Four Missouri hunters argued in court papers filed Friday that the owner of Elk Mountain Ranch perpetuated Wild West history by illegally trying to block others from thousands of acres of public land so he can use it exclusively.
In documents submitted to the U.S. 10th Circuit Court of Appeals, the hunters defended a federal Wyoming judge’s decision that they did not trespass when they crossed through the airspace above Fred Eshelman’s property to hunt public land in Carbon County.
The Missourians accessed some 6,000 acres of public land by corner crossing — stepping from one piece of public land to another at the common corner with two pieces of private land, all arranged in a checkerboard pattern. Corner crossing is accomplished without setting foot on private property.
“Congress and the courts have rejected every device that has the effect of enclosing the public domain in the Checkerboard and obstructing reasonable access thereto.”
Hunters’ brief before the 10th Circuit
The case pits the public’s right to access its property against private property rights in a legal rodeo that could undo customary restrictions on corner crossing and affect the routes to some 8.3 million acres of public land across the West.
In their recent filing, the hunters defended the decision by Chief U.S. District Judge Scott Skavdahl, who ruled last year that Eshelman could not obstruct their passage. Relying in part on the 1885 federal Unlawful Inclosures Act, Skavdah ruled against Eshelman in the ranch owner’s civil suit that sought to forever bar the public from corner crossing to reach property that belongs to all Americans.
Eshelman joins a long list of “cattlemen and powerful others” who have tried to control the public domain, the hunters’ filing states. Those forces achieved temporary control first with barbed wire, prompting Congress to pass the 1885 law, the filing contends.
“[T]hese public land monopolists ignored, evaded, or tried to invalidate the UIA,” the hunters’ attorneys wrote, “but their efforts withered under repeated judicial scrutiny.”
The Unlawful Inclosures Act is once again under attack by Eshelman and his Iron Bar Holding’s company who seek to exclude the public from its own property, the filing states.
“[Eshelman] cannot use a trespass lawsuit to transform common corners into hardened checkpoints blocking access to the public lands beyond,” the filing reads, “and so [Skavdahl] properly rejected Iron Bar’s claims.”
All across the West
Skavdahl’s ruling applies to a 40-mile-wide swath across southern Wyoming where federal railroad-construction land grants created an ownership checkerboard on either side of the Union Pacific line. As a result of Skavdahl’s ruling, corner crossing is now legal there.
Eshelman’s Iron Bar Holdings has title to the 22,045-acre wildlife-rich Elk Mountain Ranch, which enmeshes thousands of acres of checkerboard federal, state and municipal property near Saratoga. Eshelman’s civil suit against the hunters claims they trespassed by passing through the airspace above his land. Such corner crossing, if legal as Skavdahl determined, diminishes the ranch’s value by up to $9 million, according to one Eshelman assertion.
In a separate criminal case, a Carbon County jury in 2022 found the four men — Bradly Cape, Phillip Yeomans, Zachary Smith and John Slowensky — not guilty of criminal trespass when they hunted in 2020 and 2021. But Eshelman filed a civil suit, lost, and is appealing that judgment by Skavdahl to the 10th Circuit.
That court has jurisdiction over Wyoming, Colorado, Kansas, New Mexico, Oklahoma and parts of Idaho and Montana in Yellowstone National Park. Consequently, a decision by the 10th Circuit would apply to all those states and perhaps beyond.
A Montana landowners’ group argued as much when it filed a brief, supporting Eshelman, which contends the 10th Circuit decision will have West-wide consequences. Some 8.3 million acres are considered “corner locked” by any definition that corner crossing is illegal.
In its ruminations, the appeals court will consider a series of cases that tested the 1885 UIA. Those include “Leo Sheep,” which decided the government could not construct a road across a checkerboard corner; “Mackay,” in which a sheep herder won the right to trail his flock across private checkerboard to reach the public domain; and “Camfield,” where ranchers erected fences on their checkerboard sections to effectively block access to public land.
