Iron Bar Holdings LLC v. Cape et al

OCR transcription for search; preserved printed pages are authoritative

Case 2:22-cv-00067-SWS Document 83 Filed 05/26/23 Page 1 of 32

UNITED STATES DISTRICT COURT OEE erg
DISTRICT OF WYOMING IOP 23 Dun
H&S ets | 3
MGaC ha ;
a vote to EL Py

IRON BAR HOLDINGS, LLC, a North
Carolina limited liability company
registered to do business in Wyoming,

Plaintiff,
Case No. 22-CV-67-SWS
Vv.

BRADLEY H. CAPE, ZACHARY M.
SMITH, PHILLIP G. YEOMANS, and
JOHN W. SLOWENSKY,

Defendants.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

This matter comes before the Court on the following cross motions for summary
judgment:
(1) — Plaintiff's Motion for Partial Summary Judgment and supporting memorandum
(ECF 63, 64), to which Defendants responded (ECF 68); and
(2) Defendants’ Motion for Summary Judgment and supporting memorandum
(ECF 65, 66), to which Plaintiff responded (ECF 67), and Defendants provided
a limited reply (ECF 75) with the Court’s leave.
The Court heard oral argument on the motions on May 10, 2023. (ECF 76.) Having
considered the parties’ submissions, the arguments of counsel, the record, the amici briefs
(ECF 42, 45), and being otherwise fully advised, the Court finds, concludes, and orders as set

forth here.

AUTHENTICATED
U.S. GOVERNMENT.
INFORMATION

GPO

Case 2:22-cv-00067-SWS Document 83 Filed 05/26/23 Page 2 of 32

INTRODUCTION

Plaintiff privately owns a significant amount of real property on Elk Mountain in
Catbon County, Wyoming. (Am. Compl. ff] 1, 11; ECF 37-1.) Much of Plaintiffs private
property borders and surrounds federal public lands managed by the U.S. Department of
Interior Bureau of Land Management (BLM), state public lands managed by the State of
Wyoming, and township lands managed by the Town of Hanna. (ECF 64-9; see a/so ECE 66-

2.) Many of the private and public lands meet at their corners, forming a checkerboard pattern,

as roughly demonstrated here:

The points of contact at each corner meet at an infinitely small point and, “like a point in
mathematics, are without length or width.” Mackay v. Uinta Development Co., 219 F. 116, 118
(8th Cir. 1914.) In brief, the tortured path resulting in this generally 40-mile wide checkerboard
pattern of land ownership (20 miles on each side of the railroad track) has been summarized
thusly:

History and politics have complicated the pattern of land ownership in the

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West. To promote western expansion in the nineteenth century, the federal
government encouraged the construction of rail lines through the West by
granting every other 640-acre parcel along rail corridors to a railroad company.

The hope was that the lands remaining with the government would increase in

value as the companies built rail lines, which the government would later sell at

high prices. The plan was successful further east, but the government struggled

to sell the lands in the arid West. The result of this failed venture is the

checkerboard pattern of public and private land that now plagues much of the

West.

Hannah Solomon, Wyoming’s Data Trespass Laws Trample First Amendment Rights, 18 Vt. J. Envtl.
L. 346, 353-54 (2016) (footnotes omitted); see also Leo Sheep Co. v. United States, 440 U.S. 668,
670-77 (1979) (discussing the circumstances and events resulting in the creation of the
checkerboard pattern of land ownership that persists today in parts of the West).

“Tt is at once apparent that this checkerboard ownership pattern necessarily impedes
the ability of government employees and the general public to travel to and from federal land,
as frequently the only access routes travers private property.” United States v. 82.46 Aaeres of
Land, More or Less, Situate in Carbon Cnty, Wyo., 691 F.2d 474, 475 (10th Cir. 1982). This lawsuit
involves the decades-long dispute of whether an individual is subject to civil liability for
trespassing if they travel by foot through the checkerboard from public land to public land at
the corners, while never touching private land and not damaging private property, without the
permission of the owner(s) of the adjoining private land(s). The Court finds the century-old
case of Mackay v. Uinta Development Co., 219 F. 116 (8th Cir. 1914), which also originated in the
District of Wyoming, provides the answer and allows such corner crossing by foot without
trespass liability.

SUMMARY JUDGMENT STANDARD OF REVIEW

Summary judgment is appropriate where “there is no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
dispute is genuine “if there is sufficient evidence on each side so that a rational trier of fact
could resolve the issue either way,” and it is material “if under the substantive law it is essential
to the proper disposition of the claim.” Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013)
(internal quotation marks omitted). Testimony or other evidence “grounded on speculation
does not suffice to create a genuine issue of material fact to withstand summary judgment.”
Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 876 (10th Cir. 2004).

The Court views the record and all reasonable inferences that might be drawn from it
in the light most favorable to the party opposing summary judgment. Dah/ v. Charles F. Dabl,
M.D., P.C. Defined Ben. Pension Trust, 744 F.3d 623, 628 (10th Cir. 2014). “Cross-motions for
summary judgment are to be treated separately; the denial of one does not require the grant
of another.” Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979)

Generally, the moving party has “both the initial burden of production on a motion
for summary judgment and the burden of establishing that summary judgment is appropriate
as a matter of law.” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting
Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2003)). If the moving party
carries this initial burden, the nonmoving party may not rest on its pleadings but must bring
forward specific facts showing a genuine dispute for trial. Id. (citing Jenkins v. Wood, 81 F.3d
988, 990 (10th Cir. 1996)).

FACTS

1. 2020 Hunt and Corner Crossings

In the fall of 2020, Defendants Cape, Smith, and Yeomans traveled from their homes

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in Missouri to Carbon County to hunt big game on Elk Mountain. (Am. Compl. {fj 2-4, 18;
Answer to Am. Compl. {{f] 3-5; 19.) They each had a valid hunting license and/or tag to hunt
in the atea. (ECF 66 p. 10.) They drove on a public road, Rattlesnake Pass Road, to Section
14, which is public land managed by the BLM, where they parked and set up theit camp. (Cape
Depo. 42:13-15.) Over the next several days, they hunted on several sections of public land
in a south-southeastern direction from their camp, specifically on Sections 24, 30, 36, and 26

(id. 31:4-12), which are shown on the following map.

