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No immediate ruling on corner crossing appeal

The intermingling parcels on Elk Mountain. Highlighted regions are federal, state parcels are marked and blank spots are private.
(Screenshot courtesy of OnX Backcountry)
The intermingling parcels on Elk Mountain. Highlighted regions are federal, state parcels are marked and blank spots are private.

Judges have not yet ordered a ruling after hearing oral arguments last week for a case that could determine access to some eight million acres of “corner locked” public land in the West.

The question at hand is whether corner crossing – stepping from one parcel of public land to another over a common corner shared with private property – is a form of illegal trespass.

A three-judge panel for the 10th Circuit Court of Appeals will wade through conflicting legal precedent dating back to the late 1800s to make their ruling. That ruling is expected soon, though judges did not indicate when.

A recording of the oral arguments for Iron Bar Holdings v. Cape, et al. can be heard here.

Lawyers for Fred Eshelman, who owns a private ranch near Elk Mountain, argued that allowing people to pass through his airspace in order to access kitty-corner tracts of public land would lead to eroding private property rights.

“The idea that there is some hidden right under state law is not true,” said Robert Anderson, Eshelman’s attorney. “If a corner crossing is not a trespass because there's a reasonable right of access to the public domain, the public will use ATVs, campers, snowmobiles – suddenly an airspace intrusion becomes a road in very short order.”

Anderson said it’s up to the federal government to create access to public lands by buying easements from private landowners.

He also pointed out that a bill that would have carved out a corner crossing trespass exception did not make it through the Wyoming legislature in 2023. That bill was drafted but never introduced.

Lawyers for the four hunters from Missouri, who Eshelman accused of trespassing on his ranch in 2020 and 2021, argued that Congress did not mean to block access when it gave every other square-mile section to railroads in the late 1800s, creating the checkerboard pattern of land ownership at the core of this case.

“Congress did not single out landowners to facilitate this passage,” said Ryan Semerad, an attorney for the hunters. “But it did tell everyone, including checkerboard landowners, that they can't make this passage impossible. There is no alternative way to freely pass between public land sections and the checkerboard other than corner crossing, while keeping off the neighboring private lands.”

Last year, Chief U.S. District Judge Scott Skavdahl granted the hunters' request to dismiss the civil suit, saying federal law prohibits landowners from blocking access to public lands. The 10th Circuit Court is currently weighing Eshelman’s appeal.

Separately, a Carbon County jury found the hunters not guilty of criminal trespass in 2022.

Nicky has reported and edited for public radio stations in Montana and produced episodes for NPR's The Indicator podcast and Apple News In Conversation. Her award-winning series, SubSurface, dug into the economic, environmental and social impacts of a potential invasion of freshwater mussels in Montana's waterbodies. She traded New Hampshire's relatively short but rugged White Mountains for the Rockies over a decade ago. The skiing here is much better.
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