Corner-crossing defendants move for dismissal of trespass charges

A photograph purporting to show the corner in question. (GoFundMe)

An attorney for one of four hunters charged with criminal trespass in a corner-crossing case in Carbon County has asked a judge to dismiss the count against his client and the three other defendants.

The motion is one of two that attorney Ryan Semerad of Casper filed in the case in which the four Missouri men used a ladder to cross from one public U.S. Bureau of Land Management section to another. The four avoided “actually entering into or intruding upon any part of the private sections of land at the corner,” the dismissal motion states.

Semerad’s second filing seeks to consolidate the four trespass cases for trial. The filings indicate that the men, who all pleaded not guilty, intend to fight the charges that bring a maximum penalty of six months in prison and a $750 fine.

Authorities charged Semerad’s client, Phillip G. Yeomans, along with Bradly H. Cape, John W. Slowensky and Zachary M. Smith on Oct. 4.

“Federal law prohibits any person or group of persons from preventing Mr. Yeomans, his friends, or others from freely passing through public lands,” the motion for dismissal states. “Consequently, private landowners cannot prevent or obstruct free passage from one section of public land to another by claiming that the common corner where two private sections of land and two public sections of land meet is their exclusive property, land, or premises.

“Accordingly, the State of Wyoming cannot prosecute Mr. Yeomans or any other person for criminal trespass when Mr. Yeomans or another person travels from one section of public land to another section of public land at a common corner with two sections of private land,” the motion reads.

The case arises out of the checkerboard pattern of land ownership that grew from the divvying of property during western settlement, including railroad construction land grants the federal government made in the 1800s. The ownership pattern creates common corners where four sections of property intersect, private sections kitty-corner from one another and the public sections also diagonally opposite one another.

The charges allege that stepping from one public parcel to the other — chess-bishop fashion — constitutes a criminal trespass under Wyoming law. Hunters and others are effectively barred from 1.6 million acres of public land in the West by such interpretations.

One corner in question was apparently guarded by two fence posts erected on the private parcels and connected with a chain and wire. A photograph posted on a GoFundMe webpage supporting the hunters shows “no trespassing” signs for the Elk Mountain Ranch hanging from the private-land fence posts. A survey marker in the photograph presumably indicates the four corners’ common point.

The motion gives the following summary of the events.

The four hunters set up camp on public BLM land on Sept. 26. On Sept. 30 Steve Grende, land manager for Elk Mountain Ranch, called Wyoming Game and Fish officer Jake Miller to report a trespass.

Miller found the hunters, clad in camo and carrying bows, used a fence ladder to cross a corner. The hunters gave Miller a cell-phone depiction of their route tracked on the onX hunt-mapping cell phone app. “This ‘picture’ … does not show that the hunters had ever entered into private sections of land owned by Elk Mountain Ranch,” the motion reads.

The hunters did not rely on the GPS device, which they “understood to only be accurate to 30 feet.” Rather they “sought out the corner marker at every corner of public land before crossing the corner using their fence ladder,” the motion states.

At that point, Miller “in conjunction with Mr. Grende, granted the hunters permission to recover certain elk meat that they had harvested from public land across the corner from the section of public land where the hunters’ base camp was located due to the perishable nature of that meat in the field.”

But Grende was dissatisfied and said, after discussions about the law, that if the Wyoming Supreme Court deemed corner crossing legal, the ranch owner would take extra steps to obstruct, prevent or block access to public lands. A body camera worn by a sheriff’s deputy recorded conversations, the motion states.

Later Sgt. John Moore of the Carbon County Sheriff’s Office notified Deputy Patrick Patterson that the Carbon County attorney “wanted citations issued,” the motion states. Ashley Mayfield Davis is the Carbon County attorney.

Dismissal is warranted because federal law “prohibits any person from preventing free passage over or through public lands,” the motion states. “Of course, then, a person must have the freedom to travel from one section of public land to another distinct, but physically adjoining section of public land,” the filing reads.

“[T]he state’s application of trespass law actually conflicts with federal laws,” Semerand wrote. “Accordingly the State’s application of Wyoming’s criminal trespass statute here is preempted by the federal law on point such that this prosecution ought to be dismissed.”

The motion makes other points regarding the supremacy of federal law over state statutes and cites the Unlawful Inclosures of Public Lands Act of 1885 as one cornerstone in the hunters’ defense.

“[T]his common corner is literally composed of equal parts private property and public property,” the motion reads. “Consequently, the public retains, as both a matter of course and logic, a correspondingly equal right to use and access this common corner.

“Yet, Elk Mountain Ranch and other similarly situated private landowners claim the common corner as their exclusive property alone,” the motion reads. The ranch claim is “an unlawful enclosure or obstruction to free passage through public lands by another name,” the filing states.

“Elk Mountain Ranch and other private landowners may not want the public to access public lands by crossing common corners their property shares with public lands,” the motion says. Landowners “may extract great riches out of their perceived monopoly over public land adjacent to and ‘landlocked’ by their large real estate holdings. They may strongly wish to retain the ability to keep making money from the wealthy elite by granting special access to what is, in reality, a public treasure gifted to all Americans.

“However, in the American legal system personal interest does not and cannot trump the law.”

Semerad also argues that Wyoming’s criminal trespass law does not explicitly state that corner crossing is illegal — the law itself is conditioned by several factors, the motion states. The filing contests that the act of “disturbing an indiscernible segment of private air space for a moment or two is sufficient to have ‘entered’ or ‘remained on or in’ private property,” as required for conviction under Wyoming law.

“The state should not be permitted to bring a charge or secure a conviction based upon some hyper-technical, absurdly literal meaning of ‘enter’ wherein a person is guilty of a misdemeanor offense for momentarily and harmlessly passing through the airspace over another person’s property,” Semerad’s motion states.