Stock growers won’t support a bill that would clarify Wyoming law following a court decision allowing public access to public land by corner crossing, an industry representative says.

The draft bill, “Corner crossing clarification,” is headed to the Legislature early next year after the Joint Travel, Recreation, Wildlife and Cultural Resources Committee narrowly endorsed it in August. The measure is intended to encapsulate the 49-page decision of the U.S.10th Circuit Court of Appeals. The court ruled that landowners cannot block the public from accessing public land in the checkerboard landscape of public-private land ownership.

Corner crossers step from public land to public land, momentarily passing through the airspace above the adjacent private parcels but without setting foot on private land. Carbon County ranch owner Fred Eshelman sued four hunters in 2022 for trespassing after they corner crossed. He lost his case.

The bill provides “a clarifying exception to the offenses of trespass,” spelling out that a corner-crosser “does not commit criminal trespass.” The measure also would immunize corner crossers who make “incidental contact” with private property, “without causing damage to any privately owned land.”

That’s one toe over the line drawn by the 10th Circuit, which decided against Eshelman based on the premise that four Missouri hunters made no physical contact with private property. The corner-crossing clarification bill appears to build on the de minimis doctrine, a legal concept a court uses when refusing to consider trifling matters.

The Wyoming Stock Growers Association, which fought alongside Eshelman in his court battles by filing supportive briefs, won’t support the corner-crossing clarification, said Jim Magagna, executive vice president of the association.

“I don’t think that bill is anything we could accept because of the uncertainties,” he said in an interview. Those uncertainties include incidental contact, the potential to bridge corners for motorized travel, an increased potential for trespassing, abuses of private property and other arguments, many of which were raised by Eshelman in court.

“What does it mean I can corner cross?” Magagna asked. “At what extent have I exceeded my ability to do so?

“I think that bill, other than making a statement, really is not a workable answer to anything,” he said.

No blood, no foul

One of ranchers’ concerns, Magagna said, is that people are now free to go to public land that’s enmeshed in private ranches, traipsing nearer private property.

Eshelman, through attorneys, described what that would mean at his Elk Mountain Ranch, which has more than 20,000 private acres around another approximate 11,000 acres of public land, mostly managed by the BLM.

“Corner crossing … imposes costs on landowners — including trespasses, poaching, littering, fires, predators, and the risk of accidents — that accompany greater public presence near private property,” Eshelman argued unsuccessfully in front of the 10th Circuit.

Although “there’s no question about the legal decision,” reached by the 10th Circuit, Magagna predicts conflicts.

“I foresee that this will lead, in some instances, to corner crossing that will result in some abuses,” he said. “It’s one thing if a few hunters go across the corner. It’s another thing if all of a sudden 100 people want to have an event.

“I think those are the type of things we need to address,” he said. “We need to come back home and say, OK, the court has made their decision, what can we do here in Wyoming to make sure that that decision is honored, but it’s honored in a way that respects private property rights.”

He proposed that a landowner might provide “a more viable” access to a corner-accessible public parcel than via a corner. A landowner might offer access along a road or trail that’s farther away from stock, for example, than a corner. In such an instance, Magagna suggested, the public land would no longer be isolated, a necessary circumstance the 10th Circuit imposed in its access ruling.

In other words, if a ranch owner provided a path to isolated public land, would corner crossing no longer be a legal way to get to that public parcel?

The Wyoming Chapter of Backcountry Hunters and Anglers, the group that backed the Missouri hunters through five courts to their favorable 10th Circuit ruling, doesn’t like that idea.

“If you want to pick another spot, it’s not going to be at the expense of the actual corner,” said Buzz Hettick, co-chair of the Wyoming chapter. “You [stock growers] filed a brief [against us] and now you want to come to the table and talk about it?

“I’m not going to let them dictate how we move forward on this,” Hettick said. “I think they’ve enjoyed use of our public lands exclusively for a long time.”

