Corner crossing: Hunters challenge public land access issue in court

Four hunters contesting criminal trespass charges in Carbon County have pushed the debate about corner crossing — stepping over private property to reach public land — into the judicial system, with implications that could impact 1.6 million landlocked acres in five western states.

Carbon County authorities cited the four men for criminal trespass Oct. 4, according to a clerk at the circuit court in Rawlins. All entered pleas of not guilty, according to the clerk and others close to the case. Criminal trespass carries a penalty of up to $750 and six months in jail upon conviction.

The conflict grows out of the Western checkerboard land-ownership pattern set during the territorial settlement and railroad building days of the 1800s. At issue in Wyoming is whether hunters and others are trespassing if they step from one parcel of public land to another over a four-corner intersection with two private parcels — without touching private land.

In Wyoming 404,000 public acres are “landlocked” by the checkerboard pattern under any convention that views corner crossing as illegal. Many say the issue remains unsettled with no Wyoming statute explicitly addressing corner crossing.

But if the issue turns on federal law or is settled in a federal court, a decision could impact almost 1.6 million acres when also counting Utah, Idaho, Montana, Colorado and New Mexico, according to an assessment by the Center for Western Priorities.

The citations spurred the nonprofit Wyoming Chapter of Backcountry Hunters and Anglers and others to launch a GoFundMe campaign to pay legal fees, assembling 1,400 supporters who have donated $63,265 to the legal fight.

“These four hunters took every precaution to make certain private land was not touched,” the GoFundMe page, launched on Nov. 19, states. “We believe this act does not violate law or cause any negative impacts to private landowners and their use of their property.”

Attorneys for the men would not comment on the substance of the case but observers say the four appear to want to address the issue in court.

“It certainly is my understanding, my perception, the way this is proceeding — a Wyoming GoFundMe — that their intent is a broader showdown on the corner crossing principle,” said Jim Magagna, executive vice president of the Wyoming Stockgrowers Association. Any assertion that corner crossing is legal, “that’s something we will resist very strongly,” he said.

Given that the men have pleaded not guilty, retained attorneys, received fundraising aid and public support, “they’re not going to try to reach a plea agreement,” Mark Squillace, a professor at the University of Colorado Law School opined.

The men face charges of violating Wyoming statute 6-3-03, according to the circuit court in Rawlins. Under that law, a person is guilty of criminal trespass “if he enters or remains on or in the land or premises of another person, knowing he is not authorized to do so, or after being notified to depart or to not trespass…”

The men assured Jeff Muratore, one of the GoFundMe organizers, that they never set foot on private property, he said. In a photograph posted on the fundraising webpage purporting to show a corner in question, a chain and wire connects two fence posts on the kitty-corner private sections above a survey marker that presumably indicates the four corners’ common point. “No trespassing” signs for the Elk Mountain Ranch hang on the private-land fence posts.

The Elk Mountain Ranch covers more than 20,000 acres, according to Carbon County property records, and “landlocks” numerous 640-acre sections of public U.S. Bureau of Land Management property. The men used a ladder to climb over the fence-post obstacle, according to accounts.

A person answering the phone at the Elk Mountain Ranch would not comment.

“We see the corner crossing as a violation of private property rights,” Magagna said. Property owners have “a certain amount of space above the land,” that makes it physically impossible to corner-cross without violating that space, he said.

Even though there may be no physical damage, “it’s still a violation,” he said.

But Squillace said the defendants may find protection in the federal Unlawful Inclosure of Public Lands Act of 1885. That law, in short, prohibits fencing on private property from obstructing “any person” from peaceably entering public land. Penalties for a violation can reach $1,000 and a maximum of one year imprisonment.

Private property or public access

Attorneys can argue different interpretations of the UIA, but Squillace said “it absolutely applies,” to the corner crossing case. Blocking public access is a “clear violation of the Unlawful Inclosure Act.”

“The whole point,” he said, “is that you can’t prevent the public’s access to public lands.”

Further, if the photograph in question is an accurate depiction of the corner, “I think what the ranchers have done here should be stopped,” he said. “They should not be allowed to fence off public land.”

Magagna said the UIA does not apply to corner crossing. “I don’t see that’s a relevant issue,” he said, “because fencing your private land is not under that unlawful enclosure of public land.”

Both sides can point to precedents in Wyoming. Magagna references Leo Sheep Co. v. the United States, in which the U.S. Supreme Court decided that the BLM did not have a right to a corner-crossing road.