This map is an excerpt from Plaintiff's Exhibit 8 (ECF 64-9), but the Court notes Plaintiff also

owns Sections 13 and 23, though not denoted on the map. (ECF 64 p. 3; ECF 68 p. 2; ECF

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66 p. 4.) Each numbered Section is one square mile (640 acres) of land. (ECF 66-15 p. 7.)
Upon approaching the northwest corner of public Section 24 from public Section 14
(denoted at Pin Drop 8 on the map above), the three hunters were met with two steel posts,
each with a “No T'respassing” sign, that were connected together with a chain, a padlock, and
some wire. One post was installed in Section 13 (private) and the other in Section 23 (private),
and the chain and wire ran through the air over the corner of Sections 13, 24, 23, and 14, as

shown here from Defendants’ Exhibit E (ECF 66-5).

—-

NO
TRESPASSING

The survey marker (“brass cap”) shown in the photo between the two signs protruding about

a foot out of the ground designates the “corner” where Sections 13, 24, 23, and 14 meet. (ECF

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66 pp. 3-4.) Other than these chained-together signs, there were no posts, fencing, or buildings
within one-quarter of a mile of the corner. (Grende Depo. 43:4-8.)

With their backpacks and hunting gear, Defendants Cape, Smith, and Yeomans could
not fit between the signs and under the chain to move from Section 14 to Section 24. (ECF
66 p. 6; see Grende Depo. 42:19-23 (agreeing the chain and lock “present a physical obstacle
to anyone who is walking from Section 14 to Section 24 across the corner’’).) So, one by one,
each grabbed one of the steel posts and swung around it, planting their feet only on Sections
14 (BLM) and Section 24 (BLM) but passing through the airspace above Section 23 (Plaintiff)
and/or Section 13 (Plaintiff). (ECF 64 p. 4; ECF 68 pp. 3-4.) In holding onto the steel posts
and swinging around them to cross from Section 14 to Section 24, there is no evidence the
Defendants caused any damage to Plaintiff's property. (Grende Depo. 27:3-25.)

They then proceeded with their hunt on the public land. At the other corners they
crossed (denoted as Pin Drops 1, 2, and 5 on the above map), there were no further physical
barriers such as steel posts and chain, so the hunters simply stepped or jumped over the survey
marker/brass cap from public land to public land, again passing momentarily through airspace
above Plaintiff's privately-owned land. (See, ¢.g., ECF 64 p. 8; ECF 68 p. 2; Cape Depo. 58:11-
24 (describing stepping over the survey marker from Section 36 (BLM) to Section 26 (BLM));
Yeomans Depo. 39:10-18.) The hunters spent about a week hunting in the area and crossed
the corners multiple times using the methods described. (ECF 64 p. 4; ECF 68 p. 2.)

Plaintiff observed Defendants Cape, Smith, and Yeomans during their 2020 hunt and
did not approve of Defendants’ presence. Plaintiff never consented to Defendants entering

its property or airspace in any manner. (ECF 64 p. 8; see ECF 68 pp. 3-5.) Prior to 2020,

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Plaintiff instituted an ongoing practice of having its employees confront or interact with a
“suspected trespasser” found on or near Plaintiffs property, even if the person was found
while on public land. (Eshelman Depo. 32:12-34:8, 66:17-25.) The suspected trespasser is
instructed to leave, but if they resist, Plaintiff will contact local law enforcement, including the
Wyoming Game & Fish Department, to seek a criminal trespass citation or other prosecution.
(ECF 66 p. 9.) And if in Plaintiffs view law enforcement takes insufficient action on the
matter, Plaintiff will continue to contact law enforcement to push the matter and will also
contact the local prosecutor’s office to request criminal prosecution. (Id. p. 9.) Finally, as
here, Plaintiff may also institute a civil action against the suspected trespasser. (Id. p. 10.)
Probably obvious at this point, Plaintiff considers corner crossing to be an invasion of the
airspace above its land that constitutes unlawful trespassing. (Eshelman Depo. 60:20-25,
63:13-23, 78:9-14, 83:25-84:8.)

In 2020, Plaintiffs property manager, Steven Grende, confronted the Defendants
when he found them on public land because he determined they could only reach such public
land by trespassing, whether by corner crossing through Plaintiff's airspace or otherwise.
(ECF 66 p. 10; Grende Depo. 68:9-20; Smith Depo. 25:17-26:17.) When he requested they
leave the area, the hunters refused. (Yeomans Depo. 81:18-82:6.) Mr. Grende then contacted
law enforcement to complain about the alleged trespassing. (Smith Depo. 56:4-11.) The
hunters explained to the responding sheriffs deputy that they had corner crossed from public
land to public land without touching private land, and law enforcement did not issue any
warning or citation to the hunters in 2020. (Cape Depo. 105:3-23; Smith Depo. 56:1-57:23;

Yeomans Depo. 80:14-81:14.) The three hunters successfully completed their hunting trip as

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planned that year and then returned home.

There is no evidence the three hunters physically touched the surface of Plaintiff's land
when corner crossing or caused any damage to Plaintiffs private property in 2020. (Grende
Depo. 22:12-24:20.)

2. 2021 Hunt and Corner Crossings

The three hunters plus Defendant Slowensky returned to the same area in the fall of
2021 to hunt. This time, in an effort to not touch Plaintiff's steel posts when crossing from
public Section 14 to public Section 24, they brought a steel A-frame ladder that Defendant
Cape had constructed. (ECF 64-10; Cape Depo. 77:2-22; Smith Depo. 34:1-5; Yeomans
Depo. 43:20-44:12.) As shown here in a cropped portion of Plaintiffs Ex. 9 (ECF 64-10), the
ladder straddled over the lower “No ‘T'respassing” sign, with two feet resting on Section 14

and the other two feet on Section 24. (ECF 66-15 p. 8.)

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The now-four hunters crossed the same corners as the previous year plus a few mote to access
additional sections of public lands. Specifically, Defendants hunted on Sections 14, 24, 26, 30,
36, 32, 6, and 8, while crossing the corners denoted by Pin Drops 1-8 on the following map.

(See ECF 64 pp. 6-7; ECF 68 p. 2.)

Sa
Via Uv ipl

vB

This map was adapted from Plaintiffs Exhibit 8 (ECF 64-9) to show the additional Sections

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of land that were hunted in 2021, and the Court again notes Plaintiff also owns Sections 13
and 23 though such is not denoted on the map. The hunters only used their ladder to cross
from Section 14 to Section 24 because the other corners were unobstructed and they could
simply step or jump over the survey marker/brass cap from public land to public land. (ECF
64 p. 8; ECF 68 p. 2.)

