UIA “Anti-Enclosure” Rule: Corner-Crossing Allowed to Prevent De Facto Lockup of Checkerboard Public Lands

1. Introduction

This appeal arises from a recurring Western “checkerboard” land-ownership pattern created by nineteenth-century railroad land grants, in which public and private parcels alternate in square-mile sections. Plaintiff-Appellant Iron Bar Holdings, LLC owns a Wyoming ranch whose private sections surround and interlock with federal and state public parcels. The individual Defendants-Appellees (the “Hunters”) accessed otherwise landlocked public parcels by stepping from one public parcel to another at a shared corner—“corner-crossing”—without touching Iron Bar’s soil, but necessarily passing through the airspace above Iron Bar’s adjoining corners.

The central legal question was whether Iron Bar could invoke state-law trespass principles (particularly airspace ownership) to enjoin corner-crossing, thereby effectively preventing all practical foot access to enclosed public parcels. The Hunters countered that federal law—especially the 1885 Unlawful Inclosures Act (“UIA”), 43 U.S.C. §§ 1061–1066—prevents private landowners from maintaining barriers that functionally “inclose” public lands and obstruct free passage for lawful purposes.

2. Summary of the Opinion

The court’s path to that result is deliberately two-step:

• Step 1 (state-law scope of property): The panel makes an Erie-guess that Wyoming recognizes airspace trespass in the “immediate reaches” above the land; thus, absent federal law, the Hunters’ corner-crossing would be a civil trespass.
• Step 2 (federal override in checkerboard setting): The UIA, as construed in Supreme Court UIA cases and the Tenth Circuit’s Bergen, treats barriers that effectively deny all access to public parcels as unlawful “inclosures”/obstructions—i.e., an abatable federal nuisance. That federal rule displaces contrary state trespass remedies to the extent they would produce a de facto lockup of public lands.

3. Analysis

3.1 Precedents Cited (and how they shape the decision)

A. Framework for review and state-law property definition

• Adler v. Wal-Mart Stores, Inc. (10th Cir. 1998): Supplies the de novo summary-judgment standard and the “correctly applied the substantive law” lens.
• Bd. of Regents v. Roth (1972) and Jordan-Arapahoe, LLP v. Bd. of Cnty. Comm'rs (10th Cir. 2011): Ground the proposition that property rights are defined by “existing rules or understandings” largely sourced in state law, requiring the panel to begin with Wyoming law on airspace ownership and trespass.
• Erie R.R. Co. v. Thompkins (1938) and Pehle v. Farm Bureau Life Ins. (10th Cir. 2005): Support the “Erie-guess” methodology because Wyoming courts have not squarely decided civil liability for this precise corner-crossing airspace intrusion.

B. Airspace, trespass, and the “right to exclude”

• Cedar Point Nursery v. Hassid (2021) and Murr v. Wisconsin (2017): Reinforce the constitutional and normative centrality of the “right to exclude” as a core stick in the property-rights bundle—setting up Iron Bar’s strongest intuitive argument.
• United States v. Causby (1946) and Portsmouth Harbor Land & Hotel Co. v. United States (1922): Provide the modern boundary for ad coelum: a landowner controls at least the “immediate reaches” of airspace necessary to enjoy the land, and “immediate and direct” low-level intrusions can be treated like surface invasions.
• Koenig v. Aldrich (Wis. Ct. App. Aug. 4, 2020): Cited as a limited, nonbinding data point; the Tenth Circuit notes it is outside the circuit and factually distinguishable.

C. UIA history and meaning of “inclosure”/obstruction

• Wis. Cent. Ltd. v. United States (2018): Supports the “ordinary meaning at enactment” approach to interpreting “inclosure,” leading the panel to treat the UIA as reaching more than literal fences.
• OXY USA, Inc. v. Babbitt (10th Cir. 2001): Used for the interpretive canon that Congress’s inclusion of separate terms (“fencing” and “inclosing”) indicates nonredundant meaning—helping the panel conclude “inclosure” extends beyond fencing.
• United States v. Douglas-Willan Sartoris Co. (Wyo. 1889): Cited for the proposition that legal obstacles can be as effective as physical fences—supporting the idea that signs, threats, and legal process can functionally “inclose.”

