The Checkerboard

Summary

99% Invisible – "The Checkerboard" (December 9, 2025)

Episode Overview

In "The Checkerboard," host Roman Mars and reporter Nick Mott (with contributions from Joe Rosenberg) examine the phenomenon of "checkerboard" land in the American West—vast tracts alternating public and private ownership— and the struggles over access that arise from this legacy of 19th-century government policy. The episode follows the story of four Missouri hunters who set off a landmark legal battle over their right to cross from one public parcel to another by "corner crossing," risking criminal and civil charges to assert public access to public land. As the episode unfolds, a local dispute grows into a national precedent, setting the future of millions of acres at stake.

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Key Discussion Points & Insights

Discovery and the Allure of Elk Mountain (01:01–07:14)

• Hunter's Perspective:
  • Brad Cape, a fencing contractor and lifelong hunter, spots Wyoming's Elk Mountain on a map—an isolated peak promising prime hunting.
  • On arrival, a local tells Brad and his partner:

    “There's no way up there. A billionaire bought it, and he don't let nobody in.”
    (03:00, paraphrased from Brad Cape)

• First Glimpse of the Checkerboard:
  • Brad and his partner realize that the land is visually and legally divided—a "checkerboard" of public and private parcels.

    “When you look at that place on a map, it looks like a bunch of these little bitty squares... It's a checkerboard.”
    (04:21, Brad Cape)

What Is the Checkerboard? (04:32–06:02)

• Defining "Checkerboard" Land:
  • Large swaths of the West consist of alternating square-mile parcels of public and private land, a legacy of railroad-era land grants.
  • Access is restricted:

    “In the US there's no legal way to pass through private property without the landowner's permission. That's trespassing.”
    (05:50, Roman Mars)

The Problem of "Corner Locked" Public Land (06:16–07:06)

• Access Impossible for Most:
  • Public squares are surrounded on all sides by private property—accessible only “catty-corner.” This means much public land is effectively off-limits to the general public.
• The Hunter’s Dilemma and Temptation:
  • The inaccessibility makes public land more appealing for hunters. “That’s where I want to be.” (07:06, Brad Cape)

The Act of "Corner Crossing" (07:14–10:12)

• Strategy in Action:
  • To avoid trespassing, the hunters "corner cross"—moving diagonally from one public square to another, never setting foot on private land.
  • They encounter makeshift barriers (chains and T-posts), requiring gymnastic maneuvering to avoid private property.
• Hunting Success and Confrontation:
  • The group has a successful hunt but is soon confronted by Steve Grindy, the ranch manager, leading to an uneasy exchange:

    “You can't corner jump in Carbon county.”
    (11:27, Steve Grindy) “Just gonna have to go to the court and have them decide.”
    (11:40, Brad Cape)

The Historical Backdrop: How the Checkerboard Was Made (12:07–16:54)

• Origins in Railroad Expansion:
  • Federal policy (starting with Jefferson’s land surveys and accelerating with railroad grants after the Civil War) created checkerboard patterns for westward expansion and resource transport.
• Consequences:
  • Over 130 million acres given to railroads (more than New England, nearly the third-largest “state”).
  • The checkered pattern led to big ranches fencing off not just their parcels but adjacent public ones—leading to “range wars.”
  • The Unlawful Enclosures Act (1885) sought to stop private monopoly over public land, but its enforcement was limited and the checkerboard remains.

The Modern Legal Showdown (17:05–30:22)

• A Repeat Attempt, A New Solution:
  • A year later, the hunters return with a specially crafted ladder to avoid even touching private property.
• Escalating Conflict:
  • The ranch manager repeatedly involves law enforcement; eventually, the hunters are criminally charged for trespass.
• The Stakes Grow:
  • The hunters face up to six months in jail and hefty fines.
  • Owner Fred Eshelman, a wealthy executive, initiates a civil suit for alleged devaluation of his property—first demanded as much as $9 million, which the hunters find absurd:

    “If he wants my 2013 Silverado, I guess he can take it.”
    (29:58, Phil Yeomans) “That dollar amount was so outrageous... it just wasn't a realistic number.”
    (30:22, Brad Cape)

The Courtroom Battles and National Stakes (30:41–35:15)

• Legal Arguments:
  • The prosecution claims trespass happened by passing through “the air” above private land.

    “You own the airspace. How many of you knew that before you came here?”
    (31:50, prosecution, paraphrased)

  • Defense: The hunters stayed on public land, only accessing their rights as members of the public:

    “Just so private landowners can't take the public land... It's all of ours.”
    (32:23–32:36, Ryan Semirad, defense attorney)

• Public Outcry and Support:
  • News coverage brings national attention; advocacy groups rally behind the hunters.
  • The principle of public land access becomes the central theme:

    “It belongs to the public. Yeah, it belongs to everybody. And it shouldn't be monopolized.”
    (33:38–33:42, Phil Yeomans)

The Precedent-Setting Decision (35:15–39:39)

• The 10th Circuit Appeals Court Steps In:
  • The case becomes about access in six Western states, not just Wyoming.
• Arguments Heard:
  • Landowners (led by Eshelman) argue property lines must remain clear; permitting “corner crossing” would cause chaos.
  • Defense argues that Congress never intended the checkerboard to block public access.

