The Invaders
The Invaders, 1893. Some history repeating going on.
Woody Guthrie
The property owner, let's not pretend he's a rancher as that would imply that he makes his money from chiefly from agriculture, who owns the Elk Mountain Ranch has claimed that allowing corner crossing would devalue the property by $3,100,000 to $7,000,000, or so newspaper reports hold. The press further reports that it was shown this information by a "confidential" source.
More likely his legal representation claimed that.
Okay, let's break this down.
This is the story, as we'll recall, of three out-of-state hunters who hunted on the Elk Mountain Ranch's leased public lands, with Elk Mountain Ranch owned by Iron Bar Holdings, and ended up being tried for trespassing in Carbon County. According to the Wyoming Secretary of State's website, Iron Bar Holdings is a North Carolina limited liability company registered to do business in Wyoming.
Well, yes, that's where Fred Eshelman lives.
Eshelman is a pharmacist by training who has done very well, economically, in that field. So well that North Carolina's school of pharmacy, which he donates to, has named that school after him. His bio appears on their site:
Fred Eshelman, PharmD
Fred Eshelman is the founder of Eshelman Ventures LLC, an investment company primarily interested in private health-care companies. Previously he founded and served as CEO and executive chairman of Pharmaceutical Product Development (PPDI, NASDAQ) prior to the sale of the company to private equity interests.
After PPD he served as the founding chairman and largest shareholder of Furiex Pharmaceuticals (FURX, NASDAQ), a company which licensed and rapidly developed new medicines. Furiex was sold to Forest Labs/Actavis in July, 2014.
His career has also included positions as senior vice president (development) and board member of the former Glaxo, Inc., as well as various management positions with Beecham Laboratories and Boehringer Mannheim Pharmaceuticals.
Eshelman has served on the executive committee of the Medical Foundation of North Carolina, was on the board of trustees for UNC-W and in 2011 was appointed by the NC General Assembly to serve on the Board of Governors for the state’s multicampus university system as well as the NC Biotechnology Center. In addition, he chairs the board of visitors for the UNC Eshelman School of Pharmacy at the University of North Carolina at Chapel Hill, one of the top pharmacy programs in the United States. In May 2008 the School was named for Eshelman in recognition of his many contributions to the school and the profession.
Eshelman has received many awards including the Davie and Distinguished Service Awards from UNC and Outstanding Alumnus from both the UNC and University of Cincinnati schools of pharmacy, as well as the N.C. Entrepreneur Hall of Fame Award. He earned a B.S. in pharmacy from the University of North Carolina at Chapel Hill, received his Doctor of Pharmacy from the University of Cincinnati, and completed a residency at Cincinnati General Hospital. He is a graduate of the Owner/President Management Program at Harvard Business School.
Indeed, the fact that Eshelman is very wealthy apparently was referenced by one of his employees in the initial confrontation with the Missouri hunters, which isn't a very wise thing to do as it looks bad. Indeed, it looks bad right away, and then again in court.
So, Iron Bar Holdings is Fred Eshelman, very wealthy pharmaceutical personality.
The Missouri hunters, by all accounts, went to great pains to avoid touching the ground on Elk Mountain. They brought ladders of some sort to step over the corners. They were detected by the ranch employees who called the authorities, who frankly weren't really sure what to do, and they declined to issue citations. Ultimately, this matter was somehow prosecuted in Carbon County, where the jury found there was no trespass.
During this time frame, a civil lawsuit was brought in the state's Second Judicial District. For reasons that aren't clear to me, as I wouldn't have filed it, the Missouri hunters had the case removed to Federal Court, no doubt on jurisdictional grounds. Also for reasons that aren't clear to me, as I would have thought Iron Bar would have preferred the case to be in Federal Court, Iron Bar sought to have that reversed, unsuccessfully, claiming the Federal Court lacked jurisdiction, a claim that seem pretty stretched given the pretty obvious diversity jurisdiction here.
I wonder if both sides regret their decisions now, given the results of the Carbon County jury trial. I have to think if the 2nd Judicial District in Rawlins had a jury that said "no trespass" once, they'd have that happen again.
