The American West Is Built on Contradicting Ideals. These Elk Hunters Were Caught in the Middle.

(Illustration: Alexander Mostov)

The American West Is Built on Contradicting Ideals. These Elk Hunters Were Caught in the Middle.

Published: Aug 25, 2023

Over eight million acres of public lands are gridlocked by private property. When a group of hunters jumped from one plot of federal land to another, they ignited a debate around just how much a landowner can control.

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Wyoming is the least populous state in the country and, save for Alaska, contains the fewest human souls per square mile. More than half of its land is publicly owned; the rest is fiercely guarded. A pocket in the northwest, around Jackson, is a haven for some of the wealthiest people in America. Four hundred miles to the east, tall grasses wave at the brinks of yawning coal mines, in the region where the Oglala Lakota chief Red Cloud and his allies once battled the U.S. government into submission. In the southeast, as you drive west on Interstate 80 from the university town of Laramie, 11,156-foot Elk Mountain rises above meadows fattened by meandering creeks, on ground primarily owned by the North Carolina businessman Fred Eshelman, who made a fortune starting pharmaceutical companies that later sold for billions of dollars.

In 2019, a hunter from Missouri named Bradly Cape visited this region on a trip with some friends. Cape, 52, grew up on a cattle farm in Steelville, Missouri and now owns a fencing company in nearby Cuba. He is muscular with a buzzed, balding head and a drawl. The group had driven west to hunt pronghorn antelope and, during their time there, envisioned pursuing elk as well. To Cape’s eyes, Elk Mountain looked promising. Its peak rises above thick timber, where animals can bed; draws and chutes lead down to the valley floor. Many hundreds of elk live here, along with deer, moose, mountain lions, and bears. “We’ve got every kind of big animal you can dream of,” Eshelman once said. Now in his mid-seventies, with a trim build and silver hair, he is an enthusiastic mountain lion hunter.

Eshelman had on occasion permitted friends and a veterans’ group to hunt on his roughly 22,000-acre Elk Mountain Ranch, and employees were sometimes allowed to shoot cow elk. The ranch and the Wyoming Game and Fish Department had also reached an agreement to allow a limited number of hunters to apply for cow elk tags on the mountain. He kept a close eye on comings and goings through his property manager, a man named Steven Grende who had worked for Eshelman since 2013.

The huntable terrain around Elk Mountain covers about 50 square miles, and like much of the American West, it’s divided into square-mile sections. About two-thirds of the mountain’s sections are owned by one of Eshelman’s companies, Iron Bar Holdings; the others are public, stewarded by the Bureau of Land Management and the state of Wyoming. The checkerboard pattern dates to the late 19th century, when the federal government deeded alternating sections to transcontinental railroads. This led to swaths of public land being gridlocked by private property, and raised the question of whether the public can cross from section to section via the corners. This dispute remains unsettled, and federal and state laws don’t always align on the matter.

“When you have access issues crossing from one private property to get to another, it is controlled by state law,” said John Leshy, a law professor at the University of California College of the Law, San Francisco and the former solicitor of the Department of the Interior. “But when the land is federally owned, you have potential for federal law to trump state law, or at least influence how it is applied.”

In Wyoming, the issue was as clear as spring runoff. In 2004, the state attorney general wrote an opinion stating that while corner crossing didn’t violate a statute prohibiting trespassing with the intent to hunt, the practice “may still be a criminal trespass.”

Cape read that opinion, interpreting it favorably. Before the 2020 season, he and two friends secured permits that would allow them to hunt bull elk with a bow and rifle in the area. Then, he said, “We looked at every map we could find.” They soon moved from state maps to ones furnished by onX, a digital mapping application. Based in Missoula, Montana, onX has changed hunting by overlaying satellite-generated topographic maps with property maps, allowing users to see when they’re on public and private lands—and to save data showing the historic locations of herds. Along with similar programs like Scout to Hunt, onX is now considered essential by many hunters. It is also a subject of ire for some who have long guarded cherished access points. (��ܳٲ��’s parent company owns Gaia GPS, a mapping app that offers similar features for hiking and overlanding.) Guides make their living keeping and brokering knowledge about the location and behavior of animals in terrain that’s often rough and difficult to read. But since its advent in 2009, onX has allowed anyone with a smartphone and a subscription to identify both good hunting spots and the property lines that permit and limit entry to them. OnX claims that its property lines are accurate within five to ten feet. “Without onX, we couldn’t do what we did,” Cape told me.

