It will be interesting to see how the courts handle this.
A federal judge refused last week to dismiss a civil suit against four corner-crossing hunters, ruling that Elk Mountain Ranch owner Fred Eshelman has a “plausible claim” to bring in his allegations of trespass and damage.
U.S. District Judge Scott Skavdahl’s July 20 order advanced the court action on Eshelman’s claim that he has a right to exclude others from the airspace above his property. The four Missouri hunters crossed from one piece of U.S. Bureau of Land Management land to another at the four-corner intersection of private and public property arranged in a checkerboard-pattern of ownership.
In their act of corner crossing, the hunters claim they did not set foot on Elk Mountain Ranch land; A Carbon County Circuit Court jury in April found them not guilty of criminal trespass and trespassing to hunt, misdemeanor charges filed after their 2021 trip to Wyoming.
The cases involving Missouri hunters Phillip Yeomans, Bradly Cape, John Slowensky and Zachary Smith could have implications for accessing an estimated 8.3 million acres of public land across the West, 2.44 million in Wyoming alone. That’s the acreage estimated to be “corner locked” by any interpretation that corner crossing is illegal.
Eshelman’s civil suit claims the hunters trespassed because they violated his airspace, a dimension from which he asserts he may exclude others.
“The law recognizes such a right [to exclude others] at least to an extent,” Skavdahl wrote. “With the allegations that Defendants trespassed through Plaintiffs airspace when corner crossing, Plaintiff has stated a plausible claim for relief…”
Judge rejects dismissal
Further, Skavdahl refused the hunters’ request to dismiss the civil suit based on the federal Unlawful Inclosures Act of 1885. That law states in part that “all inclosures of any public lands … are declared to be unlawful.”
The hunters argue that federal law preempts the Wyoming trespass law on which Eshelman based his civil suit. The UIA allows them to go from one piece of public property to another, they believe.
© Provided by WyoFileCorner-crossing defendants wait for their trial to begin in Rawlins on April 27, 2022. They are Phillip Yeomans, second from left and partly obscured; John Slowensky, foreground in the front row, Bradly Cape, second from left in back row and Zach Smith, right. (Angus M. Thuermer, Jr./WyoFile)
Eshelman filed his civil suit in Wyoming District Court. But the hunters argued that the federal UIA law could figure in the case and so it should be heard in U.S. District Court. Skavdahl agreed.
The hunters may use that federal law as a defense, Skavdahl wrote. But there’s not enough information on the record — particularly regarding the fencing in the area — to allow him to dismiss Eshelman’s suit based on the 1885 statute, the judge wrote.
“The Court cannot determine at this time whether the UlA precludes Plaintiffs [Eshelman’s] claims … because several pertinent questions of fact … remain outside the record,” Skavdahl wrote.
Those questions include “the physical placement, purpose, and extent of [Eshelman’s] fencing, “no trespassing” postings, and any associated warnings,” the order reads.
In the 2021 incident, the hunters found two chest-high fence posts driven into two separate sections of private ground at a four-parcel checkerboard intersection at the Elk Mountain Ranch in Carbon County. A photograph of the posts appears to show them on the private parcels and connected to one another with a chain and wire.
The hunters fashioned, brought and used a ladder to climb over the obstruction to pass from one section of BLM land to another. They hunted on public land in the area, corner crossing to reach hundreds of acres where they killed elk and a deer.
During the hunters’ trial earlier this year a witness said the chain linking the two posts had been removed since their outing.
After acquitting the hunters, members of the Carbon County jury would not explain to the press the reasoning behind their not-guilty verdicts.
In advancing Eshelman’s civil case, Skavdahl ordered a magistrate to schedule an initial pretrial conference for the parties to exchange information about witnesses and evidence.Eshelman, a North Carolina businessman who made a fortune in the pharmaceutical industry, owns the Elk Mountain Ranch that covers more than 20,000 acres on wildlife-rich Elk Mountain. He asked that a judge declare the men guilty of civil trespass outright, prohibit them from corner crossing and that a jury trial only resolve the damages due to him, damages he has not completely enumerated.
The post ‘Airspace’ trespass suit advances against corner-crossing hunters appeared first on WyoFile.
