Montana Stockgrowers Association asks the U.S. Supreme Court to take up corner-crossing issue

This story is excerpted from the MT Lowdown, a weekly newsletter digest containing original reporting and analysis published every Friday.

The Montana Stockgrowers Association announced this week that it has joined the Wyoming Stock Growers Association and the Wyoming Wool Growers Association in a petition urging the U.S. Supreme Court to take up a lawsuit that could decide the legality of corner-crossing nationwide. A ruling by the country’s highest court could definitively establish whether members of the recreating public can legally access “corner-locked” land in the West.

The three agricultural groups filed an amicus brief backing the appeal filed by Fred Eshelman, a pharmaceutical executive who has unsuccessfully pursued trespassing charges against four hunters from Missouri who corner-crossed, or stepped from one Bureau of Land Management square-mile section to a kitty-corner section of BLM land during a 2021 elk hunting trip in Wyoming. In the process, the hunters used a custom-made ladder to step over the point where two sections of Eshelman’s land meet.

After a jury acquitted the hunters on criminal trespassing charges, Eshelman pushed a federal district court judge in Wyoming to find the hunters guilty of civil trespass.

Those claims didn’t stick, either.

In March, a three-judge panel of the 10th Circuit Court of Appeals upheld a lower court’s ruling, issuing a unanimous decision that leaned heavily on the Unlawful Inclosures Act — a law Congress passed in 1885 to “prevent the absorption and ownership of vast tracts of our public domain” by cattle barons.

In his civil lawsuit against the hunters, Eshelman had argued that Elk Mountain Ranch, which spans 50 miles of southeastern Wyoming, would shed $9 million of value if he were to lose exclusive access to the elk-rich sections of BLM land interspersed with his holdings. Hunting and public land access groups countered that members of the public shouldn’t be bullied off public land by access-averse landowners.

Montana is in a different appellate circuit than Wyoming: It’s in the 9th Circuit rather than the 10th Circuit. But the case has drawn substantial interest outside the 10th Circuit because a Supreme Court ruling could generate something users on both sides of the issue have long sought: widespread clarity about whether members of the public who step across corners of the “checkerboard” land that is so common in the West are trespassing.

According to onX, a digital mapping company, there are more than 8 million acres of “corner-locked” land in the West, nearly 900,000 of which are in Montana.

In a press release about the amicus brief, MSGA described corner-crossing as a “serious threat to the integrity of private landownership” that “may set a harmful precedent that erodes the ability of landowners to manage and protect their property.”

As of Aug. 21, the Supreme Court has not yet indicated whether it will consider Eshelman’s appeal.