In the fall of 2020, Cape drove west with two friends from Missouri: Phillip Yeomans, now 52, who maintains a fleet of trucks for Frito-Lay, and Zachary Smith, 24, an employee of Cape’s fencing company. They were traveling in Cape’s white GMC pickup, which was loaded up with food, camping gear, bows, and rifles. From I-80, they turned up Rattlesnake Pass Road toward Elk Mountain. They set up a base camp near the road, then walked to the corner of two adjacent public sections, numbered 24 and 14. The other two sections completing the corner are owned by Eshelman. While corners may appear neat on aerial maps, they’re often difficult to identify on the ground; patches of prairie don’t usually tell you which humans have laid claim to them. But in this case, the corner was well marked by two metal fence posts rising from the ground, each topped with a “NO TRESPASSING” sign. Grende, Eshelman’s property manager, had erected them in 2015 to dissuade corner crossing. A slanted chain linked them. Cape, who has built fences for a living for more than three decades, was unimpressed by the workmanship. (“I wouldn’t hire him,” he told me.) Cape, Yeomans, and Smith grabbed the signposts and pivoted around the outside of them, swinging their legs in the air so as not to touch the private ground beneath. The square-mile section just beyond, however, was fair game. The men walked onto the mountain, propelling them into the heart of a complex national debate about public access, private property, and the nature of wild lands in America. On October 1, Cape killed a bull elk. While he and his friends were field dressing it, a man pulled up in a vehicle. It was Grende. “How’d you get in here?” he asked. “You can’t corner-jump in Carbon County. Period.”

Cape responded, “I believe everything we read says we can.” Grende considered Cape’s kill, asking, “That a bull?” To which Cape responded, “It’s a good one, isn’t it?”

Two signs positioned a foot or two away from each other, connected by a chain. — Signs on Elk Mountain Ranch deterring corner crossing, photographed in 2020 as the men headed back to their car. (Photo: Courtesy Brad Cape)

Four men in hunting gear smiling at the camera and sitting at a mountain stream — The hunters take a break at a mountain stream to refill their water supply on a trip in 2021. From front to back: Zach Smith, John Slowensky, Brad Cape, and Phil Yeomans. (Photo: Courtesy Brad Cape)

America has long had a fraught relationship with the concept of communally owned land. British settlers arrived here fleeing a legal system that protected the property of noblemen at the expense of everyone else. As the United States expanded following the Louisiana Purchase, Congress envisioned a West dominated by rugged individualists living on homesteads of 160 or 320 acres. Acquiring this land meant dispossessing Indigenous inhabitants who actually knew a thing or two about shared stewardship and who did not divide the land into arbitrary squares. Wyoming’s story is analogous to other western states: fur traders and missionaries arrived first, followed by soldiers, grifters, and land speculators who found themselves craving power through land ownership.

During the 19th century, the General Land Office—a precursor to the Bureau of Land Management—was tasked with distributing the vast tracts the nation had accumulated through wars and broken treaties. In 1862, Congress passed the Pacific Railway Act, granting right-of-ways for the construction of transcontinental railroads. The act also deeded alternating square-mile sections along the railway routes to the companies building those lines. This plan was meant to encourage transportation infrastructure and increase the value of federally owned land, in advance of its sale, through its proximity to the railroads. But much of that land did not sell, and the task of managing it fell to the government. Meanwhile, the railroads eventually sold some property to wealthy ranchers. This created vast amounts of public acreage in the West that were hemmed in by private property. It was a fine arrangement for early cattlemen, many of whom were wealthy Europeans; they promptly set about erecting barbed wire fences around both their properties and the public sections enclosed within. Then as now, landowners were overwhelmingly favored in political processes, and in the rural West some elected sheriffs protected their interests. But in 1885, Congress passed a bill, known as the Unlawful Inclosures Act, prohibiting the increasingly common practice of fencing off public land. “This indeed will be a sad blow to the cattle kings who have attempted to absorb millions of acres of public lands,” remarked a Kansas newspaper.

Still, the act did not resolve the question of whether it’s legal to move from corner to corner through private airspace. In the 138 years since, courts have muddled through the issue. Prior to the advent of air travel, courts recognized a common-law doctrine called ad coelum, dating to medieval Europe, stating that landowners control their property lines from heaven to hell. But planes would change that; in 1946, the U.S. Supreme Court considered a case in which a North Carolina chicken farmer sued the government for flying military planes above his land, frightening birds so badly that many died. In its ruling, the court determined that ad coelum “has no place in the modern world.” Although it awarded the farmer damages, it declined to define precisely how much airspace he could rightfully claim. Federal courts have also weighed in on a number of relevant cases in Wyoming. The Supreme Court determined that the government cannot build a road through private land in order to connect public parcels, and lower courts have ruled that livestock and wildlife must be allowed to pass through checkerboard patterns to access public lands. It’s a legal mess. “The whole checkerboard policy was a huge mistake,” said Mark Squillace, a professor of natural-resources law at the University of Colorado.

