In 2020, Bradly Cape, a bow hunter from Missouri, drove to Wyoming to hunt with three companions. A meticulous planner, he had spent months poring over maps, perusing message boards and studying Wyoming law. Ultimately he settled on Elk Mountain.
Using OnX, Cape identified a route that began on a county road and climbed up a rattlesnake-infested hillside. Within minutes of hiking, he had found the corner, which the Eshelman ranch had carefully obstructed with two “No Trespassing” signs positioned inches apart to prevent corner-crossing.
The hunters proceeded toward the elk anyway and “killed some pretty big bulls,” said Eddie Garren, Cape’s son-in-law. Along the way, however, they were confronted by a ranch manager who warned that they were trespassing.
Undeterred, Cape and his companions returned the next hunting season. This time, to avoid contact with ranch property, they carried a ladder that was exactly 6 inches taller than the “No Trespassing” signs. (Cape, who owns a fencing company, fashioned the ladder out of fence piping.) After the ladder was unfolded, the four heavily armed, camouflage-wearing men performed what might have seemed like a TikTok stunt or an arcane ritual, placing a ladder over a pair of 5-foot-tall signs — the only obstacles around for miles — and climbing over it one by one as if they were avoiding an invisible electric fence.
They proceeded to camp on the mountain for nearly a week, during which Eshelman’s ranch hands pursued them in pickup trucks, Cape said. A game and fish warden cited them for criminal trespassing, forcing them to return to Wyoming the next spring.
Their trial seemed to touch a nerve in Wyoming, a state where it can be hard to get calls returned in hunting season. Even self-proclaimed private property die-hards seemed troubled by the government’s expansive claims. Could a hunter — or anyone — be jailed simply for waving an arm across a neighbor’s fence?
Prosecutors argued yes. “Landowners don’t just own the land,” claimed Ashley Mayfield Davis, the Carbon County attorney. “You also own your airspace.”
A jury disagreed, acquitting the men after two hours of deliberation. By then, however, Eshelman had filed a civil trespassing suit, demanding that the hunters pay $3 million to $7 million for property damage. And the battle had been joined by others spoiling for a fight.
Supercharging the Question of Access
Some hunters hunt a piece of land for its game, others to experience the land itself. For Buzz Hettick, the power of Elk Mountain originates elsewhere.
“My dad used to hunt some private property in Montana,” said Hettick, a forester with the U.S. Forest Service. “And one year they told us, ‘Sorry, you can’t anymore — we leased it to an outfitter.’ I was crushed. And I was like, you know what? This is never going to happen to me again.”
Standing in a patch of bitterroot, serviceberry and sage at the foot of Elk Mountain, Hettick called apps such as OnX “the best thing that’s happened to access in years.”
Last fall, Hettick, who lives in Laramie, Wyoming, heard about the charges against the Missouri hunters. Sensing an opportunity long awaited by advocates of public lands, he activated the resources of Backcountry Hunters & Anglers; Hettick is co-chair of the group’s Wyoming chapter.
Backcountry Hunters & Anglers helped the Missouri hunters find lawyers, rallied its 35,000 members for support and started a GoFundMe page, which has raised more than $110,000 to pay the hunters’ legal bills.
“It’s super grassroots,” Hettick said. “You’ve got people who probably can’t afford to give $5 but feel so strongly about public lands that they donate to these guys.” Echoing nearly all public discussion of the case, he called the civil suit overreaching and punitive.
“What judge, jury or person with two firing brain cells is going to say that crossing that airspace is worth $7 million?” he said. “That’s not going to happen. It’s absurd.”
Eshelman did not respond to an interview request for this article. Discussing the case in an email statement to The Wall Street Journal this month, he said “forcible trespass” was a safety issue and could affect the property value.
“There’s a pattern of bullying,” said Land Tawney, executive director of Backcountry Hunters & Anglers. “When a landowner claims $7 million in damage for trespassing, people are meant to be intimidated.”
If OnX supercharged the question of who gets to go where — although the company declined to take a side in the case — Backcountry Hunters & Anglers gave it an influential platform.
