Opposition Brief — Iron Bar Holdings, LLC, Petitioner v. Bradly H. Cape, et al.

No. 25-64

IN THE

Supreme Court of the United States

————

IRON BAR HOLDINGS, LLC,

v.

Petitioner,

BRADLY H. CAPE, et al.,

Respondents.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

————

BRIEF IN OPPOSITION

————

LEE MICKUS

EVANS FEARS SCHUTTERT

MCNULTY MICKUS

1805 Shea Center Drive

Suite 120

Littleton, CO 80129

RYAN A. SEMERAD

Counsel of Record

FULLER & SEMERAD, LLC

242 South Grant Street

Casper, WY 82601

(307) 265-3455

semerad@thefullerlawyers.com

Counsel for Respondents

September 17, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

The Unlawful Inclosures of Public Lands Act of

1885 (UIA) prohibits anyone from making an

“inclosure” of or otherwise obstructing or preventing

“free passage” to the public lands of the United States.

43 U.S.C. §§ 1061, 1063. In some western states,

squares of public and private lands are interspersed in

a checkerboard pattern. Many public-land squares on

these checkerboards are accessible only by “corner

crossing”—i.e., stepping from one public-land square

to the next one across the public-private corner

without touching the private-land squares.

The question presented is:

Whether the UIA prohibits a checkerboard landowner

from asserting a state-law right to prevent corner

crossing to access otherwise inaccessible neighboring

public lands, arrogating to the landowner exclusive

use of these public lands.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iv

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................... 4

A. Legal Background ............................................. 4

B. Facts and Procedural History .......................... 8

REASONS FOR DENYING THE PETITION .......... 16

I. The Decision Below Is Correct, Does Not

Implicate Any Split, And Aligns With

This Court’s Precedent ................................... 17

A. The Tenth Circuit Correctly Applied

The UIA’s Text And Precedent ................. 17

B. The Decision Below Is Fully

Consistent With Leo Sheep ....................... 22

II. Iron Bar’s Other Arguments For Review

Fail .................................................................. 25

A. The Decision Is Narrow And Breaks

No New Ground ......................................... 25

B. Iron Bar’s Misplaced Reliance On A

Presumption Against Preemption

Further Counsels Against Review ............ 28

C. Iron Bar’s Takings Claim Is Not

Presented And Lacks Merit ...................... 29

CONCLUSION .......................................................... 32

(iii)

iv

TABLE OF AUTHORITIES

CASES

Page(s)

Buford v. Houtz,

133 U.S. 320 (1890) ............................... 7, 20, 24

Camfield v. United States,

167 U.S. 518

(1897) ..........1-3, 5-7, 14-16, 18-21, 23, 24, 29-31

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ..................................... 3, 30

Golconda Cattle Co. v. United States,

214 F. 903 (9th Cir. 1914) ............................... 22

Hill v. Kemp,

478 F.3d 1236 (10th Cir. 2007) ....................... 28

Izumi Seimitsu Kogyu Kabushiki Kaisha v.

U.S. Philips Corp.,

510 U.S. 27 (1993) ........................................... 30

Kansas v. Garcia,

589 U.S. 191 (2020) ......................................... 29

Lawrence v. United States,

488 U.S. 980 (1988) (No. 88-837).......... 2, 14, 25

Leo Sheep Co. v. United States,

440 U.S. 668 (1979) .............. 2, 15, 16, 22-24, 27

Light v. United States,

220 U.S. 523 (1911) ........................................... 4

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ......................................... 26

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) ....................................... 30

v

TABLE OF AUTHORITIES—Continued

Page(s)

Mackay v. Uinta Dev. Co.,

219 F. 116

(8th Cir. 1914) ....7, 13, 14, 16, 19, 21, 22, 25, 31

McKelvey v. United States,

260 U.S. 353 (1922) ....................................... 3, 7

Murphy v. NCAA,

584 U.S. 453 (2018) ......................................... 29

N.Y.S. Conf. of Blue Cross & Blue

Shield Plans v. Travelers Ins. Co.,

514 U.S. 645 (1995) ......................................... 29

Pavlock v. Holcomb,

35 F.4th 581 (7th Cir. 2022) ........................... 31

Stoddard v. United States,

214 F 566 (8th Cir. 1914) ................................ 22

Stop the Beach Renourishment, Inc. v.

Florida Dep’t of Environ. Prot.,

560 U.S. 702 (2010) ......................................... 31

United States v. Douglas-Willan Sartoris,

22 P. 92 (Wyo. 1889) .................................. 19-20

United States v. Trinidad Coal & Coking Co.,

137 U.S. 160 (1890) ........................................... 4

United States ex rel. Bergen v. Lawrence,

848 F.2d 1502 (10th Cir.).. 14, 15, 22, 24, 26, 31

Utah Power & Light Co. v. United States,

243 U.S. 389 (1917) ........................................... 5

Wood v. Allen,

558 U.S. 290 (2010) ......................................... 30

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Yee v. City of Escondido,

503 U.S. 519 (1993) ......................................... 30

Youakim v. Miller,

425 U.S. 231 (1976) ......................................... 28

CONSTITUTION

U.S. Const. art. IV, § 3, cl. 2................................. 4

U.S. Const. amend. V ......................................... 29

STATUTES

43U.S.C. § 315 ...................................................... 7

43U.S.C. § 315e .................................................... 7

Public Lands Act of 1885,

43 U.S.C. §§ 1061

et seq. ................................ 1-4, 6, 7, 13-26, 28-31

§ 1061 ............................... 1, 6, 16, 17, 19, 20, 27

§ 1063 .......................................... 1, 6, 17, 19, 27

43 U.S.C. § 1701(a)(8) .......................................... 7

RULES

Sup. Ct. R. 10(a) ................................................. 16

Sup. Ct. R. 10(c) .................................................. 25

Sup. Ct. R. 14.1(a) ................................... 3, 29, 30

OTHER AUTHORITIES

BEN PASSIKOFF, THE WRITING ON THE WALL:

REDISCOVERING NEW YORK CITY’S “GHOST

SIGNS” (2017) ..................................................... 8

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Inclosure, BLACK’S LAW DICTIONARY (1819)....... 18

Inclosure, WEBSTER’S PRACTICAL DICTIONARY

OF THE ENGLISH LANGUAGE (1884) ........... 17, 18

Jeffrey M. Schmitt, A Historical Reassessment of Congress’s ‘Power to Dispose of’

the Public Lands, 42 HARV. ENVIRON. L.

REV. 453 (2018) ................................................... 4

MARK E. MILLER, BIG NOSE GEORGE: HIS

TROUBLESOME TRAIL (High Plains Press

2021) .................................................................. 8

Michael Allen, The Hunters, the Landowner

and the Ladder That Triggered a

Wyoming Showdown, THE WALL STREET

JOURNAL (Nov. 10, 2022) .................................. 9

Noah Zahn, Lawmakers Advance Bill

Supporting Legality of Corner Crossing,

WYOMING TRIBUNE-EAGLE (Aug. 21,

2025) ................................................................ 28

Purpresture, WEBSTER’S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH

LANGUAGE 1739 (1909).................................... 21

State of Wyoming, Working Bill Draft

26LSO-0118 v0.5 (Aug. 19, 2025),

available at https://www.wyoleg.gov/Legi

slation/committeeBills/2026 ........................... 28

INTRODUCTION

Some public lands in a few western states are

interspersed with private lands in alternating, squaremile sections. This public-private mosaic forms a

checkerboard pattern. Just like in a game of checkers,

many checkerboarded public-land sections are only

accessible by “corner crossing”—that is, by stepping

from one public-land section to another over the corner

where those two sections meet.