But amid the confusion, wealthy landowners have continued to benefit nicely. High-end real estate companies often advertise both a ranch’s deeded acres and what are called “leased” acres—public land available for lease through the Bureau of Land Management, the United States Forest Service, or state agencies. It is a clever method of parceling public land into the value of a private estate. In 2005, the Chickering Company, one of the brokerage firms that advertised Elk Mountain Ranch, listed the property for nearly twenty million dollars. “Elk Mountain Ranch is an enormous canvas comprising 51+ square miles,” it boasted. But that figure included both the ranch’s 22,000 private acres and nearly 11,000 acres, or 17 square miles, of corner-locked public land. The listing claimed that public access via corner crossing was prohibited, and stated, “Big game numbers are unusually high for any private property due to very limited hunting allowed.” Eshelman, who has owned multiple Wyoming properties, later testified, “When I bought the ranches, I was assured that corner crossing was illegal.”

Eshelman and Steven Grende have both testified that corner crossing on Elk Mountain has increased since 2010. (Aircraft is also sometimes used: in 2020, a Colorado hunter flew a helicopter to access Elk Mountain’s public terrain.) During the past decade, researchers and wildlife managers in Montana, Utah, and Oregon have found that elk are increasingly seeking refuge on private land, and many assume that this is a direct result of human activities on public territory. Hunting license sales grew dramatically during the COVID pandemic, and increasingly popular activities like shed-antler hunting, mountain biking, and four-wheeling also apply pressure.

Meanwhile, mapping apps have lowered the bar to entry for hunters by demystifying access, with onX positioning itself as the leader in the industry. The company claims neutrality on the Wyoming case, but last year it released a report stating that more than eight million acres of public land are corner-locked. The implication wasn’t subtle: use onX, and you’ll find prime hunting behind corner-locked boundaries. Zach Sandau, an onX marketing manager, told me that the company “wants to find ways to open up as much land as possible.” Earlier this year, Land Tawney, the former executive director of the public-lands advocacy group Backcountry Hunters and Anglers, which counts onX as a corporate partner, acknowledged that the mapping app stood to potentially benefit from the ongoing drama over corner crossing: “They gain monetarily by being the people delivering on that information.” He added: “Are they going to be looked at as the saviors? Absolutely.”

Four men in hunting gear stand in front of their tents in a forest, with snow on the ground — From left: Slowensky, Cape, Yeomans, and Smith on their 2021 trip to the Elk Mountain area. They woke up that morning to fresh snow. (Photo: Courtesy Brad Cape)

Two men walking up a dirt road with backpacks full of hunting gear — Yeomans (left) and Cape on their first-ever trip up Elk Mountain, in 2020 (Photo: Courtesy Brad Cape)

Following a successful 2020 hunt, Cape, Smith, and Yeomans planned to return the following season. Due to the confusion around access, it was relatively easy to draw both elk and deer tags. In September 2021, the men again drove west, this time bringing a fourth companion, a public school band leader named John Slowensky. They also carried a homemade ladder, to avoid touching the fence posts Grende had erected. On September 26, they again set up a base camp on Rattlesnake Pass Road. Then they climbed over the first corner using the ladder, crossing with enough gear to make small bivouac camps for the next few nights.

At first light on the opening morning of the hunt, they spotted Grende in a truck, driving on a valley floor. In Wyoming, it’s a misdemeanor to harass hunters on public land, or to “prevent or hinder the lawful taking of any wildlife.” Cape told me he wasn’t sure whether Grende had seen his hunting group. But, he said, “If a truck goes driving through middle of public land, it’s inevitably going to move animals.” (When reached by phone, Grende declined to comment. According to a recent court filing, he no longer works for Iron Bar Holdings. Questioned about Grende’s employment, among other details, Eshelman’s attorney, Gregory Weisz, wrote in an email, “I will not verify or deny any facts.” Eshelman could not be reached.)

