The pending decision from the U.S. 10th Circuit Court of Appeals in the corner-crossing trespass suit against four hunters will likely be appealed to the U.S. Supreme Court, the hunters’ attorney says.

The corner-crossing case tests whether a landowner can block people from accessing public lands when they step from one piece of public property to another at the common corner with two pieces of private land. A person who does so without touching the private land or damaging private property is not trespassing, Scott Scavdahl, chief U.S. district judge for Wyoming, ruled last year.

Skavdahl’s decision in the federal Wyoming court applies to the part of the state where land ownership resembles a checkerboard of mile-by-mile squares — a relic of the 1860s era of railroad land grants. Skavdahl ruled against the owner of the 22,045-acre Elk Mountain Ranch in Carbon County — wealthy North Carolina pharmaceutical magnate Fred Eshelman — who brought the civil action against the hunters, asking that they and others be blocked from corner crossing.

Eshelman claimed four Missouri hunters trespassed when they passed through the airspace above his property in 2020 and 2021. The men hunted successfully on some 6,000 acres of public land on Elk Mountain that’s publicly accessible only by corner crossing.

The 10th Circuit Court of Appeals in Denver heard arguments for and against Skavdahl’s decision in May and could issue a decision at any time. That decision would have precedential effects across the 10th Circuit — Wyoming, Colorado, Utah, New Mexico, Kansas and Oklahoma — and could affect public access across 8.3 million acres in the West.

But that likely won’t be the end of the story, said Ryan Semerad, the hunters’ attorney, who spoke at a legal conference in Nevada last month.

“I’m willing to bet somebody’s going to throw together a petition for certiorari,” he said. That’s an appeal asking the U.S. Supreme Court to take up whatever ruling the 10th Circuit issues.

This land is my land

Semerad spoke at the Western Agricultural and Environmental Law Conference at the University of Nevada in Reno. He is an attorney in Casper who successfully defended the hunters in a criminal trespass trial in Rawlins in 2022 and also prevailed in the U.S. District Court for Wyoming in Eshelman’s civil suit against them.

Semerad appeared with Karen Budd-Falen, an attorney in Cheyenne who frequently represents ranching and farming groups, private landowners and local governments in land use matters. She served in the U.S. Department of the Interior during the Reagan administration and believes in “exposing radical environmental groups’ abuse of the legal systems,” according to a profile on her firm’s website.

She filed an amicus brief in the case for the Wyoming Stock Growers and the Wyoming Wool Growers associations, backing Eshelman’s claim that corner crossing is trespassing.

“The people I represent are the guys that are trying to make a living on their private land and raise cattle on the public land,” she said. “They saw this as a serious concern for their property rights.”

She ran through a brief history of land grants Congress made to enable canal and railroad construction by private entities. In making land grants to promote the expansion of transportation infrastructure, lawmakers reserved various easements allowing the public some access, she said.

“But when they started doing these [land grants] out West and they started doing the checkerboard patterns, they didn’t make any [public-access easement] reservation,” she said.

“Congress didn’t say this corner is reserved for public access for citizens to go hunting,” she said. “That language is not in any of the statutes regarding the transcontinental railroad that you see along these areas.”

Affirmative defense

The hunters, however, never claimed an easement, Semerad said.

“You don’t have an expressed easement in the railroad grants,” he said, agreeing with Budd-Falen. So the hunters didn’t argue that they had an easement — a written-down interest or right allowing the public to pass from one piece of public land to another at a common checkerboard corner.

“Rather than go through the express-grant process and say, ‘Look, we were claiming an implied easement’ … we went about it a different way,” Semerad said.

That was by mounting an “affirmative defense” against Eshelman’s civil claim that the hunters trespassed.

“We just said, ‘Well, OK, you’re bringing a trespass action against us, we think we’ve got a defense, an immunization, if you will, through a different statute.’”

That’s the Unlawful Inclosures Act of 1885.

“The Unlawful Inclosures Act [says] basically, no person can obstruct or prevent free passage or transit over or through the public lands,” Semerad said.

“We’re not going to bring a claim,” Semerad said. “We didn’t bring a counterclaim for hunter harassment and we didn’t bring a counterclaim for [declaratory] judgment saying we had an implied easement.”

Budd-Falen said she learned in law school that somebody who buys land owns everything “from the center of the earth to the tip of the sky.

“If you let people cross over your airspace, then what’s next?” she asked. “My clients are very concerned about the public policy, because once you start with stepping over the land, then what else is included?”

Faux cowboys and fuzzy little dogs

The two agreed that Wyoming has changed from an idealized time when ranchers were open to hunters who respectfully asked to cross their land. Those days have faded, they said with an influx of money and people.

Some newer landowners “want their own private little Xanadu that they can fly into, do their thing, pretend to be a cowboy for a couple days and then fly out,” Semarad said.

More people, plus the introduction of GPS mapping devices that show the approximate boundaries of land ownership, make ranchers wary and frustrated, Budd-Falen said.

“I cannot tell you how many times onX [the digital hunting map app that the hunters used to locate surveyed corner monuments] has landed people at my daughter’s house, front door,” she said. “We have to tell them to get off because she doesn’t want people shooting in her front yard at her fuzzy little dog.”

The corner-crossing case is monumental, Semerad said.

“It is from history,” he told the conference. “It is airplanes, it is railroads, it is sheep and cattle and ranchers, cowboys and hunting and guns and landowners and trespass actions.

“It’s so singularly American.”

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