Eshelman, Wyoming Stock Growers Association and the Montana landowners all say Skavdahl interpreted those decisions, other court rulings and various laws incorrectly. The hunters, through attorneys Ryan Semerad, Lee Mickus and Alexandria Layton, assert that Eshelman is trying to exert a “nonexistent right” of excluding others from the public domain and that corner crossing therefore is not violating property or a property right.
Eshelman can exclude others from Elk Mountain Ranch, but he cannot extend that exclusion to property he doesn’t own, the hunters argue. Although property rights grow from state statutes, even those do not override federal laws, including the UIA, according to the filing.
“Congress and the courts have rejected every device that has the effect of enclosing the public domain in the Checkerboard and obstructing reasonable access thereto,” the hunters state. “This Court should likewise reject Iron Bar’s lawsuit as one more device that would unlawfully enclose public land.”
Spilled ink
Eshelman’s interpretation of laws and decisions are flawed as he “plows the same barren ground” as those who have sought to skirt the Unlawful Inclosures Act before, the hunters state.
Eshelman can’t use Wyoming trespass law to obstruct passage to the public land, they say. Obstructing access is a nuisance that has and should be abated, they say.
“[T]o abate the nuisance of unlawful monopolization of public lands, the Supreme Court concluded Congress could regulate the use of private land to enclose or obstruct access to public land,” the hunters say. “The strict rules regarding trespass upon lands are not entirely applicable, or, at least, are very much modified,” their brief states, quoting one court decision.
The 1885 UIA was a reaction to “a few would-be cattle kings … trying to leverage ownership of railroad sections in the Checkerboard to obtain exclusive control over the entire landscape,” the hunters state. The Mackay case, which Skavdahl relied on in ruling against Eshelman, stands firmly under scrutiny, they say.
“Iron Bar spills much ink criticizing the District Court’s reliance on Mackay,” the brief states. Instead, Mackay supports access and is “a trailhead signaling the way forward.”
Both parties have asked to debate the case in front of the court in Denver.
We updated this story Jan. 8 to remove an erroneous hyphen — Ed.
The sad part about corner crossing is the lack of help from Wildlife officers in the field. Before OnX mapping all they said is know where your at. BLM maps are totally useless because they are not accurate or updated to changes caused by land swaps within the checkerboard land. Happy something is finally happening to fix this problem.
Ryan Semerad is a star!
Ryan Semerad is one of the quiet geniuses and rising stars of the Wyoming bar. The hunters are lucky to have him!
corner crossing – private to private = private airspace, public to public = public airspace, IF one concept exists so does the other and private rights do not exclude an equal public right. (the earth does not rotate just so that the sun shines on the wealthy)
I had to stop reading this article at the property was devalued by nine million dollars if this ruling is passed. Let’s just say your property has been over evaluated by nine million dollars from the start. Pretty much like every property and house ever sold. They are all over value and only worth what somebody is willing to pay!!
Take a look at ranches offered for sale. You will find that most realtors state the total acreage of these ranches to include leases of all federal, state and school sections, in addition to deeded property acreage. (lookup the pitchfork ranch offering). Of the claimed 96000 acres, only 19000 are actually deeded acres! The mega rich and corporations who are buying up the west actually believe that they own and control these public acreage’s. They can and do control access of federal and state land within their private land and treat it as their own. They cannot control public access to leases that borders their deeded land as long as one remains on public land.
With the increase in big money, big game hunting, control of public land is imperative to these people and corporations. 15-20k hunts are not uncommon these days.
Additionally EGO of the Rich comes into play(I own as far as you can see), they are used to having their way and do not like to lose.
Cattle Kings disappeared in the 1800’s. Greedy Rich and controlling corps lead by the Greedy Rich (Eshelman)arrived in the 1990’s.
WATCH OUT!!!
I’ve never understood why States don’t apply an annual tax for”added value” to properties that have claim additional acreage due to Federal or State leases. Course, I also don’t understand why Wyoming makes it so easy for wealthy non residents, or corporations to park their money here by buying up large tracts of land to avoid paying income taxes in their state of residence. Read Billionaire Wilderness.
