Corner crossing remains legal after Supreme Court rejects appeal

The U.S. Supreme Court today declined to hear Carbon County ranch owner Fred Eshelman’s appeal of a lower-court ruling that corner crossing to reach public land is legal. The decision affects access to 2.44 million acres of public land in Wyoming and more in five other states.

The Supreme Court put Eshelman’s failed lawsuit, “Iron Bar Holdings, LLC v. Cape, Bradly H., Et al.,” on its list of rejected appeals, which the court published Monday morning. The order ends a five-year fight that pitted the public’s right to access public land against private property rights.

Bradly Cape and three hunting friends corner crossed — stepping from one piece of public land to another where the two intersected with two pieces of Eshelman’s private ranch — momentarily passing through the airspace above Eshelman’s property. Even though the Missouri men never set foot on his land, Eshelman sued them for trespassing.

The hunter’s attorney, Ryan Semerad, said the Supreme Court affirmed centuries-old tradition and laws that public land is held in trust by the government for all Americans. The ruling applies to 2.44 million acres in Wyoming alone.

“That means something,” he said of the trust principle. “That’s real, it’s sturdy. We’re just thrilled.”

“Where you have checkerboarded land and there are public parcels that are only accessible by corner crossing [and] the only way to get to it is at its section corners, the private landowners can’t stop you.”

Ryan Semerad

“Awesome,” was Cape’s reaction. “We never thought one time that we were doing something wrong.”

Chief U.S. District Judge Scott Skavdahl had sided with the hunters in the first ruling on the federal civil suit. The 10th Circuit Court of Appeals backed Skavdahl and Eshelman appealed that decision to the Supreme Court. A Carbon County jury had previously found the hunters not guilty of criminal trespass in Carbon County Circuit Court. 

The case grew out of southern Wyoming, where land ownership resembles a checkerboard of alternating square-mile sections of public and private property.

“Where you have checkerboarded land and there are public parcels that are only accessible by corner crossing [and] the only way to get to it is at its section corners, the private landowners can’t stop you,” Semerad said. “They can’t call the sheriff. They can’t sue you for trespass as long as you don’t touch or damage their property.”

1885 law

Eshelman’s lead attorney, R. Reeves Anderson, said he was not authorized to comment following the Supreme Court’s decision not to take up the case. Eshelman, a North Carolina resident, couldn’t be immediately reached.

The hunters’ legal arguments relied on the 1885 Unlawful Inclosures Act, which prohibits blocking public access to public land, including by fencing and using threats and intimidation. Some landowners, law officers, agencies and agriculture groups have interpreted various corner-crossing cases to insist that corner crossing is trespassing.

In a criminal case separate from Eshelman’s civil suit, the Carbon County attorney, at Eshelman’s insistence, in 2021 charged Cape, Philip Yoemans, Zach Smith and John Slowensky with misdemeanor criminal trespass.

Three of the hunters corner crossed to reach public land surrounded by Eshelman’s 20,000-acre-plus Elk Mountain Ranch in 2020. All four corner crossed to hunt on wildlife-rich Elk Mountain in 2021.

A six-person Carbon County jury found them not guilty in 2022, returning a verdict in less time than it took a hungry reporter to order and consume a quickly made taco salad from Rose’s Lariat café in Rawlins.

The Supreme Court decision today was almost as swift and certain. It filed the order without comment or dissent.

“It’s just an immediate sign they have reviewed the matter in as short a window as possible,” Semerad said of the Supreme Court. “They looked at it and said, ‘We don’t need to do anything here,’ at least that’s my interpretation.”

The order spans the 10th Circuit’s jurisdiction across Wyoming, Colorado, Utah, New Mexico, Kansas and Oklahoma. Had the Supreme Court heard the case, whatever decision it reached would have applied across all 50 states.

Mixed feelings

Cape said he was torn over whether it would have been better for the Supreme Court to take the case and expand the 10th Circuit decision across the country — an uncertain proposition — or settle for what he, his companions and the rest of the country won in the 10th Circuit. Semerad, too, said he had mixed feelings.