Defendants’ 2021 hunting expedition did not go as smoothly as the prior year’s.
Plaintiff proved much more aggressive about expelling the hunters from the area and seeking
their criminal prosecution for alleged trespassing in 2021. Mr. Grende and another Plaintiff
employee confronted the hunters in person multiple times in attempts to get them to leave the
public lands bordering Plaintiffs private lands. (Yeomans Depo. 82:7-83:1, 83:18-84:1.)
Plaintiff's employees also interfered with Defendants’ hunt by constantly watching them from
neatby and by driving motorized vehicles on public parcels near Defendants while they hunted
in an effort to scare away the game. (ECF 66 p. 12.) When the hunters refused to stop corner
crossing and hunting on the public lands, Mr. Grende contacted the Wyoming Game and Fish
Department, which said it would not take action against the hunters. (Grende Depo. 68:21-
69:5.) Undeterred, he then contacted the local sheriffs office, which initially also refused to
take action against the hunters. (Id. at 69:6-15.) He then contacted the local prosecuting
attorney’s office, which said it was willing to prosecute the corner crossings as criminal
trespassing. (Id. at 69:21-70:5.) The prosecuting attorney’s office directed the sheriffs office
to write citations for criminal trespass to each Defendant, which were issued. (ECF 66 p. 14;
ECF 66-21 p. 8.) In connection, the Wyoming Game and Fish Department also instructed

Defendants to leave the area and not enter the subject public lands again. (ECF 66 p. 14.)

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Consequently, the hunters’ 2021 hunting trip was cut short. Following a jury trial several
months later, each Defendant was acquitted by the jury of the state criminal trespass charge.
(ECF 66-24.)

There is no evidence the hunters made physical contact with Plaintiff's private land or

caused any damage to Plaintiff's private property in 2021. (Grende Depo. 21:2-23:2, 28:1-13.)

3. “Waypoint 6” from Defendant Smith

During Defendants’ 2020 hunting trip, Defendant Smith used a GPS mapping tool on
his cellphone called “onX Hunt,” which helps hunters find property lines and determine land
ownership. (See Decl. Zachary Smith at {| 3-8, ECF 72-1 p. 3; Spitzer Depo. 10:19-12:18.)
Plaintiff subpoenaed the raw metadata created by Defendant Smith’s use of the onX Hunt
application and found that Defendant Smith had designated a waypoint, “Waypoint 6,” that
was located on Plaintiffs private land and not near a corner. (ECF 67-3, 67-4.) Plaintiff
contends Waypoint 6 establishes Defendant Smith, and maybe other Defendants, trespassed
upon the surface of Plaintiffs private land in 2020. (ECF 67 p. 24.)

The onX Hunt metadata for Waypoint 6 shows it was created on September 30, 2020
(while Defendant Smith was hunting in Wyoming) and was deleted from the application on
October 19, 2020. (ECF 67-3 p. 2.) Defendant Smith believes his onX Hunt raw data is
accurate but says he does not recall creating Waypoint 6 and, in any event, it does not solely
prove his physical presence at the location of the waypoint. (Decl. Zachary Smith at {ff 7-12.)
An onX Hunt user can “drop” (create) a waypoint to designate their current location, but they
can also drop a waypoint that is nowhere near their current location, including from a different

state. (Spitzer Depo. 25:2-12.)

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ANALYSIS
The Court will focus its initial discussion on the issue of corner crossing and whether
it, as it was performed by Defendants in this case, constitutes an actionable trespass.

1. Subject to Certain Restrictions, a Private Landowner Owns the Airspace Within
a Reasonable Height of the Land and Enjoys a Right to Exclude Others from

that Airspace

No person can reasonably doubt the fundamental importance of private property rights
to the development and continuing validity of the United States. “The Founders recognized
that the protection of private property is indispensable to the promotion of individual
freedom. As John Adams tersely put it, ‘[p]roperty must be secured, or liberty cannot exist.”
Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021) (quoting Discourses on Davila, in 6
Works of John Adams 280 (C. Adams ed. 1851)). Indeed, the Fifth Amendment protects an
individual’s property against encroachment by the federal government and the Fourteenth
Amendment protects that same property against encroachment by a state.

While the U.S. Constitution protects a person’s property interests, Jordan-Arapahoe, LLP
v. Board of Cnty. Comm'rs of County of Araphoe, Colo., 633 F.3d 1022, 1025 (10th Cir. 2011), the
actual property interests themselves “are not created by the Constitution. Rather they are
created and their dimensions are defined by existing rules or understandings that stem from
an independent source such as state law—tules or understandings that secure certain benefits
and that support claims of entitlement to those benefits,” Board of Regents v. Roth, 408 U.S. 564,
577 (1972).

We thus must turn to state law in understanding the scope of property rights in

land ownership. This is not always a simple task. The modern understanding

of the bundle of sticks of land ownership is overlain with myriad competing

land use, zoning, and environmental regulations. A landowner faces numerous

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restrictions on the full use and alienability of land depending on the interplay of
local, state, and federal law.

Jordan-Arapahoe, 633 F.3d at 1026; see Garnett v. Brock, 2 P.3d 558, 563 (Wyo. 2000) (“In order
to be afforded constitutional status, property rights must have been initially recognized and
protected by state law.”), overruled on other grounds by Brown v. City of Casper, 248 P.3d 1136 (Wyo.
2011).

The property rights at issue in this case ate two-pronged and intertwined: (1) Plaintiffs
ownership of the airspace above its land, and (2) Plaintiffs right to exclude others from that
airspace. Looking at the first prong, the Wyoming Statutes have stated since 1931:

The ownership of the space above the lands and waters of this state is declared
to be vested in the several owners of the surface beneath subject to the right of
[aircraft] flight! ....

Wyo. Stat. § 10-4-302; see Cheyenne Airport Board v. Rogers, 707 P.2d 717, 722 (Wyo. 1985). The
U.S. Supreme Court similarly stated:

[I]t is obvious that if the landowner is to have full enjoyment of the land, he
must have exclusive control of the immediate reaches of the enveloping
atmosphere. Otherwise buildings could not be erected, trees could not be
planted, and even fences could not be run. The principle is recognized when
the law gives a remedy in case overhanging structures are erected on adjoining
land. The landowner owns at least as much of the space above the ground as
he can occupy or use in connection with the land. The fact that he does not
occupy it in a physical sense—by the erection of buildings and the like—is not
material.