Petitioner Iron Bar Holdings, LLC, owns some

checkerboarded land in Wyoming. It claims that its

property rights include the right to prevent anyone

from corner crossing. If it could enforce such a right,

Iron Bar would possess the incidental right to control

entry to and use of the checkerboarded public lands

next door. Practically, while it only owns some, Iron

Bar would control every square on the checkerboard.

But Congress passed the Unlawful Inclosures of

Public Lands Act of 1885 (UIA), 43 U.S.C. §§ 1061

et seq., to prevent anyone from completely extinguishing

access to and thus making a privately controlled

inclosure of any public land “by whatever means.”

Camfield v. United States, 167 U.S. 518, 525 (1897).

The UIA declares unlawful “[a]ll inclosures of any

public lands in any State or Territory of the United

States[.]” 43 U.S.C. § 1061. Asserting a right to exclusive use of public land “is likewise declared unlawful,

and prohibited.” Ibid. So too is preventing or obstructing

“peaceabl[e] ent[ry] upon” or “free passage or transit

over or through the public lands[.]” 43 U.S.C. § 1063.

In the decision below, the Tenth Circuit applied the

UIA’s text to bar Iron Bar’s claim because “its effect

is to inclose public lands by completely preventing

access for a lawful purpose.” Pet. App. 38a. The court

2

supported its application of the UIA with this Court’s

on-point decision in Camfield, which held that the

UIA limits a checkerboard landowner’s state-law

property rights when exercised to inclose the publicland sections next door. See Camfield, 167 U.S. at 525–

26. Even where a checkerboard landowner exercises

bread-and-butter property rights—like building a

fence on her land—those rights must yield where they

conflict with the UIA by obstructing or preventing

entry to public land. Ibid.

With no circuit split to speak of, Iron Bar seeks

review because it asserts the Tenth Circuit’s application

of the UIA conflicts with this Court’s decision in

Leo Sheep Co. v. United States, 440 U.S. 668 (1979).

That’s wrong.

As the Tenth Circuit explained, Leo Sheep doesn’t

apply to Iron Bar’s claims. Leo Sheep addressed

whether the federal government had a right to build a

road on checkerboarded private land to improve public

access to adjacent checkerboarded public land. On that

question, this Court said the UIA played no role.

But Iron Bar raises a categorically different question:

whether checkerboard landowners can affirmatively

extinguish all access to neighboring checkerboarded

public land. As to that question, the UIA and

Camfield—a statute and a decision unchanged by Leo

Sheep—control. Indeed, in 1988, this Court denied a

petition for certiorari to the Tenth Circuit that invoked

Leo Sheep in the same flawed way. See Lawrence v.

United States, 488 U.S. 980 (1988) (No. 88-837).

Iron Bar’s other points are weaker still.

Iron Bar accuses the Tenth Circuit of addressing

preemption incorrectly. Pet. 2–3, 20–26. But it didn’t.

Following this Court’s lead, the Tenth Circuit recog-

3

nized that state laws apply to “public land areas”

except where they are “inconsistent with” applicable

federal laws. Pet. App. 44a (quoting McKelvey v. United

States, 260 U.S. 353, 359 (1922)). Thus, it concluded

that “the UIA supplants conflicting state law since a

‘different rule would place the public domain of the

United States completely at the mercy of state legislation.’” Ibid. (quoting Camfield, 167 U.S. at 525–26).

Iron Bar also suggests that the UIA—or, sometimes,

the Tenth Circuit’s decision—effected an unconstitutional taking. Pet. 26–27. That contention is not “fairly

included” within Iron Bar’s question presented, which

asks only whether the UIA preempts some property

right to prevent corner crossing and, thus, inclose

public land. Pet. i; Sup. Ct. R. 14.1(a). Nor did Iron Bar

assert a takings claim in this lawsuit—an action it

brought against hunters, not the government.

That said, Iron Bar’s takings theory has no merit.

Applying a preexisting limit on a landowner’s rights,

or abating a nuisance, is not a taking. See Cedar Point

Nursery v. Hassid, 594 U.S. 139, 160 (2021). Congress

enacted the UIA in 1885. Iron Bar bought checkerboarded property in 2005. Its rights have always been

subject to the limits imposed by the UIA. The Tenth

Circuit’s straightforward application of those limits is

no taking.

To counsel’s knowledge, other than Iron Bar, no

other checkerboard landowner in Wyoming has

pressed a trespass suit for corner crossing. Likewise,

other than the failed prosecution Iron Bar urged

against respondents here, corner crossers have only

been prosecuted for criminal trespass one other time

(producing no conviction). In short, corner crossing

seldom produces real-world disputes and never meritorious litigation.

4

The decision below is cabined to circumstances

where corner crossing is the only way to access

checkerboarded public land and the corner crosser

only passes through the airspace above public and

private land situated around the relevant section

corners, never touching nor damaging the private

land. Still, Iron Bar complains that this narrow

decision effectively legalized trespassing across the

country, destroying billions of dollars in property

value. The hyperbole is misplaced. All the Tenth

Circuit held was checkerboard landowners cannot

fully eliminate access to neighboring public lands. And

because multiple circuits have jurisdiction over

checkerboarded land, this Court can await further

percolation in the lower courts to see if Iron Bar’s

policy concerns actually come to pass.

The Tenth Circuit faithfully and correctly applied

the UIA and related caselaw to Iron Bar’s claims. The

petition should be denied.

STATEMENT OF THE CASE

A. Legal Background

From the Founding through the present, the nation’s

public lands have been “held in trust” for the benefit of

“all the people.” United States v. Trinidad Coal &

Coking Co., 137 U.S. 160, 170 (1890); see also Jeffrey

M. Schmitt, A Historical Reassessment of Congress’s

‘Power to Dispose of’ the Public Lands, 42 HARV.

ENVIRON. L. REV. 453, 517–18 (2018). And the Constitution grants Congress plenary power to manage that

trust. See Light v. United States, 220 U.S. 523, 536–37

(1911) (citing U.S. CONST., art. IV, § 3, cl. 2).

While state laws apply in public lands situated

within each state’s territorial boundaries, they do not

“extend to any matter that is not consistent with full

5

power in the United States to protect its lands, to

control their use and to prescribe in what manner

others may acquire rights in them.” Utah Power &

Light Co. v. United States, 243 U.S. 389, 404 (1917). To

this end, state laws “may not . . . invest others with any

right whatever in” federal public lands. Ibid.

