A federal judge erred in interpreting a new Wyoming law he used, in part, to rule that corner crossing is not trespassing, the Wyoming Stock Growers Association says.
The industry group, along with the Wyoming Wool Growers Association, argue in a recent amicus brief that Wyoming lawmakers did not intend the 2023 bill “Prohibiting travel across private land for hunting purposes” to authorize the contentious method of accessing public land.
The new law — an amendment to existing statute — allows Wyoming Game and Fish wardens to cite hunters for trespassing if hunters “travel through” private property on their excursion. The law, however, defines traveling through as “physically touching or driving on the surface of the private property.”
Those words seemed clear to Chief U.S. District Judge Scott Skavdahl when he ruled against Elk Mountain Ranch owner Fred Eshelman earlier this year.
“The plain language of the recent amendment to this statute applies to corner crossings as they occurred in this case where Defendants did not touch the surface of Plaintiff’s land,” Skavdahl wrote. Seventy-nine legislators voted for the measure this year, 14 against.
“Why are we in this case only protecting a part of the landowners’ property rights rather than the entire property rights?”
Jim Magagna on a 2023 trespass bill.
“Moreover,” Skavdahl wrote, “the statutory changes plainly demonstrate the Wyoming Legislature’s intent to ensure such corner crossing does not constitute a criminal act.”
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. Four Missouri hunters did that at Elk Mountain Ranch in Carbon County in 2020 and 2021, accessing thousands of acres of public land without stepping on Eshelman’s private property.
Eshelman sued the men for trespass in civil court, lost, and is appealing to the 10th Circuit Court of Appeals in Denver, where stock growers are backing him. The hunters say federal law prevents Eshelman from blocking their passage to public land. Judge Skavdahl ruled that passing through the airspace above private land at checkerboard corners in Wyoming is not trespassing.
Not guilty
A Carbon County prosecutor in 2021 charged the Missouri hunters with trespassing, but a jury found them not guilty. Eshelman sued the four in civil court for trespassing and lost that case, which he is now appealing.
In siding with Eshelman, the stock growers claim the Legislature did not intend to legalize corner crossing through the 2023 amendment to Game and Fish trespass statutes.
“The District Court erred in its presumption regarding the intent and the purpose of the Wyoming legislature [sic] related to the corner crossing issue,” stock growers’ attorney Karen Budd-Falen wrote in her amicus brief. “This statute was passed to eliminate a striking inconsistency between Wyoming criminal statutes. …”
The words about physically touching or driving on private property were added to the bill “[t]o ensure that there was no argument that the newly passed legislation was an attempt to usurp or comment on the District’s and this Court’s jurisdiction in the present case,” Budd-Falen wrote. The clause in question “was not a statement by the Wyoming legislature [sic] about this litigation.”
To that end, Wyoming Stock Growers Association Executive Vice President Jim Magagna, who also represents wool growers, signed a declaration regarding the bill that he lobbied for. Budd-Falen filed it as part of her brief.
That declaration states that his industry “felt that this [amendment bill] was being done in response to an inconsistency in the existing law, not in response to the ‘corner crossing’ litigation. …”
Lawmakers made this clear, the stock growers contend, with a caveat. That caveat states that the standard of “physically touching or driving” applies only to “the purposes of this subsection,” which was to further empower Game and Fish wardens.
Legislators sought the amendment, the stock growers maintain, because game wardens otherwise could charge hunters with trespass only if they hunted on private property. That left county sheriffs with the task of policing hunters who trespassed on their way to hunt, fish or collect shed antlers, a job wardens could better undertake because of their presence in the field.
Magagna lobbied for the bill while expressing doubts about its wording.
“Why are we in this case only protecting a part of the landowners’ property rights rather than the entire property rights?” he asked the Joint Judiciary Committee as it was marking up the bill in September 2022.
