Corner-crossing case ignites firestorm with messy history
By Christine Peterson
Long before a group of hunters from Missouri hoisted a ladder over a fence in southwest Wyoming—setting off a series of headline-grabbing court cases and breathless predictions—the US government had a plan. It wanted a railroad built. And it wanted it built fast.
But, like anything built with speed in mind, there were unintended consequences. Those consequences spent 180 years slowly heating up before a gray area of western law boiled over into a legal battle that has captivated the nation and is reshaping the debate about how to access millions of acres of public land across the West. At the heart of it lies a philosophical argument about private ownership, public land, and what it means to live and recreate in the West.
A long simmer
Look at a color-coded, land-ownership map of the western United States and, in the chaos, a few patterns appear. Large blocks of green denote national forests like the Beaverhead-Deerlodge in Montana, Bridger-Teton in Wyoming, and Salmon-Challis in Idaho. Swaths of orange Bureau of Land Management land spread across large portions of Nevada and Utah. State land pops up in a haphazard way, often surrounding reservoirs or in pockets enclosed by private land.
And then there’s the checkerboard. Instead of yawning stretches of one color, there are bands of tidy, one-mile squares alternating between orange and white. This wavy chess board, composed of millions of acres of not-quite-public, not-quite-private land, spans a section of the Union Pacific Railroad across the bottom of Wyoming. The trend continues across other portions of the West like northern Nevada, southern Idaho, and scattered portions of Montana. It’s a leftover from the federal government’s drive to connect the East and West coasts and facilitate the transportation of people, goods, and timber.
At the time, that meant transcontinental rail lines. Building a railroad costs money, though, and railroad companies wanted help. So the growing federal government looked at a map of the new country, full of 640-acre squares of land brokered through treaties or stolen from Native American tribes, and offered the railroads a deal. The government would give companies every other square of land for 10 or more miles on either side of the proposed railroad tracks.
Companies could do what they wanted with those private squares: sell them, develop them, or keep them. The government would use the squares it kept to entice settlement through the Homestead Act of 1862, which gave 160 acres to any adult citizen willing to live on and “improve” the land. As settlers moved in waves with the tracks, creating farms, ranches, towns, and eventually cities, the nascent US would have what it wanted: railroads crisscrossing the continent and a settled West.
For decades, that’s exactly what happened. Between 1850 and 1871, Congress gave railroad companies more than 100 million acres of every-other-square on either side of proposed railway lines. These squares were sold, perhaps to homesteaders who had settled nearby public parcels. Cities cropped up. Land consolidated.
States with fertile land, plenty of rainfall, and more mild winters developed quickly and the checkerboard disappeared, erased from modern maps and gone from memory, says John Leshy, former solicitor of the US Department of Interior and author of Our Common Ground: A History of America’s Public Lands. But not everyone wanted to live everywhere the railroad stretched. Some areas, like portions of parched Nevada or sagebrush-covered southwestern Wyoming, were either never settled or were abandoned. So that checkerboard remained. Early on, it caused surprisingly few problems.
Take the Rock Springs Grazing Association. Created more than a century ago, it loosely oversees 2 million acres of checkerboard in Wyoming where ranchers graze cows and sheep in the winter. “In the summer, Rock Springs Grazing doesn’t have livestock out there, so recreation use in the summer wasn’t affecting them,” says Jim Magagna, executive vice president of the Wyoming Stock Growers Association. The public was welcome to traverse and use the landscape, both public and private parcels, just as the association’s producers held shares allowing them to graze their livestock across the checkerboard. The decision was a practical one, Magagna says. “Because it’s such a large acreage and being checkerboard every other section, the reality of managing or monitoring public use would be quite a challenge.”
But that kind of utopian ownership, where ranchers could graze and the public could hunt and recreate over public and private land, didn’t translate everywhere. Some landowners began to treat corner-locked public parcels as de facto private land. Still, they largely gave access to hunters and anglers, Magagna says, loosely abiding by the Unlawful Enclosures Act of 1885, which said that landowners can’t block the public from accessing public land.
A few cases broke that early, relative ease. The first occurred in 1917 when a man trailed his sheep through his neighbor’s property to reach public grazing land. Another, called Leo Sheep Co. v. United States, followed 60 years later when the government wanted to build a road through the checkerboard. The courts ruled in favor of the man who wanted to run his sheep through his neighbor’s land, citing “custom of the open range.” But in Leo Sheep, it ruled in favor of the landowner, saying that the government doesn’t have a right build a road over private land to access public land.
Outside of those two niche cases, not much was challenged. Time went on, hunters and anglers knocked on landowners’ doors, shook hands, and were mostly given access. Easements were bought and sold, and state access programs purchased walk-in rights.
But in more recent years, as ranches changed hands, that door-knocking, permission-giving ethos waned. Wealthy, out-of-state landowners became more interested in private hunting grounds and less in running cows and letting an occasional hunter wander through. “These big owners, rich guys, they come in and buy a piece of property with eyes wide open. They know there’s checkerboard and access to what they want to control,” says Buzz Hettick, co-chair of the Wyoming chapter of Backcountry Hunters and Anglers and longtime hunter and public lands advocate. “And rather than live with what they have, they immediately try and get what they want.”
