The Checkerboard

ROMAN MARS: This is 99% Invisible. I’m Roman Mars. 

In 2019, two hunters were scouting for elk in Wyoming when they came across a peculiar feature in the landscape. The hunters had first noticed it while pouring over maps of the area. Now they were driving out to see it for themselves, a kind of break in the terrain near the state’s southeast corner. 

BRAD CAPE: So it’s open country. It’s open ranch country–sagebrush country. And then there’s this big mountain sticking up right there in the middle of it that just… It’s the only mountain. 

ROMAN MARS: Brad Cape is a fencing contractor from central Missouri. Brad has been hunting since he was old enough to walk. So when he and his hunting partner saw the lone mountain with its dark timber and the arid, empty land around it, he knew what it meant. 

BRAD CAPE: It is a very unique place. And you can see on a map that it’s a very unique place. But whenever you drive around it, it really comes to life. It is a rocky mountain that sits out by itself. You know, it might as well have a big bullseye on it that says, “There’s elk here.”

NICK MOTT: And it’s true. The mountain basically screamed, “Good hunting!”

ROMAN MARS: That’s Montana-based journalist Nick Mott. 

NICK MOTT: I’m a hunter, too, so I get how Brad felt when he found this spot. Pouring over land boundaries and topographic lines–trying to figure out where animals are and other hunters aren’t–finding that perfect area is often nearly as exciting as the hunt itself. And this time, all the pieces of the puzzle were fitting into place. The area had everything big game needed: forage, water, cover… On the map, the peak was named Elk Mountain. 

ROMAN MARS: Which, you know, was probably another big clue. 

BRAD CAPE: And so we were driving around it. We’re just seeing how close we could get to this mountain. And this sweet old gal pulls up there and rolls down her window and asks if she can help us, you know? And we said, “Well, we’re just looking for a way to that mountain. Is there a way to get up there? We’re thinking about hunting.” And she’s like, “There’s no way up there. A billionaire bought it, and he don’t let nobody in.” And we said, “Oh, okay, you know, well, is there any elk around here or deer around here?”

NICK MOTT: That’s when this sweet old gal told them there were so many elk in the area they’d actually become a nuisance, eating the hay meant for cattle. 

BRAD CAPE: And we just kind of looked at each other and said, “Yes, ma’am. Thank you for your time.” And we were excited from that moment on that we were gonna find a way in there. 

NICK MOTT: But finding a way in there wasn’t going to be easy. Brad and his fellow hunters would end up trying to access Elk Mountain again and again and again, until, eventually, it wasn’t even about hunting elk anymore but something way bigger than that. And whether they succeeded or not would end up having lasting consequences for the future of land use everywhere in the U.S. 

ROMAN MARS: Because the single largest obstacle preventing the hunters from making it onto Elk Mountain wasn’t the elevation or the topography. It was how the mountain itself had been divided up into public and private land. 

BRAD CAPE: When you look at that place on a map, it looks like a bunch of these little bitty squares. And when you start looking at it, you see that it is… It’s a checkerboard. 

ROMAN MARS: The “checkerboard,” as it’s commonly known, is a phenomenon unique to the American West–a pattern of land ownership, which is found in huge areas from New Mexico all the way up to Washington. 

NICK MOTT: On a map, these particular areas look a lot like, well, a checkerboard or perhaps checkered linoleum tiles. But instead of alternating black and white squares, checkerboarded land alternates between single square mile parcels of public land and square mile parcels of private land. So every public square borders a private square, which borders a public square, which borders a private square, which borders a public square, which borders a… Well, you get the idea. 

ROMAN MARS: If you look out of an airplane window while flying over a checkerboarded area, it’s not uncommon to see one square with a private housing development on it while the next sits relatively untouched. Or perhaps every other square features dense forest on public land, while those private squares in between are logged. Again, just think of those alternating tiles. 

NICK MOTT: An image which Brad finds himself invoking all the time. 

BRAD CAPE: Still, to this day, if I have someone ask me about this in the grocery store, I can’t explain it unless I’m standing on a tile floor because, here in the Midwest and the rest of the country, they just don’t get it. 

ROMAN MARS: There’s a catch, though, when it comes to hunting or doing anything really on the checkerboarded area. In the U.S., there’s no legal way to pass through private property without the landowner’s permission. That’s trespassing.

