New criminal charges dropped, but corner crossing case could still set precedent

Four Missouri hunters were acquitted of trespassing and trespassing to hunt on April 29 in Wyoming’s Carbon County Circuit Court in connection with events in which they “crossed” between adjacent checkerboard parcels of public land in 2021. However, just before the jury trial began, three of them received charges related to crossing the same corner in 2020.

As suddenly as the 2020 charges surfaced, they were dropped by the same prosecution.

Ryan Semerad is a Wyoming attorney representing the hunters in this case. The landowner whose property they passed on their way to hunt on Bureau of Land Management land also filed a separate civil lawsuit against them.

“The 2020 hunt had [also] produced multiple charges against three of the men: Brad Cape, Phil Yeomans, Zach Smith, the exact same charges, trespassing and trespassing to hunt,” Semerad told MeatEater. “We felt like those charges were just moving forward. And then we learned mid to late last week that the prosecution had moved to dismiss those charges and that their reasons for dismissing were that the essential facts of those new charges had already been decided by a jury in the 2021 hunting case. ”.

Semerad said there are now no pending criminal charges against any of the men, although the 2020 issue was dismissed without prejudice, meaning they could theoretically be brought to court again.

“I don’t expect in any universe guys to recharge,” he said. “The only situation that I can foresee where they will be charged for the 2020 hunt is in the situation where the civil case produces a very clear law that says the private owner had the right to exclude people from crossing the corner”.

Some people have expressed mild disappointment that these charges were dismissed so quickly and decisively because, without a loss and an appeal to the Wyoming or United States Supreme Courts, this case does not set a precedent. However, that opportunity still exists with the civil lawsuit. But, as Semerad points out, criminal acquittals are still likely to shape a legal understanding of this issue, at least locally.

“The jury verdict, at least on this count, caused a prosecutor to dismiss the 2020 charges,” he said. “And I think the jury verdict is a good example of why these cases don’t really come up, and they don’t come up because they’re pretty weird cases to prosecute. It is not what the search actions were designed for. So I think the statement, ‘Hey, a loss is really what you needed to set a precedent’ is accurate as far as it goes. But I do think the jury sent a strong signal.”

In support of this theory, Semerad points to the testimony of a former sheriff’s deputy with the Carbon County Sheriff’s Office.

“He specifically said that there are only three counties in Wyoming that will do anything with corner crossing,” Semerad said. “Carbon County happens to be one of them. And the process is that the police will write a report and send it to the county attorney. The county attorney makes a case-by-case determination about filing charges. That’s such a fun way to do it because that’s not how other criminal charges are treated. DUI’s aren’t treated like that, speeding tickets aren’t treated like that, murders aren’t really treated that exact way.

“What I think it shows is that prosecutors know that these cases are very rare. They are not really criminals. They just say, ‘How do we keep the peace between wealthy private landowners and regular people who just want to hunt on public land?’” he said.

Semerad speculates that Carbon County may join 20 other counties in Wyoming that do not process corner crossings. No law has changed, but its application may change.

How to change the law
While the criminal cases against Brad Cape, John Slowensky, Zach Smith and Phil Yeomans are likely over, the civil lawsuit against them by Iron Bar Holdings, LLC continues to move forward.

Fred Eshelman, a millionaire pharmaceutical entrepreneur from North Carolina, owns Iron Bar and Elk Mountain Ranch. Through his attorneys, he claims the four Missouri hunters caused him harm by moving from one parcel of public land to another adjacent to his huge ranch. The standard for nominal damages does not require any substantial loss or impact to the plaintiff, but many observers still wonder what damage they will seek to prove.

That case was transferred from the Wyoming court system to the federal judiciary, though Eshelman’s attorneys filed a motion to remand it. If that happens, there would be a longer path to precedent, but still possible.

“Obviously, I would prefer to stay in federal court for a variety of reasons,” Semerad said. “But if we have to go back to the state court system, our arguments are just as strong. It will only take a little more to create a larger precedent. What would happen in state court is that a district court decision would really only have binding effect in Carbon County. Whoever loses would likely appeal to the Wyoming Supreme Court. That decision would only be binding in the state of Wyoming. And then the losing party in the Wyoming Supreme Court could appeal directly to the U.S. Supreme Court. That could create a national precedent, but that’s very discretionary.”