As more private landowners refused access to the public checkerboard land, more hunters, anglers, and other recreationists grumbled. And when those handshakes didn’t work, deciding if someone trespassed fell to the local sheriffs and county attorneys.
The grumble grew louder as reports from GPS company onX showed that 9.52 million acres of land in the West is landlocked, with 2.4 million acres of corner-locked land in Wyoming alone. Public land advocates said private landowners shouldn’t be able to block the public from public land, while landowners countered that the public has no right to cross private land.
For years the debate simmered. And then four men from Missouri heaved a ladder over a fence.
A major test
At this point, almost anyone interested in public land in the West has heard the 2021 story: Four men wanted to hunt on thousands of acres of public land on the west side of Elk Mountain in checkerboard sections of southeast Wyoming, but they had to cross a corner to get there. They knew no formal rules existed outlawing corner crossing, and they also knew “the alternating sections were reserved by the federal government for public use,” says Ryan Semerad, an attorney representing the four Missouri hunters.
So they figured they would step from one public parcel to another, with the ladder straddling the middle. If their feet didn’t touch private land, then surely, they thought, they weren’t trespassing. Once on public land, they shot deer and elk, field dressed the animals and carried them back out over the same, makeshift ladder they used to enter the land. Except the ranch manager for the wealthy, out-of-state landowner found them, told them they were trespassing, and called the sheriff. The sheriff issued citations, and the Missouri hunters ended up in court.
Then the hunting community exploded. A GoFundMe account set up to pay for the hunters’ legal fees raised almost $118,000 from more than 2,000 donations. Comments from donors filled the page, many saying some version of what one person, who gave $15, stated simply: “Private landowners should not control access to publicly owned land.”
For hunters, anglers, and others wishing to access corner-locked land, the case was about more than defending four hunters, it was about settling an issue that had been gnawing at recreationists for years as they stared at maps of land they wanted to get to but felt they shouldn’t. This was just the case to finally bring a gray area of western access law to a head.
“You have a wealthy landowner who doesn’t live here and purchased the lands as his playground, and some hunters who were motivated and supported by national groups to test the law,” says Magagna. “It was a perfect place for a fight to come up.”
The hunters won their case in the local courtroom, with a jury finding they did not commit criminal trespass by passing through only the airspace of the Elk Mountain Ranch. Hunters said it was settled, at least in Wyoming. But even before the verdict arrived, the ranch’s owner, a North Carolina pharmaceutical executive, also sued the hunters in civil court, alleging that trespassing through his airspace stole value from his land. It was a taking, he claimed, which the courts had ruled illegal in the Leo Sheep case. He then later said the hunters caused millions of dollars in damages.
Months later, a federal judge said that argument didn’t quite hold up. The hunters didn’t step on private property or cause property damage. As the hunting community claimed another victory, the landowner filed an appeal to the 10th Circuit Court.
David and Goliath
David Willms, associate vice president for the National Wildlife Federation’s public lands program and University of Wyoming adjunct professor, believes most of the controversy stems from a change in attitude about what these lands mean. When the US government wanted to settle the West, they focused on giving land to individuals to be used for cutting timber, mining gold and silver, growing crops, or raising cows and sheep. The government wasn’t originally in the business of owning land. Until it was. And decades later, the public began to see public land not as something to be disposed of but something to be retained for the public good.
The checkerboard, or corner-locked land, is the collateral damage of that shift in attitude. As the tourism and outdoor recreation economies increase, public land has become one of the West’s greatest assets. In Wyoming alone, tourism generates $4.8 billion each year and provides 33,000 jobs, according to the University of Wyoming’s Jay Kemmerer WORTH Institute. It’s the second largest economic driver after energy. But few values in the West are as sacrosanct as private land ownership, which means the issue of who can access those millions of acres of corner-locked private land quickly pits two core Wyoming values against each other.
For Semerad, the case is like David and Goliath, a battle between wealthy and regular Americans. “The range was free to travel and free to stargaze and pick flowers. In America, it was ‘go roam, go see, go venture’ and that was the ethos of the American West. Only, in the last 75 years you had monied landowners that started to act like it really wasn’t that way,” he says.
Before the 10th Circuit Court made its ruling, Semerad said a decision in the hunters’ favor would provide an important correction. Not only would it tell sheriffs and county attorneys throughout the West that people can access public land over corners, but it would also affirm that “America was never predicated on someone being able to buy up the landmass and block everyone out.”
But Magagna said it wasn’t so simple. None of the prior cases, such as Leo Sheep, cleanly addressed whether or not the public could cross corners to access to public land. And if landowners are suddenly forced to allow people to corner cross, he said, they may be less willing to allow full access to their private properties to hunt and fish via those old-time handshakes and newer easements and access programs.
Now those in the West may find out. In March, the 10th Circuit Court ruled unanimously in favor of the hunters. While many hunters rejoiced that they would now have access to millions of acres of land, others expressed caution, wondering about a possible US Supreme Court ruling and concerned that the gray area enveloping what it means to live and recreate in the West still remains.
Christine Peterson is a freelance journalist covering the environment, wildlife, and outdoor recreation for local, regional, and national publications from her home in Laramie, Wyoming.
Header image: Checkerboard caused by forest management, as seen from the International Space Station. (NASA)
