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Judge in corner crossing case misunderstood trespass law

by Wyoming Livestock Roundup

A federal judge erred in interpreting a new Wyoming law he used, in part, to rule corner crossing is not trespassing, the Wyoming Stock Growers Association (WSGA) says.

The industry group, along with the Wyoming Wool Growers Association (WWGA), argued in a recent amicus brief Wyoming lawmakers did not intend the 2023 bill titled “Prohibiting travel across private land for hunting purposes” to authorize the contentious method of accessing public land.

The new law – an amendment to existing statute –  allows Wyoming Game and Fish Department (WGFD) wardens to cite hunters for trespassing if hunters “travel through” private property on their excursion. 

The law, however, defines traveling through as “physically touching or driving on the surface of the private property.”

Previous ruling

Those words seemed clear to Chief U.S. District Judge Scott Skavdahl when he ruled against Elk Mountain Ranch Owner Fred Eshelman earlier this year.

“The plain language of the recent amendment to this statute applies to corner crossings, as they occurred in this case, where defendants did not touch the surface of plaintiff’s land,” Skavdahl wrote. 

Seventy-nine legislators voted for the measure this year, with 14 against.

“Moreover, the statutory changes plainly demonstrate the Wyoming Legislature’s intent to ensure such corner crossing does not constitute a criminal act,” Skavdahl wrote.

Corner crossing is the act of stepping from one piece of public property to another at a common corner with two pieces of private land, all arranged in a checkerboard pattern. Four Missouri hunters did this at Elk Mountain Ranch in Carbon County in 2020-21, accessing thousands of acres of public land without stepping on Eshelman’s private property.

Eshelman sued the men for trespass in civil court, lost and is appealing to the 10th Circuit Court of Appeals in Denver, where WSGA is backing him. 

The hunters say federal law prevents Eshelman from blocking their passage to public land. Judge Skavdahl ruled passing through the airspace above private land at checkerboard corners in Wyoming is not trespassing.

Not guilty

A Carbon County prosecutor in 2021 charged the Missouri hunters with trespassing, but a jury found them not guilty. Eshelman sued the four in civil court for trespassing and lost the case, which he is now appealing.

In siding with Eshelman, WSGA claims the legislature did not intend to legalize corner crossing through the 2023 amendment to WGFD trespass statutes.

“The district court erred in its presumption regarding the intent and the purpose of the Wyoming Legislature related to the corner crossing issue,” WSGA Attorney Karen Budd-Falen wrote in her amicus brief. “This statute was passed to eliminate a striking inconsistency between Wyoming criminal statutes.”

“The words about physically touching or driving on private property were added to the bill to ensure there was no argument the newly passed legislation was an attempt to usurp or comment on the district’s and this court’s jurisdiction in the present case,” Budd-Falen wrote.

The clause in question “was not a statement by the Wyoming Legislature about this litigation.”

To this end, WSGA Executive Vice President Jim Magagna, who also represents WWGA, signed a declaration regarding the bill he lobbied for. Budd-Falen filed it as part of her brief.

This declaration states his industry “felt this amendment bill was being done in response to an inconsistency in the existing law, not in response to the ‘corner crossing’ litigation.”

Lawmakers made this clear, WSGA contends, with a caveat. This caveat states the standard of “physically touching or driving” applies only to “the purposes of this subsection,” which was to further empower WGFD wardens.

Legislators sought the amendment, WSGA maintains, because game wardens otherwise could charge hunters with trespass only if they hunted on private property. This left county sheriffs with the task of policing hunters who trespassed on their way to hunt, fish or collect shed antlers, a job wardens could better undertake because of their presence in the field.

Magagna lobbied for the bill while expressing doubts about its wording.

“Why are we, in this case, only protecting a part of the landowners’ property rights rather than the entire property rights?” he asked the Joint Judiciary Committee as it was marking up the bill in September 2022.

“In the court of public opinion, we’ll be seeing this language used as further evidence the state really does not support protecting landowners’ right to the reasonable amount of space above their property,” Magagna told lawmakers. “Perhaps we just have to deal with those issues.”

Every small landowner

Budd-Falen wrote the case is about the common man, not just about multi-millionaire Eshelman, a North Carolina pharmaceutical magnate who owns the wildlife-rich 22,045-acre ranch. 

Some 6,000 acres of public land are enmeshed in the checkerboard pattern of ownership and inaccessible to the public under any definition corner crossing is trespassing.

But, corner crossing is currently legal in the Wyoming checkerboard following Skavdahl’s ruling earlier this year. His decision affects ranch and property owners who don’t own vast tracts like Eshelman’s, Budd-Falen wrote.

“This case is not just about a large, out-of-state, landowner, but also about every small landowner who also operates a ranch in the checkerboard,” she wrote. “This case is also not just about ‘innocent’ hunters enjoying wildlife in Wyoming, but the district court’s ruling which allows any member of the public, regardless of their intentions, to trespass on private lands or in private airspace.”

Budd-Falen also argued Skavdahl’s decision “leaves private property and ranching operations at great risk.” 

The land grants by Congress which created the checkerboard pattern to fund construction of the Union Pacific Railroad “do not reserve an implied or express easement for public access,” she wrote. 

“The Unlawful Inclosures Act of 1885 the hunters relied on in their successful defense, does not apply in this case,” her brief reads.

“Congress created the checkerboard system that has created this case today,” Budd-Falen wrote. “And, it should be up to Congress to fix it.”

Angus M. Thuermer Jr. is the natural resources reporter for WyoFile. This article was originally published in WyoFile on Dec. 19.

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