Public lands access vs. private property rights: The ‘corner crossing’ debate

In the fall of 2020, three hunters from Missouri drew Wyoming elk tags and traveled to the north side of the Medicine Bow Mountains where they hoped to make use of them. The destination was Elk Mountain, a peak that sits just south of I-80 in the south-central part of the state where there’s often an abundance of game.

That region would have been more popular for hunters if it weren’t for a rather large logistical issue. One that until last month was a major deterrent for most folks interested in recreating there.

Some of the prime public hunting parcels are surrounded on all four sides by private land, effectively locked off from the general public. There’s no direct way for regular folks to access them.

Though it sounds somewhat preposterous, it’s not an uncommon circumstance in the West. According to some estimates, there are more than eight million acres of public land — equivalent to about three and half Yellowstone National Parks — landlocked by private ownership.

Around 3 million of those acres are in Colorado, Kansas, New Mexico, Oklahoma, Wyoming and Utah, the six states covered by Denver-based 10th Circuit U.S. Court of Appeals. A quarter million of those locked-off public acres are in Utah.

The hunters — Brad Cape, Zachary Smith, Phillip Yeomans (and later John Slowensky) — though, came up with a workaround that led to a court battle that wound its way through the 10th Circuit to the U.S. Supreme Court.

The case represents a recurring federalism question at the heart of a 150-year conflict between public good and private interests. It touches on the core of property law, yet sprawls outward to define much of the American West.

Trespassing or a clever way to access public land?

Using the app onX, Cape, Smith and Yeomans found the exact spot where two parcels of public land — one of which was where they wanted to hunt — and another two parcels of private land met at a corner. Like checker pieces moving across a checkerboard, they crossed over that intersection at an angle, hopping from one piece of public land to the other, never setting foot on private property.

The movement is called “corner crossing.”

Cape got the idea after reading a 2004 opinion written by Pat Crank, the Wyoming attorney general at the time, that stipulated that the Wyoming Fish & Game Department does not have the jurisdiction to prevent corner crossing. Crank did write that the act may still be a criminal trespass, but the letter stuck out to Cape as good of an argument as any for giving it a try.

Once over that corner and hunting on the public parcel, however, the hunters were met by the ranch manager of Iron Bar Holdings, the private LLC that owns 50 square miles in the region. Interspersed throughout the Iron Bar Ranch, are 27 parcels of public land that cover 11,000 acres.

The manager told the hunters they were trespassing and needed to shove off.

Refusing to do so, the three were eventually met by local law enforcement. No charges were filed — the sheriff heard their arguments about not having set foot on private property — but the experience did not deter the hunters.

They returned the next fall in 2021 with fresh tags and another friend called John Slowensky. The ranch had put up chains over the intersection between two “No Trespassing” signs. The hunters, however, were prepared. They brought a homemade ladder to scale over the corner so that no foot needed to touch private land.

That time the landowner insisted on pressing charges. His name is Fred Eshelman, a health care executive from North Carolina, who has not responded to the Deseret News’ request for comments or any media for that matter since the start of the dispute. Eshelman’s lawyers have also not responded to requests for comment.

How did the courts see the case?

The four-year legal battle worked its way through the Wyoming civil and criminal courts and the federal appeal process where, in each instance, the hunters won.

One of the cases was decided so quickly that a local journalist was not even able to finish his lunch.

“A six-person Carbon County jury found them not guilty in 2022, returning a verdict in less time than it took a hungry reporter to order and consume a quickly made taco salad from Rose’s Lariat cafe in Rawlins,” wrote Angus M. Thuermer Jr., a reporter for WyoFile who has covered the case from the beginning.

Ultimately, Eshelman appealed to the highest court in the land, and the U.S. Supreme Court reviewed written arguments in October.

After a closed-door meeting, however, the court declined to hear the case. Though no reasons were stated, the denial put to rest — for now — the question of whether it’s legal for the public to cross over the corners of private property to access public land in states in the 10th Circuit.

“There’s one word I use for this victory, and it’s ‘generational,’” said Ryan Semerad, the lawyer for the hunters.

Semerad also admitted some disappointment in the high court for not hearing the case, but was thrilled overall with the result.

“At least for the next couple generations of hunters and anglers, they’re going to have access to the public lands of the checkerboard within the 10th Circuit,” Semerad said.