The group moved south with their bivvy gear, and in the days that followed, Yeomans and Cape shot bull elk, while Smith killed a buck. On September 30, they returned to base camp with packs full of meat, again using their ladder to cross over the section corner. Shortly after arriving at camp, they were joined by 31-year-old game warden Jake Miller. For days, Miller had been receiving calls from Grende, who had been monitoring the Missouri group’s base camp. Miller entered the wall tent and cordially checked everyone’s license; Yeomans informed him that he still had elk meat cached in a public section of the mountain. The hunters also fed Miller some lasagna cooked by Cape’s wife. During their conversation, the tent door opened: it was Grende, who made a sharp remark. Miller asked the property manager to step outside, later testifying that his discourse was “not beneficial.” (Grende, for his part, said in court that he didn’t recall the episode.)

Miller said there was no evidence the men had violated game and fish regulations, but criminal trespass isn’t in his jurisdiction. So he called Carbon County’s sheriff’s department, which dispatched two officers to the area. (Grende had also been contacting the sheriff’s department.) That night, Grende repeatedly tried to convince both Miller and the sheriff’s deputies to take punitive action. In a body-camera video from the early-morning hours of October 1, which was later released by the news site WyoFile, Grende said, “We have to do something.” He suggested that he was merely trying to protect future access for those, including the officers, who might wish to hunt in a manner that was permissible. But Eshelman, he said, “owns a lot of land. And he’s going to lock it up. And then I’m going to be the bad guy.”

Grende wore jeans, a ball cap, and a hooded North Face sweatshirt; he stuffed his hands in its front pocket and occasionally grabbed at his face, appearing agitated. The conversation drifted for a few minutes, until Miller said he likely wouldn’t issue a citation to the Missouri four. Grende snapped, “Do they realize how much money my boss has?” He would soon turn his attention elsewhere. According to his court testimony, Grende later began calling the county attorney’s office at Eshelman’s direction.

Wyoming has a storied tradition of wealthy landowners convincing less affluent residents to do their bidding. Around 1889, cattlemen in Johnson County started offering lavish rewards for information about cattle rustlers. The theft of livestock was actually a minimal threat at the time, but the state’s wealthy ranchers felt the imposition of growing numbers of homesteaders; the Unlawful Inclosures Act had only passed four years earlier, making it more difficult to secure vast expanses. “The sharp increase in land applications in 1889 may have upset those in Johnson County who were trying to monopolize large tracts of land,” wrote historian and attorney John W. Davis in Wyoming Range War: The Infamous Invasion of Johnson County.

The wealthy ranchers organized their efforts through the Wyoming Stock Growers Association, which employed detectives who pursued false charges against alleged rustlers. In 1892, the cattlemen took their efforts a step further, hiring a militia to expel a group of “rustlers”—most of whom turned out to be homesteaders. The episode, since dubbed the Johnson County War, turned bloody, with multiple assassinations and shoot-outs, and Wyoming’s governor requested emergency intervention from President Benjamin Harrison, who dispatched U.S. troops to stop the violence. The conflict was held up as an example of class warfare on the open range, and in the immediate aftermath, Wyoming turned blue, electing a Democratic governor and legislature.

But these days, Wyoming’s economy is largely built on fossil-fuel severance taxes, and it has no state income tax. Extractive corporations see its stunning landscape as a source of wealth; rich outsiders see the opportunity to claim a domain that doubles as a tax shelter. Ranch prices have skyrocketed, and an anti-public-lands sentiment has periodically simmered in a deeply conservative state legislature.

The morning after Grende was filmed complaining about the hunters, he drove his pickup onto public land, approaching Cape, Yeomans, Slowensky, and Smith. Grende yelled, “What the fuck.” (Grende would testify that he thought the interaction “went well.”) Not long afterward, Cape received a voice mail from Miller. When the two connected, Miller instructed the hunters to return to their camp. Miller would later testify that he was concerned about Grende. “I knew his tensions were high,” he said, adding that it was “not in the best interest for anyone in the groups to be together.”

On October 4, the Carbon County sheriff’s office cited the corner crossers for illegal trespassing, a misdemeanor. The department had been instructed to do so by the county attorney’s office. Later, Miller would present the Carbon County attorney, Ashley Mayfield Davis, with allegations of hunter harassment leveled against Grende by the Missouri hunters. Mayfield Davis’s office did not pursue that charge, and instead focused on building the criminal trespass case.

Immediately after Cape, Yeomans, Smith, and Slowensky were charged, the Wyoming chapter of Backcountry Hunters and Anglers started an online campaign to fund their legal defense, raising more than $100,000. Cape found himself serving as an emblem of rural populism for having crossed a fence line near a ranch; it was a curious position for a cattle farmer who operates a fencing company, but he embraced it. “Iron Bar Holdings absolutely thinks that public land is theirs,” he told me.