NICK MOTT: So public land in the checkerboard is often very difficult to access. After all, any public square in a checkerboard is surrounded on all sides by private property. It’s only ever caddy corner to other public squares. 

ROMAN MARS: It doesn’t matter that the public land belongs to us, the public. The reality is it’s only the owners of the adjacent private squares who have an easy way in. These inaccessible public lands are what’s called “corner locked.”

BRAD CAPE: So it’s a big deal out west because you have the layout of public land out there, but you’re just trying to keep the access to yourself.

NICK MOTT: And when it came to hunting in the checkerboard on Elk Mountain, it was no different. The private half of the checkerboard belonged to a ranch. And the ranch wasn’t allowing strangers to cross their land. 

ROMAN MARS: But to Brad, that just made the public land all the more tantalizing because it meant that it had the one thing that any good hunter was looking for: no other hunters. 

NICK MOTT: So, the next year, in 2020, Brad and his friends decided to try something that, in hunting circles, is called “corner crossing.”

BRAD CAPE: Because something where nobody else would be–that’s where I want to be. And in order to do that, we had to cross these corners. 

ROMAN MARS: To understand corner crossing, think about a literal checkerboard. In a checkers game, a piece that starts on black needs to stay on black, so the pieces move diagonally, crossing caddy corner from the corner of one square to another. 

NICK MOTT: Moving through checkerboarded land works in the same way. To avoid the ranch’s property, all Brad and his friends had to do was move around like a checkers piece. They’d start on public land and then make sure to stay on public land by only crossing into new squares diagonally, at the corners where all those public squares touch. 

NICK MOTT: Tell me about, you know… So, the way it works in this area–you set up camp, your camp is in the first, like, square that is publicly accessible, and then you cross from there? 

Like, how did that work? 

PHIL YEOMANS: Yeah, that’s exactly what it was. 

NICK MOTT: That’s Phil Yeomans. Phil is also from Missouri, and he’s been hunting with Brad for about a decade. Phil explained that, this time, they all hiked from a public road towards the checkerboard’s nearest approachable corner. When they got there, in the middle of this empty field, there was a little government survey marker about the size of a Coke can. There were also two no trespassing signs, along with a couple of posts, called t-posts, with the chain strung between them. 

ROMAN MARS: Which was ironic, considering it was obstructing the one spot where they could legally cross. 

PHIL YEOMANS: So, we just grabbed hold of the top of that t-post and swung our feet around, you know, kinda doing a little ballerina around the t-post so that we didn’t touch the private property. 

BRAD CAPE: Yeah, we weren’t nonchalant about it. We were very specific, as in we planted our foot exactly.

NICK MOTT: From that point on, they made sure to stay entirely on public land their whole time inside the checkerboard. They corner crossed from one public square to another as they hunted for elk on Elk Mountain. 

ROMAN MARS: And from the start, the mountain proved true to its name.

PHIL YEOMANS: Man, that first morning, the bulls were bugling. We could hear them from the county road. 

[ELK NOISES] 

PHIL YEOMANS: And once we got up to the place we decided we were going to camp, we saw a big old herd coming, walking down the side hill. And we just stood there and watched them. It was like, “This is going to be good.”

BRAD CAPE: But we were up the mountain, up the mountain, up the mountain… And we ended up so far up that mountain, we drank water out of an elk track seeping out of the hill that day. And this elk’s bugling just as far away as you can hear, you know. 

NICK MOTT: They would go on to harvest three big bull elk. And I can tell you, this is a big deal. Most elk hunts lead to nothing, mine included. And these guys got a haul. 

ROMAN MARS: But things weren’t all sunshine and roses and big bugling bulls because, just as they were field dressing a bull elk, a man appeared in the distance.

BRAD CAPE: And he makes the walk over to us, which took quite a while. We just kept working because they’re half a mile from us. 

NICK MOTT: As the man walked over, Brad’s friend, Zach, thought something felt wrong and started recording on his phone. 

BRAD CAPE: So he just walks up to us and asks us what we’re doing there, you know, and was a little snotty about it. 

BRAD CAPE (PHONE FOOTAGE): Hey, how we doing? 

STEVE GRENDE: Good, how are you? 

BRAD CAPE (PHONE FOOTAGE): Worn out. 