Upon hearing the news, Cape texted, “Winner winner!” Since reading that 2004 memo, he’s seen the debate in very simple terms.

“To me, it’s always just been common sense,” Cape said. “The way I looked at it from the very beginning is I think corner crossing was a made up issue just to keep people out.”

Drawing the battle lines

The hullabaloo from the initial court cases drew the attention of a variety of land advocate organizations for what was a clear battle between private and public interests.

Much of the hunters’ legal fees were paid by donations made through Backcountry Hunters & Anglers, a public lands advocacy group. The backcountry recreation app onX indirectly supported the hunters’ cause by producing research and marketing regarding the locked off lands.

On the other side, such institutions as the Claremont Institute of Jurisprudence wrote amicus or friend-of-the-court briefs in support of Eshelman, as did groups like the United Landowners of Montana and the Wyoming Stock Grower’s Association.

For Jim Magagna, the executive vice president of the Wyoming Stock Grower’s Association, the concern was less about the locked-off public lands than it was about private property rights. Like Semerad, he saw the case as an opportunity for the Supreme Court to settle an age-old issue in the West by setting a national precedent.

“One of the things that made us feel there was a case for encouraging the Supreme Court to grant the petition and take up the case was the fact that the 10th Circuit decision applies in the (six) states that are in the 10th circuit,” Magagna said.

“But for us, you go just north of the border into Montana and, yeah, that didn’t apply … so the idea is to provide some certainty on a broader scale across the West."

That doesn’t mean the organization doesn’t understand the distinction between public and private land.

“We recognize that that’s public land and the fact that you happen to surround it — it may be a part of your grazing lease and you control it for grazing — but that doesn’t mean that it’s no longer public," Magagna said. “It’s public and the public ought to have reasonable means of access.”

Is there a collaborative approach?

Magagna’s other concern is how it could alter the interaction of public and private interests. In particular, would recreators be respectful of the private property that meets at those corners? What used to be a congenial exchange in the past — recreators knocking on landowners’ doors to get permission and find out where best to cross — might turn to enmity.

“We would like to foster now on one side is a more collaborative approach between landowners and sportsmen or other people needing to access this land,” Magagna said.

“Not a landowner saying, ‘I don’t want you out there no matter what,’ and not a sportsman saying, ‘I now have a legal right to go, the hell with you.’ I don’t think that’s in anybody’s best interest.”

The point about how corner crossing muddies the water of both behavior and rights is something the Iron Bar Ranch’s lawyers directly addressed.

“The decision to upend decades of consensus about property rights affecting millions of acres of checkerboard land is already sowing confusion among landowners and recreationists,” wrote Iron Bar Holding’s legal team in its Supreme Court petition.

Arguing further that the case gives the court an opportunity “to restore the long-held understanding that states can forbid trespassing across private checkerboard property.”

Why is public land held behind private property?

Laid over the undulating sage flats, red rock deserts, brown buttes and varied cordillera of the Intermountain West is a patchwork grid of invisible yet well-documented property lines that date back hundreds of years.

This grid originated with Thomas Jefferson. The third president formed the Public Land Survey System in 1785. He used it to map, organize and arrange land acquired in the Louisiana Purchase in 1803 into thousands of square-mile parcels — 640 acres each — so that they could be inventoried and used for a number of different purposes.

The federal government distributed most to the new western states that needed a way to generate income before they had substantial taxable populations. Others were given away for private individual ownership by the Homestead Act, and many were later set aside for broad public use like parks or what is now managed by the Department of the Interior and the Forest Service.

Most notably, however, Abraham Lincoln signed the Pacific Railroad Act in 1862. With the stroke of his pen, the U.S. gave the Union Pacific Railroad every other parcel along the tracks it laid as a subsidy for building such important transcontinental infrastructure.

Over time, the railroad — and state governments — sold off their parcels. The government’s distribution to private entities and then the subsequent sales created a pervasive pattern of alternating private-then-public parcel ownership that stretches across broad swaths of the West.

“The result of Congress’s peculiar land-grant scheme is that many parcels of public land in the checkerboard are landlocked,” reads Iron Bar’s Supreme Court petition. “Accessible only by ‘corner crossing,’ the act of moving diagonally from the corner of one public parcel to another, trespassing through the adjoining private property in the process.”

