Montana group fights Wyoming corner-crossing ruling, claiming broad precedent

Out-of-state property owners support Wyoming’s Elk Mountain Ranch owner, saying a failure to overturn a Wyoming judge’s no-trespass decision will unsettle the entire West.

By: - December 1, 2023 7:32 am

The checkerboard pattern of public land in yellow and private in white surrounding Elk Mountain as represented in the Wyoming edition of the DeLorme Gazetteer. (Tennessee Watson | WyoFile)

A Wyoming judge’s decision that corner-crossing is not trespassing will seriously affect landowners across the western U.S., a Montana group says in court papers that ask for reversal of the ruling.

The nonprofit group United Property Owners of Montana filed papers supporting Elk Mountain Ranch owner Fred Eshelman, who lost a civil suit claiming four hunters trespassed by passing through the airspace above his ranch. Eshelman has asked the U.S. 10th Circuit Court of Appeals to overturn his loss; the Montanans claim an interest in the issue and support Eshelman with their amicus brief.

Though Montana is not part of the 10th Circuit, the appeals court’s pending decision will extend beyond the six states over which the court has jurisdiction, the Montana property owners state. The group fights against trespass and opposes conservation measures like the American Prairie Reserve that it sees as a threat to public land grazing.

“As a practical matter, this court has been tasked with deciding whether corner crossing is trespassing or legally permitted throughout the Western United States,” the brief states. “This case presents the first opportunity for an appellate court (state or federal) to consider whether there is some … legal justification that would allow recreational hunters to corner cross private property.”

Wyoming Chief U.S. Judge Scott Skavdahl decided earlier this year that corner crossing — the act of stepping from one piece of public land to another at the common corner with two pieces of private property, all arranged in a checkerboard pattern of land ownership — is not trespassing.

Skavdahl found that four Missouri hunters did not trespass when they corner crossed in 2020 and 2021 to hunt public land near Eshelman’s Carbon County ranch. In corner crossing, the men passed through the airspace above the ranch without setting foot on private property.

Across the western U.S. some 8.3 million acres of public land — an area larger than Maryland — are considered “corner locked” and inaccessible to the public by any interpretation that corner crossing is illegal. The appeals court’s decision will set a precedent, the Montana group states in its Nov. 13 brief, because litigation on the issue is rare and unlikely to come up in other appellate courts.

1885 law

The hunters argued that the Unlawful Inclosures Act of 1885 prevented Eshelman from blocking their access to the public checkerboard land. The Montanans claim corner crossing is trespassing under Wyoming law and that the 1885 law does not “create a right to trespass.”

A Carbon County jury in 2022 found the hunters not guilty of criminal trespass. Eshelman filed his separate civil suit against the hunters later that year.

The Unlawful Inclosures Act was used to uphold public access to corner-locked land in earlier court cases, including those where stock was fenced out of open range, sheep were driven across private property, the federal government sought to construct a road across a checkerboard corner, and a rancher’s fence blocked antelope from their winter range. But some of that was in error, the Montana landowners claim.

Among the points the landowners make are that the law’s principles ended with the 1934 closing of the open range in the West and that the law distinguishes between wandering stock and purposeful recreationists. In shoehorning a recreational hunting case into the boot of an agricultural law, Skavdahl “was attempting to fit a square peg in a round hole,” the brief states.

Allowing his ruling to stand “‘will upset settled expectations’ of landowners across the West ‘to accommodate some ill-defined’ right to corner cross,” the brief states. Accessing public land via corner crossing is poor public policy, will occur without public planning and deprives landowners of “the right to receive compensation for providing public access,” the brief states.

The hunters, including one who is a fence builder who works professionally with property boundaries, said they researched court cases used to support the notion that corner crossing was illegal. They determined the cases didn’t apply, even though, as Skavdahl later observed, the practice “was largely treated as disallowed and was rarely attempted.”

But the Montana group said it has been waiting for a corner crossing challenge to property rights and see the Missourians’ excursion as purposeful.

“This was deliberative and provocative conduct with the apparent intent to force criminal prosecution or civil litigation that would trigger a test case to push their legal theories in court,” the Montana brief states. The hunters are scheduled to respond by early next year.

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