[00:00:02] Speaker 03:
It looks like everybody's ready to go.

[00:00:04] Speaker 03:
With that, let's call the first case, which is 23-8043, iron bar holdings versus tape.

[00:00:14] Speaker 03:
You may proceed.

[00:00:16] Speaker 04:
Good morning, Your Honors.

[00:00:17] Speaker 04:
You may please get to work.

[00:00:18] Speaker 04:
Reece Anderson for Appellant Iron Bar Holdings.

[00:00:21] Speaker 04:
I hope to reserve three minutes for rebuttal.

[00:00:26] Speaker 04:
This case asks whether there's a federal right to enter private property

[00:00:30] Speaker 04:
to access adjacent public land for recreational purposes?

[00:00:34] Speaker 04:
That question has significant policy implications that affect both private property rights and public land access.

[00:00:42] Speaker 04:
But those policy implications should not cloud the settled legal principles that control this case.

[00:00:48] Speaker 04:
First, entering airspace immediately above the surface of the land of private property without permission or privilege is a black letter trespass under Wyoming law.

[00:01:00] Speaker 04:
No federal law preempts a trespass law or creates the easement right to cross private property that the defendants claim here.

[00:01:08] Speaker 04:
The Supreme Court definitively resolved that question in 1979 in Leo Sheep.

[00:01:13] Speaker 04:
In the 45 years since, the government has not seen fit to use... How did Leo Sheep definitively answer our question?

[00:01:23] Speaker 03:
To me, the cases are a jumbled mess.

[00:01:26] Speaker 03:
We have a case called Bergen, a 10th Circuit case, which discusses Leo Sheep and the Unlawful Enclosures Act and seemingly harmonizes them, acknowledges their independent applicability existence.

[00:01:44] Speaker 03:
Give me a little more nuance in how we can apply Leo Sheep here in light of those other cases.

[00:01:49] Speaker 03:
happy to try to put the puzzle pieces together.

[00:01:51] Speaker 02:
Yeah, for sure.

[00:01:51] Speaker 03:
It's almost like a checkerboard.

[00:01:55] Speaker 02:
And when you're putting the pieces together, don't focus just on easement.

[00:01:59] Speaker 02:
Focus also on nuisance.

[00:02:02] Speaker 04:
I will, Your Honor.

[00:02:03] Speaker 04:
So I think the best way to understand Bergen is Bergen is Canfield.

[00:02:08] Speaker 04:
Canfield was the 1890 Supreme Court case about a large perimeter fence.

[00:02:13] Speaker 04:
Just like that, Bergen involved a large perimeter fence around the outside

[00:02:17] Speaker 04:
Inside of that were public lands.

[00:02:20] Speaker 04:
Leo's sheep was different.

[00:02:21] Speaker 04:
Leo's sheep involved no fences.

[00:02:23] Speaker 04:
And the holding of the key language from Leo's sheep, the Supreme Court resolved that both as a matter of common law doctrine and as a matter of construing congressional intent, we are unwilling to imply rights of way with the substantial impact such implication would have on property rights created 100 years ago.

[00:02:40] Speaker 03:
But Bergen does imply a right of way.

[00:02:42] Speaker 03:
I mean, when you boil it down, they're both variations on access, right?

[00:02:48] Speaker 03:
I'm trying to see the, you know, you can say, well, the fence is a tangible item, but Bergen says it's not the intent, it's the effect of the enclosure.

[00:02:59] Speaker 03:
But, you know, Leo's sheep says no implied easement yet.

[00:03:04] Speaker 03:
Bergen's let the antelope have an implied easement.

[00:03:07] Speaker 03:
In the other cases, let the donkeys have an implied easement, right?

[00:03:11] Speaker 03:
The sheep had an implied easement in other cases.

[00:03:15] Speaker 03:
Here the humans are looking for an implied easement.

[00:03:17] Speaker 04:
The court was careful, this court was careful and burdened to say that the UIA does not create any easements or servitudes.

[00:03:24] Speaker 04:
What it does is it abates public nuisances to get to your honor's question.

[00:03:28] Speaker 04:
And that's important because that sustains the constitutionality of the Unlawful Enclosures Act.

[00:03:33] Speaker 04:
So if we look back at Camfield, the question in Camfield was, did Congress have the power under the property clause to regulate fences on private land that would affect private property?

[00:03:45] Speaker 04:
The Supreme Court said they did,

[00:03:46] Speaker 04:
because they were public nuisances.

[00:03:49] Speaker 04:
Here we have a legal cause of action, a trespass.

[00:03:52] Speaker 04:
No court, as far as I'm aware, has ever found that a legal cause of action constitutes a nuisance that can be evaded under federal authority.

[00:03:59] Speaker 02:
So I think that's the... I think you're... That's not a black letter of proposition you just said.

[00:04:07] Speaker 02:
I think the idea of a nuisance is a fairly broad concept, and I don't know that it's been fully cabined by

[00:04:17] Speaker 02:
by the law yet.

[00:04:18] Speaker 02:
In any event, so that's where I'm concerned.

[00:04:22] Speaker 02:
And like Judge Timkovich, we do have Bergen and we have Burford.

[00:04:31] Speaker 02:
We've got plenty of cases that have language the other way.

[00:04:35] Speaker 02:
I've rarely seen such a jumbled mess of language and dicta and holdings.

[00:04:41] Speaker 02:
It is truly a mess.

[00:04:43] Speaker 02:
But kind of preeminent is our case.

[00:04:47] Speaker 02:
because Bergen came after some of these other critical cases.

