For a millionaire and four hunters, a wild Western lawsuit over public land

ELK MOUNTAIN, Wyo. - Here is what’s at the center of a federal lawsuit that could unblock millions of acres of public land in the American West: a steel stepladder, quickly welded together in a home workshop, then placed on the rolling hills here in the fall of 2021.

Four Missouri elk hunters used it to climb over an invisible corner from one parcel of Bureau of Land Management terrain to another. They never touched a toe on two adjacent swaths of private property marked by “No Trespassing” signs.

But to the owner of that property, a North Carolina multimillionaire whose portfolio includes 22,000 acres of this game-rich mountain, the hunters’ aerial corner-cross was trespassing all the same. Whether he is correct - and the extent to which private property rights can thwart the public’s ability to access its land on thousands of similar corners - is now being weighed by the U.S. Court of Appeals for the 10th Circuit in Denver.

This wild Western legal duel is rooted in a shortsighted 19th-century plan to expand the federal government’s dominion toward the Pacific by granting railroad companies alternating squares of land in exchange for train tracks. The cash-strapped government figured the rail line would make the tracts in between, hardscrabble though they were, appealing to buyers. It did not, leaving a sprawling checkerboard of private and public land. The digital navigation company OnX estimates that more than 8 million public acres in 11 Western states are now essentially unreachable because corner-crossing exists in a legal gray area.

“That is a beautiful piece of property. He’s got these nice aspen stands and hay meadows. I understand why he wants to keep people off,” said Buzz Hettick, co-chair of the Wyoming chapter of Backcountry Hunters & Anglers, a land conservation organization that has raised nearly $150,000 to cover the Missouri hunters’ legal fees. “But I just have such a strong feeling about being able to access public lands. I think most people do.”

Hettick stood one recent afternoon on wildflower-dotted BLM land at the corner in question, which is marked by a small cylindrical surveyors’ cap and flanked on two sides by the “No Trespassing” signs. In the distance, pronghorns pranced through verdant grass.

A U.S. Forest Service scientist and avid hunter, Hettick stepped between the signs and over the cap onto another plot of public land - a move allowed here since a federal district court ruled last year in the hunters’ favor, saying corner-crossing on foot, without touching or damaging private property, is not unlawful trespass. The plaintiff, drug company founder turned financier Fred Eshelman, appealed via one of his companies, Iron Bar Holdings LLC.

Both sides say there is a need for clarity on an issue that for decades has been resolved on an inconsistent, ad hoc basis. Often hunters or hikers work things out with the property owners, but other times law enforcement agencies get involved and issue citations to the corner-crossers.

Disputes have intensified as private land ownership in the West - where about half of the terrain is federal - has evolved and more acreage has become concentrated in the hands of wealthy non-locals, their gates locked and property lines guarded. And as this case has moved through the courts, Eshelman has become a symbol to many hunters and public land advocates of this new cadre of aloof, unfriendly neighbors.

At the same time, GPS and digital navigation systems have made it far easier for recreationists to precisely locate remote plots of public land and corners that 19th-century surveyors sometimes marked only with rocks or even dinosaur bones. More than 27,000 “land-locking corners” exist in the West, OnX says. More than 16 million acres of public land are fully surrounded by private property, according to a report by the company and the Theodore Roosevelt Conservation Partnership.

“Those technologies actually made millions of acres of accessible parcels available to the public,” said Joel Webster, the partnership’s vice president of Western conservation. “And they also made clear all this land that they owned that they still could not get to.”

Eshelman, who donates to conservative causes and hunts mountain lions, purchased much of Elk Mountain in 2005 as a rural haven. His mansion, nestled among pines partway up the slope, is visible from a nearby interstate. Cattle graze on some of the acreage. He has sometimes allowed hunting by the public and military veterans, court filings note.

The documents also say Eshelman has offered to swap land with the state and the BLM to increase access. Such exchanges, as well as government purchases of private property, have opened millions of acres of locked public land across the West, and conservation groups see them as an important tool.

In a deposition, Eshelman said BLM websites signaled that corner-crossing was illegal: This understanding was “a condition of my having purchased the ranches,” he said. His attorneys contended that allowing the district court ruling to stand could devalue his property, now called Elk Mountain Ranch, by at least $7.75 million.

The decision would “strip private citizens of their fundamental property rights without just compensation,” Iron Bar said in a statement this month to The Washington Post. Eshelman and attorney Reeves Anderson declined to be interviewed.

In court last month, Anderson acknowledged that, shy of a helicopter, stepping over the corner is the only way to access the public land mingled with his client’s. Nevertheless, he argued, Wyoming law bars the hunters’ use of Eshelman’s airspace, and Congress reserved no right of access when it created the checkerboard.

“Property lines have sharp edges because of the consequences of eroding them,” Reeves said. Eventually, “the public will use ATVs, campers, snowmobiles. Suddenly an airspace intrusion becomes a road.”

