Wyoming Corner Crossing Case Deepens with New Charges and Civil Lawsuit

Wyoming Corner Crossing Case Deepens with New Charges and Civil Lawsuit

Editor’s note: In October 2021, four Missourians hunting in Wyoming were cited for criminal trespass after “corner crossing” from one square parcel of public land to another across adjoining corners—presenting an opportunity to test an infamously murky legal issue. This article is the third installment of our coverage. For more background on the situation, we’d suggest reading the first article here and the second here.

In a rapidly evolving case, the hunters who used a special stepladder to cross from one corner of public land to another adjacent to the Elk Mountain Ranch in Carbon County, Wyoming, last fall now face new legal challenges and an apparently hostile state legislature. Though it may seem the fences are closing in around them, attorneys for the hunters maintain cautious optimism.

Civil Suit On Feb. 15, the entity controlling the private lands in question filed a civil suit against Brad Cape, Zach Smith, Phil Yeomans, and John Slowensky, the hunters from Missouri previously charged with criminal trespass. Iron Bar Holdings, LLC, a business registered in North Carolina and owned by pharmaceuticals businessman Fred Eshelman, seeks an alternate path toward punishing the hunters for accessing landlocked public lands in pursuit of elk and mule deer.

“Plaintiff [Iron Bar Holdings] has a right to exclusive control, use, and enjoyment of its Property, which includes the airspace at the corner, above the Property,” attorney Gregory Weisz wrote in the suit. “For the purposes of this Complaint and under controlling law, the Property includes the airspace above the surface of the land, the surface of the land, and the subsurface below. Plaintiff owns and controls the airspace above its real property and is entitled to exclude others from the use of that airspace by a ‘corner crossing.’ Defendants knowingly, intentionally, and purposefully interfered with Plaintiff’s right to use, control, and enjoy its Property by ‘corner crossing’ through the Property and trespassing across the Property, even if Defendants did not step onto the surface of the Property.”

The civil suit seeks to recover unspecified monetary restitution for the alleged civil trespass in an amount to be proven at trial, plus costs and fees. The plaintiff’s lawyers must prove that damage was done to their client, but if they do, a judge’s ruling could set precedent around the legality of corner crossing in Wyoming. However, by the same logic, a ruling in favor of the hunters could potentially open the door to accessing hundreds of thousands of acres of public lands in the state.

No dates have been set in the civil case and it will likely lag behind the criminal proceedings, which by law must take place within 180 days of charging. The criminal trial begins April 14.

New Criminal Charges In a motion from Feb. 10, the county prosecutor asked the court to add another charge against Cape, Yeomans, Slowensky, and Smith: trespassing to hunt. Carbon County Deputy Prosecuting Attorney Mark Nugent requested this change of citation with the accusation that the hunters “entered or remained on or in the land or premises of another person, Fred Eshelman, to hunt without the permission of the owner…and did so after being notified not to trespass by observing signs posted.”

Attorneys for the hunters suggest that this move is likely an effort by the prosecutors to provide multiple avenues for conviction. However, the charge does seem to stand in stark contrast to the 2004 Wyoming Attorney General’s opinion that corner crossing “may not violate the game and fish trespass statute,” which is still available for all to read on the Wyoming Game & Fish Website. The hunters read that prior to their actions and were informed multiple times by game wardens that they were not doing anything wrong under hunting statutes. The hunters wonder how such an infraction is even possible, since their guns were unloaded and stowed while stepping across the contested corners for less than a second.

Body Camera Footage On Oct. 1, 2021, several law enforcement officers arrived at the hunters’ basecamp following repeated calls from the ranch manager, Steve Grende. Video from a body camera worn by Carbon County Sheriff’s Deputy Alex Bakken captured that interaction and was produced by the state during discovery on this case. The investigative news site WyoFile obtained that 16-minute clip and posted it on YouTube.

“I have signs there, so you can’t step over them,” Grende said.

“As far as a game and fish trespass, I don’t think I can really do much with it. It would be more of the criminal side,” WGFD Officer Jake Miller replied, handing off to Deputy Bakken.

“Can’t do anything for it,” Bakken responded. “We’ll write it up, but the county attorney won’t prosecute for corner crossing. The only thing they try to get them with is trespass to hunt because the whole corner crossing stuff is so up in the air in the state.”

The law enforcement officers made light of the notoriously vague and ill-defined legal issue and struggled to explain which department was even responsible for charging any possible infraction.

“We won’t know until it gets contested at the state level,” Bakken said.

The conversation between the officers and ranch manager was relatively amicable, though Grende threatens the hunters and others in a variety of ways.

“I have guys with rifles ready to shoot anything up there…They don’t know if you’re a guy or a f****** bigfoot. I’m not joking,” Grende said, referencing outfitted clients with permission on the land.

“Do they realize how much money my boss has?” Grende can also be heard asking the officers.

Bakken and Miller declined to charge the hunters with any wrongdoing at the time. Three days later, however, another deputy arrived with direct orders to cite Cape, Yeomans, Slowensky, and Smith with criminal trespassing.

Response to Dismissal Motion As discussed in MeatEater’s previous coverage of the situation, attorneys for the hunters filed a motion to dismiss the charges against them on Jan. 31. Carbon County Prosecuting Attorney Ashley Mayfield Davis attempted to rebut those arguments in a Feb. 24 filing.

