The landowner who earlier this year lost a civil trespassing case against four corner-crossing hunters has signalled his intention to appeal the matter to the U.S. Supreme Court.
Iron Bar Holdings, LLC, wrote in a request for an extension to file an appeal that the issue “has vast reach, covering a huge portion of the roughly 300 million acres of checkerboard land and affecting landowners throughout the American West.”
Iron Bar Holdings controls Elk Mountain Ranch, the Wyoming property owned by pharmaceutical executive Fred Eshelman, who brought both criminal and civil trespassing charges against four hunters who used a specially constructed ladder to cross from offset sections of Bureau of Land Management land during a 2022 elk hunt.
In a five-page brief filed Wednesday, Iron Bar Holdings requested a 30-day extension to file their formal appeal, describing the matter as “one of the broadest abrogations of private property rights in American history” that has “unsettled” a half-century of law surrounding trespassing.
The filing then briefly describes the law that a three-judge panel of the 10th Circuit Court of Appeals zeroed in on in their order dismissing the civil trespassing charges — the Unlawful Inclosures Act of 1885, which was passed to “prevent absorption and ownership of vast tracts of our public domain” by cattle barons. Attorneys for Iron Bar Holdings argue that the case “presents an ideal vehicle to clarify the scope of the Unlawful Inclosures Act and its restrictions, if any, on a landowner’s right to exclude trespassers.”
In its March 18 order, a unanimous three-judge panel of the 10th Circuit explored the land ownership and legal history that set the stage for the dispute.
“The district court was correct to hold that the Hunters could corner-cross as long as they did not physically touch Iron Bar’s land,” according to the 49-page order that included multiple references to research by sitting Supreme Court Justice Neil Gorsuch, a Trump nominee who joined the court in 2017.
Ryan Semerad, a Wyoming-based attorney who represented the four hunter-defendants in the litigation, told Montana Free Press in a Thursday interview that he interprets the filing to mean that there is a “zero percent chance” that the landowners won’t formally appeal the matter to the country’s highest court.
“Before yesterday, when they filed this, [there was] a possibility that they let it go and it ends and we just have this answer in the 10th Circuit. And we all could have been wondering what could have been,” he said. “Now it seems this thing is heading on a train.”
The stakes in the matter are extraordinarily high: If the Supreme Court decides to engage with the 10th Circuit’s ruling, there could be nationwide clarity on the access-versus-trespass question formed by the 8 million-plus acres of “corner-locked land” relating to a century-and-a-half-old effort to incentivize railroad expansion and encourage homesteaders to settle the West.
As it stands now, the ruling issued in March applies exclusively to Wyoming, Colorado, Utah, Oklahoma, Kansas, New Mexico and the portions of Yellowstone National Park that are located in Montana and Idaho.
Semerad said he welcomes the opportunity to argue the case before the nation’s highest court.
“Our attitude is: bring it on. We’ll keep going,” he said. “We live in a polarized world. … Public lands are the one unifying thing. Republicans and Democrats are alike on ‘We want to protect [public land].’ And this is of a piece of that conversation — not only should we have public lands, we should be able to go to those public lands.”
Jake Schwaller, a Billings-based attorney who chairs the Montana chapter of Backcountry Hunters and Anglers, said the U.S. Supreme Court could be presented with “a great opportunity.”
“In a place like Montana, there still isn’t clear-cut direction as to whether we are allowed — by law, at least — to cross at corners,” he said, adding that it’s BHA’s position that it should be legal. “The U.S. Supreme Court would be able to take that and apply that to the rest of the country, and it would actually just help to put this issue to bed once and for all.”
An attorney for Eshelman did not immediately respond to MTFP’s request for comment Thursday.
Semerad added that the Supreme Court takes up only a fraction of the petitions litigants file each year. Of the 6,000 to 7,000 petitions seeking Supreme Court input, just 60 or 70 are approved, he said.
“Whether or not the Supreme Court takes this is beyond my pay grade,” he said. “But it wouldn’t surprise me if they took it.”
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