STEVE GRENDE: Yeah? How did you get in here?

NICK MOTT: It was the ranch’s manager, a man named Steve Grende. The hunters told Grende they got here by crossing from a public section of land to another public section, at a corner. 

STEVE GRENDE: So, on that first corner with the signs on it, how’d you get through that? 

BRAD CAPE (PHONE FOOTAGE): Grabbed the t-post and swung around it. 

ZACHARY SMITH: Got a chain on it so you can’t go between them. 

STEVE GRENDE: But it’s also on private property. Anytime you touch that thing, it’s criminal trespassing. That’s why they’re there…

NICK MOTT: But the hunters had done their research. They pointed out that Wyoming Fish and Game, and even the state attorney general, had said that crossing at corners was legal. But Grende countered. 

STEVE GRENDE: You can’t corner jump in Carbon County. Period. 

BRAD CAPE (PHONE FOOTAGE): I believe everything we read says we can. 

STEVE GRENDE: Well, we’re just gonna have to go to the court and have them decide. 

BRAD CAPE (PHONE FOOTAGE): Right. That’s fine. 

STEVE GRENDE: Okay… 

NICK MOTT: As uncomfortable as the encounter was, it wasn’t out of the ordinary. Spats over corner crossings happen between hunters and landowners all the time. Ultimately, it’s all part of a much larger war over public and private land and the checkerboard that began over a century and a half earlier. 

ROMAN MARS: The U.S. Government has been in the business of dividing up government-owned land into squares since 1785. The system was the brainchild of Thomas Jefferson, who dreamed of selling all those squares to a nation of small yeoman farmers. But the actual checkerboarding of the land began at the tail end of the Civil War, when policymakers in Washington wanted American settlers to move west. 

NICK MOTT: Because, as anyone who’s ever played Oregon Trail knows, moving out west was hard. Beyond the 100th meridian, most settlers struggled to access the necessary supplies to get their homesteads up and running or their goods to market. So, in the mid-1800s, the U.S. Government turned to the railroads to move those supplies for them. 

ROMAN MARS: Only it turned out that the railroads also needed help. 

RICHARD WHITE: The railroads aren’t going to build by themselves. The reason they’re not going to build by themselves is there’s nobody out there and no traffic. You don’t build a railroad into the middle of nowhere. This isn’t Field of Dreams and you just hope they’ll come if you build it. 

NICK MOTT: Richard White is Professor Emeritus of History at Stanford and the author of the book Railroaded: The Transcontinentals and the Making of Modern America.

RICHARD WHITE: So what you’re going to do is you’re going to have to get aid in building the railroad. The federal government says, “We are going to prime the pump.”

NICK MOTT: White says the United States was cash poor but land rich, so the government gave the railroad companies long corridors of land, up to 80 miles wide on which to build new rail lines. The railroads could then sell or lease that land to whomever they could lure west. But the government only granted the railroads every other square mile of land, hence the checkerboard. 

ROMAN MARS: With the checkerboard, the government could keep all the undeveloped sections in between and wait for them to go up in value before turning around and selling them to more developers. The new railways would also transport the soldiers needed to push Native Americans off the land the U.S. had promised them and onto reservations. 

RICHARD WHITE: So this becomes a means of conquest. And once it’s there–once Indian lands can be sold to build the railroads–then the railroads can become the agency for conquering any remaining Indian resistance. So, this is how the whole system works. And in this way, it does become an agent of colonization. 

NICK MOTT: Under this system, a lot of land changed hands. In all, over 130 million acres went to the railroads. 

RICHARD WHITE: And to put that in perspective, if all the federal grants to railroads were combined into one state–if you called it Railroadiana–it would be the third largest state in the United States, behind Texas and Alaska. 

ROMAN MARS: One company alone, the Northern Pacific Railroad, received an amount of land roughly the size of New England. 

NICK MOTT: And almost all of it was given away in alternating one square mile sections. 

RICHARD WHITE: So the checkerboard on paper–this as a system is ideal. What can possibly go wrong? It seems to be foolproof. But like most systems that seem to be foolproof, they’re usually designed by fools. And that’s what’s going to happen here. 