[00:04:54] Speaker 01:
Was that a question?

[00:04:56] Speaker 04:
I'm sorry.

[00:04:57] Speaker 01:
I guess I would like for you to discuss what I think is there is a common thread to me in several of these cases, and in particular in Buford, Leo Sheep, and McKay, and that is the concept of necessity.

[00:05:12] Speaker 01:
And I don't think that you could suggest

[00:05:16] Speaker 01:
there's any other way that these hunters could have accessed the public land other than the most minimally intrusive way that they did.

[00:05:29] Speaker 01:
Helicopter.

[00:05:30] Speaker 01:
Helicopter.

[00:05:31] Speaker 01:
But other than that, isn't necessity what's very important?

[00:05:37] Speaker 01:
And in particular, the Beaufort case that Judge Ebell just mentioned,

[00:05:41] Speaker 01:
In Leo Sheep, the court specifically distinguished Buford because that case involved necessity.

[00:05:48] Speaker 01:
There was no other way for the herder to get a sheep across the Utah checkerboard.

[00:05:54] Speaker 04:
Necessity plays an important role in Leo Sheep.

[00:05:57] Speaker 04:
And it's because the government cannot claim an easement by necessity because there is no necessity.

[00:06:02] Speaker 04:
They have the power of eminent domain and condemnation.

[00:06:04] Speaker 04:
They can create whatever access they want.

[00:06:06] Speaker 04:
Licensees of the gun which these hunters are don't go to licensee just yet.

[00:06:10] Speaker 01:
Let's talk about let's continue on with necessity here Let's talk about necessity in the capacity that we're currently talking about it Is there any other way first of all for them to access?

[00:06:23] Speaker 01:
in a less intrusive way other than helicopter I

[00:06:29] Speaker 04:
No, Your Honor, there's not a less intrusive way, but the government can create that access by the stroke of an executive or legislative pen tomorrow.

[00:06:37] Speaker 04:
And that was critical to Leo Sheep.

[00:06:39] Speaker 01:
Leo Sheep sought to reconcile... They haven't created that access.

[00:06:43] Speaker 01:
I'm asking about today.

[00:06:44] Speaker 01:
Today, and for all the years past, the access to the public land that we are talking about is simply unavailable if they are not able to do this most minimal

[00:06:58] Speaker 01:
of crossings, isn't that correct?

[00:07:00] Speaker 04:
That is correct, Ryan.

[00:07:02] Speaker 01:
There simply is no access.

[00:07:04] Speaker 01:
So therefore, the necessity that the courts talked about in Leo Sheep and McKay, and particularly in Buford, why doesn't that take the day here?

[00:07:16] Speaker 04:
Leo Sheep is quite factually similar.

[00:07:18] Speaker 04:
It also involves Carbon County, Wyoming, and the request that the government was making to this court, which was adopted, was that without some right of way of access,

[00:07:28] Speaker 04:
the government could not access, and by extension, they were creating public access, right, to recreate a reservoir for hunting and fishing, the same circumstance we have here, that they needed a right, they had a right of way to cross the odd number of squares in order to access the public domain on the public's behalf.

[00:07:46] Speaker 04:
And this court adopted that, looking at Buford, looking at Canfield, looking at the UIA, and looking at McKay.

[00:07:52] Speaker 04:
Those were the authorities that the United States relied on for the purported right that it had.

[00:07:56] Speaker 04:
the Supreme Court unanimously reversed, looking at those exact same authorities and reconciled them because the government, unlike some of the other cases, had that authority to create access.

[00:08:08] Speaker 04:
And that's what's really important here.

[00:08:09] Speaker 04:
Property lines have sharp edges because of the consequences of eroding them.

[00:08:15] Speaker 04:
So there's practical implications of this case that I want to address.

[00:08:20] Speaker 03:
I have two related questions, I think, there on that.

[00:08:24] Speaker 03:
Could the state of Wyoming,

[00:08:25] Speaker 03:
essentially ratify by statute, ratify corner crossing, basically eliminate your civil trespass?

[00:08:35] Speaker 03:
It could, Your Honor.

[00:08:36] Speaker 04:
In fact, there was a bill introduced to do that that did not make it through the legislature.

[00:08:41] Speaker 03:
Could Wyoming law basically allow unfettered access through your client's property by eliminating the civil trespass?

[00:08:51] Speaker 04:
We see examples of those in the past.

[00:08:53] Speaker 04:
Now, it may constitute a taking entitled to just compensation.

[00:08:56] Speaker 04:
That's the Cedar Point nursery case from the Supreme Court in 2021, which I think is quite illuminating on this point about when you create access for the public on private property.

[00:09:05] Speaker 04:
But the Supreme Court, again, drew some sharp lines because of the potential for incremental erosion of property rights.

[00:09:13] Speaker 03:
Yeah, and relatedly, could Congress ratify corner crossings through, I mean,

[00:09:19] Speaker 03:
One of the issues here is whether the UIA does that, but could Congress say we're definitively going to, by regulation or statute, endorse what Judge Scafdall came up with here?

[00:09:33] Speaker 04:
Yes, Your Honor.

[00:09:34] Speaker 04:
In fact, they've got $900 million appropriated annually to do exactly that.

[00:09:39] Speaker 04:
The Federal Land Policy and Management Act, one of its purposes is to secure access to public lands by purchase, exchange, donation, or eminent domain.

