In the fall of 2021, four hunters from Missouri came to Wyoming for elk and stumbled into the smallest by area and loudest by stakes lawsuit in the American West. They never set foot on anyone else’s land—not a state surveyor nor a GPS app could fault them for that. They were accused of something else: while crossing between two public parcels, their bodies had, for a fraction of a second, passed through a cube of air above the property of a pharmaceutical magnate. The county prosecutor saw a criminal offense in it, the ranch owner saw damages of more than seven million dollars, and a federal appeals court, four years later, saw a lawful means of getting around, protected by an 1885 law. On October 20, 2025, the U.S. Supreme Court declined to intervene. And that was not the end of the story: the front simply moved north, to Montana, where the fight over the right to step across a corner is continuing right now.
A morning digest carried a brief item about hunters who had “made a knight’s move,” the magnate Fred Eshelman, and a Supreme Court conference on October 17. What caught me was the geometry of the absurd: a property right measured by an infinitesimal point in space had become grounds for a multimillion-dollar suit. A check showed that the digest was living in the past: the Supreme Court conference had long since happened, the petition had been denied—and the plot, despite its “ending,” was now living through a new generation of cases in a neighboring state. So the story of a cube of air became a story of how the 19th century got the West hooked on the needle of a checkerboard, and why it still cannot get off it.
To understand how a dispute over a cube of air could arise at all, you have to go back to 1862—to the Pacific Railway Act. Congress decided to link the continent by rail, but it did not build the railroad with budget money: instead of cash, the Treasury handed out land. Along the route, they drew a corridor twenty miles wide, divided it into standard parcels—townships six miles to a side, each with 36 sections of 640 acres—and gave the odd-numbered sections to the railroad while keeping the even-numbered ones for the government. The result was a gigantic checkerboard: white squares for Union Pacific, black ones for the public.
For bureaucrats, the logic was pragmatic: the railroad would sell its squares, the government parcels would remain available for sale or settlement, and “the ordinary forces of the market,” as the Supreme Court would later put it, would themselves create a network of roads between them. In arid southern Wyoming, the market never showed up. The squares went on alternating: private blocks pressed against public ones, sometimes converging at four corners in a single point—a common corner, where private land touches private land and public land touches public land.
More precisely, it almost touches. Formally, under the 1785 Act, those points are marked by steel monuments of the Geological Survey. But between two public squares meeting at their corners there is always “zero land”: to get from one to the other, you have to pass exactly through the point. And here the third dimension appears—a concession from the 13th century: the Italian jurist Accursius taught that the owner of the soil owns the entire column of space above it “up to the heavens.” Ridiculous as it sounds, the doctrine survived into American law and thrives quite happily in Wyoming as statute: the owner of the surface owns the air above it as well.
By 2020, Elk Mountain Ranch belonged not to a cowboy dynasty but to Fred Eshelman—the founder of the contract pharmaceutical company PPD, which he sold in 2011 for $3.9 billion. The ranch’s 2017 appraisal: $31.3 million for 22,042 acres, nearly $6 million of that in buildings. Eshelman is a complicated figure by Western standards: a multimillion-dollar donor to the Republican Party, the man who paid $2.5 million to the group True the Vote for an audit of the 2020 election and then sued it over services never delivered. In Wyoming, he also looks like a model conservative conservationist: in 2008, he placed 22,438 acres of his ranches into a conservation trust barring development. A man in love with the “rustle of cottonwoods” in those parts—and, at the same time, the plaintiff seeking seven and a half million dollars for passage through the air.
According to onX, a mapping service for hunters, Wyoming’s checkerboard locks up 4.19 million acres of public land—the highest figure in the West. Across the region, there are 8.3 million acres “behind corners”: without the right to step across a corner, that is roughly four Yellowstones. At Elk Mountain, 11,000 acres in 27 public squares inside the ranch are locked up. All of it is hard to reach, eagerly used by elk and—therefore—very valuable to hunters.
In October 2020, three men arrived: Bradley Cape, Zachary Smith, and Philip Yoemans. By way of the public Rattlesnake Pass road, they reached public Section 14, set up camp, opened the onX Hunt app—it shows property lines in real time—and headed for the steel monument at the corner of Sections 13, 14, 23, and 24. There, above the monument, was an “ornament”: two steel posts linked by a chain. The ranch made no secret of the structure’s purpose: for a quarter-mile around, there was no other fence, no buildings—only those posts directly above a government point.
The hunters could not crawl under the chain. So they did something else: they took hold of a post, moved around it in an arc with their feet stepping only on government squares—and physically never touched Eshelman’s land. For half a second, their bodies passed through the air above Sections 13 and 23. A ranch patrol manager discovered them and demanded that they leave; the hunters refused; the sheriff who was called... issued no citation. The officer on the scene saw neither a violation nor damage.
