Aiming for clarification

As landowners and sportsmen alike await a decision from the 10th Circuit Court of Appeals regarding a corner crossing case which originated in Carbon County, local law enforcement are left without a clear directive should a similar incident happen again.

Carbon County Sheriff Alex Bakken, called the lack of direction “a little disappointing and a little detrimental” during the August 26 meeting of the Board of Carbon County Commissioners (BOCCC).

Hunting for Answers

Under his departmental update to the commissioners, Bakken informed the board he—along with other county sheriffs—recently had the opportunity to meet with Attorney General Merrick Garland in Cheyenne. According to Bakken, the county sheriffs had two topics to discuss with Garland with the top issue being that of corner crossing.

“Obviously that’s been a hot topic the last few years. With hunting season around the corner, I wanted to see if there was any opinion at the federal level regarding future clarification as 99% of the corner crossing checkerboard land is federal,” said Bakken. “I got a no opinion response. I understand, to an extent, because this is still in the appeal process via the 10th Circuit [Court].”

In October 2021, four Missouri public-land hunters were charged with trespassing on Elk Mountain Ranch while corner-crossing or stepping from one piece of public land to another. Like Wyoming and much of the West, a checkerboard pattern of public and private land runs across Carbon County. This checkerboard of public and private land hails back to the 1800s and the use of railroad land grants.

Fred Eshelman, the owner of Elk Mountain Ranch, claimed the hunters trespassed when they violated the airspace above his property. In April 2022, a jury in Carbon County disagreed with that argument, finding the hunters not-guilty. Eshelman later brought a civil suit against the hunters, again claiming trespassing and more than $7 million in damages.

Chief U.S. District Judge Scott Skavdahl, however, found in favor of the hunters. That decision was appealed and now sits in the 10th Circuit Court of Appeals. In a July 8, 2024 WyoFile article, the attorney for the four hunters said he believes the case could be appealed to the US Supreme Court.

“It's a little disappointing and a little detrimental because until there’s some sort of state or federal clarification it seems we’re just going to continue to pit landowners against sportsmen and certain agencies against other agencies because no one wants to touch this issue,” said Bakken. “Hopefully, one day, we can have some sort of clarification on this so the animosity goes away and everyone knows where they stand.”

A Game of Volleyball

Commissioner John Johnson asked Bakken if there were any current state statutes which would provide some clarity while awaiting a decision.

“To an extent. Under Title 23, which is [Wyoming] Game and Fish, it specifically defines trespass to hunt as stepping on or driving on the surface of said property,” said Bakken. “It doesn’t say anything about airspace. The problem we’re running into is—and nothing against Game and Fish—essentially their directive is ‘Contact the sheriff’s office’ and our directive is ‘Contact Game and Fish since it’s a Title 23 statute’ which turns it into a convoluted game of volleyball.”

Ashley Mayfield-Davis, who prosecuted the original case in 2021, said the issue before the 10th Circuit Court of Appeals related to general trespass rather than trespass to hunt.

“There is a ‘hunt to trespass law’ that the language changed a couple years ago and now prohibits entry with your body or your vehicle to hunt or to retrieve an animal. The criminal trespass law is the other hiccup,” said Mayfield-Davis. “They [US Attorney General’s Office] have not clarified anything with the criminal trespass law but a decision before the 10th Circuit [Court] could determine it [violating air space] is not trespass. If they determine it’s not trespass, then criminal trespass could not apply.”

During the 2023 General Session of the Wyoming Legislature, both chambers passed Senate File 56 which amended Title 23 of the Wyoming State Statute. Signed into law by Governor Mark Gordon, Title 23 now prohibits traveling through or returning across private property to take wildlife without permission of the owner. It further defines traveling through or returning across as “physically touching or driving on the surface of the private property.”

“That’s our issue right now. What is trespass, in general, civilly and how would that apply in a criminal case,” said Mayfield-Davis. “That’s what they’re waiting for is a decision from the 10th Circuit [Court].”

Bakken added that general trespass would fall under Title 6, which would be under the jurisdiction of the county sheriff’s office, instead of Title 23 which is the purview of the Wyoming Game and Fish Department.

“Game and Fish doesn’t generally have the authority to enforce statutes beyond boating and hunting. If they see a domestic battery or something they can step in but otherwise they’re not doing normal criminal statute,” said Mayfield-Davis. “It just creates an issue because you’d have two different agencies that might need to come in and be involved in an investigation, which works poorly most of the time.”

In the meantime

Commissioner Garret Irene asked Bakken how his office was handling allegations of trespassing after the Elk Mountain corner crossing case and while awaiting a decision from the 10th Circuit Court of Appeals.

“Do you guys just go ahead and give somebody a ticket and they can fight it out in court?” asked Irene.

Bakken said the directive in his office was to contact the Wyoming Game and Fish Department as a hunter trespassing would fall under the “trespass to hunt” law. At the same time, Bakken said, his office would compile a report for the Carbon County Attorney’s Office.

“The county attorney’s office can press charges just like the sheriff’s office. That’s our directive right now and that’s one of the reasons why we just want clarification,” said Bakken. “It’s going to make our lives a lot easier. Sportsmen and landowners, they often share the same values at a large scale. It’s sad to watch them get pitted against each other because there’s not a clarification regarding this issue.”