NICK MOTT: When the railroads sold their land, it went to timber companies, it went to miners, it went to developers–but especially ranchers, who saw a sort of two-for-one bargain on all that checkerboarded property. All you had to do was buy the private squares and then fence off all the adjacent public squares, and they would effectively be yours for the keeping, too.

ROMAN MARS: By the 1880s, big cattle barons had fenced in millions of acres of land they didn’t own. But homesteaders and smaller-scale ranchers and farmers weren’t happy about all that fence. 

RICHARD WHITE: The fences block settlers because settlers have to be able to drive their wagons–get to railroad depots–and they’re blocked by fences. 

NICK MOTT: The tension between settlers and ranchers quickly grew ugly. There were standoffs, shootouts, murders… Later on, dime novels, radio programs, and television shows, like Gunsmoke, would dramatize this era, known as the Range Wars. 

BEN: Those cattlemen built this country, Matt. A few more years now they’ll have us fenced out of it. 

MATT DILLON: Times change, Ben… 

ROMAN MARS: In 1885, in an effort to curtail the power of the big ranchers, Congress finally stepped in and passed the Unlawful Enclosures Act, which guaranteed public access to public land. 

RICHARD WHITE: You can still build fences around your own land. You can control access if there hasn’t been a right of way established across your own land. But you cannot enclose public land. And you cannot enclose land that you do not own. 

NICK MOTT: Today, the Unlawful Enclosures Act is still on the books. But the Act never did much to break up the ranches and other big properties of the Western U.S. And those large landowners never stopped looking for ways to secure their property, including in the checkerboard. That part never seems to change. 

RICHARD WHITE: So Jefferson’s dream of this whole thing ending up as being small farms–that is just just simply not the case. The West ends up as a place of very, very large land holdings. 

ROMAN MARS: And it still very much was when Brad and the hunters stepped from corner to corner of public land in 2020.

NICK MOTT: After that first hunting trip, they could easily have left and just never come back. Why risk another awkward run-in? But in the end, the hunting was just too good. Plus, they’d spoken with law enforcement who told them they were good to go. After all, the Unlawful Enclosures Act was still in force. So, the following year, they went back to hunt Elk Mountain. 

ROMAN MARS: But this time, just to be on the safe side, they made one small adjustment to their corner crossing strategy. 

BRAD CAPE: The only thing that we had that the ranch complained about was that we touched their t-post. So, we just had to get past that t-post without touching it. And then there was nothing that they could say. So that’s where the whole ladder idea came in. 

ROMAN MARS: If they shouldn’t touch the t-posts, then why not find a way to climb right over them? 

NICK MOTT: What did you build? Like, how did you build the ladder? This wouldn’t be my solution necessarily. I wouldn’t think about building a ladder. What goes into it? 

BRAD CAPE: Well, I guess, maybe if you were a pole vaulter, you would take a pole vault with you. I was a fence guy, so I had access to a lot of pipe and a welder. So, I just went back here in the shop and welded some pipe together. 

ROMAN MARS: Brad fashioned together a ladder that unfolded to a specific height, length, and width. The dimensions allowed it to go right over the t-posts and across the corner, all without ever touching the ranch’s property. 

NICK MOTT: And when the hunters crossed using Brad’s ladder, just like the time before, other than those t-posts, there were no fences, no gates, and no other infrastructure. The hunters designed, built, set up, and climbed a specialized ladder to cross through empty airspace in an empty field, just so they could say that, this time, they were following the very letter of the law. 

OPERATOR: Carbon County Sheriff’s Office. 

STEVE GRENDE: Hi, this is Stephen Grende with Elk Mountain Ranch, again, calling. We had an issue with some trespassers out here off Rattlesnake Pass in a canvas tent…

NICK MOTT: Not too long after the hunters got there, that same ranch manager from earlier, Steve Grende, recognized their truck from the previous year. He called local law enforcement agencies repeatedly. Eventually, a sheriff’s deputy and fish and game officer both showed up. 

OFFICER: How’s it going? Chris.

STEVE GRENDE: Steve. 

NICK MOTT: Here’s the body cam footage. 

OFFICER: Have you seen them corner pass? 

STEVE GRENDE: Yeah, I just watched them. And it’s posted. I have signs there, too. I watched them jump this corner right here. What they have is a ladder that they put down and go over… 

ROMAN MARS: Grende’s efforts to keep the hunters out of the public land went beyond phone calls to police. At one point during the trip, Grende poked his head in the hunter’s tent and got escorted away by an officer. Another time, he tracked the hunters down in his truck, cursed them out, and tailed them while they were hiking on a road that passes through public land. 

