July 13, 2023 in News by RBN Staff



Public Lands … Increasingly Blocked by Private Landowners




WHAT HUNTERS SHOULD KNOW ABOUT THE CORNER CROSSING VICTORYWhat Hunters Should Know about the Corner Crossing Victory

A federal judge in Wyoming ruled last week that public land users who corner-cross are immune from civil liability as long as the crossers do not touch the surface of private land or damage private property.

The full implications of this case are unclear (more on that below), and the ruling is likely to be appealed. But the judge’s decision is nonetheless a big step in the right direction and a huge win for public land hunters and anglers.

“It’s a win for the common outdoors person. It’s a big deal,” Brad Cape told MeatEater. Cape was one of the four Missouri hunters who set the case in motion. “We were so happy with how well the judge worded his ruling. He was clear as a bell on it. We loved that,” he said.

“I’m a firm believer that commonsense prevails,” Cape continued when asked whether he was surprised by the ruling. “I wasn’t really surprised. In the end, I knew in my heart that we were going to win this thing.”

The case stemmed from several incidents in 2020 and 2021 involving four Missouri hunters who were pursuing elk and deer near Elk Mountain in southeast Wyoming–Cape, Zach Smith, Phillip Yeomans, and John Slowensky. The public parcels they were hunting were mixed in with private land in a checkerboard pattern. Instead of walking across private land to reach public, these hunters used a ladder to climb from one public block to another at the corner where the blocks meet.

The landowner, Fred Eshelman, nonetheless engaged in a campaign to harass the hunters and eventually succeeded in pressing charges. When a Wyoming court found the hunters not guilty of criminal trespass, Eshelman sued in federal civil court. He claimed that the hunters had damaged his property’s value to the tune of $7 million, and the case was presented before Chief U.S. District Judge Scott Skavdahl.

Eshelman argued that even though the hunters had not touched his property, they still trespassed into his property’s airspace. The hunters argued that Eshelman violated the Unlawful Enclosures Act, which prohibits anyone from restricting access to public land.

The judge issued a strong opinion in favor of the hunters. “The Court finds that where a person corner crosses on foot within the checkerboard from public land to public land without touching the surface of private land and without damaging private property, there is no liability for trespass,” Judge Skavdahl wrote in his 32-page ruling.

Cape credits the Wyoming Chapter of Backcountry Hunters and Anglers (BHA) with the victory. “This would not have happened without them,” he said. “That’s a fact. The public should be appreciative for what they’ve done. Their work behind the scenes was huge.”

The Ruling

The judge relied heavily on a 1914 case known as Mackay v. Uinta Development Co. In that case, a federal court ruled that a sheep farmer could move his herd across private land to access public parcels in southern Wyoming. That court found that individuals “possess a reasonable way of passage over the unenclosed tract of land without being guilty of trespass.”

To answer Eshelman’s argument about airspace, the judge cited another 1974 case from the 10th Circuit Court. In that case, the court ruled for someone to trespass into a property’s airspace, they had to in some other way damage the property or interfere with the use of that property.

In addition, the Wyoming legislature just passed a law this year prohibiting hunters from “traveling through” private property to access public land. But that law clarified that “traveling through” required “physically touching or driving on the surface of private property,” which would not apply to the hunters in this case.

Taking all these things together, the judge concluded that the hunters have just as much right to the airspace above those corners as Eshelman does.

The judge was careful to clarify that private property rights are “fundamental” to the “development and continuing validity of the United States.” If these hunters had trespassed on land owned exclusively by Eshelman, the outcome of this case would have been different. But a landowner’s property rights are limited by federal, state, and local law, which in this case gave the hunters the right to cross in Eshelman’s airspace in order to access public land.

How This Affects Hunters

This ruling doesn’t make corner crossing legal across the country. In fact, it may not even make corner crossing legal in every situation in Wyoming.

Dave Willms is an attorney, hunter, senior director for Western Wildlife at the National Wildlife Federation, and former policy advisor to the Governor of Wyoming. He told MeatEater that while the judge clearly removed civil liability from corner crossers in Wyoming, the judge seemed to limit his decision to land laid out in a checkerboard pattern.

This pattern emerged as a result of the westward expansion of the railroad, and the judge only references this type of land in his decision.

“I’m not sure it would suggest that you’re open to corner crossing anywhere in Wyoming. That’s not crystal clear to me when I read the opinion. In fact, it seems like it’s fairly narrowly tailored to just the railroad checkerboard,” he said.

The Theodore Roosevelt Conservation Partnership estimates that there are 9.52 million acres of inaccessible or “landlocked” federal public land, much of which exists in a checkerboard pattern. The judge didn’t specifically exclude non-checkerboard land, but Willms points out that this decision leaves that point open for interpretation.

The decision may also not apply to all future criminal cases. The new Wyoming law mentioned above likely protects corner crossers on all types of landlocked land, but it’s unclear whether this decision could save them from criminal trespass charges in the future.

“What happens when the legislature comes and changes that statute next session to say corner crossing is illegal?” Willms wondered. “This case is not binding upon a judge in a criminal case. It’s a persuasive authority but not a binding authority.”

Backcountry Hunters & Anglers also encourages hunters to exercise caution–both in Wyoming and across the West.

“While the court’s opinion sets forth the law as understood by the court, unless and until the case is appealed and heard by higher courts, there is no guarantee that corner crossing in Wyoming or anywhere else is explicitly legal,” the group writes.

The only thing that could make corner crossing legal across the country is a Supreme Court decision or an act of the U.S. Congress, both of which are a long way from happening. It’s more likely that each state addresses this issue based on its own political climate.

“I’ve always thought that one of the outgrowths of this case would be individual states stepping up to address the question where the judge didn’t provide an answer,” Willms said. “I still expect this to occur. Of course, state politics could result in different decisions regarding access across the country, and could lead to more litigation. In short, the decision in this case gets us a step closer to answering the corner crossing question, but we are a long way from the end of the discussion.”

Instead of hoping a single case will become a corner crossing silver bullet, MeatEater’s Director of Conservation, Ryan Callaghan, encourages hunters and public land users to focus on maintaining their advocacy for the long haul.

“As per our usual arrangement, the answer is to get involved and stay involved,” he said. “If you’d like to access landlocked public land via corner crossing, get in touch with your state legislators. Tell them you want them to sponsor a bill clarifying the legality of corner crossing in your state, and that you’ll be watching to make sure they follow through.”

Bottom Line

If you’re looking to hunt out west this year, this decision does not give you permission to corner cross in every state. Corner crossing is more legal in Wyoming than it was two years ago, but it hasn’t been explicitly legalized in every situation.

As for the four Missouri hunters at the heart of this case, their legal battle likely isn’t over, either.

“I expect an appeal, though I’m not certain. Probably 50/50,” Cape said. The hunters’ attorney also predicated an appeal to the 10th Circuit Court, and Cape said the two sides will meet on Thursday to discuss where the case will go from here.

Cape said both he and Phil Yeomans submitted applications for deer permits in Wyoming in several different units for this fall’s hunting season. When asked whether he’d feel comfortable corner crossing in Wyoming, Cape said he feels “totally confident.”

“I felt totally confident from the very beginning that what we were doing was OK,” he said.