A survey marker at a common checkerboard corner near Elk Mountain Ranch. (James Hasskamp)
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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.

“You're bringing a trespass action against us, we think we've got a defense, an immunization, if you will, through a different statute.”

Hunters’ attorney Ryan Semerad

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.

Karen Budd-Falen. (Budd-Falen Law Offices)

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.

Corner-crossing hunters’ attorney Ryan Semerad addresses the jury in the hunters’ criminal trial in Rawlins in April during which a jury found all four not guilty of trespassing. (Angus M. Thuermer, Jr./Pedrodiniz)

“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.”

Angus M. Thuermer Jr. is the natural resources reporter for Pedrodiniz. He is a veteran Wyoming reporter and editor with more than 35 years experience in Wyoming. Contact him at angus@pedrodiniz.com or (307)...

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  1. (Karen Budd-Falen) “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.”
    uh...............really????

    1. uh......no one believes that ‘story' from Falen, just another scare tactic smoke screen thrown up in behalf of the Welfare cowboy regime that is scared to death of losing their grip on public lands. Funny, the corner cross advocates have stuck with the facts and haven't been telling a bunch of whoppers. Maybe pedrodiniz should investigate Falen's claim and do a fact - check

  2. Did anyone buy that story from Budd-Falen that hunters using gps to locate corners to cross are landing in her daughter's front yard and scaring the bee-jeezus out of that fluffy lil' dog? Nope, me either. The anti corner cross people, such as Budd-Falen and the Wyoming welfare stockgrowers are concerned...very concerned to the point that the bee-jeezus being scared is from them

  3. Eminent domain
    Power of a state or a national government to take private property for public use.
    I.e. If a town wants to construct a sidewalk in front of your home, they appropriate the land through eminent domain. In NJ, a farm that was in a family for 4 generations was taken for the ‘good of the community' to make into a park. Why not take 15 feet or so from every corner of a checker board property through eminent domain. It would for the good of the many citizens wanted access rights. If you are not familiar with eminent domain, google it.

  4. When you buy land in the US you rarely own everything from the center of the earth to the sky. The surface estate is commonly owned by one party and the mineral estate owned by at least one and oftentimes by multiple parties. In addition, the original homestead patents reserved D&C ( ditches and canals ) to the public such that the right to cross private surface estate in the western US with ditches and canals was reserved - and later in about 1913 homestead patents reserved MOG ( mineral, oil and gas ) to the public/government. A rancher friend of mine once told me if he was younger, he'd move to Uruguay because in that country you actually do own everything - surface and subsurface. And in wyoming the state owns the surface and groundwater - therefore, the owner of the surface estate may or may not have certain water rights attached to the land - that is, appropriated by the State Engineer's Office. The surface estate can even be divided or rathered severed such that one party owns the grazing rights, another the timber rights and another the developmental rights usually established by purchasing of a conservation easements. And then there are the numerous easements for roads, pipelines, and utilities. In summary, ranchers rarely own everything in the west.

  5. The vast majority of the land in the checker board system was public land prior to the Transcontinental Railroad's construction. The federal government under President Lincoln, didn't have the capital to pay for the construction after the civil war, so it offered every other section (6400 acres per mile of track laid) in addition to cash paid for track construction, on both sides of the track to the two construction companies that were contracted to build the line, the Central Pacific and Union Pacific. If President Lincoln intended for this land to be owned and utilized exclusively by the construction companies and the private parties that purchased the lands from them, he would have sold the lands in blocks, rather than split up equally in alternating sections as he chose to do. His intention was to allow half of the land within the checkerboard to be owned by the construction companies and the other half for the government and people of the U.S. as public lands. Splitting it up in this way, he considered was fair to the American people.

    Secondly, Statute 1061. Inclosure of or Assertion of Public Lands without Title states: All inclosures of any public lands in any State or Territory of the United States, heretofore or to be hereafter made, erected, or constructed by any person, party, association, or corporation, to any of which land included within the inclosure the person, party, association, or corporation making or controlling the inclosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith with a view of entry thereof at the proper land office under the general laws of the United States at the time any such inclosure was or shall be made, are declared to be unlawful, and the the maintenance, erection, construction, or control of any such inclosure is forbidden and prohibited; and the assertion of the right to the exclusive use and occupancy of any part of the the public lands of the the United States in ant State or any Territories of the United States, without claim, color of title, or asserted right as above specified as to inclosure, is likewise declared unlawful, and prohibited.
    I don't know how more succinct you can be about the unlawful inclosure of public lands that is currently occurring! There's no need for a higher court's ruling on this matter, I'm certain President Lincoln would agree.
    The federal agency responsible for allowing all this to occur for so long, knows the laws, I think its long over due to right the wrong that has been occurring and open this land up!

  6. Just wondering if I have a trespassing claim for violating my airspace when someone walks by my house on the sidewalk and sticks there arm out over my lawn?

  7. There oughta be a law! If congress took this up, how would our representative and senators vote?

  8. “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 answer is 0.0 because there is no way that OnX puts a border so far off that it puts it on a house doorstep. Pretty telling the words used here: ‘Hunters bad. They kill fuzzy puppies'. smh I wonder how Ms. Semerad feels about those trespassing planes flying over her clients. According to her, they are also guilty of trespass.

  9. Again an excellent well written neutral piece of journalism. Thanks Angus.

  10. SCOTUS votes are for sale now, going to the highest bidder. Public landowners in WY (and the West) will lose if this goes to SCOTUS. Strong suggestion to any entrepreneurs out there with flight experience to start a business shuttling hunters, anglers, wildlife photographers, climbers and hikers into landlocked public lands. Use the Alaskan bush pilot model.

  11. “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.” Mrs. Budd-Falen went to the University of Wyoming. I didn't realize our law school was that bad. Evidentially flying is actually illegal, who knew.