“[I]n the court of public opinion, we’ll [be] seeing this language be used as further evidence that the state really does not support protecting the landowner’s right to that reasonable amount of space above their property,” Magagna told lawmakers. “Perhaps we just have to deal with those [issues]. …”
Every small landowner
Budd-Falen wrote that the case is about the common man, not just about multi-millionaire Eshelman, a North Carolina pharmaceutical magnate who owns the wildlife-rich 22,045-acre ranch. Some 6,000 acres of public land are enmeshed in the checkerboard pattern of ownership and inaccessible to the public under any definition that corner crossing is trespassing.
But corner crossing is currently legal in the Wyoming checkerboard following Skavdahl’s ruling earlier this year. His decision affects ranch and property owners who don’t own vast tracts like Eshelman’s, Budd-Falen wrote.
“This case is not just about a large, out-of-state, landowner,” she wrote, “but also about every small landowner who also operates a ranch in the checkerboard. This case is also not just about ‘innocent’ hunters just enjoying the wildlife in Wyoming, but the District Court’s ruling allows any member of the public, regardless of their intentions, to trespass on private lands or in private airspace.”
Budd-Falen also argued that Skavdahl’s decision “leaves … private property and ranching operations at great risk.” The land grants by Congress that created the checkerboard pattern to fund construction of the Union Pacific Railroad, “do not reserve an implied or express easement for public access,” she wrote. The Unlawful Inclosures Act of 1885 that the hunters relied on in their successful defense, “does not apply in this case,” her brief reads.
“Congress created the checkerboard system that has created this case today,” Budd-Falen wrote, “and it should be up to Congress to fix it.”
The real fix would be for the US government to annex right of ways across private lands to all landowner locked public lands. There are many existing named roads and trails that have existed for decades and were open to the public in the past. Today many of the current landowners have now closed off these named roads and trails to limit access to public lands for their own benefit. Annexing these roads and trails would be a great place to start. The US government should also try and expand its efforts to unify small sections of public land with larger sections through land exchanges and sales. This land unification effort helps by getting rid of the small inaccessible areas. The Public lands are there to benefit the Public at large not just a few stock growers. As such access to the land is necessary for the public benefit to happen. The US Supreme Court has ruled many times over the years that it is perfectly legal with fair compensation to seize private lands for public use. I ask, why not seize land for right of ways to ensure everyone has access to our public lands. Seems like this is the only way to solve this once and for all. For those who say sell it all off. I say selling of the land to private owners is not a solution that most of America would be happy with.
Of course…. Wyoming is all about AG and mineral development and as time goes on, would prefer to lock everyone out. This just continues to build a wedge to ensure that they maintain “their” rights to lock up public lands.
Wyomingites will defend their welfare ranchers to the death, but when it comes time for the inverse we are nothing to them.
What on earth is Karen talking about? Trespassing to hunt is a criminal citation. Criminal law is unambiguous by design. If it states “physically touching or driving” then you must physically touch or drive to be convicted. That’s what the statute says. Magagna and his buddies should hire a new attorney.
Magagna and his cronies are just making one last-gasp attempt to show their underlings that they’re “doing something”…even though at this point, it’s all for show and hot air. Can you violate (trespass) through hot air? You’d think that a welfare group that’s been getting away with 4 cents per cow&calf per DAY “grazing rent” would kind of keep quiet and hope the public doesn’t catch on to their almost free use and abuse of public land
If private landowners want exclusive access to public lands, let them pay property tax on that land like the rest of us, reflecting both agricultural value(for example, a grazing lease payment to the BLM or Forest Service) as well as non-agricultural, in this case recreation value. This would lower the tax burden for the rest of us, as well as incentivize increased access to public lands.
Its a good start. While we are at it, end federal funding for range improvements that do nothing to benefit the public.
