Transcript: Inside the battle for America’s West

This is an audio transcript of the Behind the Money podcast episode: ‘Inside the battle for America’s West’

Michela Tindera
For some people, going on a hunting trip in the state of Wyoming is sort of the ultimate dream.

Oliver Roeder
Wyoming is holy ground for hunting.

Michela Tindera
That’s my colleague Oliver Roeder. He’s a data journalist at the FT.

Oliver Roeder
There’s a lot of animals there. It’s baked into the culture there, like hunting is a real time-honoured pastime.

Michela Tindera
So in 2021, when a group of four men from Missouri decide to partake in that time-honoured tradition, they travel to a place in southern Wyoming called Elk Mountain, a place that a few of them had travelled to before.

Oliver Roeder
For hunters, it has incredible appeal. It’s home to something like a thousand elk, and it’s just a beautiful part of the country and incredibly isolated and sparsely populated.

Michela Tindera
So it’s late September, and these four friends, they finally arrive at Elk Mountain.

Oliver Roeder
Picture this mountain, Rockies are rising above these high scrub plains. And so, even if you’re sort of at the base near something like 7,000ft above sea level, and it looks like a giant stone whale sort of cresting out of the surface of the state.

Michela Tindera
It’s still early enough in the year that the weather is mild. It’s the time before the harsh winter winds that the area’s known for blow in.

Oliver Roeder
So in September, they arrive to the mountain. They set up their white canvas tents in the foothills and on to the mountain they go, and start hunting.

Michela Tindera
On the first day of their trip, the group is pretty much on their own, alone to camp, to hunt, to take in the nature surrounding them. But by the next morning, someone takes note of their presence in a way that’s dramatically changed their lives in the years since then.

Oliver Roeder
They catch the attention of a local ranch manager, a man by the name of Steven Grende, who works for a wealthy ranch owner, a man named Fred Eshelman. According to harassment complaints that these hunters filed after this incident, the hunters say that Grende and his colleagues start watching them all hours of the day, and they scare off the game on the public lands. They watch them so closely that the hunters have to hide, or even leave the mountain to use the bathroom. And the hunters say that as many as four vehicles parked around them, just keeping close eyes on them all the time. And they also say that at one point, Grende drives his truck towards them and yells an obscenity, and Grende even enters their tent uninvited. And one of the hunters told me recently that they themselves felt like they were the ones being hunted.

Michela Tindera
After some time, Grende begins making phone calls. He says he believes that these hunters have trespassed on his boss’s ranch.

Oliver Roeder
He calls the local Game and Fish Department, the local sheriff, the local prosecutor, trying to get someone to essentially arrest these four hunters.

[CLIP FROM STEVEN GRENDE’S RECORDED PHONE CALL PLAYING]

Oliver Roeder
And eventually Grende finds a sympathetic ear. The local prosecutor directs the local sheriff to find these hunters. He finds their white tents in the foothills of the mountain, and cites all four hunters for criminal trespass.

Michela Tindera
In the most simple of terms, Grende’s boss, Fred Eshelman, has said that he believes these hunters were trespassing on his property, and the hunters say that they were on public land and never set foot on the private ranch. But there’s more to this story here. It’s more complicated, and in the nearly three years since this hunting trip started, it’s grown to be a much bigger dispute than just what happened between the small group of people on a remote patch of land in Wyoming.

Oliver Roeder
It’s about the desire of rich landowners to exert exclusive control over public lands, and it’s about the ability or inability of the American public to access public land.

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Michela Tindera
I’m Michela Tindera from the Financial Times. A few years ago, four friends travelled to Wyoming for a hunting trip. Flash forward to today, and that trip has morphed into a legal dispute that will soon be heard by one of the highest courts in the US. Today, on Behind the Money, we’re exploring what this case could mean for millions of acres of land in the American West. 

[MUSIC PLAYING]

Oliver Roeder
Picture a chequerboard or a chessboard, but every square — instead of being small and on your kitchen table — is one mile on a side.

Michela Tindera
Recently, I sat down with Oliver Roeder in our New York studio to talk about chess and checkers. Oliver says to think of the light squares on the board as privately owned land, and think of the dark squares as publicly owned land.

