A ruling by a federal appeals court in a widely watched corner-crossing case cements the principle that a congressional act preempts a state’s power to impose and enforce its own trespass laws.
A three-judge panel at the U.S. 10th Circuit Court of Appeals adopted that “preemption” argument made by the attorney for four hunters when it ruled in their favor Tuesday.
In a unanimous opinion, the judges sided against Carbon County ranch owner Fred Eshelman, who sued the hunters in 2022 after they passed through the airspace above his property on their way to hunt public land on Elk Mountain.
Corner crossing is the act of stepping from one piece of public land to another where those two parcels meet at the common corner with two private parcels, all arranged in a checkboard pattern of ownership. Corner crossing does not involve stepping on private land.
Experts say corner crossing is now legal in the 10th Circuit’s six states — Wyoming, Colorado, New Mexico, Utah, Oklahoma and Kansas.
Eshelman sued to block the hunters, and everybody else, from corner crossing to reach some 11,000 acres of federal and state land enmeshed in his 50-square-mile ranch at Elk Mountain, a wildlife haven where the North Carolina resident hunts.
In siding with the hunters, the judges stated that Wyoming trespass law can’t supersede a congressional act that guarantees public access to public land in the checkerboard area. A different ruling, the panel wrote, “would place the public domain of the United States completely at the mercy of state legislation.”
“We appreciate this may be an unsatisfying result for property owners within the checkerboard.”
U.S. 10th Circuit Court of Appeals
“I’ve been banging this [preemption] drum since January of ’22,” the hunters’ attorney, Ryan Semerad, said Tuesday after learning of the decision.
A 2023 ruling by Wyoming‘s Chief U.S. Judge Scott Skavdahl for the hunters — the ruling Eshelman appealed to the 10th Circuit — didn’t land squarely on the preemption issue, Semerad said.
Skavdahl relied primarily on a case — sheepherder Mackay v. the landowning Uinta Development Co. — the judge wrote in his 2023 decision. In his 32-page ruling, he never used the word “preempt.”
So the appellate decision emerges as even stronger support for corner crossing than what Skavdahl decided, Semerad said.
Unlawful Inclosures Act
The checkerboard pattern is a relic of the railroad construction era of the 1800s, created to finance a transcontinental route. Each checkerboard square is 640 acres, a square mile, and the alternating pattern of public/private ownership originally extended 20 miles north and south of the Union Pacific line across Wyoming.
Congress soon saw that new private landowners who bought from Union Pacific were blocking access to the public sections, effectively controlling public land they didn’t own. That “evil … became so great,” one court later explained, that Congress enacted the Unlawful Inclosures Act in 1885.
“No one may completely prevent or obstruct another from peacefully entering or freely passing over or through public lands,” the act says, according to the appellate judges. The Unlawful Inclosures Act “explicitly prohibits obstructing transit over public lands by force, threats, intimidation, or by any fencing or inclosing.”
In 2020, Missouri hunters Brad Cape, John Slowensky and Phillip Yeomans corner crossed to hunt on Elk Mountain and did so again with Zach Smith in 2021.
Eshelman, through his Iron Bar Holdings company, which officially owns the ranch, sued the hunters claiming that allowing corner crossing devalued his 22,045-acre ranch by more than $7 million.
The appeals court ran through numerous reasons for siding with the hunters, including rejecting Eshelman’s arguments that an “inclosure” refers only to fences. One can “inclose” a piece of public land using threats and intimidation, including the threats of lawsuits or even threats of criminal prosecution or civil action under state trespass laws, the court determined.
The appellate panel also rejected another of Eshelman’s arguments that proposed UIA became obsolete at the end of the “open range” era in 1934 when Congress enacted the Taylor Grazing Act requiring permits to run stock on federal property. “The UIA remains good law,” the panel said. It even was amended in 1984 at which time Congress could have done away with it completely if it wanted, judges said.
Baa baa Leo Sheep
The panel also dismissed Eshelman’s argument that a Wyoming case, known as Leo Sheep, settled the corner crossing question in 1979. (Leo is a Wyoming neighborhood north of Rawlins; Lee Emmit Vivion established Leo Sheep Co. in 1903.) In that case, courts ruled the federal government could not construct a road across a corner to reach the public Seminoe Reservoir.
Eshelman contends that corner crossing relies on an implied easement, and Leo Sheep determined that the government did not hold any easement at the checkerboard corners. But the corner crossing case doesn’t claim an easement, the appeals judges said.
Instead, Eshelman’s actions — signs, fenceposts, chains and lawsuits blocking free travel to the contiguous public checkerboard — constitute a nuisance under the Unlawful Inclosures Act, they concluded.
“No easement was needed to remove a nuisance that was unlawfully inclosing federal lands,” judges wrote as they rejected Leo Sheep’s relevance in the hunters’ case. “Leo Sheep did not speak to, and is not controlling for, the type of limited airspace intrusion ratified by [Skavdahl’s] district court,” the panel said.
Essentially, a right to access is not an easement, the court stated.
Further, Iron Bar cannot use an exception to the Unlawful Inclosures Act that allows homesteading, an exception that would allow it to fence people out, the panel said. Elk Mountain Ranch, Eshelman’s self-stated retreat from his busy pharmaceutical world in the East, is just that.
He bought the property from another private owner, the appeals court found. “Iron Bar is no homestead,” the panel wrote.
Not a taking
As it struck down one Esshelman argument after another, the appellate panel relied in part on an 1897 case known as Camfield in which a landowner used a fence on private land to prevent access to checkerboard public property beyond. Camfield’s fences were illegal under the Unlawful Inclosures Act, the case determined.
Addressing another Eshelman point, the appeals panel said allowing corner crossing doesn’t constitute a taking for which the Constitution requires compensation. Wyoming landowner Taylor Lawrence, who built fences blocking antelope migration to public checkerboard land, claimed such a taking in 1988.
Courts ruled that Lawrence’s assertion fell flat because what he claimed to have lost — the right to exclude others in the checkerboard area — was something he never had in the first place.
When the government enforces a pre-existing limitation on a property owner’s rights, that’s not a taking that requires compensation, the panel said.
The right to pass to public checkerboard land necessarily diminishes a landowner’s rights, the appellate judges held. Congress diminished those rights through the Unlawful Inclosures Act, removing that important privilege from the checkerboard landowner’s entitlements, the appellate court said.
“Iron Bar theoretically acquired its private land subject to those preexisting restrictions,” the panel said.
Eshelman also argued that Wyoming law allows him to stop trespassers from crossing through his airspace. But the federal Unlawful Inclosures Act “supplants conflicting state law,” the panel said.
“The UIA and case law interpreting it have overridden the state’s civil trespass regime in this context,” the panel said.
The court’s ruling is important because “there is a presumption against preemption,” hunters’ attorney Semerad said. “The first principle is we should harmonize state and local laws with the federal law — we don’t want there to be a collision of laws.”
Judges and courts are reluctant to bring down the preemption hammer, he said. With preemption, “you’re saying to state legislatures and local government governments, ‘whatever you do, it does not matter, because Congress decides this issue.’”
“There are many judges these days who are reluctant to say that for all sorts of philosophical and jurisprudential reasons.”
Unsatisfying
“We appreciate this may be an unsatisfying result for property owners within the checkerboard,” and issues such as liability remain unresolved, the judges wrote. They recognized that Eshelman could ask the entire suite of 10th Circuit judges — there are 19 — to weigh in on the case.
“The Supreme Court can also reconsider the scope of Leo Sheep as it applies to this case,” judges said.
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