    “I don't believe our Congress intended when... this checkerboard pattern was first made... to block the public.”
    (38:07, paraphrased from a judge)

• Victory for the Hunters and the Public:
  • The 10th Circuit rules in favor of the hunters:

    “Corner crossing is not a trespass in all six states.”
    (39:32, Ryan Semirad)

• Not the End Nationwide:
  • The Supreme Court declines to review, leaving clarity only in the 10th Circuit. In other regions, such as Montana (9th Circuit), the legal status remains murky.

Epilogue: Impact and Reflections (39:55–41:16)

• Personal Toll and Resolve:
  • The ordeal lasted four years, but the hunters express no regrets:

    “We didn't set out to do this…we just wanted to go hunt elk.”
    (40:53, Phil Yeomans) Would you ever corner cross again? “Absolutely.”
    (41:01, Phil Yeomans) Why go back? “I think because we can.”
    (41:16, Brad Cape)

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Notable Quotes & Memorable Moments

• “It's a checkerboard.”
  — Brad Cape, explaining the strange map patterns, (04:31)
• “We just grabbed hold of the top of that T post and swung our feet around, you know, kind of doing a little ballerina…”
  — Phil Yeomans, describing the physical act of corner crossing, (08:33)
• “You can't corner jump in Carbon county. Period.”
  — Steve Grindy, ranch manager, (11:27)
• “It's such a simple concept. I got a six year old grandson, I could point this to him very simply...”
  — Brad Cape, on the principle of public access, (26:35)
• “That dollar amount was so outrageous…in the millions, it just wasn't a realistic number.”
  — Brad Cape, on the $9M lawsuit, (30:22)
• “Corner crossing is not a trespass in all six states.”
  — Ryan Semirad, announcing the court victory, (39:32)
• “You could never dream in a million years that you would end up here over something so simple as making one step.”
  — Brad Cape, reflecting on the journey, (40:42)

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Key Timestamps

• 01:01–03:41 – Discovery of Elk Mountain and the lure of inaccessible land
• 04:21–06:02 – Introduction to the checkerboard, origin and obstacles
• 07:06–08:56 – The act of corner crossing described
• 12:07–16:54 – History of checkerboard lands in the West
• 17:11–22:10 – Repeat attempt, legal conflict begins
• 28:22–30:36 – Scope and seriousness of public land "corner locking"
• 31:32–33:52 – Criminal and civil trial; media attention grows
• 35:00–39:39 – Appeals process and 10th Circuit Court’s landmark decision
• 39:55–41:16 – Reflections on the fight, unresolved issues, and continuing personal resolve

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Tone & Language

The episode combines Roman Mars' trademark measured and curious narration with the folksy frankness of the hunters and the procedural candor of the legal discussion. The tone moves from wonder and curiosity (in the hunting scenes) to history lesson, then to tense legal showdown, finally concluding on a bittersweet but hopeful note—a blend of pride, fatigue, and determination.

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Final Thoughts

This episode of 99% Invisible transforms a seemingly obscure tale of four hunters and some Wyoming fences into a much larger story about American land, public rights, private power, and the persisting consequences of old design choices. It demonstrates how design—the literal drawing of boundary lines—can shape access, opportunity, and identity for generations. The "checkerboard" serves as a surprising lens on history, law, and the power of ordinary people to change the map.

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For more stories about the hidden influence of design and policy, visit 99percentinvisible.org.

Transcript

[Roman Mars]

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[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

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[Roman Mars]

This is 99% invisible. I'm Roman Mars. In 2019, two hunters were scouting for elk in Wyoming when they came across a peculiar feature in the landscape. The hunters had first noticed it while pouring over maps of the area. Now they were driving out to see it for themselves, a kind of break in the terrain near the state's southeast corner.

[Brad Cape]

So it's open country, it's open ranch country, sagebrush country, and then there's this big mountain sticking up right there in the middle of it that just. It's the only mountain.

[Roman Mars]

Brad Cape is a fencing contractor from central Missouri. Brad has been hunting since he was old enough to walk. So when he and his hunting partner saw the lone mountain with its dark timber and the arid, empty land around it, he knew what it meant.

[Brad Cape]

It is a very unique place, and you can see on a map that it's a very unique place. But whenever you drive around it, it really comes to life. It is a rocky mountain that sits out by itself. You know, it might as well have a big bullseye on it that says there's elk here.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

And it's true. The mountain basically screamed good hunting.

[Roman Mars]

That's Montana based journalist Nick Mott.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

I'm a hunter, too, so I get how Brad felt when he found this spot. Pouring over land boundaries and topographic lines, trying to figure out where animals are and other hunters aren't. Finding that perfect area is often nearly as exciting as the hunt itself. And this time, all the pieces of the puzzle were fitting into place. The area had everything big game needed. Forage, water, cover, all on the map. The peak was named Elk Mountain, which.

