Corner-Crossing as UIA-Protected Access: Federal Nuisance Doctrine Preempts State Airspace Trespass in Checkerboard Lands

3.1 Precedents Cited

Property, exclusion, and airspace

• Cedar Point Nursery v. Hassid and Murr v. Wisconsin were cited to emphasize the centrality of property and the “right to exclude,” framing Iron Bar’s argument as implicating a core “stick” in the property-rights bundle.
• Bd. of Regents v. Roth and Jordan-Arapahoe, LLP v. Bd. of Cnty. Comm'rs anchored the methodological move: property rights’ contours generally come from state law (hence the court’s initial turn to Wyoming law).
• United States v. Causby supplied the modern limitation on the ad coelum doctrine while preserving a landowner’s “immediate reaches” of airspace as protectable; Portsmouth Harbor Land & Hotel Co. v. United States illustrated actionable low-altitude invasions.
• Pa. Coal Co. v. Mahon was referenced for the classic ad coelum phrasing in American doctrine; the opinion also noted the Restatement approach to aerial trespass as context.
• Koenig v. Aldrich was acknowledged but discounted as factually distinguishable and nonbinding (Wisconsin Court of Appeals).

Federal/state choice-of-law and interpretive tools

• Erie R.R. Co. v. Thompkins and Pehle v. Farm Bureau Life Ins. were invoked to justify the Erie-guess about Wyoming’s likely approach to airspace trespass.
• Wis. Cent. Ltd. v. United States supported original public meaning methodology for statutory terms like “inclosure.”
• OXY USA, Inc. v. Babbitt supplied a textual canon (avoiding surplusage) in the UIA parsing (“fencing or inclosing” suggests “inclosing” is broader than “fencing”).
• Adler v. Wal-Mart Stores, Inc. governed de novo review of summary judgment.

The UIA checkerboard line: from open range to modern access

• Buford v. Houtz recognized an implied license rooted in open-range custom permitting use of uninclosed public lands, and (as later read) reflected sensitivity to lack of alternatives.
• Camfield v. United States is the foundational UIA interpretation: the federal government may abate private conduct on private land that constitutes a “nuisance” by effectively enclosing public lands, even if abatement requires entry onto private land. The court emphasized that “inclosure” is broader than literal fencing and targets monopolization/appropriation of public land access.
• Mackay v. Uinta Dev. Co. (Eighth Circuit) treated checkerboard exclusion threats as raising an “unsurmountable” barrier and held the would-be user “entitled to a reasonable way of passage” to reach public domain; persuasive but not binding in the Tenth Circuit.
• McKelvey v. United States applied UIA § 1063 to violent intimidation obstructing “free passage,” clarifying that passage is “free” only when open to all, not when withheld even temporarily.
• Leo Sheep Co. v. United States rejected an implied federal easement to build a road across railroad-grant lands without compensation; the Tenth Circuit treated it as limited to permanent, physical public-road construction rather than the UIA’s narrower nuisance/access logic.
• U.S. ex rel. Bergen v. Lawrence was the controlling Tenth Circuit precedent: the UIA remains in force (not repealed by the Taylor Grazing Act), prohibits barriers whose effect is to enclose public lands, and authorizes abatement without creating a compensable easement—because the landowner never had a right to exclude others from the public domain.
• U.S. ex rel. Bergen v. Lawrence (district court) was quoted and affirmed for rejecting the view that the UIA is confined to “range wars.”
• Golconda Cattle Co. v. United States and Homer v. United States appeared in the discussion of intent/effect; the Tenth Circuit aligned with its own Bergen approach that effect (not intent) governs.
• Est. of McMorris v. Comm'r was used to explain why Eighth Circuit predecessor decisions are not automatically binding in the Tenth Circuit.

Preemption and the Property Clause

• Kleppe v. New Mexico was cited for the breadth of Congress’s Property Clause power and the supremacy of federal rules “respecting” federal lands over inconsistent state law; McKelvey v. United States likewise recognized state police regulation only when consistent with congressional enactments.

Takings doctrine and nuisance “background restrictions”

• Kaiser Aetna v. United States and Cedar Point Nursery v. Hassid reinforced that government-authorized physical invasions can be per se takings requiring compensation.
• Lucas v. South Carolina Coastal Council supplied the “background principles” limitation: no taking occurs where the challenged restriction is a pre-existing limitation on title (including nuisance abatement).
• U.S. ex rel. Bergen v. Lawrence provided the circuit’s operative resolution: the landowner loses only a right it “never had”—the right to exclude others from the public domain by enclosing it.