Oliver Roeder
So you have alternating light squares and dark squares, each of which are a square mile, so alternating: public, private, public, private.

Michela Tindera
Now, in order to understand the origins of this chessboard or chequerboard, you have to go all the way back to the mid-1800s. At that time in America, there was the more populated eastern part of the country, there was California, and in the middle there was something known as the Great American Desert. So to connect the country, the federal government decided that there should be a railroad, the transcontinental railroad.

Oliver Roeder
But to build 2,000 miles of fresh railroad through the desert and the mountains, you need money. And the way that Congress decided to fund the transcontinental railroad was to give the railroad a ton of land, and the chequerboard was created when Congress gave, quote, every alternate section of land to the railroad companies, and the federal government kept the other half of squares for itself.

Michela Tindera
When Congress established this chequerboard, the government gave the railroad companies an area larger than Spain, more than 100mn acres.

Oliver Roeder
And the idea was that the railroad companies would sell their squares to fund construction. People would buy the squares and settle the West, and that would increase the value of the neighbouring government squares. And so, in some sense, the thing would sort of pay for itself.

Michela Tindera
Over the years, some of this federal land was sold off and this chequerboard dissolved throughout much of the country. But in this part of Wyoming and in parts of Utah, Nevada and California, this pattern has stayed exactly as it was in the 1800s, stuck in time.

Picture the Wyoming countryside, as Oliver has described it. These vast giant fields dotted with hills and mountains. There’s not a whole lot of infrastructure here, not many fences or roads. But layered on top of this landscape is this chequerboard. Squares of land owned by the public, sandwiched between squares of land owned by private individuals and corporations. And the boundaries of these squares are often invisible property lines. Now, if you want to access those public squares, you need to do something called corner crossing.

Oliver Roeder
Essentially, what you’re talking about is being a sort of back-country chess bishop. You’re trying to travel diagonally across this chequerboard, staying only on the public squares. So in order to do this, you have to find these corners, right? GPS technology and handheld digital maps have made this a lot easier. They allow you to sort of walk within the public square to the next corner, which will be sort of physically identified by what’s often called a brass cap. It’s a little stick stuck in the ground. And once you’re at the corner, you just step diagonally over this brass cap and you’ve gone from one public square to the next public square. And this is as close as you can get in this part of the country to travelling on public lands without trespassing.

Michela Tindera
What Oliver’s describing here — corner crossing — it’s exactly what the four hunters set out to do when they were in Wyoming. And I should mention: they came prepared.

Oliver Roeder
They brought a custom-designed A-frame steel ladder, built by one of the hunters, Bradly Cape. And this ladder was for the specific purpose of climbing over a no-trespassing sign at one of these corners. And they placed the ladder’s legs astride the corner, and its legs only touched public soil, and the four of them climbed over the ladder from public square to public square. One of them described it to me as, quote, a very simple solution to a very simple problem.

Michela Tindera
But that simple solution is part of the saga that’s now dragged into its third year. That’s because this practice of corner crossing has been for a long time in a legal grey area. It’s not clear whether it’s legal or illegal to corner cross.

[CLIP FROM BODY CAM FOOTAGE PLAYING]

Michela Tindera
What you’re listening to here is body cam footage pulled from the hunters’ 2021 trip. This tape was filmed from the perspective of a sheriff’s deputy who came to Elk Mountain after Grende’s call. Oliver tells me that Grende wanted the hunters arrested immediately for trespassing on his boss’s property. But no one is cited right away. Law enforcement shows up to Elk Mountain and meets Grende. They mull what charges might stick. They check their handbooks, radio back to their base. One of the officials standing in this group guesses that if corner crossing ever made it to the state Supreme Court, it would be legalised. Here’s Grende’s response to that.

Steven Grende voice clip
Well, if that happens, all this hunt . . . HMAs getting shut down . . . We’re shutting it all to the public. Fuck everybody, over four guys.