The right of the public to access public lands should be upheld without question. Corner crossing doesn’t violate private property. “Airspace” rights granted to private entities are the same as fencing the public off their own land. Technology has given the public a way to access land they weren’t able to before, by stepping from one piece of public land onto another, never setting foot on privately owned land, by using accurate GPS positioning. Public access to millions of acres of public land hangs in the balance of a civil suit. The private entities do not deserve “private access” to public lands. We are all “public land owners.”
This was tried and blocked many years ag when rich UK ranchers were driving off legal homestead owners and in some instances murdering them ie. the Johnson County War. Where the “Cattle Kings” hired Tom Horn to murder homesteaders. When he murdered a 14 year old boy he was arrested, tried, and hung. When the “Cattle Kings” murdered Nate Champion the citizens of Johnson County took the law into their own hands and went after the big ranchers and their hired guns, resulting in a gun battle at the TA ranch. The crooked Governor of Wyoming got the president to order the US Army to rescue the cattlemen, and thus none were ever charged other than Tom Horn. However mother nature took a hand shortly after and the winter of 1888-1889 was severe and the carless management of the big ranchers destroyed many of the “Cattle Kings”. This put an end to open range ranching and opened the way for successful smaller operations to get a toe hold in the west.
Corner crossing should be allowed the state land that is blocked buy the big corporations is wrong the have the money so they do as they want they have county roads blocked that the tax payers r paying 4 Wal-Mart is a perfect example they don’t own the state land or the BLM
If the ranchers aren’t going to alllow access to public land then they may find out the hard way about the laws of eminent domain… the government is well within their rights to widen the “corners” to provide clear access for the greater public good.
Here’s a crazy eminent domain idea. The feds should purchase a 6′ x 6′ “nibble” at each corner, creating an 8-1/2 wide corridor (Pythagoras) between the public checkerboards.
According to the article, 8.3 million acres public land = 12,968 square mile checkers. If each checker has 4 affected corners, and the govt buys 18 sq ft at each corner, that makes a grand total just shy of 22 acres.
Federal land grab indeed. Pay the affected landowners $100,000 per acre (far more than grazing land in the west is worth) and problem solved for $22 million. Plus the lawyer and survey costs.
Wesley, you have the right idea. I agree with you.
One problem. The “checkerboard” lay out are 640 acre squares. 1 mile
by 1 mile 5280′ X 5280′
Pythagoras would not agree with your second calculation. (Good idea, nonetheless)
It more trouble for the honest hunter to do the right thing
Must be nice, I can’t even get a path kept out of the center of my crop field for people to drive to the game reserve
Sounds to me that the land owners think they own the air space above the properties. I personally think the hunters should be allowed access to all government owned property without exception. If it means crossing corners so be it. This is The United States of America not a country of royal privledges. Rich people think they are special which they are not.
The U.S. has (and should use), it’s power and it’s authority to execute imminent domain to seize enough property (at these corners), to gain ACCESS to all of this land locked public land, for use its own use, and use by the public. My opinion.
This has an easy and common sense solution. Just like waterways which are public. Rule that that is a 6 foot public easement between public adjacent lands and even better work on posting strategies. These rich land owners make me sick
One of the most interesting aspects of this case is Fred Eshelman’s assertion that making corner crossing legal diminishes the value of Elk Mountain Ranch by nine million dollars. I think a better way of stating that is by saying he has been allowed to artificially inflate the value of his property by $9 million by monopolizing access to what should be public domain. In my estimation, there couldn’t be a worse reason for him to win this case.
The implications are obviously far-reaching. 8.3 million acres of public land that is being privately controlled, is roughly equivalent to the combined areas of the states of Massachusetts and Delaware. To have that much publicly funded land that is restricted from public access is preposterous.
Right. To say his ranch is worth less if more than just he has access to the adjacent public land is ridiculous….to use that as a legal argument is even worse…
It’s bull that the gov. gave the railroad everyother section of land, it should be taken back on account of them being subsidized, makes us owners in my book.
