Corner crossers: Ranch owner broke federal access law

The owner of the Elk Mountain Ranch broke federal law by blocking four hunters’ access to public land and by harassing and intimidating them, the hunters’ attorney alleges in new court papers.

The filing in a civil case in U.S. District Court by attorney Ryan Semerad marks the first time the four Missouri hunters have explicitly charged the ranch owner with violating U.S. statute. In court action to date, including at a criminal trial in Rawlins where the four men were found not guilty of criminal trespass, attorneys only suggested that the ranch owner violated the Unlawful Inclosures Act of 1885.

“We have relied on this [UIA] argument to make other arguments throughout this [civil] case and the criminal case,” Semerad wrote in an email, “but this is the first time we have made this argument/defense directly.”

A court ruling on the matter could have implications for a decades-old BLM interpretation that prohibits corner-crossing.

Corner crossing involves stepping from one piece of public land to another at the four-corner intersection with two pieces of private land. The four hunters crossed at such corners, without setting foot on the Elk Mountain Ranch, where public U.S. Bureau of Land Management property and private lands lie in a checkerboard pattern in Carbon County.

It is uncertain whether the allegation might trigger a federal investigation or other action against the official ranch owner Iron Bar Holdings, LLC, the company’s wealthy North Carolina owner Fred Eshelman, ranch property manager Steve Grende or any other party.

Aside from the routine practice of not commenting on pending or ongoing investigations, U.S. Attorney Nick Vassallo’s office couldn’t immediately explain the investigative process and what or whose allegations it probes. Eshelman’s attorney, along with the BLM, also did not respond to inquiries.

1885 law

In a July 29 filing, attorney Semerad defended his clients against Eshelman’s civil claim.

“Plaintiff [Iron Bar Holdings] is now violating and has, at all times relevant to its claims in the Complaint, violated existing federal law … by unlawfully enclosing public lands and/or by using force, threats, intimidation, and other unlawful means to prevent or obstruct Defendants, as members of the public, from peaceably entering upon, freely passing over or through, or freely traveling over or through the public lands,” the document reads.

With the UIA, Congress protected legal access to federal property, especially in the West, by restricting landowners’ actions and structures. How and whether the UIA applies in the civil case could have a bearing on public access to some 8.3 million acres in the West, 2.4 million acres in Wyoming alone.

That’s the amount of acreage considered by the digital mapping company onX to be “corner-locked” by any definition that corner crossing is illegal.

During their 2021 hunt, the four hunters found two T-posts chained together at one checkerboard corner. They used a stile — a fence ladder — to climb over the obstacle. They claimed they were harassed, intimidated and threatened by Grende while hunting on public BLM land they accessed by corner crossing near the ranch.

Iron Bar’s civil suit claims the hunters damaged Eshelman’s ranch, a property that extends across more than 20,000 acres on and around wildlife-rich Elk Mountain. The ranch’s checkerboard layout “corner-locks” hundreds of acres of public land.

Separately, the Carbon County attorney in 2021 charged the four hunters with criminal trespass, arguing in the trial that they violated the ranch’s airspace. A Rawlins jury in April found them not guilty of the misdemeanor charges but none of the six jurors explained their reasoning to reporters at the end of the circuit court trial.

Eshelman’s attorney Gregory Weisz filed Iron Bar’s separate civil suit in state court. But a federal judge moved that claim to his venue at the hunters’ request, agreeing that the issue involved federal statutes.

Obstructing transit

A section of the 1885 UIA titled “Obstruction of settlement on or transit over public lands” prohibits landowners from blocking “…any person from peaceably entering upon or establishing a settlement or residence on any tract of public land…” No person “shall prevent or obstruct free passage or transit over or through the public lands,” the UIA states.

But another clause appears to protect landowners, stating that the law “shall not be held to affect the right or title of persons, who have gone upon, improved, or occupied said lands under the land laws of the United States, claiming title thereto, in good faith.”

The federal law has teeth, if prosecutors choose to use them. Any “owner, part owner, or agent, or who shall aid, abet, counsel, advise, or assist in any violation” of the act who is found guilty can be fined up to $1,000, imprisoned for a year, or both.

From the BLM’s perspective, the UIA does not protect corner crossing as a means to access public land.

“There is no specific state or federal laws regarding corner crossings,” the agency states in a pamphlet that appears to have been updated in 2013. “Corner crossings in the checkerboard land pattern area or elsewhere are not considered legal public access.”

Courts could decide whether the BLM policy and the UIA are in conflict.

That pamphlet reflects a 1997 opinion by an Interior Department solicitor. In writing that, Lowell L. Madsen, assistant regional solicitor for the Rocky Mountain region, flatly stated that corner crossing was illegal because it cannot be done without violating private airspace.

“Under common law the one who owns the surface of the ground has the exclusive right to everything which is above it,” his opinion states. In Wyoming law, “[t]he ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath subject to the right of flight…” Madsen wrote.

The solicitor even addressed the possibility that a stile could preclude trespass if all four of its feet were on public land at a checkerboard corner.

“[T]he stile would invade the airspace of the owner of the cornering private lands [and] constitute a trespass,” his opinion reads.

Hunting with stile

That passage was prescient. The hunters — Phillip Yeomans, Bradly Cape, John Slowensky and Zachary Smith — used a portable stile to climb over an obstruction erected at the four-corner intersection in question.

In the hunters’ criminal trial in Rawlins, Semerad challenged the airspace argument, emphasizing that the Wyoming law states airspace ownership is vested “in the several owners” of the property below, including the public — owners of the federal BLM parcels.

The federal civil trial — as-yet unscheduled — may address the two metal T-posts driven into Elk Mountain property at the four-corner intersection. Photographs show the posts connected across the corner by a wire and chain. The two posts were connected to nothing else — no property-line fences — a photograph shows.

After the hunters left the area in 2021, the chain was removed, Elk Mountain Ranch property manager Grende testified at the Rawlins trial.

“It was removed because it had no purpose,” he said in court.

Courts have defined what constitutes an illegal enclosure, according to Madsen who quoted one ruling.

“[W]hen, under the guise of enclosing his own land, [a landowner] builds a fence which is useless for that purpose, and can only have been intended to enclose the land of the government, he is plainly within the (unlawful enclosures) statute, and is guilty of an unwarrantable appropriation of that which belongs to the public at large,” he wrote.