[00:09:48] Speaker 04:
Our client, in fact, has offered hand swaps to both the state of Wyoming as well as the Bureau of Land Management that would have consolidated parts of the checkerboard and increased public access to public land in this very part of Elk Mountain.

[00:10:03] Speaker 02:
But of course, that movement would not be aborted if this district court case was affirmed because the access here is fairly inconvenient and very, very

[00:10:18] Speaker 02:
restrictive.

[00:10:19] Speaker 02:
It wasn't involving a road or any kind of traditional public access.

[00:10:24] Speaker 02:
Not very many people carry six foot step ladders with them when they go out backpacking.

[00:10:29] Speaker 02:
So I don't see, however this case turns out, that it's going to have a significant abortive effect on the legislative effort to acquire access, maybe corner access, maybe other access.

[00:10:43] Speaker 04:
With one nuance, Your Honor.

[00:10:45] Speaker 04:
Part of the federal government's authority

[00:10:47] Speaker 04:
allows them to create access where it is necessary.

[00:10:51] Speaker 04:
And so if it is not necessary to create access, then that may strip some of their authority to use the tools at their disposal to create much more convenient thoroughfares or to engage in land swap.

[00:11:01] Speaker 04:
So there is a bit of a catch there that I think is important.

[00:11:05] Speaker 03:
Coming back to my question, the Congress could not do it unless they paid for it.

[00:11:10] Speaker 03:
Correct.

[00:11:10] Speaker 03:
They could do it by regulation, in other words.

[00:11:13] Speaker 03:
It'd be a regulatory taking.

[00:11:15] Speaker 04:
And in fact, regulations was what Cedar Point was about.

[00:11:18] Speaker 04:
It was a California statute that gave people a right to access private property.

[00:11:23] Speaker 04:
Why did you argue that the UIA is a taking?

[00:11:27] Speaker 04:
That's the best reason not to hold that the UIA reaches trespass.

[00:11:31] Speaker 04:
It would have been a monumental taking in 1885 that Congress never acknowledged, no one ever mentioned at the time.

[00:11:38] Speaker 04:
And so the easiest way to resolve the UIA question

[00:11:43] Speaker 04:
is to find that the word enclosure does not include a trespass action.

[00:11:47] Speaker 04:
It means a physical obstruction.

[00:11:48] Speaker 04:
That's both consistent with the usage at the time when we talked about unenclosed lands.

[00:11:53] Speaker 02:
Why would a physical versus a forceful enclosure be valued differently or interpreted differently?

[00:12:02] Speaker 04:
That's a good question, Your Honor.

[00:12:04] Speaker 04:
So the reason they're valued differently is that Congress was abating the nuisance of the time.

[00:12:08] Speaker 04:
Those were giant perimeter fences.

[00:12:11] Speaker 04:
But they also, in section three, were interested, they were prohibiting uses of force and threats.

[00:12:17] Speaker 04:
The phrase they used was unlawful means.

[00:12:20] Speaker 04:
The natural implication of unlawful means is that Congress allowed lawful means that would prevent access.

[00:12:26] Speaker 04:
That is precisely the camp field carve out.

[00:12:29] Speaker 04:
And there's a really important passage.

[00:12:30] Speaker 02:
I think you're interpreting lawful and unlawful kind of to equate to force.

[00:12:34] Speaker 02:
And I'm not sure that reading the act it does, because the act has certain kinds of

[00:12:41] Speaker 02:
force that is specifically prohibited.

[00:12:43] Speaker 02:
And then it says, and unlawful activity.

[00:12:46] Speaker 02:
It seems to me that the unlawful could be a broader interpretation.

[00:12:52] Speaker 04:
I think it's important to look at what the Supreme Court said in Canfield was lawful to do.

[00:12:57] Speaker 04:
And it said, a private property owner, doubtless, has the right to fence in his own private property, even if it means that the effect of that is to obstruct access to the public land.

[00:13:09] Speaker 04:
That's the lawful fencing example that we get on page 30 of our brief.

[00:13:13] Speaker 04:
That is a visual depiction of what a trespass action is.

[00:13:16] Speaker 04:
A trespass action only excludes people from entering private land.

[00:13:21] Speaker 03:
And so... So in Camfield, if the landowner brought a trespass action, instead of building a fence, that would have been a different outcome?

[00:13:31] Speaker 04:
It's possible that it would have even implicated the UIA.

[00:13:33] Speaker 04:
In fact, that's... Leo Sheep says the UIA has no significance or we have no physical barriers.

[00:13:39] Speaker 04:
And so an enclosure is something under the statute that can be maintained, erected, constructed.

[00:13:45] Speaker 04:
It has to be removed or destroyed.

[00:13:47] Speaker 04:
It's unlawful.

[00:13:48] Speaker 04:
All of these textual words refer to physical obstructions.

[00:13:52] Speaker 04:
The district court rules against you.

[00:13:53] Speaker 04:
You have five days to remove your enclosure.

[00:13:56] Speaker 04:
And so I think the easiest way to resolve this, again, is to find that a trespass action is not an enclosure.

[00:14:01] Speaker 04:
It is a lawful means.

[00:14:02] Speaker 04:
In fact, the means we want to encourage of recognizing property loss.

[00:14:06] Speaker 03:
And I'll give you some rebuttal.

[00:14:07] Speaker 03:
Thank you, Your Honor.

[00:14:09] Speaker 03:
And if we circle back to where we started, then Bergen is not binding authority because it didn't involve a trespass action?

[00:14:18] Speaker 04:
Bergen is Canfield.

[00:14:19] Speaker 04:
So Bergen is a perimeter fence applied to Antelope.