[Roman Mars]

You know, was probably another big clue.

[Brad Cape]

And so we were driving around it. We're just Seeing how close we could get to this mountain. And this sweet old gal pulls up there and rolls down her window and asks if she can help us, you know, and we said, well, we're just looking for a way to that mountain. Is there a way to get. To get up there? We'd like to. We're thinking about hunting it. And she's like, there's no way up there. A billionaire bought it, and he don't let nobody in. And we said, oh, okay, you know, well, is there. Is there any elk around here or deer around here?

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

That's when this sweet old gal told them there were so many elk in the area, they'd actually become a nuisance eating the hay meant for cattle.

[Brad Cape]

And we just kind of looked at each other and said, yes, ma', am. Thank you for your time, you know, and we were excited from that moment on that we were going to find a way in there.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

But finding a way in there wasn't going to be easy. Brad and his fellow hunters would end up trying to access Elk Mountain again and again and again, until eventually it wasn't even about hunting elk anymore, but something way bigger than that. And whether they succeeded or not would end up having lasting consequences for the future of land use everywhere in the.

[Roman Mars]

U.S. because the single largest obstacle preventing the hunters from making it onto Elk Mountain wasn't the elevation or the topography. It was how the mountain itself had been divided up into public and private land.

[Brad Cape]

When you look at that place on a map, it looks like a bunch of these little bitty squares. And when you start looking at it, you see that it is.

It's a checkerboard.

[Roman Mars]

The checkerboard, as it's commonly known, is a phenomenon unique to the American West. A pattern of land ownership which is found in huge areas from New Mexico all the way up to Washington.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

On a map, these particular areas look a lot like, well, a checkerboard or perhaps checkered linoleum tiles. But instead of alternating black and white squares or checkerboarded land alternates between single square mile parcels of public land and square mile parcels of private land. So every public square borders a private square which borders a public square which borders a private square which borders a public square which borders a. Well, you get the idea.

[Roman Mars]

If you look out of an airplane window while flying over a checkerboarded area, it's not uncommon to see one square with a private housing development on it, while the next sits relatively untouched. Or, or perhaps every other square features dense forest on public land, while those private squares in between are logged again. Just think of those alternating tiles.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

An image which Brad finds himself invoking all the time.

[Brad Cape]

Still to this day, if I have someone ask me about this in the grocery store, I can't explain it unless I'm standing on a tile floor. Because here in the Midwest and the rest of the country, they just don't get it.

[Roman Mars]

There's a catch, though, when it comes to hunting or doing anything, really, on the checkerboarded area. In the US there's no legal way to pass through private property without the landowner's permission. That's trespassing.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

So public land in the checkerboard is often very difficult to access. After all, any public square in a checkerboard is surrounded on all sides by private property. It's only ever catty corner to other public squares.

[Roman Mars]

It doesn't matter that the public land belongs to us, the public. The reality is it's only the owners of the adjacent private squares who have an easy way in. These inaccessible public lands are what's called corner locked.

[Brad Cape]

So it's a big deal out west because you have the layout of public land out there, but you're just trying to keep the access to yourself.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

And when it came to hunting in the checkerboard on Elk Mountain, it was no different. The private half of the checkerboard belonged to a ranch, and the ranch wasn't allowing strangers to cross their land.

[Roman Mars]

But to Brad, that just made the public land all the more tantalizing because it meant that it had the one thing that any good hunter was looking for. No other hunters.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

So the next year, in 2020, Brad and his friends, they decided to try something that in hunting circles is called.

[Brad Cape]

Corner crossing, because something where nobody else would be. That's where I want to be. And in order to do that, we had to cross these corners.

[Roman Mars]

To understand corner crossing, think about a literal checkerboard and a checkers game. A piece that starts on black needs to stay on black. So the pieces move diagonally, crossing caddy corner from the corner of one square to another.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Moving through checkerboarded land works in the same way. To avoid the ranch's property. All Brad and his friends had to do was move around like a checker's piece. They'd start on public land and then make sure to stay on public land by only crossing into new squares diagonally at the corners where all those public squares touch.

Tell me about, you know, you. I mean, so the way it works in this area, like, you set up camp and your camp is in the first, like, square that Is publicly accessible, and then you cross from there. Like, how did that work?

[Phil Yeomans]

Yeah, that's exactly what it was.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

That's Phil yeomans. Phil is also from missouri, and he's been hunting with brad for about a decade. Phil explained that this time they all hiked from a public road towards the checkerboard's nearest approachable corner. When they got there, in the middle of this empty field, There was a little government survey marker about the size of a coke can. There were also two no trespassing signs along with a couple of posts called t posts, With a chain strung between.

[Roman Mars]

Them, which was ironic, considering it was obstructing the one spot where they could legally cross.

[Phil Yeomans]

So we just grabbed hold of the top of that t post and swung our feet around, you know, kind of doing a little ballerina around the t post so that we didn't touch the private property.