Michela Tindera
While reporting, Oliver reached out to Grende for comment multiple times, but he didn’t respond. Eventually, during their trip in 2021, the hunters are cited for criminal trespassing. It’s this citation that sparks the ordeal that’s since played out inside multiple courtrooms and within thousands of pages of legal documents. The four hunters — Bradly Cape, John Slowensky, Zachary Smith and Phillip Yeomans — were ordered to come back to Wyoming a few months after their September trip. They had to stand trial against the state.

Oliver Roeder
The two sides of that trial were basically the state of Wyoming on one hand, which said, by passing through a small amount of private airspace at these corners, you have trespassed on this private ranch land.

Michela Tindera
Private airspace — it’s the idea that private landowners, like the owner of Elk Mountain Ranch, owned not only the dirt and the grass of their land, but also some 200ft of air vertically above the ground.

Oliver Roeder
And then there was the hunter side of things, which is, well, we are allowed, like anyone, to pass from public land to public land, and we did it in the least invasive way possible, and therefore we were merely availing ourselves of what belongs to us, and that is the public lands on this mountain.

Michela Tindera
A jury reviewed this case and the hunters were found not guilty. They won. But there wasn’t a lot of time for celebration. At the same time that the criminal trespassing case was unfolding, the owner of Elk Mountain Ranch, Fred Eshelman, a healthcare investor with deep pockets, decided to sue these same hunters for civil trespass. And this lawsuit is the one that’s made its way up through the federal court system, all the way up to the Tenth Circuit court, just one step below the US Supreme Court. Coming up . . . 

Oliver Roeder
There’s something like 2mn acres of corner-locked public land in Wyoming, meaning the only way to get to these pieces of public land is by corner crossing. If the hunters win, much of this land will be truly public. It can be accessed via corner crossing. If the hunters lose, a lot of this public lands will be subsumed within large commercial interests, large private ranches.

Michela Tindera
We’ll take a closer look at how the judges might rule on this case that impacts millions of acres of land in the US.

[MONEY CLINIC TRAILER PLAYING]

News clips
A case that originated in Wyoming that’s taking a national spotlight . . . It’s pitting hunters against private Wyoming landowners . . . Next year, it’s expected to move in front of a federal judge where the rights of public citizens and private landowners may be decided, as well as the fate of 8.3mn acres of public lands across the nation. 

Michela Tindera
So by 2023, the civil trespassing lawsuit filed by Fred Eshelman, the investor who owns Elk Mountain Ranch, it winds up in federal court. And as part of that, Eshelman has to give a deposition where he has to answer questions from the hunters’ lawyers.

Fred Eshelman voice clip
I mean, somebody’s gotta say this is legal or this is not legal, or I can’t live in this world.

Oliver Roeder
Fred Eshelman founded and sold for lots of money pharmaceutical companies. According to a Forbes estimate from about a decade ago, he was worth hundreds of millions of dollars. He bought Elk Mountain Ranch in 2005, so he’s owned it for almost 20 years.

Michela Tindera
Oliver tried to interview him as he reported on this story for the FT, but Eshelman said he couldn’t comment on an active case.

Fred Eshelman voice clip
What I would say is that my understanding from before I ever owned the ranch is, and in fact as a condition of my having purchased the ranch, corner crossing is illegal. OK, well, if it’s illegal, then why isn’t it prosecuted? OK? I don’t want it happening on my land because I think it’s illegal. I think it’s trespassing on my private property. OK, so this has nothing to do with public land.

Oliver Roeder
This is one thing that Eshelman says over and over and over, that he was always assured that corner crossing was illegal. Everyone told him that corner crossing was illegal, and I don’t know whether or not everyone told him that. But the fact of the matter is it’s kind of a genuine legal grey area, and certainly not as cut and dried as Eshelman claims that it should be. And his contention in the deposition is that he’s not interested in limiting access to public land. All he’s interested in is limiting access to his own land at the corner. But given the geometry of the situation, these are exactly the same thing, right? If you are not allowed to momentarily violate Eshelman’s airspace at the corner, you are mathematically not allowed to access public land there because of this infinitesimal point. He tries to draw those out and say, I’m not trying to limit access to public land. But of course, in fact, he is. If people are allowed to come in at the corners, he also argues that the value of his ranch will be degraded by millions of dollars.