[00:14:23] Speaker 04:
And there's a passage that I'm sure we'll hear in just a moment, which is it's not the fence but the effect.

[00:14:27] Speaker 03:
In context of- Yeah, and that's what Bergen says.

[00:14:29] Speaker 03:
Correct.

[00:14:30] Speaker 04:
In context, what the court was talking about is that you have to have an unlawful means, in this case a fence, and an effect.

[00:14:37] Speaker 04:
The defendants had argued that because there were swinging gates on that fence, that meant it was no longer an enclosure.

[00:14:43] Speaker 04:
This court said Antelope don't recognize gates.

[00:14:46] Speaker 04:
That doesn't minimize the effect of the fence at all.

[00:14:50] Speaker 04:
You have to have both things.

[00:14:51] Speaker 04:
And in that case, it was directly on point for Camfield.

[00:14:54] Speaker 04:
So the Supreme Court in Leo Sheep used the example from Camfield that said because you can doubtless block in your own land, even if it means restricting access,

[00:15:06] Speaker 04:
The UIA cannot mean that it prohibits any measure that affects or obstructs access to public land.

[00:15:14] Speaker 04:
That's precisely the circumstance we have here.

[00:15:16] Speaker 04:
Again, all of this can be fixed by the government tomorrow.

[00:15:20] Speaker 04:
That was the fix that the Supreme Court recognized in Liu Shi.

[00:15:24] Speaker 04:
If the government wants to create access, just as they had gone from 150 million acres of originally locked land, today, less than 9 million remains.

[00:15:34] Speaker 04:
They are making progress.

[00:15:35] Speaker 03:
Your time's up.

[00:15:36] Speaker 03:
I'll give you two minutes for rebuttal.

[00:15:37] Speaker 03:
Thank you very much, Your Honor.

[00:15:38] Speaker 03:
All right.

[00:15:43] Speaker 03:
Let's hear from the ampulees.

[00:15:45] Speaker 03:
Mr. Semerad?

[00:15:46] Speaker 05:
May I please support Ryan Semerad for the ampulees.

[00:16:00] Speaker 05:
The Property Clause of the U.S.

[00:16:01] Speaker 05:
Constitution delegates to Congress binary power over the public domain.

[00:16:06] Speaker 05:
With the Unlawful Enclosures Act, Congress chose to use that power to protect free passage over or through the public lands in the checkerboard by prohibiting obstruction of the same.

[00:16:18] Speaker 05:
Through the UIA, Congress did not single out landowners to facilitate this passage, but it did tell everyone, including checkerboard landowners,

[00:16:28] Speaker 05:
that they can't make this passage impossible.

[00:16:31] Speaker 05:
There is no alternative way to freely pass between public land sections and the checkerboard other than corner crossing, while keeping off the neighboring private lands.

[00:16:41] Speaker 03:
Why is corner crossing the rule here?

[00:16:44] Speaker 03:
I mean, under your theory, the access could be at any point on the landowner's parcel.

[00:16:51] Speaker 03:
Sure.

[00:16:52] Speaker 03:
In fact, in Bergen, the access was at the middle of the

[00:16:56] Speaker 03:
It wasn't a corner crossing case.

[00:16:58] Speaker 03:
It was in the middle of the parcel.

[00:17:00] Speaker 05:
Right.

[00:17:00] Speaker 05:
But in Bergen, the fence at issue, the only part where it really touched the public land was at the corner.

[00:17:06] Speaker 05:
And so the question becomes, to answer the Bergen question, is, well, when it's not the fence but its effect, can we get rid of the fence, keep the effect, and we're OK?

[00:17:14] Speaker 05:
That would be quite the opposite of the whole thing.

[00:17:17] Speaker 05:
It would have said, it is the fence, not the effect that is the violation.

[00:17:20] Speaker 05:
And so I think that's kind of the problem here, is that if you can't do it with a fence,

[00:17:25] Speaker 05:
But you could do it by some other means.

[00:17:27] Speaker 05:
Now, I know they say, well, we're using a lawful means.

[00:17:30] Speaker 05:
Well, respectfully, offense is not a meth lab.

[00:17:33] Speaker 05:
It's not on its own some contraband.

[00:17:36] Speaker 05:
Offense is how you use it that creates the violation.

[00:17:39] Speaker 03:
So I think in... Well, the problem for me is it is Leo Sheep because Leo Sheep says there's no implied access easements here, you know, essentially.

[00:17:50] Speaker 03:
And what the court below has done is given the public

[00:17:55] Speaker 03:
and access easement across private property, basically preempted the trust pass action here.

[00:18:01] Speaker 03:
I mean, you can read Leo Sheep that way.

[00:18:04] Speaker 03:
I think that some of these other cases, you know, cut in your favor, but, you know, the Supreme Court in Leo Sheep says no, you know, no easement unless the government pays for it.

[00:18:12] Speaker 05:
Sure.

[00:18:13] Speaker 05:
And I think that Leo Sheep doesn't quite say that much.

[00:18:16] Speaker 05:
So I think in leadership, the actual statement is we won't apply rights without a stronger case.

[00:18:22] Speaker 05:
And then there's footnote 24 that says, see, if this was Buford, it would be different.

[00:18:26] Speaker 05:
If there was no alternative, if they were engaging in lawful use that's historically recognized as time immemorial, maybe we would have reached a different outcome.

[00:18:34] Speaker 03:
And where does that rule come from?

[00:18:36] Speaker 03:
Well, time immemorial, the rule of trespass is you get some of the space above your property.