Start a helicopter service and tell the clowns to stick it.
I think I’ll stick to Alaska, there are no ranches or cattlemen there, only freedom for 100s of miles. I think the “airspace” argument was weak to begin with. Does the USAF or American Airlines get his permission before flying over? Haul them into court why don’t you? I see an eminent domain project coming for the Elk Mountain Ranch. Maybe a new National Wildlife refuge is needed. The ranch house can become a bunch house for our of state hunters.
Holy Weird Headline, Batman! Fred Eshelman is no one’s idea of a “Cattle King.”
Certainly this case appeared to be overkill in lawsuit claims, but it can be dangerous if hunters do not have to register where they are going and when. That would be a help even in corner crossing cases. Hunting creates a certain amount of excitement & judgmental errors due to excitement. I grew up on a sheep ranch a short distance from Riverton and our sheep and milk cow and calf usually had small pellets in their hides at the end of hunting season.
Register where they are going? Do you dutifully register where you are going? Mall, boyfriends house? The gym?
Hunters have to “register” to access public lands? Really? And…your sheep and lone milk cow/calf would have pellets in them at end of season? I don’t believe that, either but thanks for the laffs
If people using public land were respectful, there would be less of a problem. Ask permission, explain your business, and don’t overstep your boundaries. Get on public land and stay there!
It’s public, nobody has to explain themselves. I think Americans have a skewed idea of the word public and freedom. I think I’ll stay in Alaska where nobody demands you to state your business.
Ask permission to be on public land? Huh?!?
I don’t need your permission; my business is none of yours. My conduct on public land is not your concern.
The ranch owners talk about airspace above their land if you take into consideration you can float through ranch property legally. Is that not their airspace also? That is one of the precedents that needs to be brought up showing its already a law. How far up do ranch owners feel they own? Jets, and helicopters, fly over.
500 feet above ground level. FAA regulations.
Yeh, the power of the common person is finally moving forward. Donate to that cause because it is also your cause. If we don’t have the means to battle for us the people, help those that do have the guts to fight for us. Sadly , this case may have to go up before the U.S. supreme Court just to uphold the original law. And sadly, wealthy and powerful people will start the process all over again and try to take rights we have away from us again. The sheepherder case in Wyoming was only given the win because the government did not give fair compensation for the corners. That fault was the governments fault. They should have paid fair compensation and took the corners. We should be sueing the government for them not doing their job in the first place, and this kind of nonsense would not be happening over and over.
Maybe I misunderstand the law, but why isn’t the public getting a dividend payment for the profits from use of these public lands and natural resources? I think Alaska pays their citizens an annual dividend from their land resources. The entitlement of the wealthy goes beyond arrogant while the citizens just accept it. I’m glad to see some fighting back. I’d love to see our state government and Washington representatives actually do something for us, instead of pandering to their corporate masters all the time.
If Eshelman and his ranch manager had handled this differently from the very beginning there would be no trespassing case, no lawsuit, no attorney fees and no one would have known about the hunter’s hack (ladder) to access the locked public land where there just happens to be a surveyor’s marker. Being a bully usually ends poorly. These hunters just wanted an elk, not a federal lawsuit. It’s unlikely they were going to start selling Corner Crossing Ladders.
This was done deliberately to force the issue. It wasn’t just some random guys who didn’t understand what they were doing.
We have access to hunting public land’s. It’s the right of every legal resident.
Good. Somebody needs to challenge these ranchers. Public land is just that, land for Public use not land for the exclusive use of ranchers making big bucks on hunting leases!
Some of the best hunting lands are locked up by ranches. Getting permission to cross the survey stake is almost impossible. It’s not like the square foot of land that may be trod on – it’s about power to control land owned by the public.
I wonder why the government doesn’t use eminent domain on all the corners.
We as Wyoming citizens and all citizens of the United States of America should be able to utilize all federal and state owned lands. No landowner shall keep us from that, checker boarded or not. We as citizens should have access to all and any federal or state lands at any time any place landlocked or not.
About time. The west is full of wealthy land owners that imagine they also own all public lands surrounding their property..