In 2021, the four returned—with an A-frame steel ladder, so they would not have to touch the posts at all. Then the war of nerves began. According to sworn statements the hunters gave to a Game & Fish investigator, pickup trucks stood watch by their camp for entire days; ranch staff, they said, scattered game by driving ATVs through the area; manager Steve Grende followed walking hunters at a distance of twenty to thirty feet. A bag of game meat disappeared—the topmost one in their hanging cache; it was never found. Over nine days of hunting, beginning September 26, the hunters hid from no one—but they repeatedly cut short trips to the toilet so they would not be caught off guard under surveillance. Neither Game & Fish nor the sheriff wanted to issue citations: the agency has no authority to charge criminal trespass and does not issue citations for corner-crossing as a matter of principle.
Then the case went political: the manager called the Carbon County prosecutor’s office, and prosecutor Ashley Mayfield-Davis ordered a deputy sheriff to write the citations after the fact. The charge: criminal trespass, including an alternative count of “trespassing to hunt.”
April 2022, Carbon County District Court in Rawlins. The prosecutor built her whole case on geometry: she brought two-colored Duplo blocks into court and assembled a three-dimensional checkerboard. “The law says you own the air. Property is not just the ground, it is the air above it,” she explained to the jury. “You do not have to touch the ground... When you pass through that plane, you enter someone else’s property. A body is bigger than a point.”
The defense answered not with law but with an image. Attorney Ryan Semerad cast Eshelman as a “king of the mountain”: “He believed that the whole mountain was his, and no one but him could be there.” The decisive point, perhaps, was procedural: two agencies on the scene had refused to bring a case, and the citations were issued later, under pressure. “This is clear as mud,” Semerad said of the law. The jury deliberated for less than two hours. Acquittal on all counts.
One absurd detail at the end: on the very day the jury read out its not-guilty verdict, lawyers for Iron Bar Holdings, Eshelman’s company, served the hunters with a civil lawsuit—damages for “interference with exclusive possession” of airspace. By September 2022, the demand had taken numerical form: $3.1–7.75 million—representing a 10–25% loss in the ranch’s value because, by the logic of the ruling, it could become “open to public crossing.” Plus $10 for the trespass itself, $7,500 “for interference with a veterans’ hunting program,” and legal costs. The rest was for what the precedent would do to the ranch’s price.
The civil front moved to federal court—where the hunters’ lawyers, backed financially by Backcountry Hunters & Anglers, had deliberately been steering it. And there, the checkerboard opened up in all its historical depth.
In 1885, Congress passed the Unlawful Inclosures Act—a direct response to the era of “cattle barons” fencing off millions of acres of public rangeland. The law is short and vicious: any fence enclosing public land to which the person who put it up has no lawful title is illegal; obstructing free passage through public lands “by force, threats, intimidation, or by any fencing or inclosure” is forbidden. Its mechanism comes with a trigger of direct democracy: on the affidavit of any citizen, prosecutors must bring a case, and the court must order the fence removed within five days.
The law’s teeth were tested twice, both times on a checkerboard. Camfield v. United States (1897): Kansas cattlemen fenced off 20,000 acres of public sections by placing the fence entirely on their own odd-numbered squares, bought from the railroad. Not a foot of fence stood on public land—but the Supreme Court held the enclosure illegal: gates along section lines “for access” did not save it. Bergen v. Lawrence (1988): a Wyoming rancher used an unbroken fence to cut a pronghorn winter range off from public land; during the harsh winter of 1983, animals died against the wire. The Tenth Circuit ordered the fence removed and, in passing, uttered the formula that would become the core of a new case 37 years later: an owner cannot pursue “a program which has the effect of denying access to federal lands for lawful purposes.”
In March 2025, the same logic traveled from wire to air. The Tenth Circuit, in an opinion by Judge Tymkovich, reasoned as follows. Yes, under Wyoming law, crossing through the air above private land is trespass: the ad coelum doctrine is very much alive, and the state has codified “ownership of the space above the land.” But the federal UIA overrides it: Iron Bar’s sustained strategy—signs, the chain, escorting, pressure on cops and prosecutors—amounts to precisely the denial of access that Congress outlawed 140 years ago. A fence made of air is legally equivalent to a fence made of barbed wire. The hunters are right: they may step across so long as they do not touch the ground. Affirmed.