Some federal public lands are situated in checkerboard patterns. Congress checkerboarded these lands

as part of a “land-grant scheme” to spur construction

of the transcontinental railroad. Pet. App. 7a. In a 20mile corridor extending north and south from the

railroad’s route, Congress granted the railroad

companies the odd-numbered sections of land while

retaining the even-numbered sections, producing a

checkerboard pattern. Id. at 7a-8a. While Congress

hoped to sell its retained sections, it failed to do so in

a few western states. So the checkerboard land pattern

remains in some places.

Over time, some purchasers of odd-numbered

(private) checkerboarded-land sections have tried to

exploit the checkerboard pattern to secure exclusive

use of the adjacent public-land sections. See Camfield,

167 U.S. at 524–25. Using its constitutional power

over these public lands, Congress responded to these

6

monopolistic efforts with the Unlawful Inclosures of

Public Lands Act of 1885 (UIA). Ibid.

Under the UIA, “[a]ll inclosures of any public lands

in any State or Territory of the United States” are

unlawful. 43 U.S.C. § 1061. So is “the assertion of a

right to the exclusive use and occupancy of any part of

the public lands of the United States in any State or

any of the Territories of the United States.” Ibid. And

so is “prevent[ing] or obstruct[ing] . . . any person from

peaceably entering upon . . . any tract of public land

subject to . . . entry under the public land laws of the

United States, or . . . prevent[ing] or obstruct[ing] free

passage or transit over or through the public lands”

“by force, threats, intimidation, or by any fencing or

inclosing, or any other unlawful means.” Id. § 1063.

Thus, the UIA outlawed every device, however

“ingenious,” employed to completely deny access or

entry to public land, including checkerboarded public

land. Camfield, 167 U.S. at 524–25.

This Court and others thereafter applied the UIA to

prohibit checkerboard landowners’ affirmative attempts

to cut off access to public land. In Camfield, this Court

held that the UIA prohibited “all ‘enclosures’ of public

lands, by whatever means”—including fences erected

entirely on private-land sections. 167 U.S. at 522–25.

As the Court explained, given “the necessities of

preventing the inclosure of public lands,” obstructive

fencing “is clearly a nuisance,” and “it is within the

constitutional power of congress to order its abatement.” Id. at 525. The Court reached that conclusion

“notwithstanding” that abating the nuisance “may

involve an entry upon the lands of a private

individual.” Ibid. The Court also rejected the idea

that the checkerboard pattern itself “operate[s] incidentally or indirectly” to deprive anyone but a

7

checkerboard landowner of the use of checkerboarded

public land. Id. at 526; see also Buford v. Houtz, 133

U.S. 320, 325–26 (1890).

Following Camfield, the Eighth Circuit (then

covering Wyoming) held that the UIA barred a

checkerboard landowner’s trespass action against a

shepherd who crossed private-land sections to reach

public land with his flock. See Mackay v. Uinta Dev.

Co., 219 F. 116, 119–20 (8th Cir. 1914). The court

explained that the UIA “prohibit[s] every method that

works a practical denial of access to and passage over

the public lands.” Id. at 119.

And in McKelvey v. United States, 260 U.S. 353

(1922), this Court held that the UIA’s prohibitions

cover both “continuing obstacle[s]” like physical

barriers and “transient obstacle[s]” like roving, triggerhappy enforcers. Id. at 357. As the Court explained,

under the UIA’s text, “it is ‘free’ passage or transit that

is to be unobstructed,” and “[w]hen some withhold

[passage] from others, whether permanently or

temporarily, it is not free.” Ibid.

Congress has augmented and complemented the

UIA’s public-access protections as it has enacted new

public-land laws. In 1934, the Taylor Grazing Act

(TGA) regulated grazing on public lands while also

prohibiting private actors from restricting “ingress

and egress” to the public lands or interfering with a

person’s “right to hunt” within a grazing district.

43 U.S.C. §§ 315, 315e. In 1976, the Federal Land

Policy and Management Act (FLPMA) strengthened

the federal government’s control over public lands

while expressly protecting “outdoor recreation” and

“human occupancy and use” of public lands. 43 U.S.C.

§ 1701(a)(8).

8

B. Facts and Procedural History

1. Petitioner Iron Bar Holdings, LLC, is owned by

Dr. Fred Eshelman, a multimillionaire pharmaceutical

executive from North Carolina. In 2005, Dr. Eshelman,

through Iron Bar, bought some checkerboarded land

around Elk Mountain in Carbon County, Wyoming.

Pet. App. 12a.1

At the northern end of the Medicine Bow Mountains,

Elk Mountain “stands as a beacon above the surrounding terrain.” MARK E. MILLER, BIG NOSE GEORGE: HIS

TROUBLESOME TRAIL 40 (High Plains Press 2021). The

lands surrounding Elk Mountain are largely open,

unfenced, and unimproved. C.A. App. 773, 798–800,

806–07. As a result, Elk Mountain is “a desirable

location for elk hunting.” Pet. App. 12a.

Iron Bar’s sections are interspersed with 11,000

acres of public-land sections. Ibid. Added together, the

public-land sections tangled up with Iron Bar’s lands

make up a landmass about three-quarters the size of

Manhattan. See BEN PASSIKOFF, THE WRITING ON

THE WALL: REDISCOVERING NEW YORK CITY’S “GHOST

SIGNS” 61 (2017) (noting that Manhattan Island is 22.7

square miles, or about 14,500 acres).

Since acquiring these checkerboarded lands, Dr.

Eshelman, through Iron Bar, has been aggressive in

his efforts to keep Elk Mountain to himself and his

guests by preventing corner crossing. Pet. App. 14a15a. Beginning in 2009, Iron Bar employees would

1

Iron Bar states that when Dr. Eshelman purchased the

property, he relied on “definitive[]” guidance from BLM that

corner crossing is illegal. Pet. 10 (quoting C.A. App. 728). Iron

Bar is quoting Dr. Eshelman’s recollection of unspecified “BLM

websites” he allegedly visited, C.A. App. 728, the contents of

which are not in the record.

9

confront and attempt to expel any person discovered

on a public-land section adjacent to Iron Bar’s

property—no matter how the person got there. C.A.

App. 376–77, 392–93, 448–50. (Unless she arrived by

aircraft. Sort of.2). Iron Bar employees would also

sabotage or interfere with the person’s lawful use of

the public lands. Id. at 565–82.

Then, in 2015, Iron Bar installed two t-posts with

red-and-white “No Trespassing” signs at the first

public-private corner off the county road, northwest of

Elk Mountain. Pet. App. 14a; C.A. App. 433–34. Iron

Bar oriented the “No Trespassing” signs to face

northwest towards the public-land section and the

county road. C.A. App. 438–39. “There were no other

posts, fencing, or buildings within a quarter mile of the

corner.” Pet. App. 14a. Until four days before it sued

respondents, Iron Bar locked these t-posts together

with a chain and wire. Pet. App. 14a; C.A. App. 435,

437. The chained t-posts physically prevented anyone

from walking over the corner. C.A. App. 470 (Iron Bar

property manager: “I have signs there so you can’t step

over [the corner].”); see id. at 332.

2

Iron Bar has represented people may access these public-land

sections by “helicopter.” C.A. App. 462. But its employees

confront people who access the public land this way all the same.