The governor of Wyoming. own’s many many acers of land in Wyoming. Not sure but probably has some land locked public there. He has NO HUNTING POSTED!
Also most of Wyoming’s legislators are ranchers.
JUST SAYING….
This story remains very interesting and important to the public.
Perhaps Eschelman and those like him should consider fencing each one square mile they own, and include provisions for wildlife migration. Or initiate a land swap so they can consolidate and have a true valuation of their actual holdings. Then, they can also have their grazing leases which they share with the public. This would mitigate the law suits from grazing associations about wild horse management as well, since the horses would no longer be on the private blocks of the checkerboard.
Simple solution, end all grazing on public lands.
Hopefully after this is settled the BLM will respond to it’s mandate for MULTI-USE of the public lands and start building ladders over corners and getting easements for roads even if they have to get those easements through adverse possession. Recreation should be treated as just as legitimate a use as grazing
Agree!! I hope this leads to requirements of landowners to not only allow access but provide easement thru private to any landlocked public! What a great outcome of eischelmans lawsuits that would be!
The playhouse has no bearing on this issue. Hunters are not trying to occupy private land but only to pass thru to public land. The UIA gives the public the right to access public land not to occupy it. The public, or hunters are not looking to occupy private land but to use the public land they have a right to use. As a past resident of WY, I dealt with this issue and always felt the public was getting shafted by private land owners. These landowners often get a sweet deal leasing public land by grazing it and by using it almost as private land, (private hunting, fishing, hiking, etc..) It’s time this unlawful inclosure action ends.
There is a huge difference in crossing air space for a few seconds and moving on compared to building a permanent structure in that air space. The air space in corner crossing is not modified nor permanently changed in any way.
The key component of the entire case is “air space”. Did the hunters trespass when they crossed through the air space above the private land while they did not set foot on the private land?
To anyone that answers “no”; I have a hypothetical question. Assume you live in town on a typical lot. Your neighbor decides to build a play house for his kids that extends into your lot and yard, but does not touch the ground on your side of the property boundary. Is that trespass? Are you ok with that? Sure, the kids in the playhouse are not hunting, but they are not touching your land, only the “air space”. So is that ok?
I don’t think anyone would go along with that.
Roy, the difference here is the hunters didn’t build a tree stand that extends out over the private property. There’s no physical structure or long-term impact. We’re talking about passing through the air space in a matter of seconds with no long-term or physical impacts. A better metaphor about living in town on a typical lot would be the neighbor’s kids walk down my sidewalk and while passing in front of my house stick their arms out over my lawn while passing by. And I am ok with that. In fact, I do live in a town with a typical lot and every day I watch people walk by in front of my house and pass through my air space. Some even have dogs that walk on my physical property. And I’m ok with that, too, because it’s a matter of seconds and does me no actual harm.
The hunters didn’t build anything or linger. Would you prohibit kids from lobbing a badminton shuttle over the back 6” corner of your fenced 1 mile square? That’s a better analogy.
No your argument is flawed. As it involves the erection of an otherwise permanent structure. This case it is more equivalent to a person walking down the side walk, and waving their arm over your fence. Is that trespassing? Should we arrest everyone and charge everyone whose arm goes over you fence without touching your property?
Sorry but you missed the boat on your point.
No one is suggesting camping out in anyone’s airspace or permanently occupying it. The correct analogy is this: you planted some tulips last fall on your property line, adjacent to a public sidewalk. This spring, a neighbor is delighted to see them blooming and pulls out her iPhone to take a picture. While standing on the sidewalk, she leans three inches over your property line for 3 seconds to compose a pretty picture, crossing into your airspace in the process. Are you going to take her to court? As you stated above, “I don’t think anyone would go along with that.”
Your “hypothetical” would be a contention between two private land owners. In cases where a private land owner builds structure overhanging public domain, the private structure is condemned. That’s not the contest being examined in the corner-crossing issue.
