Corner crossing unsettled

Key takeaway: Still standing is a lower court's decision in Iron Bar Holdings v. Cape, leaving many Western property owners in limbo over federal lands access.

Last March, the Tenth Circuit Court of Appeals upheld the right to access federal lands in a "corner crossing" fashion, as long as a private property owner's land is not physically touched. Now, much to the consternation of property owners across the West, the U.S. Supreme Court has left the issue unsettled.

On October 25, the Court declined to hear Iron Bar Holdings V. Cape, dashing hopes on both sides that the corner crossing case would be settled once and for all.

Ryan Semerad, the attorney representing anabolic Missouri hunter Bradley Cape and his co-defendants, said the Supreme Court's non-action leaves a "bittersweet" sentiment.

"If we won all the way up (to the Supreme Court), it would have been a 50-state ruling, as opposed to the six-state ruling we have," Semerad explained.

Jim Magagna, executive vice president of the Wyoming Stock Growers Association, said last August his group wanted the Supreme Court to take up this case to provide a definitive answer to the trespass issue and to assure conformity in the law across the West.

The case began in the fall of 2021 when Cape and three other hunters used a hand-held GPS device to locate a section "corner" on a ranch in southeast Wyoming. They then set up a step ladder to cross over from one parcel of Bureau of Land Management (BLM) land to another. The crossing was at a "checkerboard" corner shared with the privately-owned Elk Mountain Ranch.

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While the men claimed they camped and hunted only on BLM land, they were arrested for criminal trespass by Carbon County, Wyoming law enforcement.

A local jury acquitted the four hunters of the charges in April 2022. The ranch owner, Fred Eshelman of Iron Bar Holdings, Inc., subsequently sued the hunters on civil charges in U.S. District Court, alleging $9 million in damages tied to the diminished value of his property.

Eshelman claimed the hunters trespassed when they entered private airspace over the "corner point" where the properties intersect. The case again went against Eshelman as Chief U.S. District Judge Scott Skavdahl ruled in favor of the hunters. Upon appeal, the Tenth Circuit agreed with Skavdahl by rejecting Eshelman's trespass claims.

The hunters' legal arguments were based on the Range Wars-era 1885 U.S. Unlawful Inclosures Act, which prohibits blocking access to "government" land, including by fencing and using threats and intimidation.

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Upon refusing to hear the case, the U.S. Supreme Court has left the Tenth Circuit's ruling in place, making corner crossing lawful within its jurisdictional states—Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma.

Elsewhere across the U.S., policy-makers and law enforcement are fending for themselves.

In Montana, which is in the jurisdiction of the Ninth Circuit Court, there are nearly 900,000 acres of "corner-locked" government-owned lands. The state's Fish, Wildlife and Parks Department has stated that "corner crossing remains unlawful in Montana." Game wardens will continue to refer corner crossing cases to county attorneys, who then decide whether to prosecute.

"Corner crossing is a serious threat to the integrity of private landownership," explained Raylee Honeycutt, Montana Stockgrowers Association executive vice president. "MSGA has a long history of advocating for clear, consistent laws that uphold the rights of landowners while supporting access solutions that respect both public and private interests."

Wyoming's Jim Magagna said in his state, the legality of corner crossing is now very clear—anyone can cross over those checkerboard corners, as long as they don't touch the private land or do any damage while crossing.

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Yet, Magagna said there are still gray areas where fences and fence corners may not exactly line up with an infinitesimal legal line or point. This is already causing some confusion out in the country. With hunting season in full swing this fall, he's getting calls from stock growers about suspected trespass where legal corners and fence corners don't exactly match.

"Many of the fences were built years ago when we didn't have the technology we have today," he said. "And especially in the mountains, fences were often built to suit the lay of the land as opposed to being built on a survey line. We got along for years without a lot of problems."

Not the case anymore as the growing population seeks out places to roam and recreate. And they have more tools and toys to help get them there—like E-bikes, off-road vehicles, drones, and lightweight electronics.

"The mind can run wild with all the scenarios people will come up with to gain access to federal lands," Magagna concluded. "This case certainly leaves some details that we're going to have to address in Wyoming as we go forward."