Article in Wyofile by Angus Thuermer. Lots of legal stuff.
Aside from the routine practice of not commenting on pending or ongoing investigations, U.S. Attorney Nick Vassallo’s office couldn’t immediately explain the investigative process and what or whose allegations it probes. Eshelman’s attorney, along with the BLM, also did not respond to inquiries.
1885 law
In a July 29 filing, attorney Semerad defended his clients against Eshelman’s civil claim.
“Plaintiff [Iron Bar Holdings] is now violating and has, at all times relevant to its claims in the Complaint, violated existing federal law … by unlawfully enclosing public lands and/or by using force, threats, intimidation, and other unlawful means to prevent or obstruct Defendants, as members of the public, from peaceably entering upon, freely passing over or through, or freely traveling over or through the public lands,” the document reads.
With the UIA, Congress protected legal access to federal property, especially in the West, by restricting landowners’ actions and structures. How and whether the UIA applies in the civil case could have a bearing on public access to some 8.3 million acres in the West, 2.4 million acres in Wyoming alone.
That’s the amount of acreage considered by the digital mapping company onX to be “corner-locked” by any definition that corner crossing is illegal.
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Obstructing transit
A section of the 1885 UIA titled “Obstruction of settlement on or transit over public lands” prohibits landowners from blocking “…any person from peaceably entering upon or establishing a settlement or residence on any tract of public land…” No person “shall prevent or obstruct free passage or transit over or through the public lands,” the UIA states.
But another clause appears to protect landowners, stating that the law “shall not be held to affect the right or title of persons, who have gone upon, improved, or occupied said lands under the land laws of the United States, claiming title thereto, in good faith.”
The federal law has teeth, if prosecutors choose to use them. Any “owner, part owner, or agent, or who shall aid, abet, counsel, advise, or assist in any violation” of the act who is found guilty can be fined up to $1,000, imprisoned for a year, or both.
From the BLM’s perspective, the UIA does not protect corner crossing as a means to access public land.
“There is no specific state or federal laws regarding corner crossings,” the agency states in a pamphlet that appears to have been updated in 2013. “Corner crossings in the checkerboard land pattern area or elsewhere are not considered legal public access.”
Courts could decide whether the BLM policy and the UIA are in conflict.
I don’t get it; having worked on a survey crew, and my dad as a RLS, the theoretical placement of diagonal corner crossings seems very possible. Having the BLM policy incongruent with the UIM just shows how bad the BLM is out of step, and contributing to the fuss.
Having ownership bordering federal lands (but not in the corner crossing scenario), I see the private owners point too! I don’t want Pilgrims crossing from federal land onto mine, but how could I stop corner crossings, legitimately?
I guess some folks just gotta bitch about something…..
The chain “was removed because it had no purpose.” That seems to play into the UIA language about a “guise” of enclosing the private property when the purpose was actually to exclude the public from federal property. Especially because the chain necessarily occupied federal airspace. Without the chain it seems like this defense argument would be a lot weaker.
I don’t think that a a successful defense based on a finding that corner crossing is legal would likely lead to many future investigations and prosecutions. It could end up being treated the way the federal government formalizes prescriptive easements, which is seldom and carefully.