[Brad Cape]

Yeah, we weren't. We weren't nonchalant about it. We were very specific, you know, as in we planted our foot. Exactly.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

From that point on, they made sure to stay entirely on public land their whole time. Inside the checkerboard, they corner crossed from one public square to another as they hunted for elk on elk mountain.

[Roman Mars]

And from the start, the mountain proved true to its name.

[Phil Yeomans]

Man, that first morning, the bulls were bugling. We could hear them from the county road.

And once we got up to the place, we decided we were going to camp. We saw a big old herd coming, walking down the side hill, and we just stood there and watched them. It was like, this is gonna be good.

[Brad Cape]

But we were up the mountain, up the mountain, up the mountain, and we ended up so far up that mountain, we drank water out of an elk track seeping out of the hill that day. And this elk's bugling just as far away as you can hear, you know.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

They would go on to harvest three big bull elk. And I can tell you, this is a big deal. Most elk hunts lead to nothing, Mine included, and these guys got a haul.

[Roman Mars]

But things weren't all sunshine and roses and big bugling bulls, because just as they were field dressing a bull elk, A man appeared in the distance.

[Brad Cape]

And he makes the walk over to us, which took quite a while. We just kept work, you know. Cause they're half a mile, you know, from us.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

As the man walked over, Brad's friend Zach thought something felt wrong and started recording on his phone.

[Brad Cape]

So he just walks up to us and asks us what we're doing there, you know, and was a little snotty about it. Hey, how Are we doing?

[Richard White]

How are you?

[Brad Cape]

Worn out?

[Phil Yeomans]

Yeah.

[Roman Mars]

How'd you get in here?

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

It was the ranch's manager, a man named Steve Grindy. The hunters told Grindy they got here by crossing from a public section of land to another public section at a corner.

[Brad Cape]

So on that first corner with the signs on it, how'd you get through that? Grabbed the T post and swung around.

[Ryan Semirad]

It.

[Brad Cape]

Got a chain on it so you.

[Phil Yeomans]

Can'T go between them.

[Brad Cape]

But it's also on private property. Anytime you touch that thing, it's criminal trespassing. That's why they're there.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

But the hunters had done their research. They pointed out that Wyoming Fish and Game and even the state Attorney general had said that crossing at corners was legal. But Grindy countered.

[Brad Cape]

You can't corner jump in Carbon county.

[Richard White]

Period.

[Brad Cape]

I believe everything we read says we can.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Well.

[Brad Cape]

Just gonna have to go to the court and have them decide. Right. So that's fine. Okay.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

As uncomfortable as the encounter was, it wasn't out of the ordinary. Spats over corner crossings happen between hunters and landowners all the time. Ultimately, it's all part of a much larger war over public and private land and the checkerboard that began over a century and a half earlier.

[Roman Mars]

The US Government has been in the business of dividing up government owned land into squares since 1785. The system was the brainchild of Thomas Jefferson, who dreamed of selling all those squares to a nation of small yeoman farmers. But the actual checkerboarding of the land began at the tail end of the Civil War when policymakers in Washington wanted American settlers to move west.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Because as anyone who's ever played Oregon Trail knows, moving out west was hard. Beyond the hundredth meridian, most settlers struggled to access the necessary supplies to get their homesteads up and running or their goods to market.

[Richard White]

So.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

So in the mid-1800s, the US government turned to the railroads to move those supplies for them.

[Roman Mars]

Only it turned out that the railroads also needed help.

[Richard White]

The railroads aren't going to build by themselves. The reason they're not going to build by themselves is there's nobody out there and no traffic. You don't build a railroad into the middle of nowhere. This isn't Field of Dreams. You just hope they'll come if you build it.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Richard White is professor emeritus of history at Stanford and the and the author of the book Railroad the Transcontinentals and the Making of Modern America.

[Richard White]

So what you're going to do is you're going to have to get aid in building the railroad. The federal government says we are Going to prime the pump.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

White says the United States was cash poor, but land rich. So the government gave the railroad companies long corridors of land up to 80 miles wide on which to build new rail lines. The railroads could then sell or lease that land to whomever they could lure west. But the government only granted the railroads every other square mile of land. Hence the checkerboard.

[Roman Mars]

With the checkerboard, the government could keep all the undeveloped sections in between and wait for them to go up in value before turning around and selling them to more developers. The new railways would also transport the soldiers needed to push Native Americans off the land the US had promised them and onto reservations.

[Richard White]

So this becomes a means of conquest. And once it's there, once Indian lands can be sold to build the railroads, then the railroads can become the agency for conquering any remaining Indian resistance. So this is how the whole system works. And in this way, it does become an agent of colonization.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Under this system, a lot of land changed hands. In all, over 130 million acres went to the railroads.

[Richard White]

And to put that in perspective, if all the federal grants to railroads were combined into one state, if you called it railroadiana, it would be the third largest state in the United States, behind Texas and Alaska.

[Roman Mars]

One company alone, the Northern Pacific railroad, received an amount of land roughly the size of New England.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

And almost all of it was given away in alternating one square mile sections.