[00:18:43] Speaker 03:
I understand this necessity, but there's

[00:18:46] Speaker 03:
technique called the easement by necessity that could have solved that problem.

[00:18:52] Speaker 05:
This court in Bergen said just as much that perhaps this is a better case for implying an easement because of these circumstances.

[00:18:59] Speaker 05:
There's no alternative means to Judge Moritz's point.

[00:19:02] Speaker 05:
I think that this case is not leadership because we don't have the power of evidence

[00:19:06] Speaker 05:
We don't come here as saying, well, we could have done it this way, but we chose to do it another way.

[00:19:11] Speaker 03:
There was.

[00:19:12] Speaker 03:
We meaning the defendants?

[00:19:13] Speaker 03:
We meaning my clients.

[00:19:14] Speaker 03:
But the issue here is public access to public lands.

[00:19:19] Speaker 03:
It's not a private right here.

[00:19:22] Speaker 03:
The federal government on your behalf can condemn an access if it wishes.

[00:19:26] Speaker 03:
As Mr. Anderson said, it can fix it tomorrow.

[00:19:30] Speaker 05:
That very, very optimistic view of our Congress.

[00:19:32] Speaker 05:
But sure, I guess that would be a way that it could be done.

[00:19:35] Speaker 05:
But I think that the better question is when Congress said in section 1063 of the UIA that no person, and I know that we've got hung up on unlawful means, which is the first clause, which has to do with peaceable entry.

[00:19:48] Speaker 05:
But I'm looking at the second clause because my clients were already on public land.

[00:19:52] Speaker 05:
And the second clause asks about free passage or transit over or through the public lands.

[00:19:57] Speaker 05:
And it just says no person,

[00:19:59] Speaker 05:
shall prevent or obstruct.

[00:20:01] Speaker 05:
What they are saying is, well, if we don't use a physical thing, if we don't put a gun in your face, if we just sue you for a large amount of money, which I guess they dropped, then is that okay?

[00:20:14] Speaker 05:
And our answer is when Congress says you shall not obstruct free passage, and when the Supreme Court in McKelvey says free passage means open to...

[00:20:24] Speaker 02:
I mean, the odd language there is over or through the public lands.

[00:20:30] Speaker 02:
And the obstruction rationale here is that we're obstructing only that infinitesimally small part that goes over and through private lands.

[00:20:39] Speaker 02:
And so that language isn't applicable.

[00:20:43] Speaker 05:
Well, Judge Ebell, at Bergen, again, the fence was right there, only at that section corner.

[00:20:48] Speaker 05:
That's exactly the only piece where the fence ever touched.

[00:20:51] Speaker 05:
And so, under Mr. Anderson's rationale, Camfield distinguishes, well, if the fence is only on private land, and it's only used to fence in my lands, then it's safe, because doubtless we have this right.

[00:21:02] Speaker 05:
But in Bergen, the fence only touched at the common corner, and yet this report and this report below, and the search area was denied, said that's within the statute, that's in that second section, shall prevent... There's no doubt, Bergen is your strong case.

[00:21:18] Speaker 02:
Absolutely.

[00:21:20] Speaker 02:
preceded in our court.

[00:21:21] Speaker 03:
Sure.

[00:21:24] Speaker 03:
The court below cleverly designed an access crossing over the corner.

[00:21:32] Speaker 03:
But as I understand the principle you're arguing, the courts could authorize a 50-foot access ride through these corners.

[00:21:45] Speaker 03:
It seems to me we could have the defendants, the hunters could have

[00:21:50] Speaker 03:
motorized vehicles access there.

[00:21:52] Speaker 03:
They might need handicap access for disabled hunters.

[00:22:00] Speaker 03:
What's the limiting principle that would tell me how much of the trespass is authorized at corners?

[00:22:07] Speaker 05:
So not to fight the hypothetical, but to fight the hypothetical just a little bit.

[00:22:10] Speaker 05:
Go for it.

[00:22:12] Speaker 05:
This is why the framing matters.

[00:22:15] Speaker 05:
So we are not asking any court, never heavily, ask for, give us the implied easement.

[00:22:21] Speaker 05:
Instead, we're saying, tell them they can't stop us from peaceably accessing and passing through these lands because we are not intruding in those kind of more grandiose ways.

[00:22:31] Speaker 05:
We're not asking this court to pave a road as the government did in Leo's sheep.

[00:22:37] Speaker 03:
But why not?

[00:22:37] Speaker 05:
You could, couldn't you?

[00:22:40] Speaker 03:
I think that that would be a different case.

[00:22:42] Speaker 03:
Well, it's a different case, but we have to write an opinion that applies to different facts.

[00:22:47] Speaker 03:
Correct.

[00:22:47] Speaker 05:
And I think that the way to do that is to follow Bergen's lead and to say that the UIA restrains landowners' use of their land in the same way that the pre-existing land use limitations in the checkerboard say.

[00:22:59] Speaker 05:
You can't exploit the interlocking land pattern to deny everybody else the benefits while you reap them all.

[00:23:06] Speaker 03:
Why isn't that a taking of the private property bill?

[00:23:10] Speaker 03:
to put that limiting principle unchecked aboard landowners?

[00:23:13] Speaker 03:
Yeah, basically you're using the act to ratify a trespass.

[00:23:19] Speaker 03:
That takes a stick out of the bundle of sticks of iron bar.

[00:23:24] Speaker 03:
I would think that that would be a taking, a tangible right of some sort that would be compensated for.