A second rodeo

Although the Wyoming corner crossing case drew wide attention, the civil suit at Elk Mountain is not the first time corner crossing has been tested in court. But a legal gray area persisted until the Supreme Court’s recent decision not to review Eshelman’s case.

An Albany County judge threw out a corner crossing case in 2004. “Albany County Circuit Judge Robert Castor’s not-guilty verdict in the case against Bill Kearney raises the possibility that public lands in Wyoming may be more accessible to the public than previously thought,” The Associated Press reported at the time.

The judge didn’t give a reason for his decision, but the ruling prompted then-Attorney General Pat Crank to write a memorandum to the Wyoming Game and Fish Department on the legality of corner crossing. Crank asserted that Castor’s “not guilty” finding had no binding effect on any court. But while corner crossing might be a tresspass, it was not a hunting violation that Game and Fish could prosecute, the opinion stated. That steeled the resolve of hunters who believed corner crossing was legal, Hettick said.

Another unexplained outcome occurred during the hunters’ misdemeanor criminal trial in Rawlins in 2022. Backcountry Hunters and Anglers grilled the hunters before deciding to back them in court, Hettick said.

Although he was confident with the facts of the matter, “it spooked me to take the case,” he said, because “with a jury you never know.”

A jury of six found the hunters not guilty. The foreman would not comment to WyoFile about the verdict.

A law student suggested the outcome was the result of jury nullification — rejection of what jurors saw as an unjust law — in an article published in The University of Chicago Law Review in 2023.

“The acquittal was likely nullification,” Burke Snowden wrote, “because the facts presented made it clear that the outdoorsmen hovered over the private property.”

Carbon County Sheriff Alex Bakken, whose office cited the hunters for misdemeanor criminal trespass in 2021 in a case separate from Eshelman’s civil suit, told the Travel Committee this summer, “more clarification would be beneficial.”

No toe over the line

Bakken recently took to Facebook after the Supreme Court declined to consider the 10th Circuit decision.

“The Carbon County Sheriff’s Office will continue to operate under the United States Court of Appeals 10th Circuit Decision,” he wrote. Although corner crossing is allowed, that’s not a license to trespass, he warned.

Trespassers “will be charged accordingly,” he wrote.

He reminded readers that the 10th Circuit decision applies only to Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming, “not the entire West.” In Montana, the director of Fish, Wildlife and Parks said her state still considers corner crossing to be trespassing, according to the Missoula Current.

Backcountry Hunters and Anglers said the 10th Circuit ruling applies to 3.5 million acres in the court’s jurisdiction, 2.4 million of which is in Wyoming. About 8.3 million acres across the West was considered “corner-locked” — accessible only to private neighboring landowners and their guests if corner crossing is prosecuted as a trespass — before the 10th Circuit decision.

The hunting group warned of continued efforts to exclude the public from land owned by all Americans.

“Today’s win is historic, but it cannot be mistaken for a finish line,” Jack Polentes, a senior manager for BHA said in a statement on the day the Supreme Court refused to hear Eshelman’s appeal. “Powerful interests will continue to test the boundaries of public access in statehouses and courtrooms across the country.”

Hettick added, “I think it’s a win for the American public. These public lands, we’re going to be able to access more than we did before. That’s pretty awesome.”

Although members of Wyoming’s legislative Travel Committee talked about debating amendments to the draft bill, they backed the measure without any and have not listed it on the agenda for their Nov. 6 meeting.

For the record, Sens. Brian Boner of Douglas, Larry Hicks of Baggs and Stacy Jones of Rock Springs voted against the bill along with Reps. Marilyn Connolly of Buffalo, Robert Wharff of Evanston and Pam Thayer of Riverton. All are Republicans.

Republican Sens. Bill Landen of Casper, Wendy Schuler of Evanston and GOP Reps. Andrew Byron of Jackson, Elissa Campbell of Casper, and Steve Harshman of Casper voted for the clarification bill along with Democratic Reps. Karlee Provenza of Laramie and Liz Storer of Jackson. Rep. Julie Jarvis, a Casper Republican, was excused.

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