DAH – the totally wrong approach. The checker board/corner crossing problems will not end until reasonable people realize that land swaps/land that trades block up both private land and Federal land are the solution. This is a classic ” cause and effect ” situation whereby everyone is concentrating on the ” effect” – that being lawsuits – and ignoring the ” cause ” of the problem. The ” cause ” of the ongoing problem can be resolved by straight forward and swaps.
I’ve commented before about a large land swap north of the Cheyenne River wherein 42,000 acres of private land where exchanged for 42,000 acres of Federal in the 1990s thus creating large tracts of private land without Federal inholdings; and large tracts of Federal land without private inholdings. I’m disappointed that the Elk Mountain controversy is distracting from the ultimate solution to the legal quagmire. And, I would much rather see the Stockgrowers and Wool Growers becoming advocates for land exchanges which benefit everyone.
Lets start talking about a solution to the checker board problem rather than fighting it out in court. Please note that the Marton Ranch purchase by the BLM created a large tract of Federal and state land which is open to the public – upwards of 36,000 acres – and at the same time, the Marton Ranch retained the grazing rights such that their ranching operation could continue as usual. The purchase achieved ” land consolidation/land blocking up ” although it wasn’t achieved by direct trading – but he results were very similar.
Please advocate for land trades and stop fighting it out in court.
Fifty percent of the airspace over a corner belongs to the public. Can we sue ranchers for impeding our air?
Grazing at $1.34 AUM ain’t a bad deal. Add huge dollars from exclusive hunting on BLM landlocked land sweetens the pot. Shades of 1892 Wyoming.
Public land grazing is a privilege, not a right, conveys zero ownership. US Supreme Court.
“I ain’t no land hog. All I want is what’s next to mine.”…. Rawhide Rawlins (thanks to Charley Russell)
Here’s a question not too many people have raised: if you are hunting by crossing private land on a ladder which prevents you from touching the ground, and you shoot a deer, say, how can you reclaim the dead animal if you cant reach it the same way you cane — via a checkerboard. Or is it always possible to do this?
You have to cut it up and carry it out the same way you came in.
This is Ethan call from Rawlins, Wyoming. The attorney for any of those opposing the public having access to public land by crossing private land would suggest that the 1885 law does not apply to any corner crossing case, and that Congress should act to address the matter. She must not have done much homework on the matter. Congress did act in 1885 by passing that law. The federal law has everything to do with the corner crossing issues of today. And the federal law has everything to do with the states illegally passing a criminal trespass law which is trying to convince the public that unless you get the landowners permission to cross to access public land, it is an illegal act. In fact the briefs on the 1885 law specifically state that none shall prohibit another from accessing public land, even if it means crossing private land. If people do not want to follow the 1885 law, the only way for Congress to uphold that law is to take the corners, pay appropriate compensation, and the issue forever would be solved. For you the public, wise up and realize the ones that do not want us to access our public land are trying to put one over on us. With what the Wyoming legislature just did, even we are not immune to bribery, money, and power.
The bill would not have passed unless air space was taken out of the argument. This is proof the people do not agree that it is a trespass simply passing through air.
Sure would be nice if a Federal court would make another ruling negating the owners “Air Right” at checkerboard corners. Federal law is clear “The right to access public lands was codified into law in 1885. The federal Unlawful Inclosures Act 43 U.S.D.A. was passed to stop private landowners from enclosing (also spelled “inclosing” in historic documents and cases) public lands for their exclusive use. Seems pretty simple to me but of course we live in a time when “Rule of Law” is ignored by many.
I’m sure the judge considered intent of the legislature. It woukd have been easier for the groups to say, simply: we got nothing!
Please post court documents. This will all resurface in many other states.
Dear Wyoming voters, if you want to be able to utilize public land you must vote the right people into office! All of our three representatives do not support federal public land. Hold their feet to the fire.
A few days ago I saw a real estate ad selling around 80 acres. It read in part “exclusive access to BLM land”. Private control of public land is really the issue.
meanwhile, folks in Wyoming are spreading hate and discontent about the BLM’s Rock Springs RMP because the think (falsely) that they will be locked out of THIER public land.