[00:23:32] Speaker 05:
So I think that's actually the conversation in Canthra.

[00:23:35] Speaker 05:
Because I think that was the argument.

[00:23:37] Speaker 05:
If the UIA is constitutional, then it is a taking of some sort and just compensation must flow there from.

[00:23:44] Speaker 05:
But the Supreme Court unanimously in Canfield said, no, no, no.

[00:23:47] Speaker 05:
When Congress puts limits on landowners in the checkerboard and says you can't use your land in ways that eliminates entry, access, and use of the public land while you yourself enjoy a monopoly, that's not a taking and historically a taking.

[00:24:02] Speaker 03:
Well, I understand the dilemma here, but you're taking part of the landowner's use and enjoyment of his property.

[00:24:12] Speaker 05:
Well, I guess if you want to go down to the black letter trespass conversation, is this a black letter trespass?

[00:24:19] Speaker 05:
It's not on its face.

[00:24:21] Speaker 05:
I think it's debatable, and so we think no.

[00:24:23] Speaker 02:
Well, it is under Wyoming law.

[00:24:26] Speaker 05:
And no, so if this court looks at Joint Appendix, not Joint Appendix, but Appellate's Appendix, volume four, pages 786, 790, in opposition to summary judgment, we cited two cases from the Wyoming Supreme Court Edgecomb and the Cheyenne Airport case.

[00:24:41] Speaker 05:
And those cases have to do with this concept of harmless airspace travel, and is that just on its own a trespass?

[00:24:47] Speaker 05:
And both of those cases said we need to have some substantial interference or damage with the underlying use of the language.

[00:24:53] Speaker 02:
And did they define what they meant by airspace?

[00:24:55] Speaker 02:
Was it airplanes only, or would that include this ladder concept?

[00:25:01] Speaker 05:
So in Cheyenne Airport, it was whether the landowner needed to cut down a tree for an airplane.

[00:25:06] Speaker 05:
And then in Edgecombe, it was a power line.

[00:25:09] Speaker 05:
So a little bit different fact pattern there.

[00:25:11] Speaker 05:
It didn't say, well, it's this many feet and that many feet.

[00:25:14] Speaker 05:
But it was the general proposition that this court also held in Cueva Los Andes that says,

[00:25:18] Speaker 05:
A harmless, low-level airspace travel is not a trespass.

[00:25:22] Speaker 02:
And I know they say, well, that's air.

[00:25:23] Speaker 02:
Oh, it may be even more applicable to you, because that's a more permanent intrusion.

[00:25:30] Speaker 05:
And I think that perhaps the power line might be a better case, but Edgecombe and Cheyenne Airport reach the same outcome or have the same holding.

[00:25:37] Speaker 05:
We need some effect on the land.

[00:25:38] Speaker 03:
But did you read the amended Wyoming statute to ratify quarter crossing?

[00:25:44] Speaker 05:
We look at it as just one more endorsement of this concept that you need to have some kind of surface contact for it to be the violation.

[00:25:52] Speaker 05:
That's the way that we read that.

[00:25:54] Speaker 05:
And I think, though, just to speak briefly on the Pueblo of Sandia issue, because I know in their brief they take issue with airplanes, it's not this kind of travel.

[00:26:05] Speaker 05:
I think that this court didn't say that, though, in its holding.

[00:26:09] Speaker 05:
It said, in general, it is not a trespass when there is no harm to the underlying service used.

[00:26:16] Speaker 02:
But don't we rely on Wyoming law for that?

[00:26:20] Speaker 05:
And that's why this court should look to Edgecombe and Cheyenne Airport.

[00:26:23] Speaker 05:
Those are Wyoming Supreme Court decisions.

[00:26:26] Speaker 02:
So could every other state come out differently?

[00:26:29] Speaker 02:
Well, and that's why... Wyoming changes law, and no matter what we rule, Wyoming could just...

[00:26:35] Speaker 02:
take that rule and make it irrelevant again.

[00:26:38] Speaker 05:
Well, so that's one way that we would win is if Wyoming law was harmonized with the UIA.

[00:26:43] Speaker 05:
But we step back and take a different perspective as well, that broader perspective that says, well, Congress already spoke to this.

[00:26:50] Speaker 05:
Congress, with its limitless power over the public domain and the checkerboard, made a decision and codified a statute that no other person, including the landowners, can do this obstruction and prevention through any means.

[00:27:03] Speaker 05:
I know they take issue with that as well.

[00:27:06] Speaker 05:
The Supreme Court didn't mean what it said when it said by any means, but it did because what they were saying, and if you look at that statute 1063, which has a variety of different means, force directs intimidation fencing, which is apparently different than enclosing,

[00:27:23] Speaker 05:
any other unlawful means, which is again about peaceful entry, and then the more broad side of no person shall prevent or obstruct free passage or transit over, meaning over and through, meaning through, we would think that that statute collectively is Congress's declaration.

[00:27:42] Speaker 05:
It would be odd indeed if Wyoming could constitutionally, in compliance with federalism and preemption, pass a law that says landowners can prevent access or prevent

[00:27:53] Speaker 05:
passage or transit through the public lands.

[00:27:55] Speaker 05:
That's the rule they're asking for is that Wyoming law says they can do that.

[00:27:59] Speaker 05:
And we say that that can't be the case because Congress spoke to this and Congress has plenary power when we're dealing with a property clause exercise of legislation as opposed to the spending clause cases they cite in their reply brief.