D. The controlling checkerboard/UIA line

• Buford v. Houtz (1890): Recognizes a historic implied license to use “open and uninclosed” public lands (especially for grazing) absent governmental prohibition, and condemns monopolization of public grazing advantages by strategic private holdings. The panel treats it as part of the doctrinal background and notes the “lack of any alternative” access rationale later highlighted in Leo Sheep.
• Camfield v. United States (1897): The foundational UIA construction: a fence built on private land that functionally encloses vast public lands violates the UIA and may be abated as a nuisance. Critically, Camfield frames “inclosure” as functional appropriation/monopolization of public lands and upholds federal authority to abate such nuisances even if abatement requires entry on private land.
• Mackay v. Uinta Dev. Co. (8th Cir. 1914): Persuasive authority (not binding) recognizing that interlocking private lands cannot be used to create an “unsurmountable” barrier to public-domain passage; it articulates a “reasonable way of passage” concept and interprets the UIA as prohibiting “every method that works a practical denial of access.”
• McKelvey v. United States (1922): Interprets UIA § 1063 to protect “free” transit as transit “open to all,” holding that withholding transit “permanently or temporarily” defeats “free passage.” This supports a broad anti-obstruction principle not limited to fences.
• Leo Sheep Co. v. United States (1979): Rejects an implied easement allowing the government to build a road across private checkerboard sections without compensation. The panel treats Leo Sheep as narrow—about permanent road construction via implied easement—not about limited intrusions necessary to prevent UIA-prohibited enclosure.
• U.S. ex rel. Bergen v. Lawrence (10th Cir. 1988): The decisive circuit precedent. Bergen holds the UIA remains in force (not repealed by the Taylor Grazing Act), applies beyond “range wars,” focuses on the effect of a barrier (not intent), and treats functional enclosure preventing lawful access as a UIA violation/nuisance; it rejects takings arguments on the ground that the landowner never had a right to exclude others from the public domain via enclosure.
• Homer v. United States (8th Cir. 1911) and Golconda Cattle Co. v. United States (9th Cir. 1914): Included to illustrate historical variation among circuits (including treatment of intent), while the Tenth Circuit reaffirms its own Bergen “effect-based” approach.

E. Preemption and Property Clause backdrop

• Kleppe v. New Mexico (1976): Used to situate UIA authority in the Constitution’s Property Clause and to confirm federal supremacy where state laws conflict with congressional regulation protecting federal property.

F. Takings doctrine tensions

• Kaiser Aetna v. United States (1979) and Lucas v. South Carolina Coastal Council (1992): Invoked through Cedar Point Nursery to frame the modern rule that government-authorized physical invasions are typically per se takings, but that “background restrictions” and nuisance abatement can defeat takings claims.

3.2 Legal Reasoning (how the court gets to “corner-crossing allowed”)

A. The court accepts a robust conception of airspace ownership—then limits its practical effect in the checkerboard

The opinion begins with conventional property principles: Wyoming’s “Ownership of Space” statute, WYO. STAT. § 10-4-302, vests airspace ownership in the surface owner (subject to the right of aircraft flight). Coupled with Wyoming’s adoption of the English common law, WYO. STAT. § 8-1-101, the court concludes Wyoming would likely treat the Hunters’ low-level airspace incursion as a civil trespass.

That finding is doctrinally important: the panel does not redefine “trespass” to make corner-crossing disappear. Instead, it holds that federal law overrides state trespass remedies when state remedies would produce the UIA-forbidden result—functional enclosure and total denial of public access.

B. “Inclosure” is functional, not formal—and can include legal threats and civil injunctions

The panel reads the UIA’s text—especially the pairing in § 1063 of “fencing or inclosing” and the statute’s focus on preventing obstruction by “any other unlawful means”—to mean that “inclosure” is not limited to physical fencing. It embraces a practical-effects test: if a landowner’s conduct creates a “virtual wall” that blocks access, it can violate the UIA.

C. The governing doctrinal choice: Camfield/Bergen nuisance-abatement, not Leo Sheep implied-easement limits

The opinion acknowledges an apparent doctrinal tension:

• Leo Sheep Co. v. United States rejects implying a governmental easement to construct a public road across private land without compensation.
• Camfield v. United States and U.S. ex rel. Bergen v. Lawrence allow abatement of barriers that functionally enclose public lands.

The panel resolves the tension by treating Leo Sheep as limited to permanent, physical appropriation (a road) and by treating the UIA cases as authorizing limited intrusions necessary to prevent functional enclosure of public lands. It also emphasizes that it is bound by Bergen absent en banc reconsideration.

D. “Barrier” includes using state trespass law to achieve total closure

The panel’s pivotal move is to characterize Iron Bar’s requested relief—an injunction based on airspace trespass—as itself a barrier whose effect would be complete enclosure of otherwise landlocked public parcels. Under Bergen, it is the barrier’s effect, not its form, that triggers UIA consequences: if the barrier “prevents complete access” for a lawful purpose (here, BLM-authorized public hunting), the barrier becomes an abatable nuisance under federal law.