“There’s just this little nugget in me that’s like, I wanted to go do the fight,” he said of the now-disappeared prospect of arguing the case in front of nine justices. “But that is totally personal. I just wanted to throw some more punches.”

“But for now, this is where the book closes.”

Corner-crossing defendants wait for their trial to begin in Rawlins on April 27, 2022. They are Phillip Yeomans, second from left and partly obscured; John Slowensky, foreground in the front row; Bradly Cape, second from left in back row and Zach Smith, right. (Angus M. Thuermer, Jr./WyoFile)

Cape and friends had been hunting in Wyoming the year before they first corner crossed. They stumbled across Elk Mountain and talking to nearby ranchers they learned it was thick with elk to the point neighbors had to protect their haystacks from the herd.

Eshelman, they were told, didn’t allow the general public to hunt on his ranch or to corner cross to reach public land enmeshed in his holdings. By blocking corner crossing, Eshelman reaped for himself the bounty of property belonging to all Americans, the hunters contended.

Cape did some research and found a real estate agent’s listing for the ranch around the time Eshelman bought it in 2005. That listing described the ranch as consisting of both private and public property, amounting to 50 square miles or about 32,000 acres.

The ranch on the 11,156-foot-high Elk Mountain was listed for $19.9 million at the time. Court rulings, the listing stated, give the ranch owner exclusive access to the enmeshed public land.

“Reading that is first what got me to looking into such a thing,” Cape said of corner crossing. “It just didn’t make sense to me,” he said of the notion that corner crossing was illegal.

The legal case Cape found, a 1970s saga known as Leo Sheep, dealt with the construction of a road, also in Carbon County, across a common checkerboard corner. The Supreme Court said the government did not have the right to build a road that invaded private property.

Fence builder

Cape owns the All-Type Fence company in Cuba, Missouri and knows something about property lines, he said.

“All I wanted to do was walk and hike and hunt and cross the corners,” he said. “So that [Leo Sheep] case didn’t have any relevance [to] me. I kind of realized what was going on, that it [the real estate listing and similar claims] was just propaganda trying to keep people out.”

He briefed his hunting buddies — a high school music teacher, a mechanic and an employee at his company.

“Once I found this [Leo Sheep case] and figured this out kind of on my own and then relayed that information to them, they never doubted me,” he said. “They were good to go.”

Cape credited Semerad and fellow attorney Lee Mickus, the Wyoming chapter of Backcountry Hunters and Anglers and others. Backcountry Hunters raised funds to wrangle the case through the courts for five years, ensuring the men had the funding necessary to stand and fight in court.

Eshelman is a wealthy pharmaceutical magnate, a significant political donor to conservative causes and a philanthropist who’s given millions to his alma mater, the University of North Carolina. He’s also a hunter and conservationist who placed significant development restrictions on thousands of acres of private ranch land that he bought and sold around Elk Mountain.

Backcountry Hunters’ fundraising got a boost when Steven Rinella, an author, hunter, conservationist and television personality who founded The Meateater, featured the corning crossing saga in his broadcasts.

“Our money, like doubled overnight,” Cape said. “So it was pretty easy to see early on that the support that we had was incredible.”

Also incredible, Cape said, is what he learned.

“It’s just one of those life journeys that you don’t suspect,” he said. “You learn all kinds of stuff about the legal system.

“I didn’t realize … there was that much propaganda built up, selfishness.” Cape said. Landowners “just kind of made that stuff up as they went along,” he said, something that was “kind of shocking to me.”

Semerad looked ahead. “It’s a solid foundation upon which to think about how to orient your life,” he said. “There’s going to be bad actors who have their own intentions, who want to treat these public resources — like our public lands — as a private kingdom.

“But every time they do that, they are cutting against American tradition and history, and they’re going to lose and there’s going to be a way to beat them.”