United States v. Causby, 328 U.S. 256, 264 (1946) (internal citation and footnote omitted); see

Griggs v. Allegheny County, Pa., 369 U.S. 84, 89 (1962) (“the use of land presupposes the use of

! The right of aircraft flight is immaterial to this case, which involves incursions into airspace only a few feet
off the ground, but the Supreme Court case of United States v. Causby, 328 U.S. 256 (1946), effectively “divided
the airspace into two strata. The landowner owned the airspace within the ‘immediate reaches’ of the surface
of his land, but the upper air was navigable airspace, in the public domain.” Pueblo of Sandia ex rel. Chaves v.
Smith, 497 F.2d 1043, 1045-46 (10th Cir. 1974).

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some of the airspace above it”).

Turning now to the latter prong, of course an owner of real property has a right to
exclude others from their property. The Wyoming Supreme Court has explained, “Ownership
of property implies the right of possession and control and includes the right to exclude others;
that is, a true owner of land exercises full dominion and control over it and possesses the right
to expel trespassers.” Sammons v. Am. Auto. Ass'n, 912 P.2d 1103, 1105 (Wyo. 1996). The U.S.
Supreme Court similarly said, “It is true that one of the essential sticks in the bundle of
property rights is the right to exclude others.” Pruneyard Shopping Center v. Robbins, 447 U.S. 74,
82 (1980).

Applying these ownership principles here, the law makes clear that Plaintiff is the lawful
owner of “as much of the space above the ground” of its property as it could reasonably
occupy or use in connection with the land. Additionally, Plaintiff has the right to exclude
others from that airspace.

Taken together, this would appear dispositive of the matter. This is not the end of the
analysis, though. As the Court noted, “A landowner faces numerous restrictions on the full
use and alienability of land depending on the interplay of local, state, and federal law.” Jordan-
Arapahoe, 633 F.3d at 1026. The U.S. Supreme Court has recognized landowners take their
land subject to certain express legal restrictions, such as zoning ordinances, as well as
“background principles of nuisance and property law’ [that] independently restrict the ownet’s
intended use of the property.” Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538 (2005) (quoting
Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1026-32 (1992)). “And valid preexisting

federal-law limitations on what otherwise would be state-law property rights are among the

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limitations that may inhere in title so as to limit compensable property rights.” McCutchen v.
United States, 14 F.4th 1355, 1365 (Fed. Cir. 2021), cert. denied, 143 S. Ct. 422 (2022); see also
Interstate Consol. St. Ry. Co. v. Commonwealth of Massachusetts, 207 U.S. 79, 87 (1907) (“the great
constitutional provisions for the protection of property are not to be pushed to a logical
extreme, but must be taken to permit the infliction of some fractional and relatively small

losses without compensation, for some, at least, of the purposes of wholesome legislation”).

2. Relevant Restrictions on the Ownership of Airspace and Right to Exclude
Within the Checkerboard Pattern of Land Ownership

Thus, the next step of the examination is determining whether there are any relevant
restrictions on the Plaintiffs ownership of the subject airspace or its right to exclude others
from that airspace. The Court’s examination reveals history, federal caselaw, federal statutory
law, and recent Wyoming legislation demonstrate corner crossing in the manner done by
Defendants in this case is just such a restriction on Plaintiffs property rights because
Defendants, “in common with other persons [have] the right to the benefit of the public
domain,” Mumford v. Rock Springs Grazing Ass'n, 261 F. 842, 849 (8th Cir. 1919), which
necessarily requires some limitation on the adjoining private landowner’s right of exclusion
within the checkerboard pattern of land ownership.

First, and most pertinent to the issues here, is the case of Mackay v. Uinta Development
Co., 219 F. 116 (8th Cir. 1914), which has many parallels to the instant lawsuit. In Mackay, the
“Uinta Development Company sued Mackay for damages for trespass by trailing his sheep
across and depasturing its lands in Wyoming.” Id. at 117. Mackay was moving his sheep south
across the Wyoming checkerboard to graze on federal lands for the winter. Id. at 117-18.
Uinta Development Company warned Mackay not to cross its privately-owned lands on the

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way. Id. at 118. Mackay nevertheless started his sheep south, crossing portions of the
company’s private land as well as parcels of public land as he went, while his sheep grazed
upon the land the entire way. Id. Mackay “drove his sheep, over the protest and prohibition
of the [company], upon and along a strip of land three-fourths of a mile wide upon and across
the entite length or width of some of the [company’s] sections of land, and caused his sheep
to consume nine-tenths of the grass thereon.” Id. at 120-21 (Sanborn, J., dissenting). At the
company’s insistence, Mackay was arrested along the way, and the company also sued him for
civil trespass. Id. After a bench trial, the district court rendered judgment for the company,
holding Mackay liable for civil trespass damages. Id. at 117.

On appeal, the Eighth Circuit reversed the District of Wyoming’s decision. Id. at 120.
The Eighth Circuit held: “The question here, which we think should be answered in the
affirmative, is whether Mackay was entitled to a reasonable way of passage over the unenclosed
tract of land without being guilty of trespass.” Jd. at 120. In determining that Mackay should
have a reasonable way of passage over the company’s private lands to access the public lands,
the appellate court said:

The company admitted [Mackay’s] right as to the public domain, but warned

him not to go over any of its lands on penalty of prosecution for trespass.... If

the position of the company were sustained, a barrier embracing many thousand

actes of public lands would be raised, unsurmountable except upon terms

ptescribed by it. Not even a solitary horseman could pick his way across

without trespassing. In such a situation the law fixes the relative rights and

responsibilities of the parties. It does not leave them to the determination of

either party. As long as the present policy of the government [concerning public

lands] continues, all persons as its licensees have an equal right of use to the

public domain, which cannot be denied by interlocking lands held in private
ownership.