E. Rejection of Iron Bar’s statutory and preemption defenses

• UIA § 1063 “good faith” clause: The court reads this as protecting good-faith settlement/entry claims on public lands under federal land laws (historically, homesteading), not as a broad shield for private owners to obstruct access to public parcels.
• Preemption: Relying on Camfield and McKelvey, the panel states that a contrary rule would place federal public lands “at the mercy of state legislation.” Therefore, Wyoming’s trespass regime must yield to the extent it conflicts with the UIA’s anti-enclosure command.

F. Takings: acknowledged tension, but Bergen controls

Iron Bar’s strongest constitutional argument is that compelled tolerance of physical invasion of airspace is a taking under modern doctrine, especially after Cedar Point Nursery v. Hassid. The panel candidly notes that modern Supreme Court statements create “some force” for Iron Bar’s position and that Cedar Point treats even intermittent physical invasions as takings when the government appropriates a right to invade.

Still, the panel adheres to Bergen: nuisance abatement and “background restrictions” can preclude takings liability, and the UIA/Camfield regime is such a background limit. The court suggests that even if there were a taking, it would have occurred when the UIA was enacted or when Camfield was decided—meaning subsequent purchasers took title subject to the existing federal limitation.

3.3 Impact (what this decision changes or clarifies)

• Checkerboard access is judicially protected in the Tenth Circuit: The decision strengthens the practical ability of the public (as federal “licensees”) to access landlocked public parcels by corner-crossing when no other foot access exists.
• State trespass law cannot be weaponized to “lock up” public land: Even if state law recognizes airspace trespass, a private owner may be barred from obtaining civil relief that would have the UIA-prohibited effect of enclosing and denying access to public land.
• “Barrier” expands beyond fences: By treating an injunction (and the broader “program” of deterrence) as potentially enclosure-producing, the opinion underscores that functional exclusion—signs, threats, and legal process—can be relevant under the UIA’s effect-based test.
• Takings litigation remains a live fault line: The court flags that modern Supreme Court takings doctrine could invite future challenges if access demands expand (e.g., beyond momentary corner-crossing) or if the Supreme Court revisits the interaction between Leo Sheep, UIA nuisance theory, and Cedar Point.
• Practical governance pressure: The opinion expressly points to potential legislative/executive solutions (e.g., eminent domain for access easements) and acknowledges unresolved issues like tort duties and liability during corner-crossing incidents.

4. Complex Concepts Simplified

• Checkerboard land: Alternating squares of private and public land. A public square may be surrounded on all four sides by private squares, but it can still touch other public squares at a corner.
• Corner-crossing: Moving from one public parcel to another at a single shared corner, without stepping on the private soil in between. Practically, a person’s body passes through the airspace above the private corner.
• Ad coelum (airspace ownership): The old maxim that land ownership extends “to the heavens.” Modern law (via United States v. Causby) limits this to the “immediate reaches” needed for use and enjoyment of land, but still recognizes low-level intrusions as trespass-like.
• Unlawful Inclosures Act (UIA): A federal statute aimed at preventing private actors from fencing in, monopolizing, or otherwise blocking access to federal public lands—especially through methods that effectively enclose public lands inside private holdings.
• Nuisance-abatement theory: Under Camfield v. United States, a structure or conduct on private land can be treated as a nuisance if it effectively encloses public land; the government may compel abatement even though the nuisance is on private property.
• Implied easement vs. limited intrusion: Leo Sheep Co. v. United States rejects implying a permanent access right (like a road easement) without compensation. This case treats corner-crossing as a different category: a minimal intrusion necessary to prevent UIA-prohibited enclosure.
• Preemption: When federal law conflicts with state law, federal law controls. Here, the UIA overrides state trespass remedies insofar as they would enable total blockage of federal public lands.

5. Conclusion

Iron Bar Holdings, LLC v. Cape establishes and clarifies a practical rule for the modern West’s checkerboard: a private landowner in the Tenth Circuit cannot use state trespass law—including airspace-based trespass—to obtain relief that would functionally enclose and deny all access to interspersed public lands. The court reaches that result by (1) accepting that Wyoming would likely treat corner-crossing airspace occupation as trespass, but (2) holding that the UIA, as interpreted by Camfield v. United States and controlling circuit precedent U.S. ex rel. Bergen v. Lawrence, precludes barriers whose effect is total obstruction of lawful public-land access.

The decision is significant not because it diminishes the right to exclude in the abstract, but because it treats the UIA as a longstanding “background restriction” on checkerboard property—one that prevents private owners from converting historic land-grant geometry into a private veto over public land use.