Anyhow, it's in Federal Court. The docket sheet for the case reads as follows:
U.S. District Court
District of Wyoming (Cheyenne)
CIVIL DOCKET FOR CASE #: 2:22-cv-00067-SWS
Iron Bar Holdings LLC v. Cape et al Assigned to: Honorable Scott W Skavdahl Referred to: Honorable Kelly H Rankin
| Date Filed: 03/22/2022 Jury Demand: Both Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question |
| Plaintiff | ||
| Iron Bar Holdings LLC a North Carolina limited liability company registered to do business in Wyoming | represented by | M Gregory Weisz PENCE & MACMILLAN LLC 1720 Carey Avenue, Suite 600 PO Box 765 Cheyenne, WY 82003 307/638-0386 Fax: 307/634-0336 Email: gweisz@penceandmac.com LEAD ATTORNEY ATTORNEY TO BE NOTICED |
V. | ||
| Movant | ||
| Backcountry Hunters & Anglers TERMINATED: 08/31/2022 | represented by | Eric B Hanson KEKER, VAN NEST & PETERS 633 Battery St. San Francisco, CA 94111 415-676-2349 Email: ehanson@keker.com TERMINATED: 08/31/2022 LEAD ATTORNEY PRO HAC VICE Patrick Lewallen CHAPMAN VALDEZ & LANSING 125 West 2nd Street PO Box 2710 Casper, WY 82601 307/237-1983 Email: plewallen@bslo.com TERMINATED: 08/31/2022 LEAD ATTORNEY Trevor James Schenk CHAPMAN VALDEZ & LANSING 125 W. 2nd Street PO Box 2710 Casper, WY 82602 307-259-3797 Email: tschenk@bslo.com TERMINATED: 08/31/2022 LEAD ATTORNEY |
V. | ||
| Defendant | ||
| Bradley H Cape | represented by | Ryan A Semerad THE FULLER LAW FIRM 242 South Grant Street Casper, WY 82609 307-265-3455 Fax: 307-265-2859 Email: semerad@thefullerlawyers.com ATTORNEY TO BE NOTICED |
| Defendant | ||
| Zachary M Smith | represented by | Ryan A Semerad (See above for address) ATTORNEY TO BE NOTICED |
| Defendant | ||
| Phillip G Yeomans | represented by | Ryan A Semerad (See above for address) ATTORNEY TO BE NOTICED |
| Defendant | ||
| John W Slowensky | represented by | Ryan A Semerad (See above for address) ATTORNEY TO BE NOTICED |
| Amicus | ||
| Wyoming Stockgrowers Association | represented by | Karen J Budd-Falen BUDD-FALEN LAW OFFICES 300 East 18th Street P O Box 346 Cheyenne, WY 82003 307/632-5105 Fax: 307/637-3891 Email: karen@buddfalen.com LEAD ATTORNEY ATTORNEY TO BE NOTICED |
| Amicus | ||
| Wyoming Wool Growers Association | represented by | Karen J Budd-Falen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED |
What does this tell us?
Well, not much, really, other than that Back Country Hunters & Anglers tried to intervene in the action, no doubt in support of the Missouri hunters, but weren't allowed in. It also tells us that the Wyoming Stockgrowers Association and the Wyoming Wool Growers Association (which at one time were headed for a merger, but which must not have completed that process) are going to be allowed to file "friend of the court" briefs in this matter. Those briefs will no doubt be on the side of Iron Bar.1
Which presents our first historical observation.
The Wyoming Stockgrowers Association was instrumental in bringing about the Johnson County War and the assassination campaign that was associated with it. I'm not saying that they organized it, but they were pretty close to the large, and often foreign owned, cattleman part of the extra judicial war against the small ranchers of Natrona and Johnson Counties of the 1890s.
I'm also not saying that they're somehow involved in such efforts today.
I'm am noting that history rhymes, if not repeats, as they say.
So what did Iron Bar's lawsuit claim? Well, see for yourself:
In litigation, under a rule called FRCP 26, parties are required to disclose certain information, including their calculation of damages. Piecing the news stories together, and reading between the lines, what this probably means is that somehow a reporter got access to a FRCP "self executing" disclosure.
Normally, these aren't public, but they aren't secret either. I obviously don't know who this cat got out of the bag, but it was riding around with its head and front feet out of the bag anyhow, and at some point it was going to get out.
Further, what this really means is that Iron Bar is asserting that if corner crossing is allowed, it'll devalue the value of the property as he can't lock up the Federal domain.
Well, hopefully that's exactly what the court rules. I.e., you can cross the corners.
Before we go on, let's note that the argument here is deeply flawed. What's apparently being stated by the plaintiff is that if the court rules that corner crossing isn't illegal, the value of the land drops, as he can't lock people out and charge people for access.
But if it's illegal, he can't do that, and never could. Being wrong about the law doesn't entitle you to reimbursement.
You can't claim that you'll lose money as something is illegal. That's like arguing if I can't personally close the road and charge people tolls for using it, even though it isn't mine, I'll lose money. I had no right to do that in the first place. It doesn't matter if I thought I could.
On the other hand, if he's right, and he can close the corners, it's not like he's arguing that the value of crossing the corner is $3.1M to $7M.
You only get the actual reasonable trespassing fee, which traditionally has been the damage to the land.
Either way you look at it, the damages are pretty low.
This, by the way, is why I didn't vote for Rob Hendry, the ranching Natrona County Commissioner, in the last election.
A lot of other people didn't too, so he's on his way out, but my reason is probably unique. Some goons of his stopped my son and I and tossed us off public land, or more accuratley deterred us from going where we were going, claiming that if we trespassed there'd be a $10,000 fine.
That's bullshit.
Anyhow, we don't know what will come out of this litigation, and the results are far from guaranteed, but this gets into the topic of the Homestead Acts, the Taylor Grazing Act, and frankly Distributism and Localism.
What Iron Bar is doing here, shouldn't be allowed to do is to lock up public land that it doesn't own. That is what the hunters were accessing. How does that devalue the land? As noted, if there is no right, it doesn't. If the landowner does have that right, it doesn't devalue anything. The damages claimed here are out of whack.