NICK MOTT: And as the law enforcement officers giggled about the ladder in that body cam footage, a frustrated Grende let this slip. 

STEVE GRENDE: Do they realize how much money my boss has? 

NICK MOTT: The ranch was owned by a pharmaceutical executive from North Carolina named Fred Eshelman. I reached out to Eshelman and his lawyers for an interview. Neither got back to me. But we know Eshelman told the ranch manager to keep talking to the authorities until they could get the hunters prosecuted. And eventually, Eshelman’s strategy works. 

ROMAN MARS: The county attorney charged Brad, Phil, and their hunting partners, John Slowensky and Zachary Smith, with criminal trespass and sent a sheriff’s deputy to their campsite. 

NICK MOTT: Again, here’s the body cam footage. 

DEPUTY: Alright, so just so it’s not a surprise, you guys are all gonna get cited for criminal trespass. 

BRAD CAPE (BODY CAM): I’m not surprised after what we’ve been through, but we still don’t understand why…

NICK MOTT: With this citation, the hunters were facing up to six months in jail, plus a big fine. 

DEPUTY: So, in Wyoming, if you go past the private boundary or a marked area, it is considered trespass. So Elk Mountain Ranch is marked; there is no trespassing. So that’s what they’re gonna use is you guys went beyond the boundaries of the Elk Mountain Ranch. 

BRAD CAPE (BODY CAM): But if I never touched Elk Mountain Ranch–if I never touched the ranch–how did I trespass? 

DEPUTY: Yep. So, it’s… This has been a point of contention in Wyoming for a long time. So, 20 miles north and south of the railroad is the checkerboard. 

BRAD CAPE (BODY CAM): Right. 

DEPUTY: And it’s been this way for a long time. So, hopefully you guys can come back and fight it… 

ROMAN MARS: When we come back, Brad and the other hunters do just that. Stay with us. 

[AD BREAK] 

ROMAN MARS: And we’re back with the story of America’s public lands and whose checkerboard it really is. 

NICK MOTT: When the Wyoming Sheriff’s Office charged the hunters with criminal trespassing on Fred Eshelman’s land, things might very easily have just ended there. After all, at that point, it really was just a matter of corner crossing in this one area on this one ranch. There were plenty of other places in the country they could go hunt elk. 

PHIL YEOMANS: You know, we went back and forth contemplating whether we were gonna just plead guilty, pay the $750 or what it might be. None of us were too concerned about the six months in jail type thing. 

NICK MOTT: But although the stakes for Brad and Phil and the other hunters personally were low, the principle involved seemed like part of something bigger, starting with their belief that corner crossing to access public land, which again is something hunters and other people do all the time, is legal. 

BRAD CAPE: It’s such a simple concept. I got a six-year-old grandson. I could point this to him very simply and he would easily end up on the right side of this. This is just smoke and mirrors to try and steal the public’s land. 

ROMAN MARS: So they decided to lawyer up. To win, they would need someone with experience representing both hunters and ranchers, someone who knew the laws–both spoken and unspoken–of the mountain west, and someone who knew the difference between a mock scrape and a rub line. They needed, when it came down to it, a guy like them. They got Ryan. 

RYAN SEMERAD: My name is Ryan Semerad. I am an attorney in Casper. 

NICK MOTT: Were you in tune with– I mean, were you a hunter or an angler? Were you in tune with sort of public land issues in this case? 

RYAN SEMERAD: No. I have never hunted. I think I have caught a fish once.

NICK MOTT: Ryan is originally from New York, not Wyoming. But his wife is from the area. And when they wanted to have kids, they decided to move closer to her family. 

RYAN SEMERAD: And that’s what brought us back to Wyoming. And that is the only reason that I am here. 

NICK MOTT: At first, Ryan had no idea what to make of the case. 

RYAN SEMERAD: They described it as a corner hopping case. I assumed–I was wrong–that must have meant something really weird and rural, like a cow tipping case or something or you, you know, left your neighbor’s gate open. I don’t really know. 

