ELK MOUNTAIN, Wyo.—As the name suggests, there are hundreds of elk on Elk Mountain, an 11,000-foot peak in southern Wyoming. The problem for hunters: You can’t get there from here.
Border crossing
The sprawling mountain is surrounded by private ranchland. While the prime hunting ground is checkerboarded with federal and state property, access is limited by an age-old Western doctrine. Ranchers consider it unneighborly for outsiders to hopscotch through their land by crossing over public sections that meet only at a corner.
Last year, four hunters from Missouri thought they had devised a solution to the access problem. Using a special stepladder, they climbed between two parcels owned by the federal Bureau of Land Management, taking care not to set foot on the private property on either side.
Unfortunately for them, the adjoining land is controlled by Fredric Eshelman, a North Carolina pharmaceuticals magnate who uses his roughly 22,000-acre Elk Mountain Ranch as a rustic getaway, and he didn’t take kindly to the stunt.
The local sheriff got involved, and before long the four hunters found themselves facing criminal-trespassing charges in state court. The prosecutor argued that it wasn’t enough that the defendants didn’t physically touch the private property.
“Land ownership is not just the dirt, it’s the airspace above,” she told the jury in closing arguments, according to the online news service WyoFile. Because the four men are bigger than the infinitely small point that connects the four corners of the two public parcels and the two adjoining private parcels, she argued, they violated the ranch’s airspace.
After a jury acquitted the men on all charges, Iron Bar Holdings LLC, a North Carolina company owned by Mr. Eshelman that in turn owns Elk Mountain Ranch, lodged a civil trespassing complaint against them. That case, since removed to federal court in Casper, is expected to go to trial next summer.
The courtroom clash is drawing attention to an anomaly of Western land ownership dating back to the 19th century. When railroads first laid tracks across the Great Plains, the federal government granted them several square-mile sections of property for each mile they completed. The sections were interspersed with an equal amount of public land, creating a vast checkerboard pattern.
The digital navigation company onX says it has identified more than eight million acres of state and federal land in Western states that are blocked from public access due to the legal gray area around corner-crossing.
Some charter helicopters. Once, not long ago, a man drove up from Colorado with a chopper strapped to a flatbed truck. He pulled to the side of a public dirt road, hopped in and flew off into the wilderness.
Others use bush planes. One recent sunny day found Laramie orthopedic surgeon Thomas Bienz up in the air in his two-seater craft, with a powerful engine and balloon-like tires that allow him to take off and land in less than 500 feet of prairie.
He swooped over the Elk Mountain Ranch, taking care not to fly too close to the mansion tucked away in the trees. As he crossed over a section of state-owned land he spied a line of elk walking across a clearing, plus many more sheltering in a pine forest.
“There’s about 100,” he figured.
He wasn’t hunting that day, and he banked and landed on a dirt road on federal land hemmed in by Mr. Eshelman’s property, touching down with barely a bump. His flying partner, Dave Brumbaugh, followed shortly in a vintage Cessna.
Deer and antelope milled nearby, surprisingly unruffled by the human interlopers. A coyote trotted through a ravine.
“They have no fear of being hunted,” marveled Mr. Brumbaugh.
A GPS device in Thomas Bienz's plane shows the checkerboard pattern of public and private land.
Soon they were joined by two officials of the Elk Mountain Ranch and a state game warden. The ranch’s property manager, Steve Grende, challenged the pilots about the flyover.
Dr. Bienz, armed with a sheaf of legal papers to go with his holstered Glock semiautomatic, explained that Federal Aviation Administration regulations stipulated only that he stay at least 500 feet above the ground and that he was well within his rights to land on the BLM property. The manager backed off.
It doesn’t always go so well. A few years ago, Dr. Bienz texted a ranch in another part of Wyoming that he was planning to fly into a landlocked state parcel at daybreak. As he prepared to touch down in a box canyon, the ranch manager drove straight at him in a pickup truck, he said. “It was very malicious,” he said, noting that he barely avoided a crash.
A spokeswoman for the ranch’s owner, Curt Richardson, who invented the OtterBox waterproof electronics case, confirmed the account and said the manager was subsequently fired.
On the Elk Mountain visit, the dangers were self-inflicted. When it was time to leave, Dr. Bienz managed to get airborne without much trouble, but Mr. Brumbaugh struggled to gain speed.
Elk Mountain Ranch’s Steve Grende, in foreground next to Game Warden Jake Miller, challenged Thomas Bienz, on right, and another pilot, Dave Brumbaugh, after they landed on public land near the ranch.
Bouncing over the prairie, he hit a bump that flung him into the air. A stall warning sounded just as a ridge loomed ahead. He twisted the yoke to the right and disappeared into a ravine, giving him a cushion to stay aloft.
“That was close,” he allowed.
As for the coming court case, the two sides are gearing up for an old-time range war. Iron Bar has claimed in a nonpublic document that the Missourians caused between $3.1 million and $7.75 million in damage to the ranch, according to people familiar with the matter.
“Obviously, if the ranch is subject to forcible trespass, its value goes down significantly,” said Mr. Eshelman in an email. He noted that he runs livestock on it in addition to letting military veterans and others hunt there, creating a safety issue if there is unregulated access.
He said he has opened a portion of his ranch to public hunting and tried to solve the checkerboard problem by offering to swap private and public parcels, to no avail.
As for the air rights, he said, “If any member of the general public has a right to cross the airspace above the surface of private property, such a right would eliminate the ability of the owner to carry out vertical construction of a facility, structure, or building in such areas.”
Through their lawyer, Ryan Semerad, the four Missourians declined to comment. They have argued in court filings that the ranch violated an 1885 federal law limiting the enclosure of public lands.
The Wyoming chapter of Backcountry Hunters & Anglers, a nonprofit that lobbies for the conservation of open spaces, started a Go Fund Me campaign to underwrite the Missourians’ legal expenses. It has raised over $100,000 so far, from as far away as Australia.
“What we’re fighting for more than anything is public access to public ground,” said Pete Kassab, co-chairman of the chapter. “It really comes down to, ‘Who are you to kill the King’s deer or elk?’ ”
