ELR Citation: ELR 20339
No(s). C85-0136-B (D. Wyo. Nov 1, 1985)

The court rules that ranchers cannot, under §1063 of the Unlawful Inclosures of Public Lands Act (UIA), erect livestock fences on public or private property if the fences prohibit wildlife access to public land. The court holds that defendant's fence, even though on private land, except where it crosses common corners of state or federal land, encloses public lands and so violates the UIA unless it meets Bureau of Land Management (BLM) standards for fence construction promulgated pursuant to the Taylor Grazing Act (Grazing Act). BLM standards require that fences allow antelope passage and defendant concedes his fence is antelope proof. The court holds that UIA §1063 applies not only to the exclusion of persons from public lands but animals as well, as shown through court precedents and congressional intent. The court finds that in Camfield v. United States, 167 U.S. 518 (1897), the Supreme Court found that the purpose of UIA was to provide access to public lands. The court notes that Congress, in the Federal Land Policy and Management Act, established providing wildlife habitat as a goal for public land management, and in the Grazing Act, passed subsequent to UIA, reaffirmed access to public lands. The court rejects defendant's contention that the Grazing Act repealed UIA by implication, noting that congressional intent to repeal must be clear and manifest, and UIA itself was amended in 1984. The court holds that the Grazing Act should be interpreted in conjunction with UIA; that the Grazing Act regulates fencing on public land, and that unless fences on private land comply with BLM standards, the UIA will prevent the wrongful enclosure of public lands. The court further rejects defendant's contentions that BLM tacitly approved the fence by not initiating suit for two years, noting that BLM's inaction was not motivated by approval but by a false belief it lacked jurisdiction to prevent the fence's construction. Also, defendant's grazing leases on the enclosed land do not qualify him for an exemption to UIA §1063 as the title holder since the leases do not grant him color of title, and the defendant's gates do not make the fence any less of an enclosure, since they are impassable to antelope. The court holds that the fence constitutes a nuisance that must be abated.

Counsel for Plaintiff
Richard A. Stacy, U.S. Attorney; Francis L. Pico, Ass't U.S. Attorney
P.O. Box 668, Cheyenne WY 82003
(307) 772-2124

Counsel for defendants
Clyde O. Martz
Davis, Graham & Stubbs
Suite 4700, 370 17th St. P.O. Box 185, Denver CO 80201-0185
(303) 892-9400

Counsel for Plaintiff-Intervenors
Thomas D. Lustig
National Wildlife Federation
Campus Box 401, University of Colorado Law School, Boulder CO 80309
(303) 492-6552