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The future of millions of acres of public land in the American West is at the centre of a case that was heard by a US federal appeals court on Tuesday.
The case stems from a 2021 incident on Elk Mountain, Wyoming, where four elk hunters crossed over the corners where squares of public and private land meet in a chequerboard pattern. Though they never set foot on private land, using a custom-built ladder, the hunters passed briefly through the private airspace of Fred Eshelman, a wealthy pharmaceutical businessman and ranch owner, who sued them for civil trespass.
Tens of millions of acres in the West were divided into this chequerboard in the 1860s, through a congressional land grant to fund construction of the transcontinental railroad. The government gave half of the mile-long squares to the railroad to sell, and the other half was deemed public land.
If the court finds that the corners between them cannot be legally crossed, some 8.3mn acres of “corner locked” public land will be largely inaccessible by the public. There are some 27,000 such corners in the West.
The case was heard by a three-judge panel of the US Court of Appeals for the Tenth Circuit, based in Denver, Colorado, which has jurisdiction over most of the Rocky Mountains. The hunters — Bradly Cape, John Slowensky, Zachary Smith and Phillip Yeomans — have already been acquitted in a criminal case in Wyoming and won a related civil case in a lower federal court.
The hunters’ argument relies heavily on the 1885 Unlawful Inclosures Act, which bans enclosures of public land. They argue that under the law, fences are prohibited, but so are other less tangible barriers, such as the threat of trespassing lawsuits.
“Congress chose to use that power to protect free passage over or through the public lands in the chequerboard,” argued Ryan Semerad, an attorney for the hunters.
Reeves Anderson, an attorney for Eshelman’s company, Iron Bar Holdings, countered that argument at Tuesday’s hearing, saying: “Entering airspace immediately above the surface of the land of private property without permission or privilege is a black-letter trespass under Wyoming law.”
The legality of “corner crossing” has been litigated without resolution for more than a century. Two central precedents in Tuesday’s case have to do with sheep. In one, a court ruled for a shepherd who grazed his flock through private land. In another, the US Supreme Court ruled for a private sheep company, across whose corners the government had cut a public road.
“To me, the cases are a jumbled mess,” said Judge Timothy Tymkovich on Tuesday. “It’s almost like a chequerboard.”
The judges did little to show what way they were leaning. However, Judge Nancy Moritz in particular focused on “necessity” — that there is no other way to access these public lands but to corner cross.
Other large private properties in the chequerboard are owned by land collectives, commercial livestock operations, energy companies and mining outfits.
The circuit court is expected to deliver its decision in the next few months. The losing party may ask the whole circuit court to re-hear the case, or petition the Supreme Court. “Everyone should gear up for the next level,” Semerad told the Financial Times.