I fail to see the equivalency of a semi-permanent intrusion into the airspace above my private property by a structure which spans several linear feet of the property line and involves several square feet and several cubic feet above my private property versus the impact of a person briefly passing over a corner point where merely a portion of a person briefly intrudes into the airspace above the corner of my property. We both know the real issue here is the psuedo-confiscation of public land in Wyoming which has gone on for decades. Society benefits from the public being able to access public lands to hunt, fish, hike and camp. Any value in the private land lost by the neighboring landowner as a result of this court ruling never was “earned” value anyway but rather arose by the questionable actions of the landowner of the adjacent public lands.
What if you had a fairly small yard with kids that lived on either side of you. The children on one side tossed a ball to the children on the other side of you. Would you be OK with that?
It’s encroachment in the case of property owners.
Aplpes to Oranges. You are comparing 2 private landowners. No one private landowner cannot build an overhang into someone elses private property. This case deals with a public versus private land issue. Also, the ladder used is a temporary device not permanent.
The playhouse could and possibly would be construed as a permanent structure. To allow a hunter to cross public/private land corners is not a permanent structure, rather temporary during hunting season. As hunting season comes to a close, so does corner crossing!
This is one if the clearest explanations of the problem and lawsuit i have read. Thanks Mr. Theumer. I am wondering how many acres or miles of the rich guy’s property stood between the hunters and public land? It probably would have been cheaper for the hunters to hire a helicopter to drop them and their stuff on public land than to fight Eshelman in court. And how mean- spirited this pharmaceutical giant is!
If their land value goes down it was due to them using the publics land as theirs. The value was inflated based on public land that they have no more rights to then the rest of us.
Sha na na na, sha na na na, hey – hey – hey, goodbye!
Eshelman doesn’t get the whole checkerboard. Hunters don’t get off free, either. Eshelman’s permits or leases for the federal land he utilizes should be a key part of this as they should contain language that would point toward a reasonable compromise. Bottom line is the owner of xyz acres of private land shouldn’t be able to sell it for double the market rate and claim “ownership” of enclosed federal land. There are a variety of instruments for use here (eg easements, trespass agreements). The ‘checkerboard’ is not a national forest with a few acres of private ‘inholdings’ either. Come on attorneys. Earn your keep and negotiate. Nobody ever wins a fight.
Best corner crossing explanation to date. Thanks Angus
JW
We cannot allow rich landowners to manipulate the laws tom lock outour public lands for their own use. They do not own then land it belongs to everybody. The lame idea that the value of the Iron Bar Ranch was devalued by $9,000,000 because 4 people crossed corner to corner through open air is the dumbest claim that has been put forward by a guy who’s, obvious greed knows nom bounds
All three of our representatives are against public land. Right now, Barrasso and Lummis want to give away public land to supposedly make housing more affordable. It’s actually an attempt to decrease public land. If you value our public lands, you need to put people in office that will support that.
Maybe Wyomingites need yo reconsider the basic tenets of the Republican party.
Historically, beginning in 1791, the United States government planned, among other sources, to raise revenue by selling federal lands to private citizens through its General Land Office. Many public land transfers were subsequently effected (authorized) by Democrats as well as Republicans, by passing legislation like the Homestead Act and Mining Law. In fact, the Federal Government initially paid military veterans by “awarding” them with public land transfers…and this was BEFORE the Republican Party was established!
Yep it would be a liberal democrat to bring politics into a conversation that has nothing to do with politics. This is an issue that all Americans should have an interest in. ALL of my republican friends stand on the side of the public rights. Go take your hate somewhere else.
Any blocking of public access to checkerboard public land by private landowners (ranchers, farmers, etc.) or companies should be proohibited. And, any private landowner or companyh using those lands for commercial use (levestock grazing, crops, mining, etc.) should have a clause in the contract prohibiting them from blocking public access! Many ranchers lease hunting rights on their ranches to outfitters that then use the checkerboard public lands for their own commercial enterprise. That should be unlawful!
Does the public get any compensation for the additional value of 9mil for this public land he claims to have
Also you can float on water over private land why not the air space
Good point since this also involves air space!