Inside the Wyoming Corner Crossing Case Everyone is Watching

Inside the Wyoming Corner Crossing Case Everyone is Watching

In early October, four hunters were pursuing elk and mule deer in the foothills of southern Wyoming. Brad Cape, Phillip Yoemans, John Slowensky, and Zach Smith, friends from Missouri, read on the Wyoming Game and Fish website that crossing adjoining corners of public land parcels was not in violation of hunting statutes, so they chose to use this method to hop from one public parcel to the next and get deeper into the hills, even using a stepladder they fabricated to make sure they didn’t trespass at one prominent corner.

The private land surrounding those public parcels is mostly consolidated into a 75,000-acre ranch owned by Fred Eshelman, a multi-millionaire pharmaceutical businessman and hunter from North Carolina. His ranch manager became aware of what the Missourians were doing and began watching and following them and repeatedly calling law enforcement, according to the hunters, who spoke to MeatEater off the record for background on the case.

First, the local game warden arrived with two sheriff's deputies. He told the hunters that there was nothing wrong with what they were doing and left them to their hunt. He told the ranch manager the same thing. The next day, a sheriff’s deputy arrived but also wouldn’t charge the hunters with wrongdoing. Finally, a third law enforcement officer arrived with direct orders to ticket the hunters, not for hunting without permission, but for criminal trespass. That misdemeanor charge carries a $750 fine.

A court date will soon be set for the spring, so it remains to be seen what will come of this case. Due to the intense interest from public land users in clarifying this notoriously murky issue, the Wyoming Chapter of Backcountry Hunters & Anglers set up a GoFundMe page to raise money for the legal defense. It has generated more than $60,000 as of this publication.

However, it’s worth noting up front each individual state establishes its own trespass law and relevant court precedent. If any ruling comes out of this conflict, it will apply only to Wyoming. Even still, some people familiar with the politics of the Cowboy State and property law within it are not hopeful to see this particular case change the tide on public access—though that possibility exists.

A Game of Checkers “Corner crossing” refers to the act of stepping between square public land parcels that touch only at their corners, as if moving diagonally from black to black on a chess or checkerboard. It’s been a topic of much debate across the West in recent decades. The advent of GPS-enabled smartphone applications loaded with cadastral landownership data like onXmaps made it possible for hunters to know their exact whereabouts at all times, allowing them to identify and explore public areas held in trust for the enjoyment of all Americans. But a lot of that land doesn’t exist as big, wide blocks that you can hike across all day without reaching the horizon. A great deal of it looks like a big, wide checkerboard, leaving millions of acres not easily accessible without permission or a helicopter. That doesn’t make much sense on its face, but knowing the genesis helps you understand how we got here.

In the Pacific Railway Act of 1862, Congress provided an incentive and subsidy to the train industry to build a transcontinental railroad. That deal, signed into law by President Abraham Lincoln, granted the railroad builders 10, 1-square-mile units of land adjacent to the line, alternating with public parcels, for every mile of track they laid. The idea was that the cross-country route would increase the value of the federally managed lands in between the granted parcels, which the government could then sell for a profit-while at the same time advancing private enterprise and America’s westward expansion. You can learn more in this report on landlocked public lands from onX and the Theodore Roosevelt Conservation Partnership.

It's important to remember that the idea of public lands as the national treasure many Americans view them as today had yet to coalesce in the 1860s. Just two months prior to signing the Pacific Railway Act, President Lincoln also signed the Homestead Act, which gave citizens the right to claim and “prove up” 160 acres of land from the public domain west of the Mississippi. The government was literally giving away its landholdings. It wasn’t until President Theodore Roosevelt latched onto the idea of national parks and forests around the turn of the 20th century that maintaining the federal estate for the enjoyment of the people was really a part of the national conversation. Even still, the Homestead Act wasn’t fully abolished until 1976.

“Meanwhile, in the piecemeal division of the public domain through the Homestead Act, public lands that had little economic value went unclaimed, and frequently became closed in by adjacent private holdings,” the TRCP-onX report explains. “In other instances, some enterprising Western settlers accumulated so much land that public tracts were entirely surrounded by individual ranches or walled off against natural features like rivers and impassable terrain. Later, the abandonment of homesteaded farms and a high-profile railroad land scandal returned millions of acres of generally isolated and disjointed tracts of land to the Department of the Interior.”

