United States Ex Rel. Bergen v. Lawrence

620 F. Supp. 1414, 16 Envtl. L. Rep. (Envtl. Law Inst.) 20, 1985 U.S. Dist. LEXIS 14270
CourtDistrict Court, D. Wyoming
DecidedNovember 1, 1985
DocketC85-0136-B
StatusPublished
Cited by4 cases

This text of 620 F. Supp. 1414 (United States Ex Rel. Bergen v. Lawrence) is published on Counsel Stack Legal Research, covering District Court, D. Wyoming primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States Ex Rel. Bergen v. Lawrence, 620 F. Supp. 1414, 16 Envtl. L. Rep. (Envtl. Law Inst.) 20, 1985 U.S. Dist. LEXIS 14270 (D. Wyo. 1985).

Opinion

MEMORANDUM OPINION

BRIMMER, Chief Judge.

This case arises from the contentions of the United States and plaintiff-intervenors Wyoming Wildlife Federation and National Wildlife Federation (Wildlife Federations), that defendant has wrongfully fenced in federal land in violation of the Unlawful Inclosures of Public Lands Act, 43 U.S.C. §§ 1061-1066. At the hearing on plaintiff-intervenors’ motion for preliminary injunction, with the agreement of counsel, the Court consolidated the matter into a full hearing on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2).

At the conclusion of the evidence and final arguments, the Court concluded that the Wildlife Federations upheld their burden of proof both for the preliminary injunction and upon the merits of the case, and orally granted their motion and ordered defendant to take down certain portions of the fence within ten days, and modify or remove the entire fence within sixty days. In order to ensure removal of the portions of the fence necessary to avoid a disaster to the antelope herd in case of an early onset of winter weather, the Court issued a written Order Granting Motion for Preliminary Injunction on October 29,1985, setting that date as the beginning of the ten day period. This memorandum opinion now confirms the oral Order and Order on Preliminary Injunction, and more fully sets out the reasoning of the Court.

Defendant owns a cattle ranch in the vicinity of Rawlins, Wyoming, and in the spring and summer months for about 60 days grazes his cattle on a combination of private, federal and state lands in the area of south central Wyoming known as Red Rim. Red Rim is an escarpment and uplifting plateau of approximately 22,000 acres, fifteen miles southwest of Rawlins, Wyoming, which lies just south of the railroad right-of-way granted to the Union Pacific Railroad in 1862. Red Rim contains an abundance of Wyoming big sagebrush, which, as testified to by Mr. Moody and Dr. Alldredge, is not eaten by cattle, but constitutes the major part of an antelope’s diet, especially during winter. Due to Red Rim’s geological features, winter winds blow the snow off this sagebrush, allowing the antelope to find food here when their other grazing areas are covered over with deep snow. The Wyoming Game and Fish Department has declared that portions of Red Rim constitute critical winter habitat for pronghorn antelope. See plaintiff-inter-venors’ exhibit number 11. The Baggs antelope herd which uses Red Rim for winter range is estimated to number 2,000 or more, and those 2,000 antelope have virtually no other alternative winter feeding grounds.

Red Rim, and defendant’s Daley Ranch, are the legacy of a checkerboard ownership plan arising from the Union Pacific Railroad Act of July 1, 1862, c. 120, 12 Stat. 489, 492(3) and (4), as amended by Act of July 2, 1864, c. 216, 13 Stat. 356, 358(4). Pursuant to the Union Pacific Act, Congress transferred fee ownership of odd-numbered sections of land along the railroad lines to the Union Pacific, and retained Federal ownership in the even-numbered sections. Defendant now has fee title or permission to fence from the title owner, to the Union Pacific sections in question, and has grazing permits on the *1416 odd-numbered federal and state sections. Defendant’s fence, which covers 28 miles, is physically located on private land, except where it crosses at the common corners of state and federal sections, as shown on the attached diagram. (Stipulation Finding #14)

The matter in issue is quite simple. Defendant Lawrence contends that since the fence is located on his land, and that he can construct it in any manner he chooses, without having to comply with Bureau of Land Management (BLM) requirements. Plaintiff-intervenors counter that since the fence encloses public lands, it violates the Unlawful Inclosures Act, unless the fence conforms with BLM standards promulgated pursuant to the Taylor Grazing Act, 43 U.S.C. § 315 et seq. Those BLM standards require that fences for cattle operations provide a gap of at least sixteen inches at the bottom, with a bottom strand of smooth wire, so that antelope can crawl underneath, and with a top wire only thirty-eight inches high, to allow antelope to jump the fence when snow drifts block passage beneath the bottom strand. Defendant’s fence on the other hand, is made of woven wire with no gap at the bottom, and is topped off with barbed wire at a height of five feet, making it, as defendant admits, antelope-proof. Joint Stipulation number 14 and Exhibit B.

In 1897 the United States Supreme Court dealt with an identical situation in Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed.2d 260 (1897). Camfield acquired from Union Pacific the rights to several odd-numbered private sections of land, and

in building the fence complained of, the defendants had constructed it entirely on odd-numbered sections ... so as to completely enclose all of the government lands aforesaid, but without locating the fence on any part of the public domain so included. Id. at 519, 17 S.Ct. at 864.

The Supreme Court considered Camfield’s argument that he could do whatever he wished on his own land, and soundly rejected it. The Court found that the Unlawful Inclosures Act had been promulgated just to avoid such an outcome.

If the act be construed as applying only to fences actually erected upon public lands, it was manifestly unnecessary, since the Government as an ordinary proprietor would have the right to prosecute for such a trespass. It is only by treating it as prohibiting all “enclosures” of public lands, by whatever means, that the act becomes of any avail. Id. at 525, 17 S.Ct. at 867.

Finally, the Court concluded that defendant’s intent, whether to irrigate the public lands or use them for pasturage, was unimportant. The only matter at issue was whether or not the fence violated the statute.

The device to which defendants resorted was certainly an ingenious one, but it is too clearly an envasion (sic) to permit our regard for the private rights of defendants as landed proprietors to stand in the way of an enforcement of the statute- Considering the obvious purposes of this structure, and the necessities of preventing the enclosure of public lands, we think the fence is clearly a nuisance, and that it is within the constitutional power of Congress to order its abatement, notwithstanding such action may involve an entry upon the lands of a private individual. Camfield at 525, 17 S.Ct. at 867.

The situation in this matter is virtually identical to that dealt with by the Supreme Court in Camfield. Although written in 1897, Camfield is still good law, and in fact was relied upon by the Supreme Court as recently as 1983 in North Dakota v. United States, 460 U.S. 300, 319, 103 S.Ct. 1095, 1106, 75 L.Ed.2d 77 (1983).

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Cite This Page — Counsel Stack

Bluebook (online)
620 F. Supp. 1414, 16 Envtl. L. Rep. (Envtl. Law Inst.) 20, 1985 U.S. Dist. LEXIS 14270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-bergen-v-lawrence-wyd-1985.