Although the Leo case was about a road, “our position is the principle is the same,” Magagna said. “The physical damage would be different, but the principle would be the same.”

Squillace references the Taylor Lawrence case of the late 1980s, in which the Wyoming rancher built a 28-mile-long fence across checkerboard corners that kept pronghorn antelope from migrating to winter habitat near the Red Desert. Courts decided the UIA applied to the fence and that it was illegal.

In ordering Lawrence’s fence to be removed, the courts relied on a 1912 precedent involving a rancher named Stoddard who built a fence that excluded others’ cattle from reaching public land. In Stoddard, the court posited that the UIA was “intended to prevent the obstruction of free passage or transit for any and all lawful purposes over public lands,” according to an analysis of the legal issue.

“I would argue this is really a federal question.” Squillace said. ”A federal court has jurisdiction.”

If Squillace were representing the men, he said, he would move the case to federal court. “I wouldn’t allow the state to rule.”

Squillace dismissed the concept of an inviolate, invisible vertical plane above a property line through which one cannot intrude. That so-called ad coelum doctrine holds that when you own property you own down to the depths and up to the sky.

“There are limits to that doctrine,” he said. Corner crossing “is such a minor kind of intrusion [and] it’s necessary to access public land — I can’t imagine a court would use that doctrine.”

For its part, the BLM sidesteps the issue. “There is no agency policy regarding corner crossings,” spokesman Brad Purdy wrote in an email, “so it would fall to the State of Wyoming to determine if crossing from one parcel of public land to another via a corner is trespassing or not.”

The Wyoming Game and Fish Department relies on a Wyoming Attorney General’s opinion from 2004. “‘Corner crossing’ from one parcel of public land to another in order to hunt that other public parcel, depending on the factual situation involved, may not violate the game and fish trespass statute,” the agency states on its website, “but may be a criminal trespass violation.”

The agency “ handles trespass issues on a case-by-case/ county-by-county basis,” Rick King, chief of wildlife, wrote in a statement.

Wyoming has not seen fit to resolve the corner crossing question. Legislators in 2011 killed a bill that would have explicitly made corner crossing legal. It went down 9-0 in the Agriculture, State and Public Lands and Water Resources Committee.

The unsuccessful bill would have “subject[ed] ownership of airspace above lands and waters to such [corner] crossings” and made those crossings legal, according to the bill’s introductory paragraph. Passionate debate presaged the bill’s demise.

“They were packed like sardines in the committee room,” said Stan Blake, a state representative and member of the committee at the time.  “All the hunters and conservation people, they were in favor of it,” the Green River resident said. Their argument, among others: “You don’t really touch anything” when corner-crossing, Blake said.

Ranchers made their winning ad coelom case, he said. “You draw that [property] line and it goes straight up into infinity,” Blake said, paraphrasing the argument. “You cannot cross that line.”

Rep. Dan Zwonitzer, (R-Cheyenne) recalls unified opposition. “Back then it was called ‘ag unity’ where all ag groups acted in coordination to support or oppose certain bills — which made it very difficult to get things passed when it appeared every group was against it in the agriculture committee,” he wrote in an email.

“If the speaker [of the House] had wanted the bill to get to the floor he would have sent it to [the Travel Recreation Wildlife Committee],” Zwonitzer said.

“There was a lot of emotion on both sides, but it went down hard,” he said. “Hard enough that I don’t believe it’s been considered since.”

Magagna said the Legislature could be prompted to act — in favor of landowners. “Should we get an unacceptable [court] decision, that certainly is an option we would be looking at,” he said of landowner-favoring legislation.

Hunters have options, Magagna said. “There are tools out there to achieve access,” he said, including by requesting it from landowners or through the Game and Fish Department’s Access Yes program, which seeks public hunting access to private property. “We encourage our members to participate in those programs.

“There are ways of working together to increase access to private land and across private land to public land where that’s necessary,” he said. The GoFundMe campaign will put excess donations not used for legal defense toward the Access Yes program, according to the website.

Attorneys for the Missouri defendants, Brad Cape, Phillip Yoemans, John Slowensky and Zach Smith, are scheduled to meet with prosecutors early next year for what the court said will be a settlement conference, though there’s no indication any settlement is in the works. No trial date has been set, according to a court official.

Meantime access to 404,000 Wyoming acres 20 miles north and south of the Union Pacific line — and 1,583,000 million landlocked federal public checkerboard acres across the West — remains largely controlled by private landowners and local and state law enforcement and judicial institutions.