This resulted in the tapestry of checkerboarded public lands still visible across the West today. The report identified nearly 16 million acres of state and federal lands in the West that aren’t accessible without permission from an adjacent landowner—much of which is due to checkerboarding. Many landowners claim de facto control over access to public lands, while sportsmen and women long for new places to hunt that seem just one long step out of reach.

Rules of the Game The legality of stepping from one public parcel to another across a shared corner is still a legal gray area and one interpreted (or ignored) by individual states rather than the federal government. MeatEater Founder Steven Rinella succinctly summed up the situation in a recent post:

“In these situations, access proponents believe it should be legal for hunters to step from one of these parcels to the other,” he said. “If the intersections were properly marked, and step ladders installed, you could step from one to the other without ever placing yourself on private property. Invariably, the folks who hate the idea of corner crossing are the people who enjoy private access to those public lands. As is, they can block public access through the dubious concern that someone’s shoulders would theoretically be in their ‘airspace’ for a fraction of a second. While it’s accepted as such, it’s actually not entirely clear whether or not corner crossing is truly illegal. In fact, it’s being tested in Wyoming right now by four hunters who stand accused of criminal trespassing.”

Wyoming has a complicated history with this legal concept. In 2004, Wyoming resident Bill Kearney was acquitted of a game and fish trespassing charge after he corner crossed with a handheld GPS to hunt isolated public lands. In response, the attorney general wrote an opinion that has formed some understanding of the issue’s legality:

“‘Corner crossing’ from one parcel of public land to another in order to hunt on that other public parcel, depending on the factual situation involved, may not be violative” of game and fish trespass statute, Attorney General Patrick Crank wrote. “Because, to be convicted, the state requires a person hunt or intend to hunt on private property without permission. ‘Corner crossing,’ however, may be a criminal trespass.”

WGFD still quotes that decision on their website as guidance for public land hunting. Many hunters, including Cape, Yoemans, Slowensky, and Smith, have taken it to mean corner crossing is permissible if your intent is to simply access the public land on either side and you don’t set foot on private ground. Several bills to clarify this issue have failed to advance in the legislature. Other states operate under different legal understandings of varying shades of grayness, such as Montana where corner crossing is not widely accepted as legal. North and South Dakota define section lines as a public right of way, which seems to allow corner crossing or at least access to landlocked public lands. Most other Western states have been relatively silent on the matter, and it’s not much of an issue in areas to the east unaffected by railroad land grants.

Proponents of private property rights, however, insist that there’s conceptually no way to cross between corners without trespassing. And they are often more unified and organized than hunters.

Jim Magagna is the executive vice president of the Wyoming Stockgrowers Association, an influential group representing ranching interests in the state. He told MeatEater that his group believes corner crossing violates private property rights. Magagna pointed to the 1979 U.S. Supreme Court case Leo Sheep Co. vs. United States, which derived from the government building a road across private property to access a reservoir. While the appeals court said that when the government granted land to the Union Pacific Railroad it implicitly reserved right to access through that land, the Supreme Court reversed. The justices held that the government does not have an implied easement to build a road across private land to access public. Their decision did not address whether an individual could step from one piece of public land to another, however.

Still, Magagna and other private property advocates say that the act of corner crossing intrudes on the adjacent landowner’s private airspace.

“Because of the airspace, whether your foot touches the ground or doesn't touch the ground, just the act of your body passing through that space would, under that theory that we've always maintained in Wyoming, constitute a trespass,” Magagna said. “It may not have a physical impact on the land or anything. It may not have in this case, but in the sense of fundamental property rights, a violation of my fundamental rights is a violation, whether it occurs through the middle of my property or across the corner of my property. The legal principle is not any different.”

In support of this theory, proponents also look to U.S. vs. Causby, a 1946 Supreme Court case of a chicken farmer who had to abandon his business because of the constant plane traffic at the military airport next door during World War II. Causby claimed the government had illegally “taken” his property without compensation in violation of the Fifth Amendment. While the Supreme Court rejected the idea that a person’s property rights extended infinitely upward, the justices did hold that "if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere." They didn’t specify an exact altitude, rather condemning air travel that has “a direct and immediate interference with the enjoyment and use of the land.”