[Richard White]

So the checkerboard, on paper, this is a system is ideal. What can possibly go wrong? It seems to be foolproof, but like most systems that seem to be foolproof, they're usually designed by fools. And that's what's going to happen here.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

When the railroad sold their land, it went to timber companies, it went to miners, it went to developers, but especially ranchers who saw a sort of two for one bargain on all that checkerboarded property. All you had to do was buy the private squares and then fence off all the adjacent public squares and they would effectively be yours for the keeping, too.

[Roman Mars]

By the 1880s, big cattle barons had fenced in millions of acres of land they didn't own. But. But homesteaders and smaller scale ranchers and farmers weren't happy about all that fence.

[Richard White]

The fences block settlers because settlers have to be able to drive their wagons, get to railroad depots, and they're blocked by fences.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

The tension between settlers and ranchers quickly grew ugly. There were standoffs, shootouts, murders. Later on, dime novels, radio programs, and television shows like Gunsmoke would dramatize this era known as the range wars. Those cattlemen built this country, Matt, a.

[Brad Cape]

Few more years now, they'll have us fenced out of it.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Times change, Ben.

[Roman Mars]

In 1885, in an effort to curtail the power of the big ranchers, Congress finally stepped in and passed the Unlawful Enclosures act, which guaranteed public access to public land.

[Richard White]

You can still build fences around your own land. You can control access if there hasn't been a right of way established across your own land. But you cannot enclose and you cannot enclose land that you do not own.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Today, the Unlawful Enclosures act is still on the books. But the act never did much to break up the ranches and other big properties of the western US and those large landowners never stopped looking for ways to secure their property, including in the checkerboard. That part never seems to change.

[Richard White]

So Jefferson's dream of this whole thing ending up as being small farms, that is just simply not the case. The west ends up as a place of very, very large land hold.

[Roman Mars]

And it still very much was when Brad and the hunters stepped from corner to corner of public land in 2020.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

After that first hunting trip, they could easily have left and just never come back. Why risk another awkward run in? But in the end, the hunting was just too good. Plus, they'd spoken with law enforcement who told them they were good to go. After all, the Unlawful Enclosures act was still in force. So the following year, they went back to hunt Elk Mountain.

[Roman Mars]

But this time, just to be on the safe side, they made one small adjustment to their corner crossing strategy.

[Brad Cape]

The only thing that we had that the ranch complained about was that we touched their T post, you know, so we just had to get past that T post without touching it. And then there was nothing that they could say. So that's where the whole ladder idea came in.

[Roman Mars]

If they shouldn't touch the T posts, then why not find a way to climb right over them?

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

What did you build? Like, how did you build the ladder? This wouldn't be.

My solution necessarily. I wouldn't think about building a ladder. What goes into it?

[Brad Cape]

Well, I guess maybe if you were a pole vaulter, you would take a pole vault with you. I was a fence guy, so I had. I had access to a lot of pipe and a welder. So just went back here in the shop and welded some pipe together.

[Roman Mars]

Brad fashioned together a ladder that unfolded to a specific height, length and width. The dimensions allowed it to go right over the T posts and across the corner, all without ever touching the ranch's property.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

And when the hunters crossed, using Brad's ladder, just like the time before, other than those T posts, there were no fences, no gates, no other infrastructure. The hunters designed, built, set up, and climbed a specialized ladder to cross through empty airspace in an empty field just so they could say that this time they were following the very letter of the law.

Carbon County Sheriff's Office.

[Brad Cape]

Hi, this is Steven Grindy with Elk Mountain Ranch again calling. We had an issue with some trust pastors out here off Rattlesnake Pass in a canvas pin.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Not too long after the hunters got there, that same ranch manager from earlier, Steve Grindy, recognized their truck from the previous year. He called local law enforcement agencies repeatedly. Eventually, a sheriff's deputy and Fish and game officer both showed up.

[Roman Mars]

How's it going, Chris?

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Steve, here's the body cam footage.

[Roman Mars]

Have you seen them cornered past?

[Brad Cape]

Yeah, we just watched. I just watched them.

[Roman Mars]

So that's.

[Brad Cape]

I have signs jump this corner right here. What they have is a ladder that.

[Phil Yeomans]

They put down and go over.

[Roman Mars]

Grundy's efforts to keep the hunters out of the public land went beyond phone calls to police. At one point during the trip, Grindy poked his head in the hunter's tent and got escorted away by an officer. Another time, he tracked the hunters down in his truck, cursed them out, and tailed them while they were hiking on a road that passes through public land.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

And as the law enforcement officers giggled about the latter in that body cam footage, a frustrated Grindy let this slip.

[Brad Cape]

Do they realize how much money my boss has?

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

The ranch was owned by a pharmaceutical executive from North Carolina named Fred Eshelman. I reached out to Eshelman and his lawyers for an interview. Neither got back to me, but we know Eshelman told the ranch manager to keep talking to the authorities until they could get the hunters prosecuted. And eventually, Eshelman's strategy worked.