See D. Ct. Doc. 82; Michael Allen, The Hunters, the Landowner

and the Ladder That Triggered a Wyoming Showdown, THE WALL

STREET JOURNAL (Nov. 10, 2022).

10

C.A. App. 418–19.

Iron Bar blocked this first corner off the county road

because doing so kept pedestrians off the public lands

beyond. C.A. App. 460–63.

C.A. App. 84.

11

Since implementing these practices, Iron Bar has

never permitted anyone to cross that first corner. And

it has allowed just one group—some Florida lawyers

who had made a personal request directly to Dr.

Eshelman—to cross its lands elsewhere to reach the

adjacent public lands. C.A. App. 386–88.

2. In 2020, respondents Bradly Cape, Phillip

Yeomans, and Zachary Smith drew tags to hunt elk

near Elk Mountain. Pet. App. 12a. They drove from

Missouri and camped on the first public-land section

off the county road. Ibid. They intended to corner cross

to reach the public lands beyond. Ibid.

At the first corner, Iron Bar’s chained t-posts

obstructed their path. Pet. App. 14a. The chains forced

them to swing around the posts to reach the next

public-land section. Ibid. At the other corners, the

hunters used a GPS navigation app and their eyes to

locate the monument demarcating the corner and then

simply stepped over that monument. Id. at 13a–14a;

C.A. App. 482. They never set foot on or damaged Iron

Bar’s property. Pet. App. 54a–56a; C.A. App. 482.

Even so, Iron Bar’s property manager confronted the

hunters while they were on public land. Pet. App. 56a;

C.A. App. 471–75. The property manager approached

and demanded to know how they got there. Id. at 471.

Cape told him they swung around the t-posts at the

first corner and corner crossed elsewhere. Ibid. The

manager asserted that touching the t-posts was

“criminal trespass.” Ibid. He told the hunters he would

be contacting the local sheriff. Ibid.

A deputy responded and took statements. Pet. App.

56a. Dr. Eshelman demanded that the hunters be

arrested for trespassing. C.A. App. 524–25. After

12

learning the hunters had “merely corner crossed,” the

deputy took no action. Pet. App. 15a.

3. Cape, Yeomans, and Smith returned to Elk

Mountain in 2021 with respondent John Slowensky.

Pet. App. 56a. Given the property manager’s prior

admonition about touching the t-posts, the hunters

brought a ladder to climb over the t-posts at the first

corner. Id. at 56a–57a. After using the ladder at the

first corner, they again used GPS and visual cues to

locate and step over the other corners. And, just like

the 2020 hunt, the hunters never touched or damaged

Iron Bar’s property. Pet. App. 60a.

The 2021 hunt was pockmarked by near-constant

surveillance, sabotage, and hostility. Pet. App. 59a.

Iron Bar’s property manager and other employees

followed the hunters and documented their activities.

C.A. App. 569–72, 581–82. The employees also directly

interfered with the hunters’ pursuit of elk “by driving

motorized vehicles on public parcels . . . to scare away

the game.” Pet. App. 59a. And the property manager

repeatedly reported the hunters to law enforcement.

Ibid.; C.A. App. 583.

Once again, law enforcement did not cite the

hunters for corner crossing. Pet. App. 59a. But Dr.

Eshelman, who was hunting on the other side of the

mountain with some friends, C.A. App. 554, was

undeterred. He instructed his property manager to

keep calling and to try lobbying the county attorney

directly. Pet. App. 59a; C.A. App. 452–53. During one

discussion with law enforcement, the property

manager warned that if the hunters weren’t charged

with trespassing, his “boss” would “shut down” all the

land around Elk Mountain. C.A. App. 470.

13

A few days later, the county attorney ordered the

hunters to be cited for criminal trespass, a jailable

offense in Wyoming. Id. at 591. The hunters took the

case to a trial in April 2022 where a jury acquitted

them of all charges. C.A. App. 601–08.

4. While the criminal case was ongoing, Iron Bar

sued the hunters for civil trespass. Iron Bar claimed

that corner crossing without its approval violated its

property rights because—even if the hunters did not

touch or damage Iron Bar’s property—corner crossing

required some minimal incursion into the airspace

above Iron Bar’s private land. Id. at 74–78. Thus, Iron

Bar claimed a right to prevent corner crossing. Ibid.

The district court entered judgment for the hunters.

Pet. App. 48a–84a. The court concluded that the

hunters had not committed a trespass, finding that

Iron Bar’s airspace rights do not include the right to

prevent corner crossing on foot to access public land

where the corner crosser does not contact, damage, or

interfere with the use of Iron Bar’s property. Id. at 77a.

And the court further reasoned that Iron Bar’s statelaw property rights are subject to “valid preexisting”

legal limits, including the century-old precedent

holding that a checkerboard landowner cannot use

“actions in trespass” to secure for itself “exclusive use

of the public lands.” Id. at 67a (quoting Mackay, 219 F.

at 118–20).

5. A unanimous Tenth Circuit panel affirmed. Pet.

App.1a–47a. The panel first made an “Erie-guess” that

corner crossing would be a trespass under Wyoming

law. Id. at 22a–23a (acknowledging that Wyoming

courts have not spoken directly on the issue). The court

then held that, under the UIA, “a barrier to access,

even a civil trespass action, becomes an abatable

federal nuisance in the checkerboard when its effect is

14

to inclose public lands by completely preventing access

for a lawful purpose.” Id. at 38a.

The Tenth Circuit began with the UIA’s text, which

prohibits making “any inclosure” of public land. Pet.

App. 24a. Relying on contemporaneous dictionary

definitions and statutory context, the court concluded

that “inclosing” public land includes both physical and

non-physical means to remove access to that land—

including lawsuits. Id. at 24a–25a, 30a.

The Tenth Circuit next explained that precedent

supported its plain-text reading. See Pet. App. 26a–

37a. The court noted that this Court’s understanding

of the UIA’s effect on state-law property rights in

Camfield directly applied to Iron Bar’s claim. Id. at

28a–30a. The court also observed that the Eighth

Circuit had already applied the UIA to bar a checkerboard landowner’s civil-trespass action in Mackay. Id.

at 30a–31a. And the court emphasized that its decision

in this case was “made straightforward” by its own

precedent, United States ex rel. Bergen v. Lawrence,

848 F.2d 1502, 1506 (10th Cir.), cert. denied sub nom.

Lawrence v. United States, 488 U.S. 980 (1988). Pet.

App. 38a; see id. at 34a–37a. In Bergen, the Tenth

Circuit had applied Camfield and Mackay to hold that

a checkerboard landowner could not install antelopeproof fencing on its private land, as well as across

private-public corners, when that fencing had the

effect of denying all access to the interior sections of

public land. See Pet. App. 34a–35a.

Having determined that the UIA applied, the Tenth

Circuit concluded that the UIA preempted any statelaw rights insofar as state law allowed Iron Bar to

extinguish access to—and so make a privately

controlled inclosure of—checkerboarded public land.

Pet. App. 44a.