The federal government regulates airspace 500 feet and above the land surface, leaving the states to decide what happens below. Wyoming statute 10-4-302 states that ownership of the space above private land is vested in the owners below, subject to the right of flight. The next clause, 10-4-303, however, permits flight over private property unless it is “At such a low altitude as to interfere with the existing use to which the land or water” or “Conducted as to be imminently dangerous to persons or property lawfully on the land or water.”

The Wyoming circuit court hearing this case will certainly consider these laws to decide whether these hunters committed criminal trespass. Of course, it’s worth remembering that Cape, Yoemans, Slowensky, and Smith used a stepladder rather than an airplane. But the fact that this discussion verges into highly imaginative territory is not lost on those familiar with the issue.

Double Jump Dave Willms is an attorney, hunter, senior director for Western Wildlife at the National Wildlife Federation, and former policy advisor to the Governor of Wyoming. He recently discussed this case on the MeatEater Podcast.

“There's this legal theory that you don't interpret a statute to create an absurd result,” Willms told MeatEater. “And if you interpret this statute in a way that says even if your shoulders passing over the boundary is considered a trespass, then the result is effectively prohibiting access to something like 2 million acres of public lands in the state on that action alone.”

He said some of the same statutes could be possibly read to actually allow corner crossing.

“So basically, you could fly pretty darn low under Wyoming law as long as you're not interfering with the use of the land or the water,” Willms said. “Does that mean I could fly 2 feet off the ground? In certain places, maybe. That law hasn’t really been interpreted on how low is too low and when are you interfering with the existing use. But to be clear, it's specific to flight. And this scenario is slightly different.”

Willms said that interpretation could work in favor of these hunters. He also points to another public trust exemption to private airspace that might be useful to them: the state’s stream access law. Under Wyoming’s constitution, water is a public trust resource, Willms said, and a state supreme court case affirmed that the public has a right to use navigable waters for recreational purposes such as floating, fishing, and hunting. The adjacent landowner owns the bed and banks of the river, however.

“So, when you think about it in that context, we've carved out an exception because you could be floating down a river and the bed and the banks, everything under it, you can't touch because that would be considered a trespass, which means those private lands are under the water," Willms said. "Theoretically, the airspace would apply up from there. Yet we can go float and fish that river even though we’re in private airspace. But if you put your foot on the ground or if you drop anchor, you can be cited for criminal trespass.”

Willms said he’d argue that point if he were the one in front of the judge: “So, my point there is, we've kind of carved out another exception, from a public trust standpoint, for water. So, we'd have air, water, and I'd make the argument that maybe the other exception is for land.”

King Me Amusing as it may be to follow legal flights of fancy such as the exact width of imaginary property lines and the applicability of personal jetpacks for public land hunting access, the Carbon County judge who hears this case in the spring will be tasked with examining evidence of the particular facts in this contested corner crossing event. He or she will not be able to write law or perhaps even set a durable precedent. That would have to come from the state supreme court.

It’s also possible that the prosecutor may choose to not prosecute the hunters, or the judge could throw out the case. Even an acquittal wouldn’t necessarily open the door for everyone to begin corner crossing all over Wyoming, but a guilty verdict would certainly be a setback for the public cause. Clearly, the legislature needs to take up this issue again in order to find a real solution—in Wyoming, as well as most of the other Western states except the Dakotas.

Magagna of the Stockgrowers Association and other sources familiar with Wyoming politics cautioned public land proponents about the political ramifications of their advocacy. He said they should seek compromise rather than division. The idea of non-resident hunters running roughshod over generational family ranches won’t sit well with many longtime residents of Wyoming.

“From what I know at this point, there are some entities and groups out there determined to make a major issue out of this particular trespass,” he said. “My theory is that it's not going to change the legal basis. I do believe it's going to harden more landowners against willingly granting access. Yes, anytime you have a fight like this, there there's always a downside to it.”

Magagna and conservationists alike have pointed to tools already available for consolidating disconnected public ground using land exchanges or purchasing easements with money set aside for that exact purpose like the Land and Water Conservation Fund. To that end, the federal government could be very helpful in negotiating compromises by providing the attention and resources these rural areas need to achieve sufficient access to lands owned by all Americans.

It's hard to say whether this will be the case that opens up millions of acres of public lands to new hunting opportunities. The path is narrow. But one thing certain is that politicians notice large groups of citizens clamoring for a cause. If enough hunters call their representatives, sign petitions, and join or donate to groups working on opening public lands, they might one day turn the tide on corner crossing.

MeatEater will continue to follow this case as it develops.

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