Michela Tindera
Fred Eshelman is hardly the only person to own land that’s a part of this chequerboard structure, and this is why this case is so important.

Oliver Roeder
Reporting this story, I had been primarily focused on Elk Mountain because of this legal case. But you know, we were also very curious sort of what else was happening in this Wyoming chequerboard.

Michela Tindera
Using state property databases, Oliver mapped out every parcel of private property in the state of Wyoming.

Oliver Roeder
And you know, we noticed huge properties that are in this chequerboard, hundreds of square miles that dwarf even Elk Mountain Ranch, which is essentially a whole mountain.

Michela Tindera
These properties are owned by a collection of the wealthiest people in America and various businesses.

Oliver Roeder
Stan Kroenke, for example, the owner of Arsenal Football Club and much else, owns a large ranch called Q Creek. Phil Anschutz, the real estate and energy investor, owns something called Overland Trail. And then you have other big commercial interests, livestock operations, energy companies, some mining.

Michela Tindera
Some of these properties can span hundreds of square miles. Oliver says that owning property that’s part of this chequerboard sort of stuffs a private ranch with additional public land inside of it.

Oliver Roeder
And that’s public land that is difficult, or perhaps, depending on what the courts say, illegal for the public to travel to. I mean, even if it’s deep within your ranch and nobody’s travelling there, it’s still managed by the federal government and the Bureau of Land Management, so you can’t, like, build whatever you want there. But as one of the hunters’ lawyers put it to me, it’s rich landowners adding to their own little Xanadus, basically increasing their acreage with this interior public land.

Michela Tindera
Oliver tried to reach both Stan Kroenke and Phil Anschutz to ask them about their ranches, but he never heard back.

Last year, the hunters won their civil case against Eshelman in federal court. But once again, this wasn’t the end of the story. After that decision, Eshelman appealed and the case was bumped up to the second-highest level of the American judicial system. In May, in just a few weeks, oral arguments for this case will be heard inside a Denver, Colorado courtroom where the US Court of Appeals Tenth Circuit is headquartered. Oliver tells me that specifically for this appeal, Eshelman hired a fancy white-shoe law firm that specialises in appellate and Supreme Court litigation. Those lawyers have filed a brief with the circuit court that makes a key point.

Oliver Roeder
According to them, if the hunters win, the government will execute the largest taking of private property in the history of the country, which would, quote, erase billions of dollars in private property value. That’s their argument.

Michela Tindera
At the beginning of the hunter’s brief filed with the Tenth Circuit, there are lyrics to a song written by the American folk musician Woody Guthrie. The song is “This Land is Your Land”.

[WOODY GUTHRIE’S ‘THIS LAND IS YOUR LAND’ PLAYING]

Oliver Roeder
The lawyer explained to me that this song sort of perfectly encapsulated the argument that they were trying to make, that this public land on either side of this actual no-trespassing sign was literally made for you and me. It was endowed by the federal government to the public, and you and I and whomever are members of that public.

Michela Tindera
Later this year, the judges will reach a decision and release their opinion. Even though the hunters have won their various legal challenges so far, Oliver tells me that it’s no guarantee that they’ll win this next challenge in the Tenth Circuit. And as Oliver mentioned, if either party is dissatisfied with the outcome, it can be appealed again all the way up to the Supreme Court.

Oliver Roeder
I spoke with two of the hunters recently, Phil Yeomans and Brad Cape. They’re waiting, waiting to see what the courts decide about the future of corner crossing. And I think they’re waiting with some combination of anxiety and hope. And as Cape told me, you know, what’s at stake in this case is an attitude. And it’s a hope that the American public land is still the American public land, and it can’t be controlled. And we’ll find out whether or not it can be soon. The hunters told me they hope they can come back to Elk Mountain again one day.

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Michela Tindera
Behind the Money is hosted by me, Michela Tindera. Saffeya Ahmed is our producer. Topher Forhecz is our executive producer. Sound design and mixing by Sam Giovinco. Cheryl Brumley is the global head of audio. Thanks for listening. See you next week.

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