Judge mulls delay in corner-crossing trial, rejects ‘gag order’

WYOMING -- A judge in Rawlins on April 15 rejected a motion to dismiss criminal trespass charges against four hunters accused of corner crossing but said she would consider requests to delay their trial.

Carbon County Circuit Court Judge Susan Stipe said the outcome of a separate, ongoing civil trespass suit involving the same 2021 hunting incident could affect the criminal case in front of her. It is scheduled to be tried before a jury starting April 27.

“Having this jury trial … may be the cart before the horse,” Stipe said. The separate civil suit, brought by the owner of the Elk Mountain Ranch where the men are accused of trespassing, could undo the foundation of the criminal case before her, she suggested.

Four Missouri hunters have pleaded not guilty to the trespass charges and contend they stepped from one piece of public land to another — at the intersection of two public and two private sections — without setting foot on private property. The case involves the checkerboard pattern of land ownership in parts of Carbon County where private and public land are interspersed.

The cases hinge on whether a person passing through the airspace above a private piece of land is trespassing, and their outcomes may impact public access to millions of acres of public land in the West.

Stipe declined defense attorneys’ requests to dismiss the trespass charges, saying she found no grounds under her authority to throw them out. Because she ruled from the bench Friday and lawyers needed time to confer with their clients, she said she would consider a delay of the April 27 trial, if requested, at another hearing Friday.

As the hunters, prosecutors, defense attorneys and court personnel prepare for the criminal trespass jury trial in Rawlins, the Elk Mountain Ranch owner told a federal judge he should move the case back into the Wyoming court system. An attorney for Fred Eshelman outlined reasons to federal judge Scott Skavdahl in a memo filed Thursday.

Skavdahl on March 1 accepted a transfer of the civil case from Carbon County District Court to his federal venue. Eshelman’s attorney objected last week, calling the transfer “an attempt to impermissibly derail state court proceedings.” Attorney Gregory Weisz, representing the ranch’s holding company Iron Bar Holdings LLC, asked that it immediately be returned to Wyoming’s jurisdiction.

Hunters’ attorneys “raise federal defenses that are, at best, speculative,” Weisz wrote. Further, the hunters’ claims that the value of the civil litigation meets the minimum $75,000 federal threshold are “threadbare allegations.”

Eshelman and Iron Bar make their civil trespass claims only under state laws, Weisz wrote. The case “does not rely on any federal statute …”

Just because the alleged trespass involves the hunters stepping from one piece of federal Bureau of Land Management land to another does not mean the issue should be adjudicated in the U.S. District Court for Wyoming, Iron Bar says.

“If the other [checkerboard] parcels of property were owned by another private landowner as opposed to the BLM, Plaintiff would have still brought its claims … in state court,” the filing states. The federal Unlawful Inclosure of Public Lands Act that generally prevents landowners from fencing others out of federal land does not apply to the Elk Mountain Ranch civil complaint, Weisz contends.

“Plaintiff’s Complaint focuses on the validity of Plaintiff’s private property rights, the legal ability to exclude others from its property, and a determination of whether Defendants unlawfully trespassed upon the airspace above Plaintiff’s private property,” he wrote. “[T]here simply is no ‘substantial federal interest’ that would warrant removal of the case … from Wyoming courts to federal court.”

Many believe that resolution of the unsettled corner-crossing trespass question in a federal venue would address access to millions of acres of public land across the West that are now “landlocked” by any interpretation that corner crossing is illegal.

Weisz made other arguments to support return to Wyoming jurisdiction, while an attorney for the hunters maintained that the case belongs before a federal judge.

In circuit court Friday Judge Stipe also called prosecutors’ motion to limit the distribution of public court documents a request for a “gag order.” She denied that motion.

During a two-and-a-half-hour hearing, she listened to prosecutors’ request for an order “to limit prejudicial pretrial communications with the media and release of information.” That request apparently included even the distribution of public court documents.

Carbon County Prosecutor Ashley Mayfield Davis told Stipe there is “too much media attention” on the case and that it is being tried in the media instead of in front of a Carbon County jury.

Media coverage of the case is such that it would be hard to find a venue, even “on a desert island,” where denizens were not aware of the dispute, Davis told Stipe.

The prosecutor’s request is for “what I’m going to call a gag order,” Stipe said.

“I’m concerned about that issue,” Stipe said. “I’m guessing the media is also concerned.

“Any motion for a gag order is hereby denied,” she said.

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