[Roman Mars]

The county attorney charged Brad, Phil and their hunting partners, John Slowinski and Zachary Smith, with criminal trespass and sent a sheriff's deputy to their campsite.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Again, here's the body cam footage.

[Brad Cape]

All right, so just so it's not a surprise, you guys are all going to get cited for criminal trespass. Not a surprise.

As to what was, but we. I still don't understand why.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

With this citation, the hunters were facing up to six months in jail, plus a big fine.

[Brad Cape]

So in Wyoming, it's. If you go past private boundary or a marked area, it is considered trespass. So Elk Mountain Ranch is marked, is no trespassing. So that's what they're going to use is you guys went beyond the boundaries of the elk mountain range. But if I never touch Oak Mountain range, you know, if I never touched the ranch, how did I trespass? So it's this has been a point of contention in Wyoming for a long time, right? So especially so 20 miles north and south of the railroad is the checkerboard, right? And it's been this way for a long time. So hopefully you guys can come back and fight it.

[Roman Mars]

When we come back, Brad and the other hunters do just that. Stay with us.

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[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

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Suddenly it seems quite practical. The Volkswagen Tiguan, packed with premium features like available massaging front seats, that only feels extravagant.

[Roman Mars]

And we're back with the story of America's public lands and whose checkerboard it really is.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

When the Wyoming Sheriff's Office charged the hunters with criminal trespassing on Fred Eshelman's land, things might very easily have just ended there after all. At that point, it really was just a matter of corner crossing. In this one area, on this one ranch, there were plenty of other places in the country they could go hunt.

[Phil Yeomans]

Elk, you know, we went back and forth contemplating whether we were going to just plead guilty, pay the $750, or what it might be. None of us were too concerned about the six month in jail type thing.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

But although the stakes for Brad and Phil and the other hunters personally were low, the principal involved seemed like part of something bigger, starting with their belief that corner crossing to access public land, which again is something hunters and other people do all the time, is legal.

[Brad Cape]

It's such a simple concept. I got a six year old grandson, I could point this to him very simply and he would easily end up on the right side of this. This is just smoke and mirrors to try and steal the public's land.

[Roman Mars]

So they decided to lawyer up. To win, they would need someone with experience representing both hunters and ranchers. Someone who knew the laws, both spoken and unspoken, of the mountain west. Someone who knew the difference between a mock scrape and a rub line they needed. When it came down to it, a guy like them, they got Ryan.

[Ryan Semirad]

My name is Ryan Semirad. I am an attorney in Casper.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Were you in tune with Emily? Were you a hunter, an angler? Were you in tune with sort of public land issues in this case?

[Ryan Semirad]

No, I have never hunted. I think I have caught a fish once.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Ryan is originally from New York, not Wyoming, but his wife is from the area. And when they wanted to have kids, they decided to move closer to her family.

[Ryan Semirad]

And that's what brought us back to Wyoming. And that is the only reason that I am here.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

At first, Ryan had no idea what to make of the case.

[Ryan Semirad]

They described it as a corner hopping case. I assumed, and I was wrong, but I assumed that must have meant something really, well, weird and rural, like a cow tipping case or something, or you left your neighbor's gate open. I don't really know.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

But Ryan talked to some local friends. They told him this is a big deal here and it has been for a long time. They sent him a study, and he learned that although a lot of the original checkerboarded area had been bought up and consolidated into these single land holdings, Today, more than 8 million acres of public land across the Western US remain corner locked.

[Roman Mars]

That's an area of public land only slightly smaller than Switzerland, completely inaccessible to anyone except for landowners like Eshelman.

[Ryan Semirad]

That's when it kind of dawned on me that this was maybe a bigger issue than just this one case.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

So Ryan agreed to represent one of the hunters in the criminal trial. But he ended up representing all of them in civil court when he got notice that Fred Eshelman, the owner of the ranch, had decided to sue the hunters too.

[Roman Mars]

Eshelman argued that he had bought the ranch with an understanding that Corner Crossing was illegal. Suddenly, allowing it now would mean an influx of hunters and recreationists regularly trespassing on his private property. The chaos, as he saw it, would effectively devalue the land. The exact dollar amount he was suing for changed over time, but he put the total cost as high as $9 million.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

What is the reaction you're hearing from Phil and Brad and the others when they hear that?

[Ryan Semirad]

Yeah, well, I will tell you.

That was a pretty tough moment when you tell anybody, hey, you have this exposure and especially these guys. I mean, these are not pharmaceutical executives. They are not billionaires. $9 million. That's financial apocalypse.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Although for two people facing financial apocalypse, Brad and Phil seemed pretty stoic about it.

[Phil Yeomans]

Yeah, so.

I told you, I'm a. I'm a truck mechanic.

Like, Buddy, I don't know. I guess my biggest concern was, you know, I want to make sure my wife. We still have a home. But I guess if he wants my 2013 Silverado, I guess he can take it.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

If anything, Eshelman had sued them for too much money for it to have the desired effect. Phil thought 9 million was laughable. Brad, too.