During the criminal trial, Mayfield Davis argued that crossing through private airspace constituted trespassing, an idea that aligned neatly with the position of Eshelman’s attorney, Weisz. It did not prove convincing to the jury, however, which in April 2022 took less than two hours to acquit the corner crossers. But Eshelman had also filed a civil suit, which requested up to $7.75 million in damages, claiming that corner crossing could devalue his ranch. In essence, Eshelman had acknowledged that the murkiness around checkerboarding created an immense financial benefit for landowners. “That’s been unsaid in the West,” said Tawney, the former executive director of Backcountry Hunters and Anglers. “He said it out loud in front of everybody.”

Eshelman found support from the Wyoming Stock Growers Association, which filed an amicus brief in his case. The group was represented by Karen Budd-Falen, a Cheyenne attorney who served as a deputy solicitor for the Interior Department during the Trump administration. She told me that her interest lay “in setting precedent that private property rights are absolute and the landowner has control of property including the airspace”—while recognizing easements for airplane flights. Weisz echoed that idea during the civil proceedings, and pointed to a Wyoming law that specifies landowners own the airspace above their land up to where aircraft fly. In an email to ��ԹϺ��, he also cited a 1997 memo by an Interior department official that deemed corner crossing in Wyoming to be trespassing. In court, Weisz’s efforts to preserve Eshelman’s sovereignty turned creative: in April, he stated that Eshelman would drop the request for damages should the court find that the hunters had trespassed, and prevent further incursions.

Cape and his friends, meanwhile, were represented by a Casper attorney named Ryan Semerad. Semerad’s argument was that his clients’ passing through airspace didn’t constitute a trespass and hadn’t harmed the ground beneath, and that people should be able to access public land by carefully corner-crossing. “It asks a fundamental question about our country and what we stand for,” said Semerad. “We do care about private property and the right to be left alone, but also we are a country of outdoors people and adventurers, hunters and travelers.” He added, “To me it’s this quintessentially American question of, Which one of our principles takes precedent?”

Weisz’s arguments implicitly favor private property over public land, given that the corner in question constitutes a disputed border. The checkerboard grid is a manifestation of a human desire to order the world; if you take that its markings are valid, then one side of the corner where Grende built his fence is public. “I’d argue the fence itself is invading public airspace,” the University of Colorado’s Squillace told me.

During this year’s legislative season, new efforts to try to address the issue popped up throughout the West, but they resulted in little clarity. In both Colorado and Wyoming, bills that would expressly permit corner crossing faltered, and in Montana, the deputy director of the department of fish, wildlife, and parks declared, “Corner crossing remains unlawful in Montana.” But no law or court ruling in the state explicitly banned the practice, and Backcountry Hunters and Anglers issued a rebuke to that department, saying, “Implying that it is illegal would be misleading at best.” Another Wyoming bill that would allow landowners to use force on perceived trespassers was also quashed. With the issue remaining muddy, multiple lawmakers looked to the Wyoming case for guidance. So did Fred Eshelman. “Somebody’s got to say, ‘This is legal’ or ‘This is not legal,’” he said, during a March deposition in the civil suit. “I can’t live in this world.”

In late May, Wyoming district court judge Scott Skavdahl issued a ruling for summary judgment in the civil case, siding overwhelmingly with the Missouri four. Not only did he state that they had a right to cross between public parcels, but he ruled that Grende’s makeshift fence was a violation of the Unlawful Inclosures Act. Some observers cautioned that the case wasn’t necessarily precedent setting, as it applied only to the four men in question, and didn’t carry weight outside Skavdahl’s district. Weisz appealed the ruling to the Tenth Circuit Court of Appeals—a venue that has the authority to clarify the legality of corner crossing in a wide swath of the country. Still, Squillace told me, “I’d be surprised if this decision doesn’t stand up over time.”

Following Skavdahl’s decision, the Missouri corner crossers celebrated. They also said they might return to Elk Mountain in the future. “I don’t think we’ll do anything different,” Cape told me. I asked if he was concerned about the potential for crowds at the corner off Rattlesnake Pass Road, given the amount of attention his case had garnered. “It could happen,” he said. “It’s part of the free world.”

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Lead Illustration: Alexander Mostov

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The American West Is Built on Contradicting Ideals. These Elk Hunters Were Caught in the Middle.

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