NICK MOTT: But Ryan talked to some local friends. They told him, “This is a big deal here, and it has been for a long time.” They sent him a study, and he learned that, although a lot of the original checkerboarded area had been bought up and consolidated into these single landholdings, today, more than eight million acres of public land across the Western U.S. remain corner-locked. 

ROMAN MARS: That’s an area of public land only slightly smaller than Switzerland, completely inaccessible to anyone except for landowners like Eshelman. 

RYAN SEMERAD: That’s when it kinda dawned on me that this was maybe a bigger issue than just this one case. 

NICK MOTT: So Ryan agreed to represent one of the hunters in the criminal trial. But he ended up representing all of them in civil court when he got notice that Fred Eshelman, the owner of the ranch, had decided to sue the hunters, too. 

ROMAN MARS: Eshelman argued that he had bought the ranch with an understanding that corner crossing was illegal. Suddenly allowing it now would mean an influx of hunters and recreationists regularly trespassing on his private property. The chaos, as he saw it, would effectively devalue the land. The exact dollar amount he was suing for changed over time, but he put the total cost as high as nine million dollars. 

NICK MOTT: What is the reaction you’re hearing from Phil and Brad and the others when they hear that? 

RYAN SEMERAD: Yeah, well, I will tell you, that was a pretty tough moment, when you tell anybody, “Hey, you know, you have this exposure,” and especially these guys. I mean, these are not pharmaceutical executives. They are not billionaires. Nine million dollars–you know–that’s financial apocalypse. 

NICK MOTT: Although, for two people facing financial apocalypse, Brad and Phil seemed pretty stoic about it. 

PHIL YEOMANS: Yeah, so… I told you, I’m a truck mechanic. Like, buddy, I don’t know. I guess my biggest concern was I want to make sure my wife… We still have a home. But if he wants my 2013 Silverado, I guess he can take it. 

NICK MOTT: If anything, Eshelman had sued them for too much money for it to have the desired effect. Phil thought nine million was laughable. Brad too. 

BRAD CAPE: That dollar amount was so outrageous. If he would have said a couple hundred thousand, that would have scared me. But in the millions? You know, it just wasn’t a realistic number. 

ROMAN MARS: But Eshelman wasn’t deterred. He just kept applying more pressure. 

RYAN SEMERAD: I’ve never seen this happen before. It kind of shocks me. While we were waiting for that criminal trial to begin–for the jury selection to begin–jurors are filing in, court staff are filing in… My guys are all sitting there. And a sheriff’s deputy walks up to each of them and issues them one more citation in front of the jury. 

NICK MOTT: So another ticket–another criminal charge–this time for that first crossing back in 2020, a whole year before the ordeal they thought they were being tried for. 

PHIL YEOMANS: So, yeah, that’s when we first learned about that. And I kinda looked at Ryan. I said, “Well, what do you want me– What do I do with this?” He said, “Throw it in the trash.”

RYAN SEMERAD: And that’s how the trial began. 

JUDGE: All right, court’s back in session. The matter before the court is the state of Wyoming versus Bradley Cape, John Slowenski, Philip Yeoman, and Zachary Smith… 

ROMAN MARS: In the criminal trial, the state’s lawyers argued that, even if the hunters didn’t set foot on private land when they ballerina’d over the t-posts in 2020 or climbed over them in 2021, they passed through air itself that’s owned by the ranch. 

DISTRICT ATTORNEY: Being a property owner has value. It matters. So do boundaries. And in Wyoming, the law is you don’t just own the ground, you don’t own the earth, you own the airspace. How many of you knew that before you came here? 

NICK MOTT: Ryan’s defense consisted of a few different points, but basically it came down to this idea that the hunters never physically trespassed. Plus, they had air and land rights, too. Only in their case, it was the right of access to public land. 

RYAN SEMERAD (IN COURT): Government can’t take away your land without compensating. That’s a take. But just so, private landowners can’t take the public land. It’s not theirs. It’s all of ours… 

ROMAN MARS: And as the trial wore on, something else was happening. All sorts of other people started to take notice, including hunters and environmentalists who have been struggling with checkerboard enclosures for years–but also hikers, bicyclists, and fishermen who, thanks to new GPS mapping apps, could now see the full extent of the checkerboard and all that inaccessible public land. Journalists got interested, too.