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This case illustrates the conflict between the rights of private property and the
public welfare under exceptional conditions.... This large body of land, with
the odd-numbered sections of the company and the even-numbered sections of
the public domain located alternately like the squares of a checker-board,
remains open as nature left it. Its appearance is that of a common, and the
company is so using the contained public portions. In such use it makes no
distinction between them and its own holdings. It has not attempted physically
to separate the latter for exclusive private use. It admits that Mackay had the
right in common with the public to pass over the public lands. But the right
admitted is a theoretical one, without utility, because practically it is denied
except on terms it prescribes. Contrary to the prevailing rule of construction,
it seeks to cast upon the government and its licensees all the disadvantages of
the interlocking arrangement of the odd and even numbered sections because
the grant in aid of the railroad took that peculiar form. It could have lawfully
fenced its own without obstructing access to the public lands. That would have
lessened the value of the entire tract as a great grazing pasture, but it cannot
secure for itself that value, which includes as an element the exclusive use of the
public lands, by warnings and actions in trespass.

Id. at 118-20.?

The many parallels between the circumstances in Mackay and those here are obvious.
And significant to Mackay’s decision that a member of the public was “entitled to a reasonable
way of passage over the unenclosed tract of land without being guilty of trespass” were the
“exceptional conditions” created by the unique checkerboard of land ownership that is at the
center of this controversy. However, questions remain concerning whether Mackay is still
valid law all these years later, and the Court turns to those questions now.

Mackay has never been expressly overruled, but whether it is binding on this Court
appears unsettled. Mackay was decided by the Eighth Circuit Court of Appeals. In 1929,

Congtess divided the Eighth Circuit into two circuits. The Eighth Circuit retained Minnesota,

2 Judge Sanborn dissented in Mackay, but not concerning whether Mackay had the right to cross the company’s
private land to gain access to the public lands. Instead, Judge Sanborn opined, “The owner of land is not
deprived of his right to recover the damages he sustains by the taking by another of his grass, growing grain, or
timber from his land, or the mineral out of it, even if the taker has the right to cross his land[.]” Mackay, 219
F. at 121.

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Iowa, North Dakota, South Dakota, Nebraska, Missouri, and Arkansas. The new Tenth
Circuit took Wyoming, Colorado, Utah, New Mexico, Kansas, and Oklahoma. Thus, at the
time of Mackay, Wyoming was part of the Eighth Circuit. In the years since its formation, the
Tenth Circuit has issued conflicting guidance on the binding nature of prior Eighth Circuit
decisions. Compare Boynton v. Moffat Tunnel Improvement Dist., 57 F.2d 772, 781 (10th Cir. 1932)
(“decisions cited from the Supreme Court of the United States, from the Eighth Circuit Court
of Appeals, and from this court, are binding upon us”), with Estate of McMorns v. Comm’r, 243
F.3d 1254, 1258 (10th Cir. 2001) (“we have never held that the decisions of our predecessor
circuit are controlling in this court”).

Because Mackay originated from the District of Wyoming and was decided by the
appellate court then sitting over this Court, this Court can find no reasonable basis to believe
it is not bound by Mackay’s decision. Nonetheless, even if Mackay is somehow only persuasive
authority, the Court finds it particularly persuasive due to the many factual parallels between
Mackay and the instant case.

Additionally, Plaintiff in this case has argued Mackay was implicitly overruled by Leo
Sheep Co. v. United States, 440 U.S. 668 (1979). The material differences between Leo Sheep and
Mackay suggest such a claim to be exaggerated. In Leo Sheep, two companies (Leo Sheep Co.
and Palm Livestock Co.) owned the odd-numbered sections in an area of the checkerboard
lands in Wyoming that sat east and south of the Seminoe Reservoir. Id. at 677-78. “Because
of the checkerboard configuration, it is physically impossible to enter the Seminoe Reservoir
sector from this direction without some minimum physical intrusion upon private land.” Id.

at 678. The federal government intervened after receiving several complaints that the private

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landowners were denying the public access to the reservoir over the private lands or were
demanding access fees. Jd. Upon the theory that Congress reserved to the federal government
an implied easement over the privately-owned checkerboard lands when they were originally
conveyed, the federal government built a dirt road extending from a local county road to the
reservoir that crossed both public and private lands and invited the public to access the
reservoir using the new road. Jd. The companies moved to quiet title in the private lands
against the federal government. Id. The District of Wyoming granted the petition and quieted
title in the companies, but the Tenth Circuit reversed on direct appeal, concluding Congress
implicitly reserved an easement to pass over the private odd-numbered sections of the
checkerboard in order to reach the even-numbered public sections. Id. On permissive review,
the U.S. Supreme Court reversed the Tenth Circuit. Id at 688. The Supreme Court found
insufficient evidence existed to suggest Congress impliedly reserved an easement by necessity
in favor of the government across the private lands. Id. at 681-82.

The Court does not agree that Leo Sheep implicitly overruled Mackay for two reasons.
First, several years after Leo Sheep was decided, the Tenth Circuit relied on Mackay in part in
U.S. ex rel Bergen v. Lawrence, 848 F.2d 1502, 1509 (10th Cir. 1988), and never noted or
suggested Mackay was overruled or invalid in any manner.

Second, and more significantly, Leo Sheep and Mackay ate too factually and legally
different for the Court to conclude Mackay cannot coexist in a world with Leo Sheep. The
primary intruder in Leo Sheep was the federal government, whereas in Mackay (as in the instant
case) it was a private individual. This is a fundamental difference because the federal

government holds the power of eminent domain (condemnation), but private individuals do

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not. Then Justice Rehnquist noted in Leo Sheep, “This Court has traditionally recognized the
special need for certainty and predictability where land titles are concerned, and we are
unwilling to upset settled expectations to accommodate some ill-defined power to construct
public thoroughfares without compensation.” Id. at 687-88 (emphasis added). As this
quote demonstrates, significant to the Supreme Court’s consideration of the matter in Leo
Sheep was the federal government’s power of eminent domain (condemnation) under the Fifth
Amendment, which allows the government to take private property without the owner’s
consent and convert it to public use (such as a public thoroughfare) in exchange for just and
fair compensation. The Leo Sheep opinion added: “Generations of land patents have issued
without any express reservation of the right now claimed by the Government. Nor has a
similar right been asserted before. When the Secretary of the Interior has discussed access
rights, his discussion has been colored by the assumption those rights had to be purchased.”
Id. at 687 (emphasis added). Essentially, the Supreme Court determined the federal
government’s argument for an implied easement was an attempt to condemn a portion of
ptivate property to build a public thoroughfare without having to pay for it. That simply isn’t
the case or the issue in Mackay (or in the instant case).