[Brad Cape]

That dollar amount was so outrageous, if he would have said a couple hundred thousand, that would have scared me. But in the millions, you know, it just wasn't a realistic number.

[Roman Mars]

But Eshelman wasn't deterred. He just kept applying more pressure.

[Ryan Semirad]

I've never seen this happen before. It kind of shocks me is while we were waiting for that criminal trial to begin, for the jury selection to begin, jurors are filing in court, staff are filing in. My guys are all sitting there, and a sheriff's deputy walks up to each of them and issues them one more citation in front of the jury.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

So another ticket, another criminal charge, this time for that first crossing back in 2020, a whole year before the ordeal they thought they were being tried for.

[Phil Yeomans]

So, yeah, that's. That's when we first learned about that. And I kind of handed the. I kind of looked at Ryan. I said, well, what do you want? What do I do with this? He said, throw it in the trash.

[Ryan Semirad]

And that's how the trial began.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

All right, court's back in session. The matter before the court is the state of Wyoming versus Bradley Cape. John Slowinski.

[Roman Mars]

I have Philip Yeoman and Zachary Smith. In the criminal trial, the state's lawyers argued that even if the hunters didn't set foot on private land, when they ballerinaed over the t posts in 2020 or climbed over them in 2021, they passed through air itself that's owned by the ranch.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Being a property owner has value. It matters. So do boundaries. And in Wyoming, the law is, you don't just own the ground. You don't own the earth. You own the airspace. How many of you knew that before you came here? Ryan's defense consisted of a few different points, but basically it came down to this idea that the hunters never physically trespassed. Plus, they had air and land rights, too. Only in their case, it was the right of access to public land.

[Ryan Semirad]

The government can't Take away your land without compensating that to take.

But just so private landowners can't take the public land.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

It's not theirs.

[Ryan Semirad]

It's all of ours.

[Roman Mars]

And as the trial wore on, something else was happening. All sorts of other people started to take notice, including hunters and environmentalists who have been struggling with checkerboard enclosures for years. But also hikers, bicyclists, and fishermen who, thanks to new GPS mapping apps, could now see the full extent of the checkerboard. And on all that inaccessible public land. Journalists got interested, too.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Even before the trials had ended, the New York Times, the Washington Post, and the Wall Street Journal all ran features about the four hunters from Missouri, their little ladder, and corner crossings.

[Roman Mars]

Hunting and public lands advocacy groups rallied members, raising money for the defense. And for those paying attention, the case became about something larger than just this one little square in Wyoming. It was about public access to public land all over the country.

[Phil Yeomans]

The significance of it, the millions of acres, you know, the corner lock land.

It just. It's public land.

That's what it is. It belong. It belongs to the public. Yeah, it belongs to everybody. And it shouldn't be monopolized.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

I live in Montana, where there's a lot of public land and also lots of checkerboarded country. Even here, more than 500 miles from where Brad and Phil crossed, their case made waves. I ran into a guy in a yoga class not too long ago wearing a corner crossing is not a crime T shirt.

[Brad Cape]

So you get to a point where you can't back out. It's a moral thing. It's all of that. Right? And that's why it became bigger than us.

[Roman Mars]

And while the social status of the case got bigger, the legal stakes climbed too. The hunters won at both trials, but the civil case ended up before the U.S. 10th Circuit Court of Appeals. The 10th Circuit is based in Denver and oversees six Western states. This wasn't a small one off case any longer, or even a case just setting the precedent.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

In Wyoming, the circuit court had the power to settle whether corner crossing was legal in all six of those states. The outcome would decide who got effective access to a huge amount of public land. And it was Eshleman's side now, backed up by a bunch of other landowners that had appealed to the 10th Circuit. They were the ones who wanted to go big. Ryan told me what he thought that meant.

[Ryan Semirad]

They have this kind of imperial intent, that it's our lands, the lands they bought, and all of these public lands, too. That's really what this case is about. They're going to shut out the public from the public lands.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

So May 2024, you're in Denver. Have you made arguments in front of a circuit court before? No.

[Ryan Semirad]

Their very first time. Looks like everybody's ready to go with that. Let's call the first case.

Which is 238043 Ironmar holdings vs Cape. You may proceed. Good morning. Your eyes, may it please the court.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

The morning of the 10th Circuit hearing, an armada of well respected attorneys showed up representing Eshelman. And since Eshelman's side brought the suit, they went first.

[Roman Mars]

Some of the arguments had more or less stayed the same from the criminal trial. But now things got more nuanced. Eshelman's team argued that private property is a building block of society.

[Ryan Semirad]

Property lines have sharp edges because of the consequences of eroding them. So there's practical implications of this case that I want to address.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

The gist of their argument was what Eshelman had maintained all along, that whatever high ideals we might have about public lands, the on the ground reality was that legalizing corner crossing would be an invitation for chaos in places without government survey markers.

[Roman Mars]

And there often aren't any. People would start to accidentally trespass all the time if corner crossing was legalized. But also there was no need to permit corner crossing. The government already had better tools at its disposal to resolve the problems created by the checkerboard.

