Hunters and public land advocates are celebrating today after a panel of judges in the 10th Circuit determined that "corner crossing" is a legal method of navigating federally managed public lands. Corner crossing is the act of moving from one catty-cornered parcel of public land onto another at a spot where their corners meet. It's used to access federal lands, typically in the West, with checker-boarded ownership boundaries between public and private parcels.
Yesterday's ruling applies to 6 states: Wyoming, New Mexico, Utah, Colorado, Oklahoma, and Kansas. It originated 5 years ago when four big game hunters from Missouri were prosecuted by landowner Fred Eshelman for using a ladder to corner cross between public parcels that intersect with his private land. They needed the ladder to scale a fence a corner-locked portion of his Iron Bar Ranch.
A North Carolina resident, Eschelman is the founder of an investment firm that specializes in health care companies, according to his website, and he owns more than 23,000 acres in Carbon County, Wyofile reports. He argued that the Missouri men violated the airspace above his ranch when they used the A-frame ladder to corner cross while hunting deer and elk back in 2020.
"Those hunters were criminally prosecuted in Carbon County, and a jury acquitted them," Wyoming-based legal scholar and Associate Vice President of the National Wildlife Federation David Willms tells Field & Stream. "Then the land owner decided to pursue them for a civil trespass and filed that in a federal district court."
It Hinged on the Unlawful Inclosures Act
When the federal district court determined that the hunters' actions didn't constitute civil trespass, Eshelman appealed to the 10th Circuit. "This 10th Circuit decision affirmed the federal district court decision, but I thought with stronger language and stronger reasoning," says Willms. "They ruled that the Unlawful Inclosures Act preempts state law in this instance and grants an explicit right to legally access public lands."
The Unlawful Inclosures Act, also known as the Unlawful Inclosures of Public Lands Act, dates back to 1885. It says that "no person, by force, threats or intimidation, shall prevent ... any person from peaceably entering any tract of public land." It was signed during a time when "Range Wars" were raging across the West as cattle barons attempted to fence off portions of federally owned land to secure exclusive grazing access.
With its ruling, the 10th Circuit pointed to a distinction between state and federal law, Willms says. "They acknowledged that under state law a landowner owns the airspace," he noted. "But the Unlwaful Inclosures Act preempts state law in this case. You can't close people out and prevent them from accessing these public lands. The momentary incursion into the airspace doesn't constitute a trespass because they're accessing public lands pursuant to federal law."
According to Willms, the ruling should prevent state legislatures from banning corner crossing in the future. "And it will be potentially persuasive in other states facing similar cases," he says. "It won't be precedential (meaning it won't establish legal-binding precedents) in other states outside the 10th Circuit. But in these states, in those open range scenarios where you just step across a corner pin and never set foot on private land, it appears to say that's legal."
Backcountry Hunters and Anglers (BHA) has been out front in an effort to affirm the legality of corner crossing since the early days of the case, joining as a "friend of the court" with other groups that aren't always aligned in common cause—like the Wyoming Wool Growers Association, the United Property Owners Owners of Montana, the Western Watershed Project, and the Sierra Club.
“You’re looking at 8 million acres of land that we all own and have not had the freedom to recreate on in the way that we should.” BHA CEO Patrick Berry tells Field & Stream. “The case is limited to 6 states, but the precedent that this sets for future cases cannot be understated. If this issue rears its head in a state outside the 10th Circuit, there’s at least case law now that affirms that private landowners cannot obstruct the public's access to their own public lands.”