Supreme-grade judicial irony: the opinion literally opens by comparing the hunters to checker pieces—“anyone familiar with checkers can appreciate that to move diagonally, a piece must momentarily occupy the space above another’s squares.” The checkerboard metaphor travels on: in September 2026, Montana legislator Bob Carter was already urging colleagues with the words, “you’re a bishop, you move only diagonally.”
Iron Bar had every card it needed for a petition: a question reduced to a formula (“Does the UIA preempt a state landowner’s right to exclude strangers across millions of acres of the West?”), support in amicus briefs from the Claremont Institute and cattlemen’s associations in three states. But the timing foretold trouble: extensions to file were sought twice, and Gorsuch—the justice administratively assigned petitions from the Tenth Circuit—denied the second. On October 20, 2025, the Supreme Court declined review in a single line on its order list. For the six states of the Tenth Circuit—Wyoming, Colorado, New Mexico, Kansas, Oklahoma, and Utah—the question is settled.
The economic logic of the dispute, meanwhile, did not change by a single percent, and cattlemen know it. “If corner-crossing is not trespass, the ranch loses value: it is no longer closed property—it is open to public crossing,” James Magagna, vice president of the Wyoming Stock Growers Association, explained back in 2022. In the appraisal of a $31 million ranch, a 10–25% discount is a market measure of the rent of locked-up adjacency. The parties are arguing, quite literally, about the price of air.
The Tenth Circuit’s outcome had a predictable side effect: settling the issue on federal land in six states, the ruling left all the “black squares” of the Ninth Circuit hanging in the air—and Montana, with its 871,000 acres of public land locked behind corners, took the lead role. State authorities put the number at half that. In January 2026, FWP, the state wildlife agency, issued a memo: “corner crossing in Montana remains illegal”; wardens were authorized to cite violators. The leading voice for the ban was Lieutenant Governor Kristen Juras: “Do you want someone hanging from a drone above your yard and watching your children? That is why the Legislature clarified: a drone below 200 feet is trespass.”
Four months later, on May 14, 2026, Backcountry Hunters & Anglers and Public Land and Waters Access sued FWP in Montana court: the memo violated procedure, having been adopted without public hearings; it conflicted with the public trust doctrine—the century-old principle that wildlife is held in trust for the people—and “cites not a single Montana statute or court decision.” BHA board member and plaintiff John Sullivan laid out the strategy bluntly: “Step one—we ask the court to invalidate the memo. Step two—since we’re already here, let the court look at corner crossing and decide it once and for all.”
Public opinion had already voted, long before the court. A Montana Free Press poll from March 2026: 59% of state residents favored legalization, 7% opposed it; even among Republicans, a majority did—53%. At a citizen advisory council meeting in Glasgow in June 2026, a layer emerged that no one in Washington had anticipated: pilot programs could kill the very essence of it. Ranch owners demanded compensation for any access and threatened not to renew Block Management—a voluntary-access program covering 6.8 million acres of private land. And hunters, as Glasgow’s Justin Schaaf noted, do not want “dots on a map”: the value of cornered public squares lies precisely in their solitude. Both sides, unusually, agree on one thing: they are more frightened by a ruling than by uncertainty.
September 2026 brought another front: legislators are preparing bills for outright legalization—Josh Seckinger and Ellie Boldman; Democrat Bob Carter wrote a call-to-action column in the Flathead Beacon; FWP is preparing annual pilot access agreements—in the hope that the court will decide before the legislature does. Montana’s ending has not been written; 871,000 acres depend on it and, perhaps, the mechanics of the conflict for the West’s remaining “black squares.”
If you reduce the five-year legal battle to one line: the courts recognized that the right to lock out your neighbors is not limitless when the dispute concerns land that, by law, belongs to everyone. Eshelman was right about one thing—the air above his land really is his. What he lost was not the right but the strategy: a century and a half ago, Congress had already encountered owners building castles out of other people’s squares—and wrote a short, vicious statute for just such an occasion. The cube of air turned out to be a fence, the fence a nuisance, and the checker move legal.
But the real price of this story is not the verdict; it is what it revealed about the price of the “non-checkerboard” mechanisms themselves. Eshelman’s ranch was appraised at a 10–25% discount for the risk of open corners—that is the market value of a monopoly over someone else’s diagonal. In Montana, the same monopoly is already being traded openly: compensation for access against the threat of blocking 6.8 million acres of voluntary access. Tellingly, public opinion, the courts, and the federal statute of 1885 have lined up on one side, while on the other stand a lieutenant governor and an agency director forced to defend a memo with no legal basis whatsoever. When the economics of a single point of air are worth millions, while the right to it takes two hours of jury deliberation, that is not a paradox. It is an exact measure of what the right to say “you can’t come in here” costs in the American West.