A ruling by a federal appeals court has concluded that a congressional act preempts a state’s power to impose and enforce its own trespass laws. Corner crossing, accessing public land from one piece to another where two parcels meet with two privately owned parcels without stepping foot on privately owned land, is now legal in the 10^th Circuit’s six states: Wyoming, Colorado, New Mexico, Utah, Oklahoma and Kansas.

A Carbon County, Wyoming, ranch owner sued hunters in 2022 for doing just that, arguing that he owns the airspace above his land, which they passed through to access public land during an elk hunt. The checkerboard pattern dates back to the days of railroad construction in the 1800s, when railroads raced to lay track, thereby laying claim to the 640-acre tracts. When many of the government-owned tracts were not settled, those lands were deeded to the public.

Jim Magagna, executive of the Wyoming Stockgrowers Association, said the ruling is disappointing.

“The bright side at this point at least is that it was very narrow as I read it,” he said. “Even though the court discussed a lot of previous cases, their basic ruling was that as long as you didn’t physically touch the private land, stepping over the corner is acceptable as these people had done. It’s still a concern, but I’m glad they didn’t go further… as I was reading the decision I was afraid they were going to say you simply can’t deny access even if it means trespassing on private land. They didn’t go that far.”

Magagna said his members’ concerns center upon damage to private property, cut fences, opened gates and disturbance of livestock.

“My biggest fear in reading the case and the cases they cite, if another case came before them where the party was accused of having put their foot down on the private land to get across the corner, I’d be concerned these judges would appear to be in the position that they might rule as long as no physical damage was done to the private land that that’s acceptable as well. Once you start down this path, where do you go little by little?”

SUPREME COURT RULING

According to the opinion, the Supreme Court held over a century ago that private landowners cannot erect barriers which bar complete access to public lands based on the 1885 Unlawful Inclosures Act or UIA, which the 10^th Circuit interpreted the UIA to allow corner crossing if access to public lands is otherwise restricted.

Some of the original holdings of the Union Pacific Railroad who lay claim to the parcels, are now owned by Iron Bar Holdings, owned by Fred Eshelman of North Carolina. The ranch covers about 50 square miles and within that area, there are 27 federal and state parcels totaling 11,000 acres.

According to the court opinion, Iron Bar is not friendly to corner crossers, and had posted signs over the U.S. Geological Survey marker, chained together to discourage corner crossing. No other posts, fences or buildings exist within one-fourth mile of the marker. In 2020, the Missouri hunters couldn’t fit between the chained signs so “one by one, each grabbed one of the steel posts and swung around it, planting their feet only” on the public section and passing through only the airspace about Iron Bar’s property.

The group were located by Iron Bar’s property manager on public land and asked to leave the area, which they refused. Law enforcement was contacted, and the responding sheriff did not issue a warning or citation and the group finished their hunt and returned home.

The hunters returned the following year with a steel A-frame ladder to avoid touching Iron Bar’s signposts. The hunters were contacted by Iron Bar employees multiple times, and they interrupted their hunt by driving motorized vehicles across public parcels to scare away game. Again, law enforcement was contacted by Iron Bar, but both the Wyoming Game and Fish Department and local sheriff’s office refused to take action.

According to the opinion, the manager contacted the local prosecuting attorney’s office, who agreed to prosecute the hunters for criminal trespass. That office directed the sheriff’s office to write the hunters a citation for criminal trespass. At a jury trial, the hunters were acquitted.

TRESPASSING LAWSUIT

The same day, Iron Bar served the hunters a lawsuit for civil trespassing, alleging $9 million in damages owing alleged diminution of the property value. The district court held “corner-crossing on foot in the checkerboard pattern of land ownership without physically contacting private land and without causing damage to private property does not constitute an unlawful trespass.”

A case that has been cited with regard to Colorado’s so-called Farm Worker Bill of Rights, was cited in the court opinion as well. Cedar Point Nursery v. Hassid for the opinion ruling the right to exclude. One way to exclude is fencing, though the opinion clarifies that “UIA’s text makes plain in two ways that inclosure does not refer solely to physical fencing.” The opinion notes, “as Wyoming territorial justices observed long ago, ‘the fence is made for beasts; the law is made for man.'”

The UIA was first interpreted by the U.S. Supreme Court in 1897 in Colorado when the government accused a rancher of building a fence around the odd-numbered sections, inclosing about 20,000 acres of public land. The UIA was again interpreted by the high court in 1922 when a group of cowboys confronted a group of shepherds moving sheep across federal public land in Idaho. The cowboys claimed the land was cattle range and ordered the shepherds to access a different trail several miles away on the opposite side of the river. A shootout commenced when the shepherds refused and the court affirmed the cowboy’s convictions, explaining the passage or transit is to be unobstructed.

The court found that the UIA remains good federal law, prohibiting Iron Bar from implementing a program to deny access to federal public lands for lawful purposes. The district court affirmed the lower court’s decision that the hunters could corner cross so long as they didn’t physically touch Iron Bar’s land.