The eminent domain distinction is substantial because Leo Sheep distinguished itself
from a ptior case that did not involve the federal government based in part on the availability
of eminent domain. In Buford ». Houtz, 133 U.S. 320 (1890), a group of cattle ranchers owned

some odd-numbered lots in the checkerboard pattern within the then-territory of Utah. Id. at

3 See PennEast Pipeline Co., LLC v. New Jersey, 141 S. Ct. 2244, 2251-52, 2254-57 (2021), for a recent discussion
of eminent domain.

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321-22. They sought an injunction against a group of sheep ranchers to prevent the sheep
ranchers from moving their sheep across the odd-numbered parcels to reach even-numbered
public lands for grazing. Id. at 322-24. The trial court dismissed the case, determining the
cattle ranchers had failed to state a viable claim for equity to support its injunction request,
and the supreme court of Utah affirmed the dismissal. Id. at 321. The U.S. Supreme Court
agreed and also affirmed the dismissal, stating:

The appellants [cattle ranchers] being stock-raisers, like the defendants [sheep
ranchers], whose stock are raised and fattened on the unoccupied lands of the
United States mainly, seek by the purchase and ownership of parts of these
lands, detached through a large body of the public domain, to exclude the
defendants from the use of this public domain as a grazing ground, while they
themselves appropriate all of it to their own exclusive use.... If we look at the
condition of the ownership of these lands on which the plaintiffs rely for relief,
we are still more impressed with the injustice of this attempt.... Of this 921,000
actes of land, the plaintiffs only assert title to 350,000 acres; that is to say, being
the owners of one-third of this entire body of land, which ownership attaches
to different sections and quarter sections scattered through the whole body of
it, they propose by excluding the defendants to obtain a monopoly of the whole
tract, while two-thirds of it is public land belonging to the United States, in
which the right of all parties to use it for grazing purposes, if any such right
exists, is equal. The equity of this proceeding is something which we are not
able to perceive.

Id. at 325-26. The Supreme Court distinguished the Leo Sheep decision from Bzford by stating,
“The Court [in Buford] also was influenced by the sheep ranchers’ lack of any alternative.” Leo
Sheep, 440 U.S. at 687 n.24. The federal government’s power of condemnation, to take private
land for public use in exchange for fair payment, is the important alternative that was available
in Leo Sheep but not available in Buford or in Mackay (or in this case). In sum, the Court does
not find Leo Sheep implicitly overruled Mackay.

The Court further finds Leo Sheep of limited applicability when examining the instant
case. First, as already noted, Leo Sheep concerned the construction of a public thoroughfare (a

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dirt road) across portions of private property, whereas the undisputed evidence in this case
shows no damage or alteration to Plaintiffs private property. In this case, the primary
intrusion of Plaintiffs property takes the form of an incursion into a small portion of the
airspace above the land that lasted a matter of seconds, not a permanent construction that
altered Plaintiff's land. Second, like in Mackay, the power of eminent domain (condemnation)
is not an alternative available to Defendants in this case. Thus, Leo Sheep is so materially
different from the case at bar as to offer practically no persuasive value on the matter. The
- Court concludes Mackay remains valid and finds it is the authority most directly on point to
the questions in this case.

In sum, Mackay is still valid authority that is at least very persuasive, if not outright
binding, on the instant matter. The many similarities cause the Court to conclude the core
principle of Mackay, that private individuals possess “a reasonable way of passage over the
unenclosed tract of land without being guilty of trespass” within the checkerboard applies to
the circumstances of this lawsuit. Admittedly, though, the “way of passage” taken in Mackay
was significantly more intrusive than the “way of passage” taken in this case, and the scope of
the path taken in Mackay is not at issue in this case. Instead, the scope of the path taken by

Defendants in 2020 and 2021 is at issue in this case, which is where the Court now turns.

3. Determining the Scope of the Relevant Restriction on the Ownership of
Airspace and Right to Exclude Within the Checkerboard Pattern of Land

Ownership

The Court’s conclusion that the main principle of Mackay applies here to give
Defendants “a reasonable way of passage over the unenclosed tract of land without being

guilty of trespass” is both buttressed and limited in scope by two additional considerations.

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First, the Court finds the Tenth Circuit case of Pueblo of Sandia ex rel. Chaves v. Smith, 497 F.2d
1043 (10th Cir. 1974), offers persuasive guidance on the matter. That case concerned aircraft
travel rather than pedestrian travel, but the discussion there runs parallel to the issues
concerning Defendants’ corner crossings in this case. Specifically, the Tenth Circuit there
stated an incursion into only airspace requires some accompanying damage to or interference
with the actual use of the landowner’s property to constitute an actionable trespass. Id. at
1045.

Appellant contends the allegation and proof of actual damages is unnecessaty

because violation of a landowner’s possessory right constitutes a trespass for

which at least nominal damages are presumed. This is ordinarily true when

trespass to realty is concerned. But traversing the airspace above a plaintiffs

land is not, of itself, a trespass. It is lawful unless done under circumstances

which cause injury.
Id. Applying a similar principle to the present case, Defendants’ temporary incursions into the
airspace at the corners of Plaintiffs land does not constitute trespassing unless actual damages
result therefrom, and there is no evidence that Defendants’ airspace intrusions caused actual
damage to or interfered with Plaintiffs use of its property. Neither does this Court believe
Plaintiff can premise damages upon the loss of the right to exclude individuals from public
lands, absent the use of an aircraft or human cannon shot, which Plaintiff never held.

Second, recalling that the scope of property rights is largely defined by state law, the
Court considers the recently amended version of Wyoming Statute § 23-3-305(b), Senate File
No. SF0056, which was passed overwhelmingly by the Wyoming Legislature earlier this year,
signed into law by the Governor, and set to take effect July 1, 2023. The new version of that
statute, with the recent amendments in bold, provides:

(b) Noperson shall enter upon, travel through or return across the private

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property of any person to take wildlife, hunt, fish, collect antlers or horns, or
trap without the permission of the owner or person in charge of the property.
Violation of this subsection constitutes a low misdemeanor punishable as
provided in W.S. 23-6-202(a)(v) [up to $1,000 fine and six months of
imprisonment]. For purposes of this subsection “travel through or return
across” requires physically touching or driving on the surface of the

ptivate property.
Wyo. Stat. § 23-3-305(b) (bold added) (to become effective July 1, 2023). The plain language
of the recent amendments to this statute applies to corner crossings as they occurred in this
case, where Defendants did not touch the surface of Plaintiff's land. Moreover, the statutory
changes plainly demonstrate the Wyoming Legislature’s intent to ensure such corner crossing
does not constitute a criminal act.
4. Corner Crossing on Foot in the Checkerboard Pattern of Land Ownership

Without Physically Contacting Private Land and Without Causing Damage to
Private Property Does Not Constitute an Unlawful Trespass

In sum, Plaintiff indeed possesses a property interest in the airspace above its land (up
to a certain height that is not at issue in this case) and generally holds the right to exclude
others from its property, but that right is not boundless. Defendants

in common with other persons [have] the right to the benefit of the public

domain, and the courts will not enforce any rule of property in the [Plaintiff]

that will deny to the [Defendants] and those similarly situated a reasonable way

of passage over the uninclosed tracts of land of the [Plaintiff].

