Public landowners had a big win in the Supreme Court this week when the justices chose not to hear Fred Eshelman’s appeal of a 10th Circuit Court ruling that said four hunters did not trespass when they corner-crossed from one section of public land to another in 2021.
The land in question is a checkerboard of public BLM land and private property, part of Eshelman’s Elk Mountain Ranch, in southeast Wyoming.
So, corner crossing is now legal in the 10th Circuit states of Wyoming, Colorado, Utah, Oklahoma, Kansas and New Mexico. In the rest of the West, including Montana, part of the Ninth Circuit, the status of corner crossing remains uncertain. Since the court did not rule on the appeal, only declining to hear it, the decision does not apply nationwide.
What does that mean in Montana? To a degree, corner cross at your own risk. It seems doubtful a Montana jury will be any more likely to convict corner crossers than was the jury in Wyoming. Even less so now. But you could still find yourself in court fighting a trespass citation from local law enforcement.
The 10th Circuit ruling was a logical and appropriate decision. The public owns every other section in checkerboard areas and the suggestion that crossing through the airspace over a corner boundary constitutes a trespass is absurd.
One thing Eshelman’s legal team didn’t do was make the case that this use of airspace was a takings until late in the process, too late for it to be considered by the 10th Circuit. What the court did decide was that it was legal for the hunters to access the BLM section, provided they did not set foot on private property while doing so. The court also reconfirmed that The Unlawful Inclosures Act of 1885 prohibits private property owners from obstructing access to public land.
This fight isn’t new. Public Access Advocates have pursued corner-crossing legislation in Montana for years, without success.
The crossings that led to the fight in Wyoming began when four elk hunters from Missouri used a lightweight ladder, they fabricated to access the BLM sections that alternate with sections of private property.
Eshelman pursued trespassing charges against the four, but a six-person jury ruled in the hunters’ favor. Eshelman then sued for civil damages in federal court. In that claim, the ranch owner sued for damages, arguing his land would lose millions in value if he lost exclusive access to hunt on the adjoining public land.
A reminder that this was always about money and control.
A photo of the corner where the four hunters first crossed using the ladder demonstrated the absurdity of the case. There weren’t fences running to the survey marker that located the corner, just two fence posts driven into the ground and chained together to obstruct corner crossing.
A pair of fence posts, but no fences, in a sea of sagebrush.
I suppose we might find out soon how Montana will handle this. It’s hunting season and there are 1.5 million acres of landlocked public land in the state. Corner crossing may ultimately open some of that land to the public. Someone’s certainly going to try.
If there’s anything a potential Montana corner crosser should take from the Wyoming ruling, it’s that they need to take this seriously. One of the reasons the Wyoming corner crossers won in court was that they were careful to never step where they shouldn’t.
GPS units are not accurate to the inch or even foot. The corner crossers used the technology to locate corner pins, then crossed. This ensured they had a solid case once they were sued.
For now, let’s celebrate the win while remembering this is an evolving situation. Some landowners won’t give a flip, but others won’t relent so easily. Regulations may ultimately be required to manage corner-crossing conflicts.
For the access fight remains eternal.