In my 74 years in Wyoming, I’ve seen more access lost because of private land ownership changes than from anything any Federal agency has done.
Exactly MIke. Selling these large plots of PRIVATE land that block access to federal land is NOT the governments fault.
The final verdict was rendered by a jury of peers. If nothing else the public is tired of ranchers getting all manner of kickbacks from the state. They have bullied, mislabeled and cinched up valuable public land for their benefit.
I think the jury said, “enough is enough.”
AMEN!!! “We the people” have spoken and Judged accordingly.
Turn the wolves loose. Scatter these elk herds so they not bunched up on ranchers land to use as private hunting preserve. The sick elk deer will get culled as well.
In my humble opinion, when the jury found the hunters not guilty, the people have spoken. Our lawmakers make laws as representatives of “we the people”. The original lawsuit was ridiculous. To me it seems obvious. The hunters didn’t disturb the landowners ground. To harm came the the landowners property. End of story.
I’m not sure how the legislature could have been any clearer on the wording of the new trespass law. It plainly states that physically touching the land is required for trespass to occur. The argument that physically touching doesn’t actually mean physically touching is an oral sleight of hand Houdini would be proud of.
This is Ethan. Read the 1885 law and commentaries again. The states cannot have a criminal trespassing law that addresses gaining access to public land. The federal government already has a law that it is not criminal trespass to cross private land to reach public land beyond.
Through the process of emminent domain and paying the land owner there could be a space wide enough for a two track passage between the private land corners. That way whom ever is passing through would be on public land. Argument settled. No private land owner no matter who you are should not be allowed to keep the public off public land.
special interest groups and money win again. common public loses again
It appears from Magagna’s comments that the landowner’s “entire” property rights include PUBLIC land within his parcel, land he does not “own”. Knowing that stock growers lease areas of PUBLIC land for grazing purposes, is this now an attempt on their part to keep those lands as THEIR “semi-private” domain? Even with the sweetheart deal these lessees receive from their grazing rights, what more is needed — the approbation of the landowner? Last but not least — literally, what DOES one do with owned “airspace”? Can it be quantitated, collected and sold or is it just fodder for legal banter?
To me this is overreach by landowners and there legal reps, how much land does a person need…why can they continue to tie up public lands ? There lease should be for grazing only but should include public use. These are lands that are owned by the people of Wyoming and state government not private landowners !! They are already leasing the land for a miniscule amount compared to private leases so its time to think about all citizens of Wyoming not just a bunch of special interest agriculture folks. We pay taxes to and deserve to be treated like Wyoming citizens and able to use all state resources. These people that are advocating this change that is clearly in favor of the public are nothing but greedy and selfish people trying to screw the rest of us over for there own personal gain . Shame on you folks…get a real job so you dont have to screw the public over !!
Mr. Hull, these lands are primarily federal lands and belong to all the citizens of America.
Don’t forget we have a two tiered justice system in this country. Money talks and we all know what walks.
I really hope this goes against all these well off land owners that want use of public land all to themselves and those that can afford to pay those landowners for use of public lands. I’ve weary of hearing them whine and cry and act as is great harm is being done to them or their property for an arm/leg in a tiny amount of airspace on their property.
If air space above private property cannot be violated, how can floaters violate the airspace above a private ranch, and it not be seen as trespassing?
The $1.35 per cow & calf per month PUBLIC land “renters” are trying to bail out a sinking ship with a beer can. Match over, welfare ranchers.
Judge Skavdahl is a calm, mature, knowledgeable and fair Judge. The only time anyone says he misunderstood is when that person is appealing his decision and has to argue that he is wrong. Looking at the Judge’s history, a person would have to think he is very likely right and the multibillionaire drug executive who wants to close off public lands and keep them for his own use and to overrule the Judge is wrong.