The Checkerboard – 99% Invisible

In 2019, hunters Brad Cape and Phil Yeomans were searching for elk in southeast Wyoming when they came across a rocky peak that seemed perfect for elk hunting, a suspicion piqued by its name: Elk Mountain. But finding a way up Elk Mountain would be extremely difficult, and if Brad and Phil succeeded it would have lasting consequences for the future of land use everywhere in America because the biggest obstacle preventing hunters from getting to the mountain was not altitude or topography. It was that the mountain was on a special type of land known as “checkerboard”.

Checkerboard is a pattern of land ownership unique to the American West, found across vast areas from New Mexico to Washington. On a map, these special areas resemble a checkerboard, but instead of alternating black and white squares, the checkerboard lands alternate between single square-mile parcels of public land and square-mile parcels of private land.

In Railroaded: The Transcontinentals and the Making of Modern America, Stanford historian Richard White explains that the checkerboard was created at the end of the Civil War, when the U.S. government granted railroad companies long corridors of land – up to eighty miles wide – on which to build new rail lines and encourage westward migration. But almost all of this land was given away in one-square-mile lots. This checkerboard pattern allowed the government to hold all the undeveloped sections in the middle and wait for them to rise in value before selling them to developers. Most of the checkerboard land today, even if now owned by private sections, originated from these early railroad grants.

But the chessboard will pose a problem for Brad and Phil. You can’t pass through private property without the landowner’s permission, so public intersections in the checkerboard are often very difficult to access, and Elk Mountain was no different. The private half of the chessboard belonged to a farm, and the owner of the farm, a billionaire pharmaceutical executive, was not allowing strangers to cross his land. So when they returned to hunt the area in 2020, Brad and Phil and a few other hunting buddies decided to try something called corner crossings.

To understand corner crossing, think of a literal chessboard. In the game of checkers, the piece that starts on black must remain on black. Therefore the pieces move only diagonally, crossing from the corner of one square to the other. Walking on a checkerboard floor works the same way. To escape the farm property, Brad and Phil and the others simply had to move around like a checkers piece. They will start on public land and then make sure to stay on public land, by entering new squares diagonally, at the corners where all the public squares they touch touch.

The hunters headed to the nearest accessible corner of the checkerboard from a public road, where they found two no trespassing signs, as well as some posts tied to a chain between them, blocking the space where they could legally cross. So he grabbed the tops of the pillars and swung his feet around, making sure they would not touch private property. From that point on, they lived entirely on public lands inside the checkerboard while hunting elk on Elk Mountain, crossing the corner from one public crossing to the other.

But in the middle of their hunt, a manager of the ranch approached them and insisted that touching the ranch’s pole would count as trespassing. So when they returned to hunt Elk Mountain the next year, Brad brought a ladder that extended to a specific height, length and width, allowing hunters to go right over the T-post and around the corner, without touching the ranch’s property.

But this did not satisfy the owner of the farm. They asked the manager of the farm to contact authorities, until eventually the county attorney charged the hunters with criminal trespass. The chances of going to jail were slim, so hunters could end things there by paying a small fine and promising to stay away from Elk Mountain and hunt elk elsewhere. But hunters believed the public should have the right to access public lands, including checkerboard. Therefore, instead of paying the fine, the poachers decided to fight the case.

The resulting five-year legal battle, involving two criminal charges and a multimillion-dollar civil case, revolved around the central question of whether corner crossings are or should be legal, and with it, who actually has control over millions of acres of public land. Along the way, the stakes attracted private landowners, public land users, lobbying groups on both sides of the divide, and the national media. The case eventually came before the U.S. Tenth Circuit Court of Appeals. The court ruled in favor of the hunters, saying that the public was owed half of the deal the government had made with the railroad a century and a half ago.

The Tenth Circuit’s decision will not bring complete closure. Its decision only affects six western states, and the U.S. Supreme Court declined to take up the case, meaning that, for now, the status of corner crossings and public land access in the other 44 states remains unclear. It’s unlikely that whatever happens next will involve Brad and Phil. One thing’s for sure, though: They’re eager to get back to hunting Elk Mountain.