The Missoula-based organization focuses less on firearms advocacy and more on sustainability. Under Tawney, who worked in conservation before becoming executive director in 2013, the group has tried to modernize and counter the perception of hunters as “old white dudes with beer in their hands,” said Elizabeth Lynch, a member of the group’s Wyoming board.
However, as it has for OnX, its crosstown neighbor, the question of public access — of who gets to go where — has become its bread and butter. And courts have been favorable terrain. From Idaho to New Mexico, conflicts over sportsmen’s access have roiled the West, thanks in part to the exploding popularity of outdoor recreation. More Americans than ever are off-roading, ice climbing, snowmobiling and trout fishing, which has made it more lucrative than ever to fence off a canyon or a valley — or use drones to patrol a private stream — and charge for access.
“Hunting has become big business,” Herring said. “And people who have leased land for hunting don’t want people who aren’t paying to be on it. As a result, the issue of trespassing has gotten hotter every year.”
Resentment of landowners and commercial hunting has heated up as well.
“If you go back a few decades, it was a lot easier for the public to go knock on the door and get access to private land,” said Webster of the Theodore Roosevelt Conservation Partnership, which has worked with OnX on public lands initiatives. “Generally, the people who owned the land had roots in that community — they went to church together, they went to school together, they grew up together. And if you want to access my place, that’s fine, just let me know — that kind of thing.”
That trust has eroded, in part because of a generational shift away from family farming and ranching. “The owners and their kids don’t want to continue that tradition,” Webster said, “so they end up selling to a new landowner who maybe isn’t from the area, and who may not have the same feelings about the public on their lands.”
The result — bitter confrontations steeped with class overtones and hinting at larger grievances — is now a staple of the West.
Legislatures have stepped in to resolve the conflicts, largely in favor of landowners and corporate interests seeking to limit public access, while judges have gravitated toward loosening restrictions. For outdoor advocacy groups, the issue can be a public relations nightmare, since the deep-pocketed donors they court for financial support are often landowners.
Like a corner-crosser, OnX has found itself navigating a narrowly contested space. In 2018, Siegfried stepped down as CEO to focus on public land advocacy. At the same time, the company began publishing a stream of “access initiatives” trumpeting the issues of landlocked and corner-locked land.
Laura Orvidas, who took over for Siegfried as the CEO of OnX, does not believe that the app facilitates trespassing.
“That is the opposite of the app’s intent,” said Orvidas, who came to OnX from Amazon. “The app doesn’t say where an individual user can and can’t go. And it doesn’t say where they can and can’t hunt. It’s up to each user to interpret that data for their unique situation — which hunting units they have tags for, whose property they have permission to be on — and understand the rules and regulations of their area.”
Where Does a Property Line Start?
Public discussion has tended to portray the civil case against the Missouri hunters as extreme and untenable — a desperate move by a vindictive plaintiff standing on shaky legal ground asking the question: If you disturb the air particles over your neighbor’s land, have you potentially committed a crime?
David Willms doesn’t think the case is a joke, though. Willms, a lawyer and policy adviser for the National Wildlife Federation, hosts a podcast, “Your Mountain,” which, as its name suggests, is devoted to the issue of public lands and has not aligned himself with either party in the Elk Mountain dispute. He worries that the case could have unintended consequences.
“Can the landowner make a straight-faced argument that passing through the airspace is a trespass?” said Willms, who previously worked for the Wyoming attorney general’s office handling similar cases. “Absolutely.” He points out that Wyoming has a statute under which “ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath.”
“Can the hunters make a straight-faced argument that passing through the airspace isn’t a trespass?” he continued. “Yeah, they can.”
But if the civil case goes to trial and reaches a verdict, he thinks the outcome could easily end in favor of landowners. Moreover, if the hunters win, “it would not surprise me at all that the Legislature would come back and pass a law saying corner-crossing is illegal,” he said. “It’s sort of if you win, you lose, and if you lose, you lose.”
