Corner crossing...off to federal court we go.

BuzzH

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Apr 15, 2015
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Judge transfers corner-crossing trespass case to federal court

Civil case against Missouri hunters is now in a federal venue where U.S. public access laws may hold more sway.
by Angus M. Thuermer Jr.April 1, 2022
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The U.S. District Court building in Casper, March 30, 2022. (Dustin Bleizeffer/WyoFile

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A federal judge has ordered that a civil suit seeking damages from four Missouri hunters for allegedly trespassing by corner crossing on the Elk Mountain Ranch be transferred from state to federal district court. The move puts the issue of accessing some 1.6 million acres across the West in a venue where federal laws favoring access to public land may have more import.
Why it matters
Corner crossing is the act of stepping from one piece of public land to another where the public parcels share a four-way corner with two private parcels — all without setting foot on private land. As interpreted widely across the West, corner crossing constitutes trespass because a person must pass through the airspace over private property in the process.
Under that interpretation, 404,000 acres of public and state land across Wyoming and 1.6 million when also considering Colorado, Idaho, Montana, New Mexico and Utah are off limits to the public. Much of that land is enmeshed in a checkerboard pattern of ownership dating from the era of railroad construction.
History
Carbon County prosecutors filed criminal trespass charges against the four men in Carbon County Circuit Court and also want three of them convicted of trespassing to hunt. The charges stem from hunting trips the men took to Elk Mountain in 2020 and 2021 where they say they crossed corners to hunt on public land without setting foot on private property.
Elk Mountain Ranch owner Iron Bar Holdings, which lists billionaire Fred Eshelman as its manager, also sued the four in Carbon County District Court seeking civil damages. An attorney for the hunters last month filed a petition to transfer the civil case from state jurisdiction to the U.S. District Court for Wyoming where federal public access laws may hold more sway.
Who said what
“The clerk of the district court is hereby advised that jurisdiction over the parties and subject matter of the above-entitled action is deemed removed from the district court to the United States District Court for the District of Wyoming…” Chief U.S. District Judge Scott W. Skavdahl wrote in an order filed Thursday. The order becomes effective once the hunters’ attorney files documents in state district court, and Iron Bar will have an opportunity to ask Skavdahl to send the case back to the state venue.
U.S. District Judge Scott Skavdahl (Wyoming Supreme Court)
Iron Bar “has a right to exclusive control, use, and enjoyment of its Property, which includes the airspace at the corner, above the Property … the surface of the land and the subsurface below it,” the ranch owner states in its civil suit. The hunters, who have asked that the civil and criminal cases be dismissed, say Iron Bar’s interpretation runs afoul of laws passed by Congress, including the Unlawful Inclosures Act that generally prohibits landowners from fencing people out of public property.
tate legislatures, state executives, and state judiciaries may not grant rights, privileges, or powers to private parties regarding the use of or access to federally owned public lands located within a state that would conflict with federal legislation enacted by Congress pursuant to the Property Clause,” the hunters’ petition to transfer states.
What else you need to know
The Legislature’s Joint Judiciary Committee has proposed that trespass be its No. 1 topic for study before lawmakers begin their next session in 2023. The overseeing Management Council will consider the request April 8. The committee wants to investigate the issue “including trespass by drone and a comparison of criminal trespass with trespass for hunting purposes.”
Angus M. Thuermer Jr.

US M. THUERMER JR.
 

RICMIC

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So, if private landowners own the airspace above their properties, just how far does that go? I wouldn't want a drone hovering over my house either, but there must be a reasonable limit. It would be cool to take a power parachute into some of these landlocked public areas.
 
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Hilltop

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So, if private landowners own the airspace above their properties, just how far does that go? I wouldn't want a drone hovering over my house either, but there must be a reasonable limit. It would be cool to take a power parachute into some of these landlocked public areas.
It is different state to state but the case law generally views it as the landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land. For public flight purposes it is generally 500' to 1000'.
 

JimP

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So, if private landowners own the airspace above their properties, just how far does that go? I wouldn't want a drone hovering over my house either, but there must be a reasonable limit. It would be cool to take a power parachute into some of these landlocked public areas.
But then wouldn't the states laws apply as far as hunting time after a flight?

I once read that you need to be able to occupy the area above your property before you can call trespassing over your property. Look at all the commercial airlines that cross over it every day. Granted you may not be in a flight path but it could be any plane.
 

Slugz

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Couple items to clarify with regards to the airplane part. Its detailed in the Part 91 ( 91.119)

1) In the US : "An aircraft must maintain an altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure "

2) In the US: An aircraft must maintain an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft over any congested area of a city, town, or settlement, or over any open air assembly of persons.

3) Though specific altitudes are called as noted. Overreaching general requirement to maintain sufficient altitude that if a power unit fails, an emergency landing without undue hazard to persons or property on the surface can be made. This may be significantly higher than 500 feet or 1,000 feet.

1 and 2 are generally accepted as the 500ft and 1000ft rule
3 is the not withstanding rule
 
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Slugz

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Precedence has been set in a few court cases already with drones with regards to "what do you own over your property lines" Its been generally ruled that your "private" airspace is up to your highest tree line.

A drone lower than your highest tree line is an " invasion of privacy"
 

Slugz

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Michigan Law Review Vol45 #7 May 1947 is a good read.

The claimed ownership of under your private property to the core of the earth and airspace that went forever into space was ruled several times already.....a long time ago.....that it doesn't apply anymore in the modern world.
 

Bonecollector

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It is different state to state but the case law generally views it as the landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land. For public flight purposes it is generally 500' to 1000'.
And I, as public land owner, own the space above my property…. 😎
 
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Bonecollector

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So, if private landowners own the airspace above their properties, just how far does that go? I wouldn't want a drone hovering over my house either, but there must be a reasonable limit. It would be cool to take a power parachute into some of these landlocked public areas.
I've looked at using a chopper to access some places. The cost is reasonable between several hunt partners on a good piece of ground
 
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nv-hunter

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I would much rather have someone corner cross then fly a drone over my property. I still think the way to get things opened up is by charging the land owners who land lock public ground extremely high fees, be it for grazing, outfitting, timber, mining or any other purpose. Also make it so they can't access private land by crossing public land that is not open to everyone.
 

BuzzH

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Apr 15, 2015
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But then wouldn't the states laws apply as far as hunting time after a flight?

I once read that you need to be able to occupy the area above your property before you can call trespassing over your property. Look at all the commercial airlines that cross over it every day. Granted you may not be in a flight path but it could be any plane.
To answer your question specific to hunting time after flight, currently in Wyoming there is nothing to prevent you from using an aircraft to hunt the second you land.

You can find the regulation on the GF website...I know the regulation well, since myself and JM77 reworked the regulations to change the definition of aircraft to include drones, make it illegal to scout from the air between August 1 and January 31, and also made it legal to use aircraft and hunt the same day. That regulation change went through the public process and took about 2 years to get commission approval.

The reason for same day hunting is that prior to this regulation change we pushed, there was no legal way to hunt a landlocked piece of state as over-night camping on State lands is illegal in Wyoming.

Jeff and I put a lot of thought into this current regulation on aircraft to make sure the GF and Commission were on board.

As to the airspace argument, thats a sword that cuts both ways. If a landowner on a corner like was crossed is going to claim ownership of 2 1/4 slices of that infinitely small airspace, there is an equal 2 1/4 slices of that same airspace that are owned by the public. As such, the public has the same right to cross that airspace as the adjoining private owner.

That's exactly the argument made in the motions dismiss and what will be argued in court.

Property rights are not a one-way street and apply to both public and private land owners equally.