The U.S. Supreme Court has declined to consider an appeal of a corner-crossing case that’s been closely watched by public land hunters and landowner groups throughout the West.
The court’s decision, codified in an “order list” released on Monday, means corner-crossing remains legal in the 10th Circuit states of Wyoming, Colorado, Utah, Oklahoma, Kansas and New Mexico. Elsewhere in the West, including Montana, which has more than 900,000 acres of “corner-locked” land, corner crossing will continue to exist in a legal gray area.
Corner crossing is the act of stepping from adjoining corners of federal land where alternating sections of public and private land meet. Wyoming has more corner-locked land than any other state in the country, according to an analysis completed by OnX, which produces navigation apps used by hunters and other recreationists.
The case that the Supreme Court declined to take up involves pharmaceutical executive Fred Eshelman, who unsuccessfully pursued criminal and civil trespassing charges against four hunters from Missouri who used a specially constructed ladder to access BLM land intermixed with square-mile sections of Eshelman’s land during a 2021 hunting trip.
None of the charges stuck. In March, a three-judge panel of the 10th Circuit Court of Appeals found that the lower court “was correct to hold that the Hunters could corner-cross as long as they did not physically touch” Eshelman’s land. In their orders, the judges referenced the Unlawful Inclosures Act Congress passed in 1885 to bar landowners from obstructing access to public land.
In a filing before the Supreme Court, Eshelman’s attorneys wrote that the issue “has vast reach, covering a huge portion of the roughly 300 million acres of checkerboard land and affecting landowners throughout the West.”
Eshelman’s attorney could not immediately be reached Monday for comment on the Supreme Court decision not to take up the appeal.
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Montana Stockgrowers Association asks the U.S. Supreme Court to take up corner-crossing issue
The Montana Stockgrowers Association announced 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 public can legally access “corner-locked” land in the West.
Bradley Cape, the lead defendant in the litigation, told Montana Free Press in a Monday morning conversation that he’s glad for the win and remains steadfast in his conviction that the landowners locking up access to checkerboard land have taken the “wrong” position, both morally and legally.
“The first initial reaction was, ‘awesome, that’s great — it’s over,” he said. “At the same time, it would be cool to win even at the Supreme Court level.”
Ryan Semerad, the attorney representing Cape and his co-defendants, echoed that sentiment, saying it was the “right outcome,” but also a “little bittersweet.”
“We believe that had [the Supreme Court] taken up the case, we would have won. If we won all the way up, it would have been a 50-state ruling, as opposed to the six-state ruling we have,” Semerad said Monday.
The legal ambiguity of corner-crossing has vexed both recreationists and landowners for decades. Many public land hunters would like to access corner-locked public land but are deterred by the threat of criminal or trespassing charges. They argue that they’ve been denied access to land that belongs to all Americans.
Landowners argue that expanding access to these sections of public land comes with a variety of risks, ranging from wildfires and poaching to littering. They point to guidance issued by Montana Fish, Wildlife and Parks in 2023 stating that corner-crossing “remains unlawful in Montana” and advising that wardens will “continue to report corner crossing cases to local county attorneys to exercise their prosecutorial discretion.” (Advocates for access to public lands counter that FWP did not point to a Montana law when issuing that guidance.)
In an amicus brief supporting Eshelman’s appeal to the 10th Circuit, United Property Owners of Montana wrote that checkerboard lands act as “de facto wildlife preserves that receive little or no hunting pressure.”
“If affirmed, the district court’s decision will likely result in thousands of hunters and other recreationalists accessing millions of acres of federal land that were previously protected,” the brief reads.
Charles Denowh, UPOM’s policy director, described corner-crossing as more of an “academic argument” across much of the West because survey markers denoting the exact location of checkerboard corners are rare.
In a Monday morning conversation with MTFP, he added that he’s wary of access groups pursuing a test case in Montana to bring about a similar outcome. Policymakers should be working to improve public land access, he said, describing courtroom battles as something that “should be a last resort.”
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The case involves a civil trespassing claim filed against four hunters from Missouri and a ranch that spans nearly 50 square miles of checkerboard land in southeastern Wyoming.
The Montana Stock Growers Association, which joined the Wyoming Stock Growers Association in urging the Supreme Court to take up Eshelman’s appeal, could not immediately be reached for comment.
Jake Schwaller, chair of the Montana chapter of Backcountry Hunters and Anglers, said the existing 10th Circuit ruling will have “persuasive authority” in Montana, but he noted that’s not the same as legal precedent.
“We’ll have to continue in Montana to try to figure it out for ourselves — to go forward in this gray area,” Schwaller said. “We would have loved for the clarification, but right now, corner-crossing is the law of the land in the 10th Circuit, and that’s a really good thing. That should have continuing positive effects for the rest of the West.”
“It’s a top issue for BHA and our members,” he said. “It’s become one of these galvanizing issues because we see it as opening up such a significant portion of land.”
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