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Who are the judges hearing Tuesday’s corner-crossing appeal?

Each has weighed in on contentious cases — Hobby Lobby, horse slaughterhouses, cop gunfights.

A reporter locates on a map the common corner that the Missouri hunters used to reach public land on Elk Mountain. (Mike Vanata/WyoFile)

by Angus M. Thuermer Jr., WyoFile

The judicial panel poised to hear the appeal of a corner-crossing trespass lawsuit comprises three judges appointed separately by presidents Ronald Reagan, George W. Bush and Barack Obama.

The panel for the 10th Circuit Court of Appeals will hear arguments Tuesday in Denver when ranch owner Fred Eshelman will argue the three should overrule Wyoming’s Chief U.S. District Judge Scott Skavdahl, who decided that four Missouri hunters did not trespass when they corner-crossed at his property in 2020 and 2021.

Corner crossing 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. The Missouri hunters did not set foot on Eshelman’s land or damage his property.

Eshelman argues that Skavdahl’s decision violates a fundamental right to exclude others from one’s property and the airspace above it. By doing so, hunters argue, the North Carolina pharmaceutical magnate unjustly claims exclusive use of thousands of acres of public land enmeshed in his Elk Mountain Ranch.

Corner-crossing hunters’ attorney Ryan Semerad addresses the jury in the hunters’ criminal trial in 2022 in Rawlins, during which a jury found all four not guilty of trespassing. (Angus M. Thuermer, Jr./WyoFile)

Skavdahl’s ruling and the 10th Circuit’s pending decision could set a precedent for public access to 8.3 million acres of public land in the West. That public property is considered “corner locked” under any convention that treats corner crossing as trespass.

The judicial panel that will hear the case is a diverse collection appointed by three different presidents in three different decades. Two men and a woman make up the group.

President Ronald Reagan appointed Senior Judge David M. Ebel, a Kansas native, to the court in 1987. The Senate approved the appointment unanimously.

His colleague, Judge Timothy M. Tymkovich, began serving in 2003 after an appointment by President George W. Bush. The Senate approved the appointment of the Denver native 58-41.

President Barack Obama appointed Judge Nancy Louise Moritz to her post in 2014, and the Senate approved her nomination 90-3. She is a native of Beloit, Kansas.

David Ebel

In 2013, Ebel and another 10th Circuit judge allowed horse slaughterhouses to operate in New Mexico, Missouri and Iowa, rejecting an emergency motion for an injunction, according to a summary by Ballotpedia. A lower court had decided the operations could resume, rejecting the claims by Front Range Equine Rescue that the U.S. Department of Agriculture didn’t follow the National Environmental Policy Act.

He also weighed in on a case in which a trial court found that Abercrombie & Fitch Stores discriminated against a Muslim applicant who wore a headscarf to an interview. Such attire would violate the company’s dress code, and the woman was not hired.

A survey marker at a common checkerboard corner near Elk Mountain Ranch. (James Hasskamp)

A trial court made a summary judgment in favor of the Equal Employment Opportunity Commission and against Abercrombie. But the 10th Circuit overturned that, saying Abercrombie wasn’t told that the headscarf was worn for religious reasons — which would have opened the door for a dress code exemption. Ebel agreed that the trial court was wrong in siding summarily with the EEOC, but said that the discrimination question should have been sent to a jury, according to Ballotpedia.

Ebel attended Northwestern University and received a bachelor’s degree. in 1962. He attended the University of Michigan Law School and got his degree there in 1965.

Ebel clerked for U.S. Supreme Court Justice Byron White, was an adjunct professor of law at University of Denver Law School and a lecturing fellow at Duke University Law School.

Timothy Tymkovich

In 2014, the U.S. Supreme Court upheld a 10th Circuit opinion penned by Judge Tymkovich in the Hobby Lobby case that ultimately absolved the company from providing contraceptive coverage for employees under the Affordable Care Act, aka Obamacare. The full 10th Circuit reversed a decision by a smaller 10th Circuit panel and held that Hobby Lobby held protected rights — just like a person — of religious exercise.

The Supreme Court upheld Tymkovich’s ruling 5-4. Then-President Donald Trump put Tymkovich on a list of possible replacements for Supreme Court Associate Justice Anthony Kennedy in 2018, a position that went to Brett Kavanaugh, Ballotpedia states.

Tymkovich graduated from Colorado College in 1979 and the University of Colorado Law School in 1982.

He clerked for Hon. William H. Erickson in the Colorado Supreme Court and was Colorado’s solicitor general from 1991-1996.

Nancy Moritz

The U.S. Supreme Court in 2017 vacated a judgment penned by Judge Moritz for a 10th Circuit panel denying an immunity claim by a police officer. The officer arrived at a house where a police action was ongoing, witnessed shots fired by a person in the house, and shot and killed the person without first giving a warning.

The Supreme Court decision essentially says a reasonable law enforcement officer who arrives late on a scene of an ongoing action like the one in question can assume that proper identification by police has been made.

Corner-crossing defendants wait for their trial to begin in Rawlins on April 27, 2022. They are Phillip Yeomans, second from left and partly obscured; John Slowensky, foreground in the front row, Bradly Cape, second from left in back row and Zach Smith, right. (Angus M. Thuermer, Jr./WyoFile)

Moritz graduated from Washburn University in 1982 and Washburn University School of Law in 1985. She was a research attorney for Harold S. Herd of the Kansas Supreme Court and clerk for Patrick F. Kelly of the U.S. District Court for Kansas.

She was an assistant U.S. attorney for Kansas, was a judge on the Kansas Court of Appeals and a justice on the Kansas Supreme Court from 2011-2014.

Not guilty

In 2022, a jury in Carbon County, home to Elk Mountain, found the hunters — Bradly Cape, Phillip Yeomans, Zachary Smith and John Slowensky — not guilty of criminal trespass. Eshelman sued the men in civil court seeking to forever ban them and others from corner crossing.

Because custom, convention and some law officers have regarded corner crossing as trespassing, the public is effectively blocked from accessing millions of acres of public land in the West. No laws address the practice directly; the hunters say the 1885 Unlawful Enclosures Act prevents landowners from blocking the public from public land.Public land advocates generally hail Skavdahl’s ruling. Eshelman and some western landowners say the decision violates the right to exclude others from one’s property — and the airspace above it.

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.