Mumford, 261 F. at 849; see Mackay, 219 F. at 118 (“As long as the present policy of the
government continues, all persons as its licensees have an equal right of use of the public
domain, which cannot be denied by interlocking lands held in private ownership.”). Plaintiff
asserts, “Federal courts have recognized that Congress purposely created the checkerboard,
and [Plaintiff] is not to blame for the problems arising from the pattern.” (ECF 67 p. 25.)

Plaintiff is correct that it is not to blame for the problems caused by the checkerboard pattern

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of land ownership, but “[i]n such a situation the law fixes the relative rights and responsibilities
of the parties. It does not leave them to the determination of either party.” Mackay, 219 F. at
118. Plaintiff may not “cast upon the government and its licensees all the disadvantages of
the interlocking arrangement of the odd and even numbered sections because the grant in aid
of the railroad took that peculiar form.” Id. at 119-20.

It is only reasonable for the owner of the private sections and the public, as the owner
of the alternating sections, to share in the solution. Synthesizing the law surveyed above, the
Court finds that where a person corner crosses on foot within the checkerboard from public
land to public land without touching the surface of private land and without damaging private
property, there is no liability for trespass. In this way, the private landowner is entitled to
protect privately-owned land from intrusion to the surface and privately-owned property from
damage while the public is entitled its reasonable way of passage to access public land. The
private landowner must suffer the temporary incursion into a minimal portion of its airspace
while the corner crosser must take pains to avoid touching private land or otherwise disturbing
private property. Similar restrictions imposed upon a landowner within the “exceptional
conditions” created by the checkerboard, Mackay, 219 F. at 120, date back well over a century
and ate some of those “background principles of nuisance and property law [that]
independently restrict the owner’s intended use of the property,” Lingk, 544 US. at 538
(internal quotations omitted).

5. Defendants’ Corner Crossings in this Case are Not Unlawful Trespasses
In applying this principle to the undisputed facts of this case, the Court considers first

the corner crossings where Defendants did not make physical contact with Plaintiff's land or

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ptivate property, including those where Defendants needed to only step over a sutvey
marker/brass cap and where they used the A-frame ladder in 2021 to climb over Plaintiff's
signs, lock, and chain without touching them. This covers every corner crossing in 2021 as
well as all 2020 corner crossings except for the crossings between Section 14 and Section 24.
The undisputed evidence here is that Defendants performed these cornet crossings without
physically touching Plaintiffs private land and without otherwise damaging Plaintiffs private
property. (Grende Depo. 11:14-12:12, 16:16-17:11, 21:2-22:11.) Consequently, a cause of
action for civil trespass does not lie against Defendants as it concerns these corner crossings,
and they are entitled to summaty judgment in their favor as to these corner crossings.

The Court now considers the 2020 corner crossings between Sections 14 and 24, where
Defendants Cape, Smith, and Yeomans admitted to holding onto Plaintiffs steel post to swing
around the locked chain that connected the two steel posts. The Court again finds guidance
in Mackay. The Unlawful Inclosures Act of 1885 (UIA), 43 U.S.C. §§ 1061-1066, was a
consideration in Mackay but was not singularly controlling. See Mackay, 219 F. at 120. The
Court similarly finds the UIA applicable but not singularly controlling regarding Defendants’
2020 corner crossings between Sections 14 and 24. The UIA states in relevant part:

No person, by force, threats, intimidation, or by any fencing or inclosing, or any

other unlawful means, shall prevent or obstruct ... any person from peaceably

entering upon ... any tract of public land subject to ... entry under the public

land laws of the United States, or shall prevent or obstruct free passage or transit

over or through the public lands[.]

43 U.S.C. § 1063.

It is undisputed that the locked chain that was installed between the steel posts by

Plaintiff hung through the airspace over the adjoining public land of Sections 14 and 24.

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(Grende Depo. 39:5-14.) And the locked chain further presented a physical obstacle and
obstruction to anyone attempting to step across the corner from Section 14 to Section 24.
(Grende Depo. 42:19-23.) Thus, Plaintiff's lock and chain constituted an improper attempt
to “prevent or obstruct ... any person from peaceably entering upon ... any tract of public
land” in violation of the UIA.4 The Eighth Circuit in Mackay said about the UIA, “We think,
however, that a private litigant cannot recover from another for an invasion of an alleged right
founded upon his own violation of the statute.” Mackay, 219 F. at 120. Plaintiff's violation of
the UIA forced Defendants to grab the steel posts, which were anchored on private property,
to maneuver around the physical obstacle. Consistent with Mackay, Plaintiff may not recover
for a trespass, if any, occurring due to Plaintiff's violation of the UIA.

Moreover, and apart from the UIA, the undisputed evidence again shows Defendants
did not touch the surface of Plaintiffs land or damage its private property in connection with
these corner crossings. (Grende Depo. 22:12-24:20, 27:3-28:13) Consequently, a cause of
action for civil trespass does not lie against Defendants as it concerns these 2020 corner
crossings, and they are entitled to summary judgment in their favor as to these 2020 corner
crossings.

As it relates to the various corner crossings performed by Defendants in moving from
public land to public land by foot in 2020 and 2021 within the checkerboard pattern of land
ownership, they cannot be subject to liability for civil trespass. Defendants are therefore

entitled to summary judgment in their favor concerning Plaintiffs cause of action for civil

4In addition to precluding the use of physical barriers, § 1063 of the UIA also makes it unlawful to threaten or
intimidate any person from peaceably entering upon any tract of land subject to entry under the public land
laws of the United States, or preventing or obstructing free passage or transit over or through the public lands.