The head of Wyoming’s powerful ranching lobby isn’t laughing, either. Jim Magagna believes that the optics of the case are what drew advocates of corner-crossing, knowing how “a wealthy landowner who lives out of state” and who has made some “rather large claims in terms of the damage being done to him” would be perceived.
According to Magagna, the hunters’ case isn’t just about a legal right to corner-cross. Under one interpretation of federal law, the public wouldn’t have to corner-cross at all to get to landlocked land: If the only way to reach public land is through private land, people can just take the most direct route “right through the middle.”
That means, in Magagna’s view, it’s possible that ranches used for exclusive hunting experiences would have to open in part to the public — if the ranch is the most direct route to public lands.
“The implications are potentially very large,” he added, noting that the ranches would lose value.
That would affect more than wealthy landowners, said Megan Lawson of Headwaters Economics, a community development nonprofit in Bozeman, Montana.
“Amenity economies depend on guiding services, lodging and hospitality in general,” Lawson said. “That’s the lifeblood of the economy in several states.”
Rinella of “MeatEater,” one of hunting’s biggest celebrities, has raised money for the hunters. “I’m not advocating civil disobedience,” he said. “I’d like to see the corner-crossing issue clarified.”
He called the Elk Mountain case “a new chapter in an ever-evolving debate in America about who has access to land” and said it had exposed some landowners as being “concerned about losing exclusive access to property that is not theirs.”
“No one’s going to grant access out of the goodness of their heart,” he added.
I’ll bet you would if you were making payments on it.
Unless Congress passes a law allowing it, it will be a local issue. That is, up to the local authorities, DAs, and juries to decide on a case-by-case basis. My sheriff cites for trespassing when the landowner calls them out, and the DA prosecutes. Some other counties don't. Biden Hikers and Activists won't set up a GoFundMe for every case.
Best bet is to call the sheriff's department in the county you want to hunt before you do it. DNRs don't get involved because they can't prove "intent to hunt" on the airspace that is violated per the USSC Causby ruling. So the good news is that it is simple trespass with a small fine if you get caught, not a violation of game law that can cost you hunting and fishing privileges in 48 states for a year.
If Congress passes a law allowing it (they won't...ever...) it will be immediately challenged using precedent from USSC rulings and the Takings Clause in the 5th Amendment and will end up in the USSC again.
I love the guys who claim, "If I had a 40 acre property I'd purchased with my life savings, with some public land behind it, I would let every swinging dick come right on in and hunt". No, you wouldn't.
DL, with all due respect, despite what Biden Hikers and Activists claim on their tshirts, the public doesn't have a right to access any government land held in the public trust. That is a privilege granted in certain places by the managing agency. The entire north end of "my" National Forest was closed to all access, even foot travel, for a year AFTER the Cameron Peak fire was extinguished. Even large areas many miles from where the fire ended. The USFS issued trespassing tickets for parking on the county road and walking in to "our" public land.
No mic drop yet, Matt. I had to take a long hiatus to go to wife's family holiday in Idaho. I'm back out here now, hunting in the a.m.
Because some people are stupid, enter a burn area, don’t pay attention or use common sense, get hurt, then sue the government. So by closing the area the government protects stupid people from doing something stupid and in turn protects themselves from a lawsuit all the while 99.9% of us can’t use an area because 1 in a 1,000 might get in trouble. It’s probably closer to 1 in 100,000 but it only takes one to ruin it for everyone else which is the way of the world. It’s obviously late…..
Landlocked public just pisses me off. All of these lawsuits are so expensive. Go Fund Me will never fund them. Why don’t we just use all that money to operate a non profit helicopter service so we don’t devalue their air particles? Someone refresh my memory…. at what altitude does their private airspace property line end? To my knowledge private land owners haven’t sued any airlines for flying over their land. I know pole vaulting won’t quite cut it but maybe a hang glider. I know you have to be authorized to land an aircraft on national forest. Does non motorized circumvent that law?