3.2 Legal Reasoning

(a) Step one: the court accepts (for purposes of the appeal) that Wyoming would call this a trespass

The court did not minimize the right to exclude. Starting from traditional trespass doctrine and United States v. Causby, it reasoned that a surface owner retains exclusionary rights in the “immediate reaches” of airspace necessary to use and enjoy the land. Because Wyoming adopts the common law (WYO. STAT. § 8-1-101) and declares airspace ownership vested in surface owners “subject to the right of flight” (WYO. STAT. § 10-4-302), the court predicted the Wyoming Supreme Court would treat the hunters’ brief occupation of Iron Bar’s immediate airspace at the corner as a civil trespass.

(b) Step two: the UIA changes the outcome because exclusion here would “inclose” public lands

Having found state law favorable to Iron Bar on the trespass label, the court then held federal law controls the access question. The UIA’s core prohibitions are (i) unlawful “inclosures” of public lands, and (ii) preventing or obstructing “free passage or transit over or through the public lands.” The court rejected the narrow view that “inclosure” requires a fence, emphasizing statutory text (“fencing or inclosing”) and the historical meaning of the term as a broader method of depriving the public of common/public rights.

Critically, the court applied the Bergen principle that “it is not the [barrier] itself, but its effect which constitutes the UIA violation.” Even a lawful private right (like excluding trespassers) becomes federally unlawful when asserted in a way that effectively encloses public land by eliminating practical access. Here, the public parcels inside Iron Bar’s ranch were otherwise inaccessible by foot (absent aircraft). An injunction barring corner-crossing would, in effect, convert the checkerboard into privately controlled islands of public land—exactly the monopoly the UIA was enacted to prevent.

(c) Why Camfield v. United States (and U.S. ex rel. Bergen v. Lawrence) controls over Leo Sheep Co. v. United States

Iron Bar’s primary doctrinal attack was that allowing corner-crossing functionally creates an access easement inconsistent with Leo Sheep Co. v. United States. The panel rejected that framing because Leo Sheep addressed a qualitatively different governmental act: bulldozing a public road and inviting public use without compensation. That is a permanent physical occupation resembling an easement and triggers takings concerns.

By contrast, the UIA line—especially as synthesized in Bergen—operates through nuisance abatement: the landowner may not maintain a barrier whose effect is to enclose public land. The “reciprocal” of forbidding enclosure is that limited, necessary access must be permitted, but the panel treated this as a background restriction embedded in the title of checkerboard lands since the UIA (and its authoritative interpretation in Camfield), not as an implied easement newly created by the judiciary.

(d) Rejection of Iron Bar’s statutory, preemption, and takings defenses

• UIA § 1063 “good faith” clause: The court read this clause as protecting bona fide claims to federal public lands under the land laws (homesteading-type claims), not modern private fee owners attempting to exclude access to landlocked public parcels. It also rejected the notion that grazing leases could supply “fee title” for the defense, citing 43 U.S.C. § 315(b) and discussing Smith v. Third Nat'l Exch. Bank and Cameron v. United States.
• Preemption: The court held the UIA preempts inconsistent state law, relying on Camfield v. United States (state law cannot put public domain “at the mercy” of state legislation) and McKelvey v. United States, and reinforced by Kleppe v. New Mexico.
• Takings: The panel acknowledged tension with modern takings doctrine (especially Cedar Point Nursery v. Hassid) but adhered to Bergen: abating an unlawful enclosure/nuisance does not “take” a property right the landowner ever had. Any limitation is a pre-existing “background restriction” (invoking Lucas v. South Carolina Coastal Council), and Iron Bar acquired its land subject to the UIA’s longstanding limits.

3.3 Impact

• Practical access rule in the Tenth Circuit: The decision cements that, in checkerboard configurations where public parcels are otherwise landlocked, private owners cannot use state trespass law to categorically bar corner-crossing that avoids surface contact—because doing so would “inclose” public lands in violation of the UIA as construed by U.S. ex rel. Bergen v. Lawrence.
• Litigation strategy shift: The opinion signals that “barriers” are not limited to fences; legal strategies (including civil trespass actions) may be treated as impermissible when their effect is total exclusion of access to public land. Future plaintiffs may attempt to reframe claims as safety, interference, or damages-based theories rather than exclusionary injunctions.
• Limits preserved: The ruling does not authorize building roads, creating trails, or broader physical occupations across private land; it distinguishes Leo Sheep Co. v. United States and leaves compensation questions open if access demands expand materially.
• Federalism and public-lands management: The decision reinforces robust federal supremacy in ensuring usable public land access where the UIA applies, complementing Property Clause doctrine highlighted through Kleppe v. New Mexico.
• Takings uncertainty remains: The panel flags potential doctrinal friction between Bergen and modern per se physical-invasion takings doctrine (e.g., Cedar Point Nursery v. Hassid), but treats the UIA as a “background restriction.” That framing will likely shape future takings challenges and possible Supreme Court review.