NICK MOTT: Even before the trials had ended, the New York Times, the Washington Post, and the Wall Street Journal all ran features about the four hunters from Missouri, their little ladder, and corner crossings. 

ROMAN MARS: Hunting and public lands advocacy groups rallied members, raising money for the defense. And for those paying attention, the case became about something larger than just this one little square in Wyoming. It was about public access to public land all over the country.

PHIL YEOMANS: The significance of it, the millions of acres, the corner locked land… It just– It’s public land. Yeah. That’s what it is. It belongs to the public. Yeah, it belongs to everybody. And it shouldn’t be monopolized. 

NICK MOTT: I live in Montana, where there’s a lot of public land and also lots of checkerboarded country. Even here, more than 500 miles from where Brad and Phil crossed, their case made waves. I ran into a guy in a yoga class not too long ago wearing a “corner crossing is not a crime” T-shirt.

BRAD CAPE: So, you get to a point where you can’t back out. It’s a moral thing. It’s all of that, right? And that’s why it became bigger than us. 

ROMAN MARS: And while the social status of the case got bigger, the legal stakes climbed, too. The Hunters won at both trials, but the civil case ended up before the U.S. Tenth Circuit Court of Appeals. The Tenth Circuit is based in Denver and oversees six western states. This wasn’t a small one-off case any longer, or even a case just setting the precedent in Wyoming. 

NICK MOTT: The circuit court had the power to settle whether corner crossing was legal in all six of those states. The outcome would decide who got effective access to a huge amount of public land. And it was Eshelman’s side, now backed up by a bunch of other landowners, that had appealed to the Tenth Circuit. They were the ones who wanted to go big. Ryan told me what he thought that meant. 

RYAN SEMERAD: They have this kind of imperial intent that “it’s our lands,” the lands they bought and all of these public lands, too. That’s really what this case is about. They’re gonna shut out the public from the public lands. 

NICK MOTT: So, May 2024, you’re in Denver. Have you made arguments in front of a circuit court before? 

RYAN SEMERAD: No. Very first time. 

TENTH CIRCUIT JUDGE: Looks like everybody’s ready to go. With that, let’s call the first case, which is 23-8043 Iron Bar Holdings versus Cape. You may proceed. 

IRON BAR LAWYER: Good morning, your honors. May it please the court…

NICK MOTT: The morning of the Tenth Circuit hearing, an armada of well respected attorneys showed up representing Eshelman. And since Eshelman’s side brought the suit, they went first. 

ROMAN MARS: Some of the arguments had more or less stayed the same from the criminal trial. But now things got more nuanced. Eshelman’s team argued that private property is a building block of society. 

IRON BAR LAWYER: Property lines have sharp edges because of the consequences of eroding them. So, there’s some practical implications of this case that I want to address… 

NICK MOTT: The gist of their argument was what Eshelman had maintained all along–that whatever high ideals we might have about public lands, the on the ground reality was that legalizing corner crossing would be an invitation for chaos. 

ROMAN MARS: In places without government survey markers–and there often aren’t any–people would start to accidentally trespass all the time if corner crossing was legalized. But also, there was no need to permit corner crossing. The government already had better tools at its disposal to resolve the problems created by the checkerboard. 

IRON BAR LAWYER: All of this can be fixed by the government tomorrow. If the government wants to create access, just as they have gone from 150 million acres of originally locked land, today less than nine million remains. They are making progress… 

NICK MOTT: And that’s true. Although those last nine million acres have proven tricky to eradicate, there are various mechanisms for erasing the private squares in the checkerboard or just letting the public pass through. Eshelman’s side argued there’s no need to override all that policy for the sake of some elk-hungry hunters. If anything, this is a question for the legislature and local agencies, not the courts. 

ROMAN MARS: Meanwhile, Brad and Phil and the other hunters were streaming the proceedings from Missouri. They didn’t attend the oral arguments in person. 

NICK MOTT: When you watched it, did you guys, like, get together? Did you watch it separately? 

BRAD CAPE: No, we watched it separate. 

PHIL YEOMANS: We all worked. [CHUCKLES]

RYAN SEMERAD (IN COURT): May it please the court, Ryan Semerad for the appellees…

NICK MOTT: When it was Ryan’s turn to speak, Brad and Phil could both tell, as they listened in, that Ryan’s core arguments were also much the same as in that first trial. 

