This story was originally published by Montana Free Press and is republished here by permission.
A federal three-judge panel has sided with a group of hunters who faced civil trespassing charges stemming from elk-hunting excursions into “checkerboard” land in Carbon County, Wyoming.
The hunters in question crossed from one Bureau of Land Management section to another on multiple occasions in 2020 and 2021. In the process, they raised the ire of Fred Eshelman, a pharmaceutical executive whose Elk Mountain Ranch holdings span 50 miles of southeastern Wyoming, much of it in areas where public and private land is interspersed in a checkerboard pattern.
After failing to secure criminal trespassing verdicts against the four hunters from Missouri, Eshelman brought civil trespassing charges, arguing that his property would shed an estimated $9 million in value if he lost exclusive access to the elk-rich public land sections interspersed with the square-mile sections of land for which he holds the deed.
The civil trespassing charges drew national interest as parties on both sides of the dispute seized an opportunity to clarify whether stepping across the intersecting corners of land constitutes trespass.
Brad Cape, one of the hunters in question, told Montana Free Press that the case drew so much attention — garnering stories in the New York Times and the Wall Street Journal — due in part to how “absurd” the issue is.
“Nobody in my part of the world knew that corner crossing was an issue,” Cape said. “That struck everybody’s fancy — just a curiosity of, ‘how could this even be a thing?’”
Cape said without public access advocates rallying behind the issue, he and his fellow hunters probably would have paid the $750 trespassing charge and gone on their way despite their conviction they had done nothing wrong. The incident drew the interest of the Wyoming chapter of Backcountry Hunters and Anglers, which partnered with organizations like MeatEater to raise nearly $118,000 from more than 2,100 individual contributions to pay the hunters’ legal bills.
Cape said the ruling is “the best thing we could have hoped for, a 3-0 decision.”
The Unlawful Inclosures Act of 1885, which was passed to “prevent the absorption and ownership of vast tracts of our public domain” by cattle barons, played a key role in both the district and circuit court decisions. In a unanimous decision issued Tuesday, Timothy Tymkovich, David Ebel and Nancy Moritz wrote that Iron Bar Holdings, which owns Elk Mountain Ranch, cannot deny access to federal public lands being used for lawful purposes.
“The district court was correct to hold that the Hunters could corner-cross as long as they did not physically touch Iron Bar’s land,” according to the 49-page order, which explores the land ownership and legal history that set the stage for the dispute.
In an email to MTFP, the Montana Chapter of Backcountry Hunters and Anglers described the ruling as a “massive victory for public land access.”
“The 10th Circuit Court’s decision solidifies every U.S. citizen’s right to access public lands in the 10th Circuit’s six-state jurisdiction,” the group wrote. “We’re immensely grateful to our Wyoming chapter and BHA national for raising hell and funds to combat the wealthy interests attempting to block public access to public land. We hope Montana will follow this precedent and confirm our rightful access to our land.”
“The district court was correct to hold that the Hunters could corner-cross as long as they did not physically touch Iron Bar’s land.”
In Montana, nearly 900,000 acres of land are “corner-locked” due to checkerboard ownership dynamics. Across the West, that tally tops 8 million acres.
Buzz Hettick, co-chair of the Wyoming Chapter of Backcountry Hunters and Anglers, said he’s glad to see some unambiguous law on the subject.
“It wasn’t really decided law — and now it is,” he said, likening the issue to Montana’s Stream Access Law of 1985. “[Landowners] hated that, too, when that passed, but everybody got over it, for the most part. There’s definitely going to have to be education on both sides. People have to understand the law and how things change, and just agree on it and move on. I don’t like to see people dwell on this kind of thing, but where we slug it out these days — in court.”
Hettick added that the hunters didn’t seek out this particular legal fight.
“It isn’t something that we went out and tested to try to pass this or get corner-crossing figured out. Quite the opposite: Eshelman is the one that decided he wanted to get those guys prosecuted. We just responded to what he started.”
Greg Weisz, the attorney representing Iron Bar Holdings, did not immediately respond to MTFP’s request for comment.
The lawsuit garnered attention from organizations lobbying for public land access as well as ranching and large landowner groups adamant that corner-crossing is trespassing.
The United Property Owners of Montana filed an amicus brief in the lawsuit arguing that an expansion of corner-crossing would burden the federal government to “monitor, protect and police millions of acres of its property” to deter and respond to poaching, littering and fires.
In a text message to MTFP, UPOM policy director Chuck Denowh underscored that Montana is in a different appellate circuit than Wyoming. He said he hopes Eshelman appeals the decision to the U.S. Supreme Court and described the ruling as “largely academic.”
“In most cases it is not evident where a property corner is,” he wrote. “Commercial GPS software is only accurate to within several yards.”
The location of the corners at issue in the Elk Mountain case were marked with brass cap markers installed long ago by land surveyors. Similarly, the fact that the hunters did not step foot on Eshelman’s property was also undisputed. The Missouri hunters went so far as to construct a special ladder for their 2021 hunt to ensure they touched only public sections of land.
“Still got it,” Cape said of the lightweight, articulating ladder he built for the hunt. “Might use it again.”