[Ryan Semirad]

All of this can be fixed by the government tomorrow if the government wants to create access. Just as they have gone from 150 million acres of originally locked land, today less than 9 million remains. They are making progress.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

And that's true. Although those last 9 million acres have proven tricky to eradicate. The there are various mechanisms for erasing the private squares in the checkerboard or just letting the public pass through. Eshelman's side argued there's no need to override all that policy for the sake of some elk hungry hunters. If anything, this is a question for the legislature and local agencies, not the courts.

[Roman Mars]

Meanwhile, Brad and Phil and the other hunters were streaming the proceedings from Missouri. They didn't attend the oral arguments in person.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

When you watched it, did you guys like it together? Did you watch it separately or.

[Brad Cape]

No, we watched it separate. We all work.

[Ryan Semirad]

May it please the court. Ryan Somer after the employees.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

When it was Ryan's turn to speak, Brad and Phil could both tell as they listened in that Ryan's core arguments were also much the same as in that first trial.

[Ryan Semirad]

You can't exploit the interlocking land pattern to to deny everybody else the benefits while you reap them all.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

But this one moment toward the end of the hearing stood out to them both.

[Phil Yeomans]

For me, it was when, and I don't remember the judge's name, he said, yeah, I don't believe our Congress intended When they wrote the laws and this checkerboard pattern was first made. They didn't intend it to block the public.

[Ryan Semirad]

If you look back at when the railroads were going across, Congress said, we want to give the railroads half the land and the public half the land.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Did Congress really intend, the judge asked, for the public to have no real right to the land from their half of the deal?

[Ryan Semirad]

If somebody had just posed the question.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

That way to Congress, I have no.

[Ryan Semirad]

Doubt how they would have answered that question.

[Roman Mars]

This past March, nearly a year after the oral arguments In Denver, the U.S. 10th Circuit Court of appeals issued its opinion on the case of of iron bar holdings versus Cape. That day, Ryan was in court in Wyoming.

[Ryan Semirad]

So I try to rush back to the office and I print off the opinion and I sit down to read it, and just what is it? What am I about to read? And as I read was perfect in many ways.

[Roman Mars]

The opinion was everything Ryan and Brad and the other hunters had argued for since the very beginning. The court laid out the history of the west, the railroads, the checkerboard grants, the enclosures, the range wars. It explained how the land is supposed to work.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

The opinion said, these public lands in the west, they're for everyone, and that's who they were always for.

[Ryan Semirad]

So we win. Corner crossing is not a trespass in all six states.

[Roman Mars]

The 10th Circuit's decision won't bring total closure. After Eshelman's team appealed again, the US supreme court refused to take up the case. Which means that for now, at least, the status of Corner crossing and public land access in the other 44 states remains murky.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

The last time I met up with Brad and Phil, they were passing through where I live on their way to their big annual western hunting trip, this time in Montana. Here we're in the 9th Circuit, along with other western states with lots of checkerboarded land like Idaho, Oregon and Washington. Montana's fish and game agency has said corner crossing remains unlawful here, so don't do it. But other authorities in the state disagree, and the issue remains as unclear as ever. It's unlikely Brad and Phil will be involved in whatever comes next. The whole saga has already taken up four years of their lives. And that, they said, was enough. But talking with them, I could tell they're a little bit bummed the Supreme Court didn't take up the case. The way they see it, there's still more locked up land that needs to be freedom.

[Brad Cape]

You could never dream in a million years that you would end up here over something so simple as making one step.

[Phil Yeomans]

Yeah, you know, we didn't set out.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

To.

[Phil Yeomans]

Do this, you know, we just wanted to. We just wanted to go hunt elk.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Would you guys ever corner cross again?

[Phil Yeomans]

Absolutely. Absolutely.

We put in now every year since I believe, Elk Mountain.

[Brad Cape]

Yes. We're going back. We don't know when, but we're going back.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

Why do you want to go back so bad?

[Brad Cape]

I think because we can.

[Roman Mars]

99% Invisible was reported this week by Nick Mott and edited edited by Joe Rosenberg Mix by Martin Gonzalez Music by Swan Real fact checking by Graham Hacha Special thanks this week to Savannah Tate Wright, Aula Kouziz and Melody Starr Edwards. Kathy Tudor is our executive producer. Kurt Kohlstedt is the digital director. Delaney hall as our senior editor. The rest of the team includes Chris Barube, Jason De Leon, Emmett Fitzgerald, Christopher Johnson, Vivian Lej, Madonn Kelly Prime, Jacob Medina, Gleason, Talon and Rain Stradley and me, roman Mars. The 99% invisible logo was created by Stefan Lawrence. We are part of the SiriusXM podcast family now headquartered six blocks north in the Pandora building in beautiful uptown Oakland, California. You can find us on all the usual social media sites as well as our own Discord server. There's a link to that as well as every past episode of [e-mail].

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[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

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[Roman Mars]

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[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

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[Roman Mars]

Clorox Clean. Feels good.

[Narrator/Reporter (possibly Nick Mott or Joe Rosenberg)]

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