[00:28:11] Speaker 05:
So we think that no,

[00:28:14] Speaker 05:
It would be great if Wyoming harmonized, but where it's discordant, like it is here, this court must apply the federal law because the federal law necessarily overrides the conflicting state laws.

[00:28:25] Speaker 03:
Would the property clause give Congress the power to preempt state civil trespass laws?

[00:28:31] Speaker 03:
I guess I'll just say, let's say Wyoming banned corner crossing under the property clause,

[00:28:40] Speaker 03:
Congress could abolish that without any compensation?

[00:28:43] Speaker 03:
Absolutely.

[00:28:44] Speaker 02:
With no compensation?

[00:28:45] Speaker 02:
Absolutely.

[00:28:46] Speaker 03:
In the checkerboard, in this way, yes.

[00:28:49] Speaker 03:
That answer then says that basically Congress has a zoning power over private property in the states.

[00:28:57] Speaker 03:
That can't be right.

[00:28:58] Speaker 05:
Well, so I think it's also important to understand how the checkerboard was created.

[00:29:02] Speaker 05:
So in 1862, there wasn't a state of Wyoming, there wasn't a state common law, it was a territory.

[00:29:06] Speaker 05:
And as Camfield said, in territories, Congress had absolutely full power to do whatever they want, right?

[00:29:12] Speaker 05:
And then 1864, they expand, and in 1885, still we don't have a state.

[00:29:15] Speaker 05:
We only have the UIA and we only have variable grants.

[00:29:18] Speaker 05:
Then 1890, we get finally the state of Wyoming and it adopts black letter laws and things, but it has to adopt those laws against the backdrop of what had already taken place.

[00:29:28] Speaker 05:
That's how law functions.

[00:29:30] Speaker 05:
And I think it would be odd to say that Wyoming could have some common law that overrides all of these background principles from the grants themselves, which didn't give the landowners every section.

[00:29:41] Speaker 05:
It gave them the alternate sections.

[00:29:42] Speaker 05:
to the UIA, which says you shall not obstruct or prevent free passage.

[00:29:46] Speaker 05:
So I think that it's actually them and Wyoming that needs to do the labor of showing why they should be able to overcome all of these federal laws.

[00:29:56] Speaker 03:
So does that give Congress more power in the former territories, then, over private property regulation than in the original colonies?

[00:30:05] Speaker 05:
Well, I think it's a timing question, certainly.

[00:30:07] Speaker 03:
Yeah, but your answer to me a minute ago was, well, yeah, Congress could come in and preempt

[00:30:12] Speaker 03:
state trespass law in Wyoming.

[00:30:15] Speaker 05:
I do stand by that.

[00:30:17] Speaker 03:
Could they do it in New Hampshire?

[00:30:19] Speaker 02:
I think they could.

[00:30:20] Speaker 02:
Okay.

[00:30:20] Speaker 02:
You know, one thing that's not mentioned much, but if you look back at the original intent of the land grants when the railroads were going across, Congress said, we want to give the railroads half the land and the public half the land.

[00:30:36] Speaker 02:
That was clearly their intent.

[00:30:39] Speaker 02:
And if we look at historical intent,

[00:30:42] Speaker 02:
If you would ask Congress, the half that you give to the public is illusory.

[00:30:46] Speaker 02:
You know that.

[00:30:48] Speaker 02:
Because the railroads could block out almost all of the access.

[00:30:54] Speaker 02:
Do you really intend to give an illusory right in the land grants?

[00:30:58] Speaker 02:
I have no doubts how Congress would have responded to that.

[00:31:01] Speaker 02:
But that argument doesn't seem to come up in the cases.

[00:31:04] Speaker 02:
But if you look back at what the original intent of the land grants

[00:31:09] Speaker 02:
If somebody had just posed the question that way to Congress, I have no doubt how they would have answered that question.

[00:31:15] Speaker 05:
I think I have no doubt as well.

[00:31:16] Speaker 05:
I see him running out of time.

[00:31:17] Speaker 03:
Yeah, go ahead and wrap up with your final thought.

[00:31:19] Speaker 05:
Your honors, I think that Mr. Anderson put it probably better than I could, which is this question comes down to, is this a Leo Sheep case or is this a Canfield Bergen case?

[00:31:29] Speaker 05:
This is not a rogue case.

[00:31:30] Speaker 05:
We didn't build one.

[00:31:31] Speaker 05:
There's no permanent fixture.

[00:31:32] Speaker 05:
We're not asking this court to allow us to build one.

[00:31:35] Speaker 05:
Instead, it's an effects case, and we're asking this court to stop the unlawful effect of their obstruction.

[00:31:40] Speaker 05:
And for all those reasons, we'd ask this court to affirm the lower courts holding.

[00:31:43] Speaker 05:
Thank you.

[00:31:43] Speaker 05:
Thank you much.

[00:31:45] Speaker 05:
Ali, two minutes.

[00:31:51] Speaker 04:
Airspace is qualitatively different.

[00:31:53] Speaker 04:
As the Supreme Court recognized in Cosby, if you look at Restatement 159, there are different rules because a federal statute gives the public a right to be in an airplane in the navigable airspace.

[00:32:03] Speaker 02:
Isn't there a difference between an airplane, which is a transient airspace, intrusion, and an intrusion?

[00:32:09] Speaker 02:
Well, I guess this stepladder would be transient as well.

[00:32:13] Speaker 02:
But it seems to me an airline feels different.

[00:32:18] Speaker 04:
And it is different.

[00:32:19] Speaker 04:
The restatement 159 treats them differently.