15

The Tenth Circuit also determined—just as it had in

Bergen—that this Court’s decision in Leo Sheep did not

speak to the UIA dispute before it. Pet. App. 33a–34a,

38a–42a. In Leo Sheep, this Court held that the federal

government does not have an implied easement to

build a road on a checkerboard landowner’s property

to increase access to checkerboarded public land. 440

U.S. at 677–81. As the Tenth Circuit noted, unlike Iron

Bar’s claims, Leo Sheep did not involve a checkerboard

landowner eliminating all access to neighboring

public-land sections. See Pet. App. 41a-42a (discussing

Leo Sheep, 440 U.S. at 677–78).

The Tenth Circuit thus held that a checkerboard

landowner’s inability to extinguish access to neighboring

public-land sections by preventing corner crossing

“does not rise to the level of ‘an implied easement’”

rejected by Leo Sheep. Id. at 40a (quoting Leo Sheep,

440 U.S. at 669). The court also observed that Iron

Bar’s claimed right would leave the public without

“any alternative” to freely access checkerboarded

public lands—a fact pattern that this Court had

distinguished in Leo Sheep. Pet. App. 41a (quoting Leo

Sheep, 440 U.S. at 688 n.24).

Finally, the Tenth Circuit rejected Iron Bar’s

argument that applying Camfield and Bergen’s

interpretation of the UIA effects a taking. Pet. App.

44a–47a. The Tenth Circuit explained that Iron Bar

was merely deprived of “the right to exclude others . . .

from the public domain—a right [it] never had.” Id. at

45a (ellipses and brackets in original) (citation

omitted). And “[e]ven if ” the UIA effected a taking, that

taking “occurred when the UIA was passed or when

Camfield was decided.” Id. at 46a–47a.

16

REASONS FOR DENYING THE PETITION

Iron Bar claims a checkerboard landowner may

exclude others from airspace above public-private

section corners its property shares with neighboring

public lands. Because many checkerboarded public

lands are accessible only by crossing these corners,

Iron Bar thus asserts that its ownership of checkerboarded lands includes the right to eliminate access to

these public lands, thereby giving it a functional right

to exclusive use of those public lands. The Tenth

Circuit rejected Iron Bar’s position because the UIA

expressly prohibits it. Pet. App. 50a.

The Tenth Circuit’s decision was correct and does

not warrant further review. The court of appeals

closely analyzed the UIA’s text, which prohibits

unlawful “inclosures” of public land. 43 U.S.C. § 1061.

And the court faithfully parsed and applied this

Court’s precedents—most notably Camfield, which

concluded that the UIA preempts a checkerboard

landowner’s state-law property right when wielded to

make an inclosure of public land, 167 U.S. at 528.

This petition does not meet this Court’s criteria for

granting review. Sup. Ct. R. 10(a). Iron Bar doesn’t

claim that the decision below implicates a circuit split.

No split exists: The Tenth Circuit’s conclusion fully

accords with the Eighth Circuit’s decision regarding

trespass actions in Mackay. Instead, Iron Bar bases its

request for certiorari almost entirely on the proposition that the holding below contravened Leo Sheep.

But the Tenth Circuit thoroughly considered and

correctly rejected that contention. The petition should

be denied.

17

I. The Decision Below Is Correct, Does Not

Implicate Any Split, And Aligns With This

Court’s Precedent.

A. The Tenth Circuit Correctly Applied The

UIA’s Text And Precedent

1. The Tenth Circuit applied the UIA’s plain text

to prohibit Iron Bar from using a trespass action to

eliminate access via corner crossing to public lands.

The UIA declares “[a]ll inclosures of any public

lands . . . to be unlawful.” 43 U.S.C. § 1061. It also

prohibits inclosures that restrict public entry upon

public land, while also broadly targeting any effort to

prevent or obstruct free passage over public lands:

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 settlement

or 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.

Id. § 1063 (emphasis added). Thus, “any inclosure of

public land is prohibited, and no one may completely

prevent or obstruct another from peacefully entering

or freely passing over or through public lands.” Pet.

App. 24a.

“Inclosure” is a noun referring to a thing with one of

two statuses related to the separation of some tract of

land from common (or public) lands. An “inclosure” can

be “that which incloses,” like a physical barrier.

Inclosure, WEBSTER’S PRACTICAL DICTIONARY OF THE

ENGLISH LANGUAGE (1884). Or it can be the “thing

18

which is inclosed.” Ibid. As the Tenth Circuit observed,

Black’s Law Dictionary contemporaneously defined

“inclosure” as “the act of freeing land from rights of

common [and] commonable rights.” Pet. App. 24a

(quoting BLACK’S LAW DICTIONARY (1819)). Thus, to

“inclose” or “mak[e] an “inclosure” of public land is to

withdraw it from the public domain.

Iron Bar’s own assertions show that its trespass

lawsuit would make an “inclosure” of checkerboarded

public land within the meaning of the UIA. As it

conceded below, Iron Bar concedes in its petition that

“many parcels of public land in the checkerboard are .

. . accessible only by ‘corner crossing.’” Pet. i; see also

C.A. Oral Arg. at 6:40–7:01. Still, it claims a right to

prevent corner crossing and thus fully eliminate

access to the checkerboarded public lands adjacent to

its property. E.g., Pet. 2. Through enforcement of this

claimed right, Iron Bar could prevent entry to and use

of these public lands except as its permits. That is, Iron

Bar could fully inclose these public lands.

Iron Bar nonetheless contends that the word “inclosure”

must refer to “a physical barrier” only. Pet. 21.

To start, Iron Bar did maintain a physical barrier

obstructing access to public land: the chained-off tposts at the first public-private corner off the county

road. See Pet. App. 14a; Pet. App. 78a-79a (finding that

these barriers violated the UIA). These obstacles

prevented anyone from stepping directly over that

corner to reach the public-land sections beyond. Pet.

App. 78a-79a; see also pp. 9-11, supra. Iron Bar did not

dispute below that placing t-posts at this juncture

completely prevented pedestrian access. See C.A. App.

332; C.A. Supp. App. 44. Even under Iron Bar’s reading

of “inclosure,” it violated the UIA. See Camfield, 167

U.S. at 528 (holding that a person violates the UIA

19

“when, under the guise of inclosing his own land, he

builds a fence which is useless for that purpose, and

can only have been intended to inclose the lands of the

government”).

In any event, the text forecloses Iron Bar’s cramped

reading. As the Tenth Circuit correctly observed, the

UIA’s text distinguishes “inclosing” from physical

barriers like “fencing.” Pet. App. 25a (quoting 43 U.S.C.

§ 1063). So the word “inclosure” necessarily covers

more than fences and fenced-off land. Ibid. In addition,

the UIA prohibits a laundry list of “inclosing” devices

and methods beyond erecting physical barriers: “force,”

“threats,” “intimidation,” and “maintain[ing] . . . or

control[ling] any . . . inclosure.” Reading the word in

context, Iron Bar’s conflation of “inclosure” with

“physical barrier” is wrong. Mackay, 219 F. at 120

(rejecting trespass action because such “intangible

means” of effecting an inclosure violated Section 1063).