RYAN SEMERAD (IN COURT): You can’t exploit the interlocking land pattern to deny everybody else the benefits while you reap them all…

NICK MOTT: But this one moment, toward the end of the hearing, stood out to them both.

PHIL YEOMANS: For me it was when… And I don’t remember the judge’s name. He said, “Yeah, I don’t believe our Congress intended–when they wrote the laws and this checkerboard pattern was first made–to block the public.”

TENTH CIRCUIT JUDGE: If you look back at when the railroads were going across, Congress said, “We want to give the railroads half the land and the public half the land…” 

NICK MOTT: “Did Congress really intend,” the judge asked, “for the public to have no real right to the land from their half of the deal?”

TENTH CIRCUIT JUDGE: If somebody had just posed the question that way to Congress, I have no doubt how they would have answered that question… 

ROMAN MARS: This past March, nearly a year after the oral arguments in Denver, the U.S. Tenth Circuit Court of Appeals issued its opinion on the case of Iron Bar Holdings versus Cape. That day, Ryan was in court in Wyoming. 

RYAN SEMERAD: So I try to rush back to the office. And I print off the opinion. And I sit down to read it and just… “What am I about to read?” And as I read it, it was just perfect. 

ROMAN MARS: In many ways, the opinion was everything Ryan and Brad and the other hunters had argued for since the very beginning. The court laid out the history of the West, the railroads, the checkerboard grants, the enclosures, the range wars… It explained how the land is supposed to work. 

NICK MOTT: The opinion said, “These public lands in the West? They’re for everyone. And that’s who they were always for.”

RYAN SEMERAD: So, we win. Corner crossing is not a trespass in all six states. 

ROMAN MARS: The Tenth Circuit’s decision won’t bring total closure. After Eshelman’s team appealed again, the U.S. Supreme Court refused to take up the case, which means that, for now at least, the status of corner crossing and public land access in the other 44 states remains murky. 

NICK MOTT: The last time I met up with Brad and Phil, they were passing through where I live, on their way to their big annual western hunting trip–this time in Montana. Here, we’re in the Ninth Circuit, along with other western states with lots of checkerboarded land like Idaho, Oregon, and Washington. Montana’s Fish and Game Agency has said, “Corner crossing remains unlawful here, so don’t do it.” But other authorities in the state disagree, and the issue remains as unclear as ever. 

It’s unlikely Brad and Phil will be involved in whatever comes next. The whole saga has already taken up four years of their lives, and that, they said, was enough. But talking with them, I could tell they’re a little bit bummed the Supreme Court didn’t take up the case. The way they see it, there’s still more locked up land that needs to be freed. 

BRAD CAPE: You could never dream in a million years that you would end up here over something so simple as making one step. 

PHIL YEOMANS: Yeah, you know, we didn’t set out to do this. You know, we just wanted to go hunt elk. 

NICK MOTT: Would you guys ever corner cross again?

PHIL YEOMANS: Absolutely. Absolutely. We’ve put in now every year since, I believe, for Elk Mountain. Yes. 

BRAD CAPE: We’re going back. We don’t know when, but we’re going back. 

NICK MOTT: Why do you want to go back so bad? 

BRAD CAPE: I think because we can. 

ROMAN MARS: 99% Invisible was reported this week by Nick Mott, and edited by Joe Rosenberg. Mix by Martín Gonzalez. Music by Swan Real. Fact-checking by Graham Hacia. 

Special thanks this week to Savannah Tate Wright, Ulaa Kuziez and Melodie Starr Edwards.

Kathy Tu is our executive producer. Kurt Kohlstedt is our digital director. Delaney Hall is our senior editor. The rest of the team includes Chris Berube, Jayson De Leon, Emmett FitzGerald, Christopher Johnson, Vivian Le, Lasha Madan, Kelly Prime, Jeyca Medina-Gleason, Talon and Rain Stradley, and me, Roman Mars. The 99% Invisible logo was created by Stefan Lawrence.

We are part of the SiriusXM Podcast Family, now headquartered six blocks north in the Pandora building… in beautiful… uptown… Oakland, California. 

You can find us on all the usual social media sites, as well as our own Discord server. There’s a link to that, as well as every past episode of 99PI, at 99pi.org.