BREAKING: Corner Crossing Legalized in Six States

“Put simply, we found any inclosure that effectively prevents access to public land for lawful use is an unlawful inclosure that is a proscribed violation of federal law,” the judges said in their decision.

The decision legalizes corner crossing between sections of federal land in the six states under the 10th Circuit’s jurisdiction: Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

This is by far the biggest victory in this case so far, but Eric Hanson warned that hunters still need to be careful about how they corner cross. Hanson is a lawyer who volunteers as the chairman of the California Chapter of Backcountry Hunters and Anglers (BHA). He also wrote an amicus brief on a pro bono basis for BHA in this case.

“In 10th Circuit states, you can corner cross, but you need to be very careful about what you’re doing. You need to be on public land. You need to make sure you’re identifying the actual corner via a monument. OnX probably isn’t enough,” Hanson explained. “That little stepping over of the corner is allowed, but touching private property, crossing into it, disturbing it, damaging it, is still not allowed.”

MeatEater has advocated for corner crossing to be legalized throughout the entirety of this case. We’ve covered every major development over the last four years, and raised over $66,000 for the Wyoming BHA Corner Crossing Defense Fund.

“Corner crossing” refers to the act of crossing from one block of public land to another at the points where the blocks meet. Corner crossers do not set foot on private land, but until now, it’s been unclear whether the action is legal under federal law. State legislatures have failed to clarify the issue, and wildlife agencies issued conflicting information.

This case stems from a 2021 incident involving four elk hunters who tried to corner cross on public land in Wyoming. The public land was arranged in a checkerboard pattern with alternating parcels belonging to Elk Mountain Ranch, which is owned by Iron Bar Holdings and a North Carolina businessman named Fred Eshelman.

Eshelman and his agents accused the hunters of trespassing and eventually convinced a local prosecutor to bring criminal trespass charges. The hunters were exonerated in a jury trial, but Iron Bar sued the hunters in civil court and alleged $9 million in damages.

The federal district court that heard that civil case dismissed the charges, ruling that “corner-crossing on foot in the checkerboard pattern of land ownership without physically contacting private land and without causing damage to private property does not constitute an unlawful trespass.”

Not satisfied with that decision, Iron Bar and its lawyers appealed the case to the United States Court of Appeals for the Tenth Circuit. Three judges from that court–Timothy Tymkovich, David Ebel, and Nancy Mortiz–ruled in favor of the hunters and against Iron Bar Holdings.

The legal argument revolved around whether an 1885 law called the Unlawful Inclosures Act should apply in this case. That law prohibits anyone from preventing or obstructing “free passage or transit over or through the public lands” by “force, threats, intimidation, or by any fencing or inclosing.”

Iron Bar’s lawyers argued that this law should not apply. They cited a 1979 Supreme Court decision in which the court ruled that the government could not build a permanent road through private property so that the public could access a piece of public land. Iron Bar argued that, in the same way, they should not be required to allow access through their airspace so members of the public can access public property.

But the 10th Circuit judges pointed out that Leo Sheep, the 1979 decision, only applies in the case of an implied easement, which is a permanent, physical intrusion on private property. In this situation on Elk Mountain Ranch, a different standard should apply, one that was outlined in a 1897 Supreme Court decision called Camfield v. United States.

In that case, the Court held that Congress passed the Unlawful Inclosures Act to protect public lands from “nuisances” erected on the adjoining private property. In Camfield, a rancher built fences to secure exclusive use of about 20,000 acres of public land. The 10th Circuit found that Camfield is a far closer analogue to this case than Leo.

“A barrier to access, even a civil trespass action, becomes an abatable federal nuisance in the checkerboard when its effect is to inclose public lands by completely preventing access for a lawful purpose,” the 10th Circuit judges wrote in this case.

“The controlling principle is that checkerboard landowners cannot maintain a barrier that has the effect of fully enclosing public lands and preventing complete access for a lawful purpose,” the court continued. “When a landowner denies checkerboard access, he imposes a proscribable nuisance under federal law.”

This issue may not be finally settled, and the case is not necessarily over. The Court admitted that the Supreme Court could step in and reconsider some of its previous precedent, and federal lawmakers could also make corner crossing illegal.

“We appreciate this may be an unsatisfying result for property owners within the checkerboard. It leaves open questions for landowners and the public alike, including who might be liable during a corner-crossing incident, and what duty of care each party owes the other,” the judges wrote. “Iron Bar may be correct that the government could solve these open questions by exercising its core institutional competency to condemn access easements to landlocked checkerboard lands.”

Hanson said that Iron Bar has two avenues if they want to appeal: they can ask the entire en banc panel of the 10th Circuit to review the ruling or they can petition the Supreme Court to take the case. Either way, the current decision is the law of the land within those six states until a higher court says otherwise.

Note: The feature image does not depict a corner crossing, it’s just a good old-fashioned fence crossing. In order to legally corner cross, hunters need to find a physical monument at the corner and only cross at that point.