Here are the various aspects of those
laws and regulations, which I have stored full documents on a
Fencing
Page of the EMWH website.
Montana Code Annotated - minimum 3 wire fence,
maximum 48" in height, bottom wire not less than 15-18".
Unlawful Inclosures of Public Lands Act - The
Unlawful Inclosures Act of 1885 (UIA), as amended, is applicable
to fencing constructed along or adjacent to public lands. This
law states, in part, that "No person, by force, threats,
intimidation, or by any fencing or enclosing, or other unlawful
means...shall prevent or obstruct free passage or transit over
or through the public lands..." The courts have ruled that
the UIA guarantees access to public lands for all lawful purposes
and that wildlife access to and use of Federal lands is a legitimate
use
The BLM Fencing Standards Handbook - "The
[Taylor] Grazing Act regulates fencing on public land, and unless
fences on private land conform to those standards, the UIA prevents
fences which wrongfully enclose public lands."...In summary,
the "Red Rim" fence decision (United States v. Lawrence)
establishes that legal action may be taken against parties who
construct fencing on private lands that could enclose or block
access by wildlife to public (Federal) lands.
The BLM Handbook states 3-4 wire fence
involving deer, elk, moose or antelope with a top height of 38",
40 is acceptable if necessary with cattle. The bottom wire needs
to be smooth and 16" from the bottom as shown below. Below
is a pic of the Wilks fence which has been reported as higher
than 48" and the bottom wire in this one is about 6"
off the ground - 5 wire.

Wanting the copies of
the surveys, I made a call to the Fergus
County Fergus County Clerk & Recorder, to see about electronic
copies of the BLM land surveys. They could not locate the parcels
in question without a Certificate of Survey (COS) number. I had
Geocodes and Legal Descriptions from the Montana Cadastral program,
which did not list any Certificate of Survey numbers. The clerk
referred me to the Fergus County Assessors office who could take
my Geocodes and give me the COS for each parcel. Problem was,
there has never been any professional surveys on record for these
BLM lands in order to have a Certificate of Survey number, not
one. I checked all the surrounding Wilks parcels with the Cadastral
and none of those show any COS either. I called the Assessors
office back and ran a number of these parcels through, providing
the Geocodes and no Certificate of Survey numbers for the Wilks
parcels either, not even the smaller one that was part of a large
block of BLM land.
One of my questions: How can fences
be erected without a survey? Also, "After
BLM staff conducted a flyover and ground visits using a survey-grade
GPS, no encroachment was found," if there has not been
a professional survey? After speaking with professional surveyors,
confirming with FWP that they did not give approval to the Wilks
for the fencing as rumored (which I have stated they did not have
jurisdiction to do), and speaking with BLM who confirmed there
is no professional survey, I concluded the necessity of requesting
the BLM to conduct a professional survey of our public lands to
protect our Public Trust from special interests.
At issue here is a wildlife obstructing
non-compliant fence, which may be partly on private land and partly
erected on public (due to WAAS enabled GPS readings), ground disruption
and damage to Public Lands, unlawfully enclosing our Public Lands
(UIA), possible posting of no trespass signs on Public Lands (should
the professional survey corroborate the GPS readings) and the
possible intent to privatize our Public Wildlife. The reason I
bring this last subject up, is if the Wilks were simply erecting
a fence to mark their boundaries for any of the Public that flew
into the Durfee Hills, why go to the labor and cost to erect a
5 wire wildlife obstructing fence? A 3 or 4 wire would have sufficed
for marking boundaries.
Below is part of a letter which I sent
to the Bureau of Land Management State Director Jamie Connell
requesting the BLM conduct a professional survey and investigate
the Wilks fence around the Durfee Hills. Please use any of this
information and the email link below to send a letter, standing
up for our Public Lands.
____________________________________________________
jconnell@blm.gov
Bureau of Land Management State Director
Jamie Connell,
I am writing to request the Bureau
of Land Management, a trustee/trust manager of our public lands,
to conduct a professional survey of the Durfee Hills in Fergus
County, Montana, which does not have a current professional survey,
per the Fergus County Assessors office – to define the legal
boundary, to check for ground disruption and that private fencing
does not encroach on our public lands.
I would also like to request that you
investigate the Wilks 5 wire fencing being erected to determine
it's compliance with the Unlawful Inclosures of Public Lands Act,
which is cited in your BLM Fencing Standards Manual H-1741-1,
“Fences Along Public-Private and Public-State Land Boundaries,
The responsibility to install fencing along the boundary between
Federal public lands and lands owned by non-Federal entities (i.e.,
State, local, private) generally rests with the non-Federal landowners...The
Unlawful Inclosures Act of 1885 (UIA), as amended, is applicable
to fencing constructed along or adjacent to public lands. This
law states, in part, that 'No person, by force, threats, intimidation,
or by any fencing or enclosing, or other unlawful means...shall
prevent or obstruct free passage or transit over or through the
public lands...' The courts have ruled that the UIA guarantees
access to public lands for all lawful purposes and that wildlife
access to and use of Federal lands is a legitimate use. ”
The following BLM properties, known as the Durfee Hills - Geocode,
with Legal Descriptions in parentheses.
08-2143-14-1-03-01-0000 (S14, T12 N,
R22 E, S2NE4, SE4NW4, E2SE4)
08-2143-13-1-03-01-0000 (S13, T12 N,
R22 E, SW4NE4, S2NW4, S2S2, NW4SW4, NW4SE4)
08-2143-23-1-01-01-0000 (S23, T12 N,
R22 E, NE4, N2SE4, NE4SW4)
08-2143-24-1-02-01-0000 (S24, T12 N,
R22 E, G LTS 2,3,4, W2E2, NW4, SE4SW4)
08-2144-19-3-01-01-0000 (S19, T12 N,
R23 E, G LTS 3 AND 4, E2SW4, W2SE4)
08-2143-25-1-01-01-0000 (S25, T12 N,
R22 E, G LTS 1,2,3, W2NE4, NW4SE4, NE4NW4)
08-2144-30-1-02-01-0000 (S30, T12 N,
R23 E, G LTS 1,2,3,4, E2NW4, NE4SW4, N2SE4, S2NE4, NW4NE4)
08-2144-31-2-02-01-0000 (S31, T12 N,
R23 E, G LTS 1,2,3, SE4NW4, E2SW4, SE4)
23-2034-06-1-01-02-0000 (S06, T11 N,
R23 E, GOVT LT 2)
Thank you,
Kathryn QannaYahu
406-579-7748
www.emwh.org