To the hunters’ attorney, Eshelman’s intentions are clear: to increase his own empire by excluding the public.

“Are the interior public lands under the de facto control of the private landowners? We think the answer to that is obviously no,” Ryan Semerad, who practices in Casper, Wyo., said in an interview. “It’s not your playground. It’s not your Xanadu.”

The hunters say Iron Bar’s approach violates the Unlawful Inclosures Act, passed by Congress in 1885 to thwart cattle kings who were fencing off vast stretches of the West. It prohibits the use of “force, threats, intimidation … fencing or inclosing, or any unlawful means” to keep people from “peaceably entering” public land.

The legal landscape surrounding the case is a “jumbled mess of language and dicta and holdings,” one appellate judge said at the hearing in Denver.

Yet Bradly Cape, one of the Missouri hunters, felt confident when planning his first Elk Mountain hunt with two friends in 2020. He said he relied on a 2004 opinion from Wyoming’s attorney general that said corner-crossing did not violate one state statute - though the same opinion said it might amount to criminal trespass.

Missouri has relatively few elk. Wyoming has lots. Cape said he picked Elk Mountain because it was easier to get a hunting tag there than in other parts of the state, and he knew the tricky access questions might ward off other hunters.

When he and his companions got to the corner at issue, they found the “No Trespassing” signs linked by a chain. One by one, they grabbed the posts and swung around to the opposite section of BLM land, careful not to step on Eshelman’s property.

Over several days, they camped by a county road and bagged three bulls. “It was paradise to us. We were having the time of our lives,” Cape recounted recently.

Things changed when they were confronted by Iron Bar property manager Steve Grende, whose job included scaring off the increasingly abundant corner-crossers. In a recording provided by the hunters’ attorney, Grende can be heard telling them that touching the sign posts was “criminal trespassing.” A Carbon County sheriff’s deputy whom Grende summoned to the scene declined to cite the Missourians.

The next year, the men returned with a fourth friend. Cape - a fence builder by profession - had a plan to avoid any trespassing accusations: He made an A-frame ladder. It took him an hour.

This time, the property manager seemed enraged. Several times, Cape said, he zoomed his truck past them as they hunted, in what the group perceived as an effort to intimidate them and frighten off elk. Grende again summoned officers, including from the Wyoming Game and Fish Department.

“Do they realize how much money my boss has?” Grende asks them, an exchange captured by the sheriff deputy’s body-cam video.

The county prosecutor decided to pursue the case, and all four men were cited with criminal trespassing. A jury swiftly acquitted the hunters, but Iron Bar had already filed its lawsuit.

The case has galvanized hunters, whose online message boards and news sites have chronicled it closely. Steven Rinella, a celebrity hunting influencer, has helped raise money for the hunters and called Semerad - who does not hunt - the “most important lawyer in America” on his “MeatEater” podcast.

“Hunters care about access, they care about public lands, and they don’t like to see that being shut down for them,” said Eric Hanson, a California-based attorney who wrote an amicus brief for Backcountry Hunters & Anglers that supports the Missouri men. Environmental groups including Earthjustice also lined up on their side.

Iron Bar, on the other hand, has found support from ranching and landowner groups. Karen Budd-Falen, a Wyoming attorney and rancher who represents the Wyoming Wool Growers and Stock Growers associations, said her clients are mostly small ranchers who worry that legalizing corner-crossing is a slippery slope. The dispute was created by Congress and should be settled by lawmakers, not judges, she said.

The appeals court’s ruling will only apply within its six-state jurisdiction, which includes Colorado, Utah and New Mexico - states with hundreds of thousands of acres of corner-locked land. But it will serve as persuasive precedent elsewhere, notably the heavily checkerboarded states that fall under the 9th Circuit. California, Nevada, Arizona, Idaho and Montana are among those.

Like many observers of the case, Budd-Falen laments the broader changes that led to the litigation. She points to outsiders, the ones “who say, ‘I got this piece of heaven, and it’s mine and I’m putting a padlock on it.’”

“I grew up in western Wyoming, and we had a lot of elk and a lot of moose and people loved to hunt those things. And they would come up to the front door, and I don’t remember ever once saying no,” she said.

Still, she also faults the Missouri hunters for not having “any respect for private property rights.”

Cape strongly disputes that criticism. As a fence builder, he said, he is intimately aware of the need for property lines.

“That’s what this country is built on: You can own that land and work that land the way you want to work on it,” he said.

A river runs through his own family’s cattle ranch in Steelville, Mo. Its water is public, and these days it teems with tubers who sometimes encroach on his private banks, Cape said. It can be annoying, and sometimes he runs them off if they get rowdy.

“We’ve never thought about trying to take it away,” he said. “It’s public land. You just deal with it.”