Corner-crossing hunters: Cattle King era is over

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 6000 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.

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, Skavdahl 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.

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