This is Bowsite we can solve anything! Lol
They bought property with access, not with *exclusive* use. If I buy property that abuts public land, I have easy access, which is great, but expecting that nobody else can/will use that land is bullcrap. You control what you own, not what you abut.
Back in about 1985 my brother and I hopped a corner in Wyoming using one of the first made GPS units from Magellan. The shit hit the fan. I parked literally in view of the ranch house. When we got back to the truck I immediately saw the dust cloud from the rancher’s truck coming my way. He asked”Are you guys from the college looking for fossils” I looked him in the eye and said nope… scouting for mule deer hunting. Haha! He said Fish and Game is on the way. I said tell him we said hello and drove away. 5 miles down the road here he comes. I flagged him down. He had never seen a GPS. He said look…. I believe you never set foot on his land but those guys make a living from hunting on that property and if want anything to be left of this truck when you’re done hunting you best go find somewhere else to hunt. Really dude. I’m supposed to sympathize with the rancher after you tell me that? Ever since that I’ve had a bad taste in my mouth for people who keep me from stepping over one little pin to hunt a place that DOESN’T FKN BELONG TO THEM!
We are nice enough to let their cattle overgraze the hell out of our land. I’d like to see how they feel about corner hopping after we revoke that privilege.
Did I mention I’m pro-access? Lol
If your neighbours turn their yards into dumps - your value will fall.
If your neighbour hood is built up into beautiful clean homes and yards, your value will rise. This is the risk you take when getting into property ownership.
The land behind my house is a farmers field but it is owned by a First Nation. Should they decide to build and make a rural reserve my land value will plummet. But it’s out of my control. Those ranchers know darn well their values are inflated due to external factors and that’s the risk they took buying. Ditto with small property owners. There’s a million things that can change the value of your property
I suspect that isn’t the case at all. It’s a I got it, you don’t, and I want the perks at your expense. That’s as simple as it can be said.
Local or national isn’t important. The fact it’s being blocked for private gain, at the expense of everyone else is the issue.
I’m not a BHA fan. But, I’m not a fan of anyone abusing a situation where greed is driving it. Be smart and polite and I’m guessing it would take care of itself. But, polite and courteous isn’t a human trust that cone naturally. So, here we are.
Corner crossing needs to be settled. Rights of way are to expensive and just declaring one requires "taking" land which is wrong.
My solution is simple. At the. Corner you are in 2 places at once. Declare in such cases that you are on public land
My county DA will prosecute UNLESS you cross at a corner post, problem is not all corners are marked
I doubt the charged in this case will be found guilty. But I seriously doubt they'll be willing to go through the judicial nightmare again to kill a elk.
IMO, this issue will never be resolved on a nationwide level unless it makes it to the USSC and they issue a ruling. That is what needs to happen. Otherwise it will always be up to local jurisdictions to decide whether to prosecute or not, using the Causby USSC airspace ruling as the precedent.
It should also be noted that less than 2% of all local, state, and federal public land is landlocked by private lands. Yes, that's still over 16 million acres, but it's a drop in the bucket relative to the total 828 million acres of public land. Hunters are primarily the only group who are concerned about access to the landlocked areas. I doubt anything will change any time soon.
The word is out now since this is a notorious corner across a well known ranch in this LE unit, so most who hunt that area avoid it now. There is public access behind this ranch from the other direction, but it is a three mile hike through massive deadfall. So it is technically not "landlocked". Just a way easier way to access. I'll pm you the coordinates if you want to test it out and report back on the outcome.
The WY case was decided by a jury, but the civil case is still TBD. Ordinary trespassing cases never go to a jury trial unless there are extenuating circumstances like the WY case. So it would be up to a judge to decide here in CO unless somebody wants to hire a lawyer and pursue it, then take time off work and travel back to the jurisdiction for the trial, as you said. The ticket for simple criminal trespass in CO is a class 2 misdemeanor, but the fine isn't as much as one hour of lawyer time to fight it.
Tjm, sorry, even though you may have won the tshirt at Pint Night, you are not a "public land owner". The government owns the land and holds it in the public trust. The managing agency (BLM, USFS, BOR, etc..) decides if, who and when the public is allowed to use the government land. "Should never be locked out" is just your opinion.