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trespass related to all of Defendants’ corner crossings.

6. A Genuine Dispute of Material Fact Exists Concerning Whether “Waypoint 6”
Constitutes Unlawful Trespassing

Recall that Waypoint 6 does not appear to involve an act of corner crossing but rather
an alleged trespass upon the surface of Plaintiffs private land, Section 19, in an area away from
acorner. (See ECF 67-4.) Waypoint 6 was created on September 30, 2020, on the onX Hunt
application being used by Defendant Smith, and it was deleted (from the app but not from
onX Hunt’s metadata) about three weeks later. (See ECF 67-3 p. 2.) And a waypoint can be
created without the user ever being at the designated location.

Many or most of the waypoints created by Defendant Smith indicated his current
location or an area where he had been or intended to go. (See ECF 67-5.) On the other hand,
all Defendants were adamant in their depositions that they never stepped foot on Plaintiffs
private land. Defendant Smith also expressly asserted under penalty of perjury that his onX
Hunt metadata is accurate, that he must have created Waypoint 6 without realizing it, but he
never made physical contact with or traveled to Waypoint 6. (ECF 72-1.) Thus, evidence
exists to support Plaintiff's claim of trespass as to Waypoint 6, specifically the conceded
accuracy of the onX Hunt data and the other waypoints that depicted many of Defendants
Smith, Cape, and Yeomans physical locations. Contrary evidence in the form of Defendants’
depositions and declarations exists to counter Plaintiff's claim as to Waypoint 6. Therefore,
the Court finds a genuine dispute of material fact exists regarding whether a Defendant
trespassed upon Plaintiffs Section 19 in connection with Waypoint 6, and the question should
be submitted to a jury for determination. Summary judgment is not appropriate on this issue.

On this claim, though, the undisputed evidence is that Plaintiff does not know of any

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damage and has not repaired any damage caused by Defendants to its property in 2020.
(Grende Depo. 24:11-20, 27:8-12.) Accordingly, only nominal damages in the maximum
amount of $100.00 are at issue for Defendants’ alleged trespass in 2020 concerning Waypoint
6.5 See Goforth v. Fifield, 352 P.3d 242, 250 (Wyo. 2015) (noting that when no actual damages
are shown, Wyoming allows the recovery of nominal damages for an actionable trespass, and
the Wyoming Supreme Court interprets nominal damages to max out at $100.00 based on
Wyo. Stat. § 1-14-125).
CONCLUSION

The conflict inherent in the checkerboard pattern of landownership, which pits a
landowner’s right to exclude others from private property against the public’s right to access
public lands, has been around for well over a century and has visited this Court multiple times
over the years. In determining the present lawsuit, the Court primarily relies on the opinion
from Mackay v. Uinta Development Co., 219 F. 116 (8th Cir. 1914), which originated in this Court
and was issued by the appellate court for this Court. Mackay explained that for “exceptional
conditions,” including the conflict borne of the checkerboard, “the law fixes the relative rights
and responsibilities of the parties. It does not leave them to the determination of either party.”
Id. at 118. And the Court’s survey of the law revealed that where a person corner crosses on
foot in the checkerboard from public land to public land without touching the surface of
private land and without otherwise damaging private property, there is no liability for trespass.

See id. at 120 (“The question here, which we think should be answered in the affirmative, is

5 Defendant Slowensky was not present for the 2020 hunting trip and therefore cannot be liable for any such
trespass.

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whether Mackay was entitled to a reasonable way of passage over the unenclosed tract of land
without being guilty of trespass.”). This determination, though, is necessarily unique to and
limited in application to the “peculiar” “interlocking arrangement of odd and even numbered
sections,” ¢d. at 119-20, making up the checkerboard pattern of land ownership created by
Congtess in the mid-1800s.

When this law is applied to the undisputed evidence in this case, no reasonable jury
could find Defendants liable for civil trespass for their corner crossing activities. However,
the facts and circumstances surrounding Waypoint 6 are in genuine dispute, and this claim of
trespass must be submitted to a jury for a decision, albeit limited to nominal damages.

The Court addresses one final matter. While this lawsuit has been pending, and with
greater frequency in recent weeks, the Court has received various attempts, whether by email
or phone call, from members of the public to offer their opinions as to how this Court should
resolve this controversy. These submissions have come from people who are not patties to
this case and who, unlike the amici parties, have not been given permission by the Court to
tender a submission that can be viewed and responded to by all parties. The Court’s staff has
screened these improper submissions, and the Court has not reviewed or considered these
submissions as part of examining the issues in this case, nor will the Court review or consider
them or any other improper ex parte submissions in the future. Attempts by a person or entity
not a party to a lawsuit to influence or persuade a court of law’s decision are improper.
“Whereas the fundamental function of a legislature in a democratic society assumes
accessibility to [public] opinion, the judiciary does not decide cases by reference to popular

opinion.” Hodge v. Talkin, 799 F.3d 1145, 1159 (D.C. Cir. 2015) (quotations omitted)

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(alteration in original). The founders of the United States sought to insulate the Judicial branch
of government from public opinion so judges could apply and be influenced only by the law,
not by popular opinion or public polling. This Court’s sworn obligation is to uphold and apply
the law. The Court has done its utmost to decipher the applicable law and apply it to the facts
of this and every case. To the extent this Court’s determination of the law is believed to be
erroneous, the remedy is for a party to take an appeal.
ORDER

In conformity with the findings of fact and conclusions of law determined herein,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (ECF
65) is GRANTED IN PART AND DENIED IN PART. Defendants are entitled to
judgment as a matter of law as to all claims of trespassing involving Defendants’ corner
crossings in 2020 and 2021. Defendants’ request for summary judgment is denied as to the
claim of trespassing involving Waypoint 6 (which does not involve corner crossing) due to the
existence of a genuine dispute of material fact, but any recovery by Plaintiff on such claim
shall be limited to nominal damages.

IT IS FURTHER ORDERED that Plaintiff's Motion for Partial Summary Judgment
(ECF 63) is DENIED. Plaintiff is not entitled to judgment as a matter of law concerning
Defendants’ corner crossings in 2020 and 2021, and a genuine dispute of material fact exists
to preclude summary judgment concerning the alleged Waypoint 6 trespassing (which does
not involve corner crossing).

Fiat
ORDERED: May ~%@ “_, 2023. tet
(as AZ. :

cott W. Skavdahl
United States District Judge

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