[00:32:21] Speaker 04:
So I think that's the best place to start.

[00:32:23] Speaker 04:
With respect to state law, the Bureau of Land Management, the Department of Interior, and state officials have declared for decades that corner crossing is illegal.

[00:32:30] Speaker 04:
The idea that there is some hidden right under state law is not true.

[00:32:35] Speaker 04:
Judge Tinkovich, you nailed the no-limiting principle.

[00:32:38] Speaker 04:
If a corner crossing is not a trespass because there is a reasonable right of access to the public domain, the public will use ATVs,

[00:32:45] Speaker 04:
campers, snowmobiles, suddenly an airspace intrusion becomes a road in very short order.

[00:32:51] Speaker 04:
There is no limiting principle to the District Court's rule.

[00:32:54] Speaker 01:
The camp field carved out... What if our opinion were cabin such that it was, that wasn't permissible?

[00:33:01] Speaker 04:
I think if there was a way to do that, we would have heard it from the other side.

[00:33:04] Speaker 01:
If we were talking about simply the facts in this case, stepping over a

[00:33:10] Speaker 04:
First, either you have to find that that was not a violation of Wyoming law, and we haven't heard a compelling argument why that would be the case.

[00:33:17] Speaker 04:
You need to find that federal law preempted the land use laws across the country.

[00:33:23] Speaker 04:
The UIA applies not just in the territories, but across the entire country.

[00:33:26] Speaker 04:
There is a very strong presumption against preemption.

[00:33:30] Speaker 04:
It is at its zenith, when we're talking about traditional state powers, including, as this court said, indeed, including land use.

[00:33:37] Speaker 04:
This is not a land use regulation.

[00:33:39] Speaker 04:
To understand the difference between a physical taking and land use, the court should look to the Supreme Court's decision in Cedar Point, which made that difference.

[00:33:48] Speaker 02:
Which case I couldn't understand what you said.

[00:33:50] Speaker 04:
Cedar Point, 2021.

[00:33:51] Speaker 04:
It's the difference between a pin central land use regulation and a physical taking.

[00:33:57] Speaker 04:
And the last point I want to make.

[00:33:59] Speaker 04:
Judge Moritz, you asked about Buford and how to reconcile that.

[00:34:03] Speaker 04:
The Supreme Court footnote in Leo's sheet says Buford is motivated by two things.

[00:34:07] Speaker 04:
a century-old grazing custom, a custom which can create rights and private property for easements and necessity.

[00:34:14] Speaker 04:
It had both of those elements.

[00:34:16] Speaker 04:
We certainly do not have a century-old custom here.

[00:34:19] Speaker 04:
For decades, the relevant authorities have declared this practice to be illegal, and Leo Sheep said there's also no necessity today because the government can create access by using its power-limited domain and paying just compensation whenever it wants to take private land.

[00:34:33] Speaker 02:
But the hunters can't.

[00:34:35] Speaker 02:
The hunters can't do that.

[00:34:36] Speaker 02:
The hunters can petition their government.

[00:34:39] Speaker 02:
They can petition, but that's not a right.

[00:34:41] Speaker 02:
So I don't give that really any weight, because it's not a right.

[00:34:46] Speaker 02:
We're talking about rights here.

[00:34:48] Speaker 02:
Exactly, Your Honor.

[00:34:48] Speaker 04:
And it's a strange formulation to say that someone has rights and someone else has private property.

[00:34:53] Speaker 04:
It's a very large step.

[00:34:55] Speaker 04:
If you want to say that someone's private land can be better.

[00:34:57] Speaker 02:
You have rights if your neighbor's property is producing toxic materials that flow onto your land, or that even

[00:35:05] Speaker 02:
destroy the air above your land, so we're talking about airspace, you would have a right to stop that as a nuisance.

[00:35:13] Speaker 02:
Right.

[00:35:13] Speaker 04:
There are public nuisance laws that would allow you to abate it, and that's precisely what the Supreme Court was doing in the Unlawful Enclosures Act.

[00:35:20] Speaker 04:
It was abating nuisances, and the Camfield Carvel says that if you fence your own land, which is what a trespass action is, that is okay.

[00:35:29] Speaker 04:
That is not violating the act, and that's important constitutionally because it's not a nuisance.

[00:35:35] Speaker 04:
Does it depend on the intent?

[00:35:37] Speaker 04:
Is there a subjective element here?

[00:35:39] Speaker 04:
I don't believe so, Your Honor.

[00:35:40] Speaker 04:
There's a circuit split on that.

[00:35:41] Speaker 04:
The 8th Circuit has said no.

[00:35:42] Speaker 04:
The 9th Circuit has said yes.

[00:35:43] Speaker 04:
This court didn't rule.

[00:35:44] Speaker 04:
I believe that, again, the candle carve out, which Leo she talked about, eliminates that possibility because it says if you're doing it for a, if you're closing your own land, even if it has the effect, that's lawful.

[00:35:56] Speaker 04:
So I think that's the really important point that allows all of these cases to string together.

[00:36:01] Speaker 04:
And the council's argument just doesn't stand up against the Camfield carve-out.

[00:36:06] Speaker 04:
I urge this court to reverse.

[00:36:08] Speaker 03:
Thank you, counsel.

[00:36:08] Speaker 03:
Appreciate both the arguments.

[00:36:10] Speaker 03:
Well done.

[00:36:11] Speaker 03:
Good briefs also.

[00:36:12] Speaker 03:
Your excuse in the case is submitted.

[00:36:33] Speaker 02:
Oh, man.