New Criminal Charges Dropped, but Corner Crossing Case Could Still Set Precedent

As suddenly as the 2020 charges arose, they were dropped by the same prosecutor’s office.

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

“The 2020 hunt had [also] produced several charges against three of the men—Brad Cape, Phil Yeomans, Zach Smith—same exact charges, criminal trespass and trespass to hunt,” Semerad told MeatEater. “We felt those charges were just going forward. And then we learned middle to end of last week that the prosecution had moved to dismiss those charges and that their grounds for dismissal was 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 do not expect in any universe for the guys to get recharged,” he said. “The only situation I can foresee where they would be recharged for the 2020 hunting is in the situation where the civil case produces very clear law that says that the private landowner was within its rights to exclude people from corner crossing.”

Some people have expressed slight disappointment to see these charges get defeated so quickly and decisively because, without a loss and appeal upward to the Wyoming or United States supreme courts, this case doesn’t set precedent. That opportunity still exists with the civil suit, however. But, as Semerad points out, the criminal acquittals will still likely shape some legal understanding of this issue—at least locally.

“The jury verdict, at least in this one count, caused a prosecutor to dismiss the 2020 charges,” he said. “And I think the jury verdict is a good illustration of why these cases are really not brought—and they're not brought because they're pretty weird cases to prosecute. It's not what trespass actions were designed to deal with. So, I think that the statement, ‘Hey, a loss is really what you needed to establish precedent’ is accurate as far as it goes. But I do think the jury did send a strong signal.”

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

“He specifically said there's only three counties in Wyoming that'll even do anything with corner crossing anymore,” Semerad said. “Carbon County happens to be one of them. And the process is, law enforcement will write up a report and send it to the county attorney. The county attorney makes a case-by-case determination about whether to bring charges. That's such a funny way of doing it because that's not how any other criminal charges are dealt with. DUIs aren't dealt like that, speeding tickets aren't dealt like that, murders aren't really dealt in that exact fashion.

“What I think it shows is that prosecutors know that these cases are very weird. They're not really criminal. They're kind of just, ‘How do we keep the peace between wealthy, private landowners and regular folks who just want to hunt public land?’” he said.

Semerad speculates that Carbon County may join 20 other counties in Wyoming that don’t prosecute corner crossing. No laws have changed, but the application of it may shift.

How to Change the Law Though the criminal cases against Brad Cape, John Slowensky, Zach Smith, and Phil Yeomans are likely concluded, the civil lawsuit against them from Iron Bar Holdings, LLC, is still moving forward.

Fred Eshelman, a millionaire pharmaceuticals businessman from North Carolina, owns Iron Bar and the Elk Mountain Ranch. Through his lawyers, he claims that the four Missourian hunters caused him damages by stepping from one parcel of public land to another adjacent to his massive ranch. The standard for nominal damages doesn’t require any substantive loss or impact to the plaintiff, but many observers still wonder what injury they will seek to prove.

That case was removed from the Wyoming court system to the federal judiciary, though Eshelman’s attorneys filed a motion to remand it back. 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's just going to take a little more doing to create a bigger precedent. What would happen down in the state court is that a district court decision would really only have a 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 at the Wyoming Supreme Court could then appeal directly to the U.S. Supreme Court. That could create a national precedent, but that's very discretionary.”

The public land sportsmen’s nonprofit group Backcountry Hunters & Anglers has filed an amicus curiae “friend of the court” brief in an attempt to help keep the proceedings in federal court, where a decision could have a more binding and far-reaching application. Semerad believes they have a strong argument for remaining in federal court to solve a federal problem, despite what his legal opponents might say.

“They said that this is just really about a private property owner wanting to exclude people from his private property, the end,” Semerad said of his legal adversaries’ attempt to return to state court. “Then we opposed that pretty vigorously in saying that’s completely disingenuous. The reality of their claims, if their claims are true, then the public will have exactly no access to corner-locked public lands. If that were the case, we now know because of the onX report, that's about 8.3 million acres of public land that are completely cut off to public access. Unless the adjacent private landowners are magnanimous and want to allow it, it basically turns the public lands into a free asset of the private landowner. They never paid for it. They didn't have to do anything to acquire it. Just by the fact of owning land adjacent to it, they have complete control over it.”

He and others believe these realities, alongside the Unlawful Inclosures Act of 1885, land this case clearly inside federal jurisdiction. That excites many public land hunters because a potential ruling in that setting could have application outside Carbon County, even outside the borders of Wyoming.

“An order from the Federal District Court of Wyoming, that’s final,” Semerad said. “If it is not appealed by either party, it will be binding on the District of Wyoming in effect because every time that issue gets brought up in Wyoming, they'll say, ‘Well, here's the case on the issue. This is the answer.’”

However, no matter the decision, one side will most likely appeal. If the case stays in the federal system, that will take it to the 10^th Circuit Court of Appeals, which has jurisdiction over Oklahoma, Kansas, New Mexico, Colorado, Wyoming, Utah, and the federal portions of Yellowstone National Park that extend into Montana and Idaho.

“So, all of that territory, it's the 10th 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 at the 10th Circuit can appeal to the U.S. Supreme Court directly. It's a discretionary appeal. They don't have to take it, but if the U.S. Supreme Court were to take it, that decision would be binding across 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 back state court.”

The U.S. Supreme Court only accepts a small fraction of the cases appealed to it every year. That said, they did accept and rule on another complex and interesting case regarding elk hunting in the same state only three years ago—Herrera vs. Wyoming. It’s also worth mentioning that U.S. Supreme Court Associate Justice Neil Gorsuch was a judge on the 10^th Circuit Court of Appeals before his nomination to the higher court. He may be familiar with the highly frustrating and legally murky nature of the corner crossing issue, which dates back more than a century.

“I have talked to many attorneys who are longstanding members of the bar,” Semerad said. “These attorneys, some of whom are not even practicing anymore, have basically all told me, ‘Ryan, we've been dealing with this issue for half a century. This, this is just the way things have been.’ The Leo Sheep Co. case specifically says the reason Congress had to pass the Unlawful Inclosures Act is because this same stuff was happening in the late 1800. I mean, this has been going on basically since the Civil War. And I imagine it was going on before the Civil War.”

Many people have suggested that a case of four nonresident hunters from the Midwest is an imperfect testing grounds for this issue, more likely to enrage the ranching establishment in the state than to find a solution. Others push back on that idea, arguing that Wyoming legal and law enforcement agencies might not have brought a “more perfect” case to trial for fear of a damaging loss. The state’s legislature is separately taking a close look at the trespassing issue in an interim committee, which may come to bear in the larger question.

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

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

“What was revealed through this process was that these private landowners, they look at the public lands that are landlocked and next door to their lands as a part of their lands, too.”