Iron Bar also argues that any private impairment to

public access must be accomplished through “unlawful

means,” 43 U.S.C. § 1063, and it argues that a trespass

claim is inherently “lawful.” Pet. 22. But Iron Bar’s

understanding of what “lawful” means in this context

of this statute is mistaken. Building a fence on one’s

own land may be “lawful” in the abstract, but the UIA

makes it “unlawful” if it prevents access to public land.

See Camfield, 167 U.S. at 528.

Further reinforcing the UIA’s focus on private

actions that withdraw, prevent, or obstruct public

access to public land—whatever form those actions

may take—Section 1061 separately prohibits the

“assertion of a right to exclusive use . . . of any part of

the public lands.” 43 U.S.C. § 1061; see Pet. App. 37a.

“There are numberless ways in which such an

assertion might be made,” United States v. Douglas-

20

Willan Sartoris, 22 P. 92, 97–98 (Wyo. 1889) (Maginnis,

C.J., dissenting)—including through a legal action.

Iron Bar is asserting a right to control passage

through the airspace situated above the public-private

section corners and, in turn, the public lands beyond

any public-private corner. That is an assertion of a

right to exclusive use of several parts of checkerboarded

public land, which the UIA prohibits. 43 U.S.C. § 1061.

2. The Tenth Circuit also correctly explained why

that plain-text reading of the UIA aligns with this

Court’s precedent.

Checkerboard landowners like Iron Bar have never

had any right to eliminate all access to neighboring

public-land sections for lawful purposes. As the

Tenth Circuit observed, dating back to this Court’s

1890 decision in Buford, “appropriating public lands

is presumptively unlawful.” Pet. App. 27a. There,

checkerboard landowners sought an injunction that

would have effectively denied anyone else from

accessing the neighboring public-land sections while

simultaneously granting the landowner “a monopoly of

the whole tract,” two-thirds of which was “public land

belonging to the United States.” Buford, 133 U.S. at

325–26. The Buford Court wrote “[t]he equity of this

proceeding is something which we are not able to

perceive.” Id. at 326.

Camfield also “confirmed that an inclosure in the

context of the UIA is broader than fencing.” Pet. App.

29a. There, this Court interpreted the UIA to prohibit

“all ‘inclosures’ of public lands, by whatever means[.]”

Camfield, 167 U.S. at 525. The Court rejected the

argument that, by granting lands in a checkerboard

pattern, Congress incidentally gave owners of the

private-land sections exclusive control of the publicland sections too—even if that would otherwise have

21

been the result of property-law principles (there, the

right to build a fence on one’s own land). Id. at 526; see

also Mackay, 219 F. at 119 (“Camfield . . . has been

recognized as sustaining the doctrine that ‘wholesome

legislation’ may be constitutionally enacted, though it

lessens in a moderate degree what are frequently

regarded as absolute rights of private property[.]”)

(citation omitted). That the UIA limits a checkerboard

landowner’s rights, producing “inconvenience” to that

landowner, “does not authorize an act which is in its

nature a purpresture of government lands.” Camfield,

167 U.S. at 525 (emphasis added); see Pet. App. 30a,

37a.3 Here, Iron Bar’s trespass action—more precisely,

its attempt to enforce a right to exclude persons from

the airspace above public-private corners—is in its

nature a purpresture of public lands that the public

cannot otherwise reach. See Pet. App. 37a-38a.

The Tenth Circuit also emphasized that its analysis

was consistent with inter- and intra-circuit precedent.

See Pet. App. 30a–32a, 34a–40a, 42a, 46a–47a. In

Mackay, the Eighth Circuit confronted a “similar land

dispute” to the one here, Pet. App. 30a, and held that

the UIA barred a checkerboard landowner’s trespass

action against a shepherd because it would have

prevented the shepherd and his flock from ever

reaching checkerboarded public land. Mackay, 219 F.

at 120. The Eighth Circuit reasoned that the UIA

“prohibit[s] every method that works a practical denial

of access to and passage over the public lands.” Id. at

118, 120. And the Eighth Circuit explained that a

checkerboard landowner cannot “secure for itself that

3

“Purpresture” is a “[w]rongful appropriation of another’s

land; esp., any encroachment upon, or inclosure of, land subject

to common or public rights[.]” WEBSTER’S NEW INTERNATIONAL

DICTIONARY OF THE ENGLISH LANGUAGE 1739 (1909).

22

value, which includes as an element the exclusive use

of the [neighboring] public lands, by warnings and

actions in trespass.” Id. at 120. Likewise, in its earlier

decision in Bergen, the Tenth Circuit recognized that

the UIA targets any effort to completely deny access

to checkerboarded public land for lawful purposes,

whatever form that effort takes. Pet. App. 37a (emphasis

omitted); 848 F.2d at 1511 (“[I]t is not the fence itself,

but its effect which constitutes the UIA violation.”).

All of these decisions point toward the conclusion

that Iron Bar could not eliminate access to checkerboarded public lands surrounding Elk Mountain by

preventing corner crossing. Pet. App. 37a.

B. The Decision Below Is Fully Consistent

With Leo Sheep

Iron Bar does not (and cannot) claim that the Tenth

Circuit’s decision implicates any circuit split.4 As just

discussed, the decision below is consistent with the

Eighth Circuit’s decision a century earlier in Mackay,

219 F. 116.5

Iron Bar’s request for certiorari instead rests on a

meritless claim that the Tenth Circuit’s decision

contravenes this Court’s decision in Leo Sheep.

4

The decision below references a circuit split over whether the

UIA requires that the landowner possess an intent to inclose. Pet.

App. 38a n.32. Iron Bar does not invoke that disagreement as a

basis for this Court’s review. For good reason: there is no question

that Iron Bar intended to inclose public land by obstructing the

first corner off the county road and implementing its other anticorner-crossing practices. C.A. App. 330–33; C.A. Supp. App. 44.

5

Beyond the Tenth Circuit, the Eighth and Ninth Circuits

currently have jurisdiction over checker-boarded land. Cf.

Golconda Cattle Co. v. United States, 214 F. 903 (9th Cir. 1914);

Stoddard v. United States, 214 F 566 (8th Cir. 1914).

23

1. Leo Sheep presented the question whether the

Union Pacific Act of 1862 (the land-grant statute that

created checkerboarded land in Wyoming) reserved an

implied easement to the federal government to build a

road across private-land sections to expand public access

to a reservoir. 440 U.S. at 669. The Court concluded

that the statutory text did not reserve any such right.

Id. at 678–79, 682. It also concluded the federal

government, as a sovereign with the power of eminent

domain, could not rely on the doctrine of easement by

necessity. Id. at 679–82. At the end of the opinion, the

Court observed that the UIA was not of “any

significance in this controversy” and did not grant the

government authority to build the road. Id. at 683–85.

As the Tenth Circuit recognized below, the

conclusion that the federal government lacks implied

authority to build a permanent road on private land

to increase access to public land does not speak to

whether the UIA prohibits a private landowner from

taking affirmative measures to eliminate access to

public land. Pet. App. 39a–40a. On that latter question,

the UIA’s text and Camfield control. Id. at 39a, 42a.

And they provide that private landowners cannot

inclose public land even through means that could be

permissible in another context, like erecting fences on

the landowner’s property. See Camfield, 167 U.S. at

525; Pet. App. 40a.

