,” he said.
Skavdahl asked, “Is the public land … no longer public? Can the public access the public land?”
Weisz said the public can: by helicopter or plane.
The hunters’ attorneys Ryan Semerad and Lee Mickus maintain that the airspace above the common corners is, according to Wyoming law, “vested in the several owners of the surface beneath.” Passing through it is not trespassing, they say.
“I don’t think that’s an artificial reading,” Semerad said. If one views the law otherwise, “then that statute doesn’t mean what it says.”
Skavdahl asked whether a landowner has a right to exclude others from his or her property, likening ownership to a bunch of sticks, each conveying a different right.
Exclusion, “is that not part of the ‘bundle of sticks?’” the judge asked. Are the hunters trying to “take a stick?”
The hunters are not using the law to make a claim or take anything from Eshelman.
Eshelman has no right to exclude others from public land, he said. “It’s never been part of their bundle of sticks.”
Semerad referenced the federal Unlawful Inclosures Act of 1885 that hunters say bars Eshelman from blocking them from the public land at Elk Mountain Ranch. Without public access, Eshelman enjoys the “benefit of the whole” landscape — including public property — even though he only owns part of it, Semerad said.
At Elk Mountain Ranch, that amounts to a minimum of 6,000 acres, Semerad estimated. “They do not want to allow access because they want to preserve a perceived monopoly of that public land,” he said.
The Wyoming Constitution says no one shall have right and title to unappropriated lands, Semerad said. Wyoming law also says low-level flight is not a trespass unless it causes some kind of damage, he said.
Stepping across a corner “can’t be so far different” from such low-level flight, Semerad said.
Unlawful Inclosures Act
The hunters say the UIA prohibits erecting physical barriers and using threats and intimidation to keep the public from accessing public land.
Two ranch fence posts chained together across one common corner, plus harassment by ranch manager Steve Grende, constitute obstructions, the hunters contend. Eshelman’s lawsuit itself is “a $7.5 million monumental obstruction,” Semerad said.
“This is not a case about the right to corner cross,” he said. Instead it’s about “freedom from unlawful interference” with public access to public land.
Weisz said the hunters are “attempting to use the UIA to create access.” The federal law is instead intended to preserve access and is a tool for the U.S. attorney, not an instrument in civil litigation.
The fence posts, each of which held a no-trespassing sign, were erected “to say to people ‘stay off [Elk Mountain Ranch] property,’” Weisz said. That’s “dramatically different” from erecting an obstructing fence, Weisz said. “They’re not even close.
“Those did not obstruct the defendants,” Weisz said. The hunters swung themselves around the posts in 2020 and climbed over them using a homemade ladder in 2021.
Furthermore, ranch property manager Grende was able to pass between the posts, Weisz said, but a person with a pack full of gear could not.
Elk Mountain Ranch removed the chain, Skavdahl observed, “about a week before the filing of this lawsuit.”
Skavdahl quizzed Weisz about how Grende accosted the hunters on public land.
“The reality is, if they are on public land [corner-locked by ranch property] my client has the right to assume they crossed private land,” Weisz said.
Of the eight corners the hunters crossed, only the first one was flanked by posts and no trespassing signs. The hunters used the onX digital mapping program to find survey monuments marking the corners, then stepped across those monuments.
At one corner at least, the hunters went from federal to state or municipal property, Weisz said, places where the UIA does not apply.
$7.75 million
Eshelman’s civil suit originally contended that the Missourians — Zach Smith, Bradly Cape, Phillip Yeomans and John Slowensky — devalued his property by $7.75 million or more by corner crossing.
“That’s assuming every single corner is taken by the government,” Weisz said.
Prohibiting corner crossing creates a premium value for the landowner, Semerad agreed. But he questioned “whether that’s justified or legal.”
“They want something they thought they had,” he said. “They’re losing a premium that never should have been there.”
The obstruction at common corners by whatever means, “that whole scheme is a violation” of the UIA, Semerad said. “You cannot recover [damages] from your own violation.”
Since he filed the suit, Eshelman, a North Carolina pharmaceutical millionaire, has said he would withdraw his damage claim if the judge finds the men trespassed and prohibits corner crossing at Elk Mountain.
Until recently the opposing sides agreed on the facts, meaning Skavdahl could make a summary judgment whether passing through airspace constituted trespass. But Eshelman last month alleged he had proof at least one hunter actually stepped on his property and identified that spot with a digital marker now labeled Waypoint 6.
Resolving that factual dispute could require a trial and a jury’s verdict. The Waypoint 6 allegation arises from data attributed to hunter Smith’s cell phone.
The hunters dispute that Waypoint 6 proves anything, saying it could have been set remotely, unlike other waypoints on public land they marked during their hunts. The Wyoming chapter of Backcountry Hunters and Anglers raised funds to ensure the hunters could have their day in court.
Dustin Bleizeffer contributed to this report.
This article was originally published by WyoFile and is republished here with permission. WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.