Think about a checkerboard. The red squares are private and black is public. The Causby ruling dictates that a hunter cannot hop from black to black without a portion of his body trespassing in the private air space above the red squares.
Hope this helps
The town we’re in has lost a couple of multi-million dollar lawsuits; in one, a guy was sledding at a local park on a hill that had a ditch at the bottom. He went into the ditch and wrecked his back. Another one, a guy was out cycling on a public roadway, hit a pothole, went down, hit his head. Both of them won MILLIONS; I think the first one got 3 or 4 and the other walked away with 10 or 12.
I made the call in the two counties I hunt in CO where there are checkerboard issues. Both said they did, and I personally know landowners who have pressed charges in both counties. So I don't risk it. Your county sheriff may not, and if that's the case, jump like a frog and go hunting, and keep it to yourself, else your little spot gets publicized on an internet forum and everybody starts jumping.
Thanks for the post, interesting topic. I can see easements becoming the solution.
I'm living in town and down the road around the corner is a hole in a hillside that is someday soon to become a 90 unit luxury apartment site. Land devaluation comes to everyone as the population grows.
And nobody cares except a handful of hunters, in the grand scheme, so there is no impetus to pursue it.
It was also interesting to find out that their land use regs are different than hunting outfitters. For example as an outfitter I am not permitted to pound a single nail into a live tree. But the rancher pounded 20 nails in every tree along the main ridge to run barbed wire to make it easier to contain his cows.
He also has the keys to the locks on the gated roads so he can look for his cows. But he uses it to drive his truck all over the mountain looking for an elk to shoot.
You are not allowed to leave a bucket under a spring but the rancher flies in stock tanks by helicopter which eventually sit there and rot away for eternity.
And I’m supposed to sympathize with the value of their private land?
If this is legal, and corner hopping isn’t, it becomes an issue of how high above the ground do you have to be in order for it to be legal. How much of the airspace do you own?
You can’t sue an airplane for flying over your farm, you can’t sue a helicopter for flying right above your farm and dropping hunters in a BLM section, so how high do hunters have to make their ladders in order for it to be acceptable?
Also, helicopters are highly restricted as to where they can land. It isn't "perfectly legal". To land in National Forest requires jumping through a bunch of bureaucratic hoops and proving you have a legit reason to get approval. Just wanting to hunt landlocked NF is generally not considered a legit reason for a helicopter to land. Otherwise guys in the West would be doing it all over.
Landing on BLM requires authorization from the local office, but is less stringent. Maybe Big Fin (Randy Newberg) can come on and explain what he had to do to land on landlocked BLM for his show.
I researched all this to try to land on a big chunk of BLM. But the BLM sold it to the outfitter/rancher before I had a chance to apply for the permit.
I agree 100%. Except the premise republicans don’t want people accessing public lands. The republicans I know want public lands utilized by the codes in which define them. Utilization of every resource on it is the goal. Not exclusion.
Although you may know republicans that want access to the public lands, many particularly in the west do not. They benefit from the donors and restricting access. Some own land that borders public.
Ron P, it’s not a Republican problem. It’s a bought and paid for politician problem. They just happen to be republicans in that case. Democrats like to limit access too. Preserves, monuments, etc…. Once again it’s lobbied politicians. Not just republicans.
I agree, it wasn't my intent to imply it was not a problem with democrats.
Here in CO we are not permitted to set foot on STATE land, unless another state agency leases it from the State Land Board. This applies whether or not it touches USFS, BLM,, or a public road. CPW leases a few parcels for hunting/fishing access, but whoever has the grazing (or other use) lease on the parcel also has the recreational rights. So the state has to lease it from the state to allow public access. How messed up is that?
That probably gets them around the Pittman-Robertson rules re. license money being used for conservation. (Leasing land/access is ok.)
New governor being sworn in here soon, and bet on it, she'll try to fold F&G license money into the general budget, then have to be schooled on the millions it will cost the state if she does.