Iron Bar reads Leo Sheep to hold, sub silentio, that

the UIA affords the public no protection against a

private landowner’s actions effecting “a purpresture of

government lands.” Camfield, 167 U.S. at 525. But Leo

Sheep did not concern the actions of a private

landowner. See Pet. App. 41a (observing that the Court

in Leo Sheep “was plainly rejecting the government’s

overreach”). Nor did Leo Sheep purport to overrule

24

Camfield—it discussed that precedent with approval.

See Leo Sheep, 440 U.S. at 685–86.

Iron Bar emphasizes (Pet. 16) the portion of

Camfield, which Leo Sheep repeated in dicta, suggesting that a private landowner could theoretically fence

each of his private-land sections individually without

running afoul of the UIA. See Leo Sheep, 440 U.S. at

685; Camfield, 167 U.S. at 528. But Camfield was

distinguishing such fencing from obstructions that

serve no purpose other than to inclose public land. 167

U.S. at 528. Iron Bar’s legal pursuit of corner crossing

and its chained t-posts served no purpose other than

to keep the public off public land near Iron Bar’s

property and qualify as inclosing obstructions. See pp.

8-11, supra.

Leo Sheep relied on Buford to contrast the government’s effort to improve access to public land with a

road and the complete denial of access by others. See

Leo Sheep, 440 U.S. at 687 n.24. As this Court

explained, Buford held that checkerboard landowners

could not enjoin shepherds from accessing checkerboarded public land, which required some entry onto

the landowners’ property, because the shepherds

lacked “any alternative” way of reaching the public

land. Ibid. But in Leo Sheep, “necessity” did not

“support[] the Government.” Ibid. Here, as the Tenth

Circuit recognized—and which Iron Bar does not

dispute—corner crossing is the only way for land users

to access many checkerboarded public lands. Pet. App.

41a–42a.

2. This Court has been here before. In Bergen, the

Tenth Circuit rejected a landowner’s effort to maintain

a barrier to checkerboarded public lands by arguing

that Leo Sheep displaced Camfield. See Bergen, 848

F.2d at 1505–07. The landowner made the same

25

arguments in seeking certiorari. See Pet. at i, 10, 22–

23, Lawrence v. United States, No. 88-437 (filed Sept.

12, 1988). This Court denied review then. Ibid. It

should follow suit here.

II. Iron Bar’s Other Arguments For Review Fail

A. The Decision Is Narrow And Breaks No New

Ground

Iron Bar itself has previously denied that this case

implicates “an important question of federal law.” Sup.

Ct. R. 10(c). In resisting the hunters’ removal of this

suit from state to federal court, Iron Bar described the

“federal issues” in this case as “not substantial.” D. Ct.

Doc. 14, at 18. Iron Bar also told the district court that

the case concerned “only two sections” of its property

and an amount in controversy well under $75,000. Id.

at 20–21. Only after losing its remand motion did Iron

Bar revise its estimated damages from the hunters’

momentary incursions on its airspace upwards to $8

million. C.A. App. 611. Now, Iron Bar contends that

this case implicates “billions.” Pet. 31.

Iron Bar tells this Court that it must intervene

because the Tenth Circuit “transform[ed]” the UIA in

ways that “revolutionize[ ] property law,” “eras[e]

billions of dollars in private property value,” and

“take[ ] easements.” Pet. 2, 14, 28. Iron Bar is wrong on

all fronts.

First, Iron Bar contends that the Tenth Circuit

broke new ground by holding that the UIA prohibits

trespass lawsuits that would eliminate access to

checkerboarded public lands. Pet. 13. But Mackay—

relying on a trespass-as-nuisance theory and decided

over a century ago—held just that. Mackay, 219 F. at

117, 120; see also Pet. App. 31a. Yet the “revolution[ ]”

26

in property law that Iron Bar foretells (Pet. 14, 28)

never came to pass.6

Next, Iron Bar’s dire predictions about the

consequences of the decision below rest on a strawman

account of the Tenth Circuit’s analysis. The court did

not “immunize a trespasser who marches straight

down the middle of private property.” Pet. 30. Rather,

the court held only that “if access to public lands

is otherwise restricted,” a checkerboard landowner

cannot sue a corner crosser for trespassing “so long as

they did not physically touch [private] land.” Pet. App.

4a, 47a (emphasis added).

Iron Bar repeatedly quotes the Tenth Circuit’s

remark that allowing individuals to corner cross

“functionally operates like a limited easement.” Pet.

40a; see Pet. i, 2-3, 13, 19, 26, 28. But the court was

explicit that it was not recognizing any easement

across checkerboarded private lands—an “approach”

Bergen had already “foreclose[d].” Pet. App. 40a. It only

rejected a state-law right to extinguish access to

checkerboarded public land. Id. at 38a.

6

Iron Bar invokes (Pet. 18–19) BLM statements about corner

crossing in a 1980s brochure; a 1997 memorandum by an

assistant regional solicitor; and a 2010 press release offering

“tips” for hunting, which provided no legal analysis. C.A. App.

136, 233–34, 237. But the UIA does not grant the Department of

the Interior or BLM any regulatory or interpretive authority. In

any event, judges—not bureaucrats—get final say on what the

law means. See Loper Bright Enters. v. Raimondo, 603 U.S. 369,

384–87, 412–13 (2024). As for the 2004 Wyoming Attorney

General opinion (Pet. 19), that opinion references an unsuccessful

prosecution of corner crossing, C.A. App. 1000–01, and merely

states that some corner crosses “may be a criminal trespass”

under Wyoming law without reaching a conclusion absent specific

facts, id. at 1003–04 (emphasis added).

27

Nor does the decision below condone “permanent,

physical appropriation of ” or damage to Iron Bar’s

property. Pet. App. 39a; see id. at 14a, 16a. As the Tenth

Circuit explained, if Iron Bar refused the construction

of “a public road” on its property to improve access to

neighboring public land—rather than preventing “a

momentary corner-cross” to eliminate such access—

Leo Sheep “may well” decide their case. Id. at 41a. The

Tenth Circuit reserved decision on whether checkerboard landowners would prevail against “new and far

greater public usage” of their property. Pet. App. 47a.

Iron Bar moves on to speculate that even “wellintentioned recreationists” will struggle to identify

section corners with precision. Pet. 14, 31. It also

asserts that trespassing, property damage, and

“burdensome litigation” will proliferate. Ibid.

If corner crossing is a pressing, important issue

because it frequently causes disputes and damage, one

would expect Iron Bar—as the party seeking space on

this Court’s docket—to demonstrate that. Instead,

even Iron Bar’s own amici acknowledge that these

disputes are “rare.” United Property Owners of

Montana Br. 7. And respondents have done the work

petitioner should have, looking for evidence of these

disputes. But to respondents’ knowledge, this case is

the only instance in which a landowner in Wyoming

has sued for corner crossing. And in Wyoming, corner

crossing has been prosecuted criminally only twice,

producing no conviction either time. Likewise, aside

from the opinions in this case, 43 U.S.C. §§ 1061 and

1063 has been cited only 6 times in the last 25 years of

reported decisions, and only twice in appellate decisions.