The nonprofit group of public land athletes Backcountry Hunters & Anglers has filed a friend of the senate written “friend of the court” in an attempt to help keep proceedings in federal court, where a decision could have a more binding and far-reaching application. Semerad believes they have a strong case for staying in federal court to resolve a federal problem, despite what their legal opponents may say.

“They said this is really about a private property owner who wants to exclude people from their private property, in the end,” Semerad said of his legal opponents’ attempt to go back to state court. “Then we opposed that quite vigorously by saying that it is completely untrue. The reality of their claims, if their claims are true, then the public won’t exactly have access to public lands blocked off on corners. If that were the case, we now know from the onX report that this is approximately 8.3 million acres of public land that is completely closed to public access. Unless the adjacent private landowners are magnanimous and want to allow it, it basically turns public land into a free asset of the private landowner. They never paid for it. They didn’t have to do anything to acquire it. Just because they own an adjoining piece of land, they have total control over it.”

He and others believe that these realities, along with the Unlawful Lockdowns Act of 1885, place this case squarely within federal jurisdiction. That excites many public land seekers because a potential bug in that setting could have application outside of Carbon County, even outside the Wyoming borders.

“An order from the Wyoming Federal District Court, that’s final,” Semerad said. “If neither side appeals, it will be binding on the District of Wyoming because every time that issue comes up in Wyoming, they will say, ‘Well, here’s the case on the issue. This is the answer.'”

However, regardless of the decision, one of the parties will most likely appeal. If the case stays in the federal system, that will take it to 10the Circuit Court of Appeals, which has jurisdiction over Oklahoma, Kansas, New Mexico, Colorado, Wyoming, Utah, and the federal portions of Yellowstone National Park extending into Montana and Idaho.

“So, all of that territory, it’s the Tenth Circuit. Whether they agree with the district court or disagree with the district court, that decision will be binding on that entire swath of the country,” Semerad said. “Now, whoever loses in the 10th Circuit can appeal directly to the United States Supreme Court. It is a discretionary resource. They don’t have to make it, but if the Supreme Court of the United States did make it, that decision would be binding on the entire country.

“So those are really the ways to create precedent in the civil case. It’s a little cleaner and easier if we stay in federal court, but it can still be done if it ends up in state court.”

The US Supreme Court only accepts a small fraction of the cases that are appealed to it each year. That said, they accepted and ruled on another complex and interesting case involving elk hunting in the same state just three years ago: Herrera vs. Wyoming. It is also worth mentioning that US Supreme Court Associate Justice Neil Gorsuch served as a judge on the 10ththe Circuit Court of Appeals prior to his nomination to the superior court. He may be familiar with the highly frustrating and legally murky nature of the corner crossing problem, which dates back more than a century.

“I’ve talked to a lot of lawyers who are longtime members of the bar,” Semerad said. “These attorneys, some of whom aren’t even practicing anymore, have basically told me, ‘Ryan, we’ve been dealing with this problem for half a century. So, that’s how things have been. The Leo Sheep Co. case specifically says that the reason Congress had to pass the Unlawful Lockups Act is because this same thing was happening in the late 1800s. I mean, this has been going on basically since the Civil War. And I imagine it was happening before the Civil War.”

Many people have suggested that the case of four nonresident hunters from the Midwest is an imperfect testing ground for this problem, more likely to anger the ranching establishment in the state than find a solution. Others reject that idea, arguing that Wyoming’s legal and law enforcement agencies might not have taken a “more perfect” case to trial for fear of detrimental loss. The state legislature is closely examining the trespassing issue in an interim committee, which may eventually influence the broader issue.

No one knows where the corner crossing conundrum will ultimately lead. But most people agree that it would be nice to simply have some clarity on an issue that has preoccupied ranchers, lawyers, hunters and countless other Americans for some 150 years.

“There was a time, a couple of months ago, when I found myself in the basement of the Wyoming Supreme Court going through old territorial laws and regulations, looking for fencing problems,” Semerad concluded. “Even when Wyoming wasn’t even a state, when it was a territory, this was a problem back then as well. It’s always been a problem when you have an open range and no ownership history. Who gets to control it? It always seems that control goes to the powerful.

“What was revealed through this process was that these private landowners also see the public lands that are landlocked and next to their land as part of their land.”