In it, she first reminds readers that three of the four hunters performed the same corner crossing the year prior and that charges were still “pending” on their trip last year. Mayfield Davis also states that it’s been the consistent policy of her office that corner crossing is illegal since at least 2008. The hunters’ attorneys, she argues, are misinterpreting federal law in their request that the judge throw out the case.

The Unlawful Inclosures of Public Lands Act of 1885, the thrust of the argument from the plaintiffs, says that no person “by force, threats, intimidation, or by any fencing or inclosing” can prevent or obstruct anyone else from entering public land. Mayfield Davis claims that marking corners with a post and No Trespassing signs does not constitute “enclosing” public lands.

She also pointed to Leo Sheep Co. vs. U.S., a 1979 U.S. Supreme Court Case which held that the government has no implied easement to access public lands through private. The prosecutor also argued that past reviews of the Inclosures Act suggest that it did not create any special easements through private corners, making it all but void in this situation.

Finally, Mayfield Davis entered as evidence a BLM memo from 1997 that says the department does not consider corner crossing to be legal public access, based on many of the same arguments. Nothing in the judicial record of the U.S. or Wyoming suggests that citizens have the right to briefly trespass through private airspace at a checkerboard corner, the prosecutors insist. Their opponents, however, believe they can prove otherwise.

Legislation Two bills were proposed during the Wyoming Legislature’s 2022 Budget Session that sought to solidify the legal interpretation of corner crossing in favor of landowners. Neither was ultimately considered for introduction. HB0103, “Prohibit travel across private land for hunting purposes,” would have expanded the prohibition against entering or crossing enclosed property without permission, although the sponsor, Rep. Barry Crago, insisted that it was not a corner-crossing measure, according to WyoFile.

HB0128, “Trespass by Drone,” sponsored by Rep. Albert Sommers, would have made it illegal to fly a drone under 200 feet or lower over private land without permission, punishable by up to six months in prison or a $750 fine. Observers suggest that this was an attempt to define a threshold for private ownership and control of airspace, but the bill was also not considered for introduction prior to the deadline.

These bills would not have any direct bearing on the current legal proceedings because Wyoming’s ex post facto statute only allows people to be charged for actions that were illegal at the time of the offense. However, the legislation serves as a weathervane signaling political headwinds against hunters who would like to be able to hunt on landlocked public lands via connected corners. Some 404,000 acres of public ground in Wyoming alone would be accessible if corner crossing became legal, according to a study and report by the Center for Western Priorities. That number rises almost to 1.6 million acres when you add similar areas in Montana, Idaho, Utah, Colorado, and New Mexico.

Optimism and Doubt A pretrial conference has been set for March 24, to be followed shortly by a trial for the criminal charges on April 14. Attorney Ryan Semerad, who is representing Phillip Yeomans in this case, spoke to MeatEater about the current situation and his predictions for what comes next.

“I still feel very optimistic about the case,” Semerad said. “I think that we've got a pretty strong position from a legal standpoint on the arguments that we made in the motion to dismiss. Generally speaking, I think our position is still very strong.”

He went on to explain that, functionally, people who are trying to prevent or ban corner crossing are in fact taking something they don’t own from the American people.

“There's a couple of legal factors that are going into this issue,” he said. “The primary thing is that corner crossing is about public access to a public asset: public land. And what is happening is private landowners in many locations are effectively saying 'we can use the structure of the checkerboard to say that the public can never access these public lands.' And that position confuses the actual rights and property interests that private landowners have. It also undermines and dilutes the power of the public to use and enjoy what is a public asset.”

Semerad said that it’s hard to anticipate the outcome of any legal case as complex as this one, but there are clear pathways to either the Wyoming or United States supreme courts—albeit narrow pathways. One allegory he gave was another recent high-profile elk hunting case: Herrera vs. Wyoming, which MeatEater covered several times. In that case, the hunter in question lost in circuit court, then in district court, then the Wyoming Supreme Court chose not to review, so they appealed to the U.S. Supreme Court and eventually won.

“That all came from a misdemeanor case in circuit court in Sheridan. So, I'm not saying it's necessarily going on that exact route, but that is a well-trodden path,” he said. “Obviously we don't want to lose at any stage of this process. We'd like to succeed and defend our clients fully, but a win at that circuit court level wouldn't set precedent. But it's the best outcome for my clients who didn't commit a crime.”

The other opportunity for these four hunters and the public land hunting community to succeed is to follow the appeals process to the Wyoming Supreme Court—which would have to take it up, unlike the federal bench. Semerad and others see plenty of compelling reasons why either high court might be interested in trying to resolve such a confounding and contentious legal issue.

“This thing has some issues that affect lots of people, and those people are not just some special interest group,” Semerad said. “It's the ordinary people, it's the public wanting to use a public asset versus a small group of private landowners who don't want the public to be able to use that public asset. And I'm sure they would be saying I'm mischaracterizing their position and that they just want to protect their own private property rights. And I think that it's fair enough for them to try to say that.”

However, Semerad is concerned about the larger implications of the private landowners getting their way.

“The thing here is, what is the intended consequence and the actual consequence of that position?" he concluded. "The intended consequence is to have some kind of quasi-control over public lands that are landlocked, and the actual consequence is exclusion of the public from public land. That is a big question that needs to be answered.”

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