Moreover, if the purpose of the original homestead acts and the Taylor Grazing Act are kept in mind, we shouldn't even be having this conversation.
The original homestead acts, which is likely how this ranch was started at some point, were intended to induce agriculturalists into lands that were regarded as poor prospects. The United States at that time, and indeed American culture at that time, regarded development as a good thing and had the concept that development only occurred where agriculture first entered. The very first homestead act was designed for farmers, and farmers alone, and had that express goal. As homesteaders moved into the West, however, livestock grazing became the common agricultural pursuit and the homestead act were modified to accommodate that. By this point, a different sort of development, much less intense than that East of the Mississippi was envisioned, which was cattle centric.
But the law always allowed for other uses of land. Miners actually had the superior use, their use being so extensive that they could come on land where the agriculturalist owned the surface, and the Federal Government the subsurface, and mine it anyway.
And on the Federal lands, what the agricultural user got was the right to use it, and nothing else whatsoever.
You could also buy Federal lands, of course, and you could simply run cattle on the public domain, free of charge until 1934. That fact came to be hugely significant and led directly to the Johnson County War. By that time a fairly formal, and extralegal, system of controlling the public lands had developed which favored large landowners, and which was administered by the Wyoming Stock Growers Association. Indeed, the WSGA did it partially under color of law.
And, as we know, it ultimately came to war, if private war. The large cattlemen felt the small ones were all rustler and thieves, and more than that, they were trespassing on an implied right of the large interests to control the land, title or not. The small cattlemen, on the other hand, were largely compliant with the law, had a right to homestead, and were trying just to get by.
The small cattlemen won the Johnson County War on the field, but weren't able to put the offenders behind bars, for reasons we'll deal with elsewhere. Their defense of their ground, however, did put an end to the threat of the large cattlemen snuffing out homesteading. It didn't completely end the violence, however, which went on, including in evolved forms with evolved causes, into the 20th Century. In southwestern Wyoming it effectively came to an end with the hanging of Tom Horn for the crime of killing Willie Nickell, and in central Wyoming it came to an end in 1909 with the prosecution of the killers of the Spring Creek Raid.
But some portions of the old contest remain, with all the questions that existed in some form still remaining. Some of them are existential.
To note a few, to what extent are the uberwealthy entitled to use ground at all, when their vast resources mean that the ranching aspect of ranch land is a mere incidental to their ownership?
To what extent is any human being entitled to keep others off land they aren't directly using at the time, or aren't using in a means that's contrary to the non owning entrants use?
Is it just that land that was acquired by a government agricultural land distribution program, a sort of social welfare for agriculturalist, is now owned by people who are not in that category in some fashion?
Isn't hunting more elemental than anything else, with accordingly superior rights in every existential and environmental fashion.
If you aren't touching the ground, are you really trespassing?
I'll note that I'm not saying that Fred Eschelman is a bad person. According to what little I've read on him, he's donated major conservation easements on lands he's held in Wyoming, which is a very good thing to do. Some of his statements make him appear to be a conservationist of the Nature Conservancy type. An argument can be made that, in 2022, but for people like Eschelman, large blocks of land would bet all chopped up.
An argument can also be made, however, that agricultural land ought not to be owned by people who do not have some sort of direct role, participation, or interest in agriculture, or at least in the community, which at Eschelman's economic level is pretty difficult to do. Having vast, vast amounts of money, more than the regular rich, so to speak, puts a person in a category all of its own and it's a problematic one. The fact that levels of wealth like that are allowed to even occur suggest a certain deficiency in our economy. And that deficiency allows a person to view people like the Missouri hunters differently than a regular rancher can, or even a regular wealthy local landowner can.
I'm also not saying that rich people shouldn't own land either. But there is the question of what is "rich", and what is super rich. It's one thing making money in your community and then entering agriculture, a story that's fairly common and has been for a long time. It's another making money far, far away, and then coming into the country you are not from, are not part of, and are not of, and buying that land up.
Indeed, an argument could be made that's a sort of colonialism.
I.e, if I had lots of money (I don't) and bought ranchland in my home state, well, I'm from there and have to live there and people can and will give me an earful at the gas station or cafe, or whatever. But if I made piles of money and then bought up farm ground in North Carolina, and hired people to run it for me, and stopped in from time to time, I wouldn't really have any signficant connection with the community where my ground was at all. Indeed, I don't know what people in North Carolina think, and by and large, on most days, I don't care all that much about it either. They aren't going to give me an earful at the gas station.
No wonder, therefore, the jury reacted the way it did in Carbon County. That jury didn't want to be told that they had to bow to somebody in North Carolina.
Footnotes:
1. This is a classic case of finding yourself in a fight in a time and place not of your choosing. This legal issue has been around for years, and has come up at least once before, but now its back in a major way, with the standard bearor for the agricultural organizations being an out of stater. The Stockgrowers and the Woolgrowers have to enter the contest or feel comfortable with no voice at all, but they sure wouldn't have wanted it to come up this way.
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