‘Airspace’ trespass suit advances against corner-crossing hunters
A federal judge refused last week to dismiss a civil suit against four corner-crossing hunters, ruling that Elk Mountain Ranch owner Fred Eshelman has a “plausible claim” to bring in his allegations of trespass and damage.
U.S. District Judge Scott Skavdahl’s July 20 order advanced the court action on Eshelman’s claim that he has a right to exclude others from the airspace above his property. The four Missouri hunters crossed from one piece of U.S. Bureau of Land Management land to another at the four-corner intersection of private and public property arranged in a checkerboard-pattern of ownership.
In their act of corner crossing, the hunters claim they did not set foot on Elk Mountain Ranch land; A Carbon County Circuit Court jury in April found them not guilty of criminal trespass and trespassing to hunt, misdemeanor charges filed after their 2021 trip to Wyoming.
The cases involving Missouri hunters Phillip Yeomans, Bradly Cape, John Slowensky and Zachary Smith could have implications for accessing an estimated 8.3 million acres of public land across the West, 2.44 million in Wyoming alone. That’s the acreage estimated to be “corner locked” by any interpretation that corner crossing is illegal.
Eshelman’s civil suit claims the hunters trespassed because they violated his airspace, a dimension from which he asserts he may exclude others.
“The law recognizes such a right [to exclude others] at least to an extent,” Skavdahl wrote. “With the allegations that Defendants trespassed through Plaintiffs airspace when corner crossing, Plaintiff has stated a plausible claim for relief…”
Judge rejects dismissal
Further, Skavdahl refused the hunters’ request to dismiss the civil suit based on the federal Unlawful Inclosures Act of 1885. That law states in part that “all inclosures of any public lands … are declared to be unlawful.”
The hunters argue that federal law preempts the Wyoming trespass law on which Eshelman based his civil suit. The UIA allows them to go from one piece of public property to another, they believe.
© Provided by WyoFileCorner-crossing defendants wait for their trial to begin in Rawlins on April 27, 2022. They are Phillip Yeomans, second from left and partly obscured; John Slowensky, foreground in the front row, Bradly Cape, second from left in back row and Zach Smith, right. (Angus M. Thuermer, Jr./WyoFile)Eshelman filed his civil suit in Wyoming District Court. But the hunters argued that the federal UIA law could figure in the case and so it should be heard in U.S. District Court. Skavdahl agreed.
The hunters may use that federal law as a defense, Skavdahl wrote. But there’s not enough information on the record — particularly regarding the fencing in the area — to allow him to dismiss Eshelman’s suit based on the 1885 statute, the judge wrote.
“The Court cannot determine at this time whether the UlA precludes Plaintiffs [Eshelman’s] claims … because several pertinent questions of fact … remain outside the record,” Skavdahl wrote.
Those questions include “the physical placement, purpose, and extent of [Eshelman’s] fencing, “no trespassing” postings, and any associated warnings,” the order reads.
In the 2021 incident, the hunters found two chest-high fence posts driven into two separate sections of private ground at a four-parcel checkerboard intersection at the Elk Mountain Ranch in Carbon County. A photograph of the posts appears to show them on the private parcels and connected to one another with a chain and wire.
The hunters fashioned, brought and used a ladder to climb over the obstruction to pass from one section of BLM land to another. They hunted on public land in the area, corner crossing to reach hundreds of acres where they killed elk and a deer.
During the hunters’ trial earlier this year a witness said the chain linking the two posts had been removed since their outing.
After acquitting the hunters, members of the Carbon County jury would not explain to the press the reasoning behind their not-guilty verdicts.
In advancing Eshelman’s civil case, Skavdahl ordered a magistrate to schedule an initial pretrial conference for the parties to exchange information about witnesses and evidence.Eshelman, a North Carolina businessman who made a fortune in the pharmaceutical industry, owns the Elk Mountain Ranch that covers more than 20,000 acres on wildlife-rich Elk Mountain. He asked that a judge declare the men guilty of civil trespass outright, prohibit them from corner crossing and that a jury trial only resolve the damages due to him, damages he has not completely enumerated.
The post ‘Airspace’ trespass suit advances against corner-crossing hunters appeared first on WyoFile.
