Jul. 27—The ultimate legality of corner-crossing may be decided by the U.S. Supreme Court.
A Wyoming rancher has petitioned the court to review and reverse a recent decision by the 10th Circuit Court of Appeals that affirmed the right of people to cross over the air space of private property as they step from one piece of public land to another.
Known as corner-crossing, the practice refers to stepping from one corner of public land to another when the land is interspersed with private parcels in a checkerboard fashion. It gives people access to public land that is otherwise surrounded by private property.
In 2020 and 2021, four Missouri elk hunters traveled to Wyoming to hunt isolated public land surrounded by the private Iron Bar Ranch. In doing so, they ever-so-briefly crossed through the airspace of the private land when stepping from one public parcel to another.
The ranch owners and managers sought to have the men prosecuted for criminal trespass but the case was dismissed. The ranchers then pursued a civil case against the men, claiming they diminished the ranch’s value by $9 million.
A district court rejected the case in 2023 and the 10th Circuit Court of Appeals affirmed the decision in March.
More than 8 million acres of state and federal public land in the West is surrounded by private parcels in a checkerboard fashion. The pattern is a legacy of the federal government’s practice in the mid-1800s of granting large tracts of land to railroad companies to incentivize the construction of rail lines.
The case hinged on the federal Unlawful Inclosure Act of 1885. Owners of private property are allowed to control at least some of the airspace above their land. For example, the eaves of your neighbor’s home can’t extend over your property.
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But almost as soon as the grants of federal lands to railroad companies happened, the checkerboard pattern led to disputes between ranchers and homesteaders and precipitated “range wars.”
Congress sought to reduce the conflict with the Unlawful Inclosure Act that prohibits the inclosure and exclusive use of federal land without a claim or title and forbids the inclosure of public land.
“In short, the two sections together provide that any inclosure of public land is prohibited, and no one may completely prevent or obstruct another from peacefully entering or freely passing over or through public lands,” the appellate court ruled.
Earlier this month, Iron Bar Ranch owner Fred Eshelman asked the Supreme Court to consider the case, arguing that the decision by the 10th Circuit runs counter to Supreme Court precedent, wrongly allows federal law to trump state trespass law and grants an easement over millions of acres of private property.
In 1979, the Supreme Court overturned a ruling from the 10th Circuit involving public access to a reservoir. The government had constructed a road through private parcels owned by the Leo Sheep Company to access a public reservoir that was otherwise landlocked. The livestock company sued and the district court ruled in favor of Leo Sheep. The government appealed and the 10th Circuit found that Congress reserved an implicit easement over parcels it granted to the Union Pacific Railroad in 1862. The Supreme Court rejected that decision and said there is no implicit easement.
“The Tenth Circuit’s transformation of an 1885 anti-fence statute into a broad preemption provision directly contravenes Leo Sheep (1979), flouts the presumption against preemption, and unveils that Congress 140 years ago unwittingly effected an uncompensated taking of unprecedented scale,” wrote lawyers representing Iron Bar Ranch in their petition known as a writ of certiorari.
The Supreme Court may or may not choose to review the decision by the 10th Circuit. Hunting, fishing and conservation groups are closely monitoring the case.
“This case represents a make-or-break moment for access to millions of acres of public lands across the West,” Devin O’Dea, Western policy and conservation manager for Backcountry Hunters and Anglers, said in a news release. “But what’s at stake isn’t just access — it’s the very notion that public lands belong to the people.”
Barker may be contacted at ebarker@lmtribune.com.