United States ex rel. Bergen v. Lawrence
848 F.2d 1502, 19 Envtl. L. Rep. (Envtl. Law Inst.) 20 (1988)
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Rule of Law:
A fence constructed entirely on private land violates the Unlawful Inclosures of Public Lands Act (UIA) if its effect is to enclose public lands. The UIA's protection of "free passage or transit" over public lands extends to wildlife and is not limited to humans.
Facts:
- The land in south central Wyoming, known as Red Rim, is owned in a "checkerboard" pattern of alternating private and public sections resulting from a federal railroad land grant.
- Taylor Lawrence owned or had permission to fence the private sections of land and held grazing permits for the adjacent federal and state sections.
- Lawrence constructed a twenty-eight-mile fence entirely on his private lands, but in a way that enclosed over 20,000 acres of land, including approximately 9,600 acres of unreserved public domain.
- The Red Rim area provides critical winter range for Wyoming pronghorn antelope.
- The fence Lawrence built was "antelope-proof," effectively denying the animals access to this critical winter habitat.
- During the severe winter of 1983, antelope gathered against the fence and starved to death in an unsuccessful attempt to reach their winter range on the enclosed public land.
Procedural Posture:
- The United States, on behalf of Bergen, filed a complaint against Taylor Lawrence in the United States District Court for the District of Wyoming, seeking removal of a fence under the Unlawful Inclosures of Public Lands Act.
- The Wyoming and National Wildlife Federations were permitted to join the lawsuit as intervenors.
- The intervenors filed a motion for a preliminary injunction to have portions of the fence removed before winter.
- The district court consolidated the hearing on the preliminary injunction with a full hearing on the merits of the case.
- The district court entered a final judgment and order in favor of the government, directing Lawrence to remove or modify the entire fence.
- Taylor Lawrence, as appellant, appealed the district court's final order to the United States Court of Appeals for the Tenth Circuit.
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Issue:
Does a fence built entirely on private land that encloses federal public lands and prevents wildlife from accessing those lands violate the Unlawful Inclosures of Public Lands Act?
Opinions:
Majority - Stephen H. Anderson
Yes. A fence constructed on private land violates the Unlawful Inclosures of Public Lands Act (UIA) if its effect is to enclose public lands and prevent access for a lawful purpose, which includes forage by wildlife. The court's reasoning is based on several points. First, the case is controlled by the Supreme Court precedent in Camfield v. United States, which held that the UIA prohibits all enclosures of public land, regardless of whether the fence is physically located on public or private property. Second, the court rejected Lawrence's argument that the order constituted a "taking" by creating an easement for antelope; rather, the court was abating a nuisance proscribed by federal law. Third, the court distinguished Leo Sheep Co. v. United States, noting that case concerned whether the government had an implied easement for a road, not whether a fence was an unlawful enclosure. Finally, the court interpreted the UIA's protection of "free passage or transit" to apply to wildlife, reasoning that Congress did not limit this clause to "persons." It determined that providing habitat for wildlife is a modern "lawful purpose" for public lands, as evidenced by the Federal Land Policy and Management Act (FLPMA), and is therefore protected by the UIA.
Analysis:
This decision significantly modernizes the application of the 1885 Unlawful Inclosures Act by extending its protections beyond human activities like settlement to include wildlife access and conservation. It establishes that the "lawful purposes" for which public lands must remain accessible can evolve over time, allowing courts to interpret historical statutes in light of contemporary federal land management policies, such as those in the FLPMA. The ruling powerfully reaffirms the federal government's authority under the Property Clause, as established in Camfield, to regulate activities on private land that adversely affect adjacent federal lands, setting a strong precedent for using this power for environmental and wildlife protection.