This Court need not step in to address policy

concerns that have not arisen and may never come to

pass. Indeed, even if reality bore out these concerns,

28

that would still not warrant review because state

legislatures can address them. Case in point: in

August 2025, the Wyoming legislature considered a

bill to amend the state’s criminal code by clarifying

that corner crossing is lawful. Noah Zahn, Lawmakers

Advance Bill Supporting Legality of Corner Crossing,

WYOMING TRIBUNE-EAGLE (Aug. 21, 2025); see State of

Wyoming, Working Bill Draft 26LSO-0118 v0.5 (Aug.

19, 2025) (“Corner crossing clarification”), available at

https://www.wyoleg.gov/Legislation/committeeBills/2026.

B. Iron Bar’s Misplaced Reliance On A

Presumption Against Preemption Further

Counsels Against Review

Iron Bar’s reliance on a presumption against

preemption provides another reason to deny review.

Pet. 3, 20–21. It did not preserve these arguments. And

they are wrong.

Iron Bar did not properly invoke the presumption

below. It failed to raise the presumption against

preemption until its reply brief in the court of appeals.

See Pet. C.A. Reply Br. 7. Surely for this reason, the

Tenth Circuit did not address that argument. See, e.g.,

Hill v. Kemp, 478 F.3d 1236, 1250–51 (10th Cir. 2007)

(invoking the Tenth Circuit’s “general rule” that

“arguments and issues” presented in the reply brief

are waived). “Ordinarily, this Court does not decide

questions not raised or resolved in the lower court.”

Youakim v. Miller, 425 U.S. 231, 234 (1976)

Even so, the presumption is irrelevant here because

the UIA’s prohibition on “inclosures” preempts Iron

Bar’s state-law trespass action.

This Court has said preemption “work[s]” like this:

“If federal law ‘imposes restrictions or confers rights

on private actors’ and ‘a state law confers rights or

29

imposes restrictions that conflict with the federal law,’

‘the federal law takes precedence and the state law is

preempted.’” Kansas v. Garcia, 589 U.S. 191, 202 (2020)

(quoting Murphy v. NCAA, 584 U.S. 453, 477 (2018)).

The preemption inquiry begins with “the text of the

provision in question,” and then “move[s] on, as need

be, to the structure and purpose of the Act[s] in which

[those provisions] occur[ ].” N.Y.S. Conf. of Blue Cross

& Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645,

654–55 (1995).

The Tenth Circuit went through exactly that inquiry.

See pp. 17-22, supra. Iron Bar’s claimed right to

prevent passage over the public-private corners conflicts

with several of the UIA’s express prohibitions. Again,

Iron Bar’s claimed state-law right would effectively

allow it to prevent all access to the public-land sections

next door. Pet. i. But the UIA expressly prohibits

exercising property rights to this effect. See Camfield,

167 U.S. at 525–26. So—whatever its true merits under

Wyoming law, Pet. App. 22a—Iron Bar’s trespass theory

conflicts with the UIA and must recede.

C. Iron Bar’s Takings Claim Is Not Presented

And Lacks Merit

Iron Bar briefly argues (Pet. 26-27) that review is

warranted because the Tenth Circuit’s interpretation

of the UIA effected a taking without due compensation

in violation of the Fifth Amendment. That pitch also

fails.

To start, whether the UIA effects a taking is not

“fairly included” within the question presented and

thus not properly before the Court. Sup. Ct. R. 14.1(a).

Iron Bar’s question (Pet. i) asks only whether the UIA

preempts a landowner’s ability to exclude corner

crossers from its land. It does not include the further

30

question whether, if the UIA does preempt state law in

this way, the statute effects an uncompensated taking.

See Yee v. City of Escondido, 503 U.S. 519, 537 (1993)

(a question that is merely “complementary” or “related”

to the question presented in the petition “is not ‘fairly

included therein’” (quoting Sup. Ct. R. 14.1(a)). That

subsequent question is therefore not presented for this

Court’s decision. See, e.g., Izumi Seimitsu Kogyu

Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27,

30–33 (1993) (per curiam); Wood v. Allen, 558 U.S. 290,

304 (2010) (finding subsidiary question barred by Rule

14.1(a) even where the issue was discussed elsewhere

in the petition).

Nor did Iron Bar advance a takings claim more

generally. It filed a trespass case against hunters. It

did not sue any government for anything. And Iron Bar

does not argue that its interpretation of the UIA is

required as a matter of constitutional avoidance. See

Pet. 14–27.

Even so, any takings claim would be meritless.

Where “consistent with longstanding background

restrictions on property rights,” a governmentauthorized “physical invasion”—including to “abate a

nuisance”—is no taking. Cedar Point, 594 U.S. at 160;

see Pet. App. 46a. Applying a “pre-existing limitation

upon the land owner’s title” is likewise no taking. Lucas

v. S.C. Coastal Council, 505 U.S. 1003, 1028–29 (1992).

Checkerboard landowners have never had a right to

eliminate all access to the neighboring public lands.

See pp. 20-21, supra. As this Court explained in

Camfield, checkerboard landowners “were bound to

know that the sections they purchased of the railway

company could only be used by them in subordination

to the right of the government” with respect to the

neighboring public-land sections. 167 U.S. at 527.

31

Accordingly, the Tenth Circuit reasoned that the UIA

and decisions interpreting it placed “pre-existing”

limits on Iron Bar that prohibited it from preventing

access to the public lands next door. Pet. App. 46a.

At times, Iron Bar appears to agree (Pet. 3, 14) with

the Tenth Circuit’s observation that any taking must

have occurred upon the UIA’s enactment. But where

Iron Bar suggests that the decision below effected a

taking (cf. Pet. 26), this Court has yet to resolve

whether that theory is viable. See Stop the Beach

Renourishment, Inc. v. Florida Dep’t of Environ. Prot.,

560 U.S. 702, 715 (2010); see also Pavlock v. Holcomb,

35 F.4th 581, 586–88 (7th Cir. 2022) (“Since [Stop the

Beach], neither this court nor any of our fellow circuits

have recognized a judicial-takings claim”). Even those

Justices that have entertained the idea have said that

a court decision can constitute a taking only where it

“declares that what was once an established right of

private property no longer exists.” Stop the Beach, 560

U.S. at 715 (plurality op.) (emphasis added). In light of

the UIA and Camfield, Mackay, and Bergen, Iron Bar

cannot claim the decision below eliminated any

“established” property right. See Pet. App. 47a.

This Court should not take this case to explore Iron

Bar’s procedurally deficient and doctrinally unfounded

takings theory.

32

CONCLUSION

The petition should be denied.

Respectfully submitted,

LEE MICKUS

EVANS FEARS SCHUTTERT

MCNULTY MICKUS

1805 Shea Center Drive

Suite 120

Littleton, CO 80129

RYAN A. SEMERAD

Counsel of Record

FULLER & SEMERAD, LLC

242 South Grant Street

Casper, WY 82601

(307) 265-3455

semerad@thefullerlawyers.com

Counsel for Respondents

September 17, 2025