Corner crossing, transgender rights to get big day in court, May 14

Two Wyoming legal battles with national interest and far-reaching implications are scheduled to share a date in court next month when both are heard in the 10th Circuit Court of Appeals in Denver. 

Oral arguments for the corner-crossing saga and a dispute over a transgender woman’s right to remain in her University of Wyoming sorority have been set for May 14 at 9 a.m., just down the hall from one another in the Byron J. White U.S. Courthouse. 

Federal district court judges dismissed the two civil suits last year before each was appealed to the higher court. Since then, plaintiffs in both cases have hired high-powered attorneys. 

The implications of the two suits vary. 

The ruling in the corner-crossing case stands to impact public access to more than 8 million acres of public land in the U.S., while some of the country’s most powerful anti-transgender activists and organizations have zeroed in on the UW sorority case with the help of a frenzied, far-right media storm. 

WyoFile has closely followed both cases since each of their initial filings.

Kappa Kappa Gamma 

In April of 2023, six Kappa Kappa Gamma members at the University of Wyoming sued the sorority after the private organization admitted its first openly transgender woman. 

The plaintiffs — Jayln Westenbroek, Hannah Holtmeier, Allison Coghan, Grace Choate, Madeline Ramar and Megan Kosar — alleged in a 72-page complaint that the private organization broke its bylaws, breached housing contracts and misled members when it admitted Artemis Langford. 

The plaintiffs had asked the judge to void Langford’s membership — which had been approved by a vote of members — and to define “woman” to exclude transgender members in the future, among other things. 

U.S. District Court Judge Alan B. Johnson dismissed the case last August on the basis that the plaintiffs failed to adequately state a claim. Johnson also ruled that the court cannot interfere with how the sorority determines its membership since it is a private, voluntary organization. 

By ruling “without prejudice,” Johnson left the sorority sisters the option to refile. Instead, their local attorney, Cassie Craven, went on Fox News to lambast Johnson’s decision as “political.” 

Soon after, the plaintiffs announced they would appeal instead of refiling, bringing on high-profile attorneys in the process. 

In October, the appeals court ordered both parties to file briefs on the merits after the two sides disputed whether the lower court’s ruling could be appealed in the first place. 

The hearing in May, requested by the plaintiffs, will involve those arguments. 

Corner crossing

The corner crossing case could affect public access to some 8.3 million acres of public land in the West — some 6 million acres of checkerboard ownership — that are inaccessible if corner crossing is deemed trespassing.

At issue in the corner crossing case is whether passing through the airspace above a person’s property — without touching private land — constitutes trespass. Four Missouri hunters corner crossed in the checkerboard pattern of land ownership in southern Wyoming in 2020 and 2021, accessing thousands of acres of wildlife-rich public property enmeshed in the Elk Mountain Ranch in Carbon County.

Tradition and local laws have largely kept the public from corner crossing. The development of Global Positioning System satellite mapping and tracking apps like onX — available on smartphones — has made it easier to find survey monuments necessary for corner crossing.

The Carbon County attorney cited the hunters for criminal trespass and trespassing to hunt but a jury found them not guilty of those misdemeanor charges.

The four Missourians have argued that the Unlawful Enclosures Act of 1885 prevents Elk Mountain Ranch owner Fred Eshelman from blocking corner crossing passage to public land. By keeping other hunters off the public land enmeshed in his 22,042-acre ranch, Eshelman, a hunter himself, keeps public resources and wildlife for his own use, the hunters argue.

Eshelman filed a civil suit, contending that passing through his airspace is trespass, regardless of whether the hunters set foot on his land. The right to exclude others from one’s private property is a bedrock property right principle, he argues.

But Wyoming’s chief U.S. District Judge Scott Skavdahl ruled that corner crossing is legal in the checkerboard area of Wyoming when a person does not set foot on private land and causes no damage.

The Denver court will hear Eshelman’s appeal that seeks to overturn Skavdahl’s ruling. Eshelman, a North Carolina pharmaceutical magnate, wants courts to forever forbid the hunters and others from corner crossing to reach public land inside the exterior boundaries of his ranch.
WyoFile will be in Denver to cover the hearings. The 10th Circuit also provides remote public access to the audio of oral arguments via YouTube.