Has this issue ever come up before?

Since European settlers reached the West, versions of the modern corner crossing issue have shown up in some form or another.

The one law that the hunters’ lawyers argued was most relevant to the current case dates back to 1885. They contended that that law directly addresses what’s at stake, and the 10th district agreed with their assessment.

It’s called the Unlawful Enclosures Act, (which was then written as “inclosures,” so the law is now known as the UIA.)

So-called "cattle barons" of the old West were the impetus for the law.

Though it was the “Gilded Age” in some parts of America, things were still pretty wild west of the 100th meridian where large ranchers were known to fence off public land to prevent others’ cattle from grazing on land they wanted to keep for themselves.

As a result, the UIA was signed into law, making it illegal for “[a]ll inclosures (sic) of any public lands in any State or Territory of the United States.” The law prevents, to this day, anyone from blocking the public from accessing public lands by use of any and all tactics, from fencing to intimidation to chains between “No Trespass” signs.

“Even where a checkerboard landowner exercises bread-and-butter property rights like building a fence on her land — those rights must yield where they conflict with the UIA by obstructing or preventing entry to public land," reads the hunters’ Supreme Court filing.

But what happens when it’s private property itself that is preventing the public from accessing the public lands?

Iron Bar Holding’s lawyers did not agree that the UIA applied, and argued that a different Supreme Court decision on issues similar to corner crossing was more relevant.

In 1979, the Supreme Court heard the case of Leo Sheep Co. v. United States, which questioned whether the federal government had a right to build a road through private land in the checkerboard pattern of western land ownership in order to improve public access to public parcels.

The court ruled in favor of private land owners, striking down the use of “easements by necessity” that allowed the government to create pathways through private land to public parcels. Those justices understood that if they granted such easements across thousands of checkerboard properties — onX found some 21,000 corners where public and private properties intersected — then private property owners would be left without compensation for their property.

Leo Sheep was a win for private property rights and implied a prioritization that suggested that, even to access public lands, corner crossers were not following the law.

But the hunters’ lawyers noted in their Supreme Court filings that, “As the Tenth Circuit explained, Leo Sheep doesn’t apply to Iron Bar’s claims.”

The hunter’s legal team reiterated the stakes of applying that logic to the scale of locked-off public land in the west.

“Iron Bar raises a categorically different question: whether checkerboard landowners can affirmatively extinguish all access to neighboring checkerboarded public land.”

Stakes that Iron Bar Holding’s saw along very different lines. By allowing the public to corner cross, the courts were simply giving the public a right to trespass over private property.

“The question is whether the Unlawful Inclosures Act of 1885 implicitly preempts private landowners’ state-law property right to exclude,” Iron Bar wrote in response for the Supreme Court.

“Yet the Tenth Circuit’s interpretation ‘functionally’ granted respondents — and millions of others — a perpetual easement across private land, precisely the right this Court in Leo Sheep held Congress had not reserved."

Denying a hearing

By not taking the current case, the Supreme Court allowed the 10th Circuit’s decision to stand. Corner crossing is now legal in the six states in the district, which includes Utah.

But that does not mean it will not come up again in another fashion at some point in the future.

One of Magagna’s fears now is that landowners are going to be more reluctant about letting people cross over their property.

“Before it was a sense of, frankly, ‘Well, I own this land and I can choose to give you access and I’m willing to do it,’” said Magagna. “Now it’s ‘I’ve been told that I don’t control this anymore, so you’re on your own.’”

That notion of being out on your own is why both Magagna and Semerad wished the Supreme Court had ruled in the case. Everywhere else in the U.S. where there is public land behind private land — other than those in 10th District — does not have clarity on how to access those lands.

Semerad believes it will come up again in places like Montana, California, Oregon, Washington, Nevada, and Arizona where there are still millions of public land acres landlocked by private ownership.

And he suggests people talk to their political leaders about how they want to access their public lands.

“If you’re willing to risk the possibility of a criminal prosecution or civil lawsuit, and you want to challenge the law — just as it happened here — this case goes to show there is a pathway to opening up those lands," Semerad said. “You just have to be courageous and you have to be willing to stomach the challenge of the process.”