Montana Legal Fencing

Montana Livestock Fencing Laws Overview

Unlawful Inclosures US Code Title 43, Chapter 25, Sec 1061-66 , "Inclosure of or assertion of right to public lands without title - All inclosures of any public lands in any State or Territory of the United States, heretofore or to be hereafter made, erected, or constructed by any person, party, association, or corporation, to any of which land included within the inclosure the person, party, association, or corporation making or controlling the inclosure had no claim or color of title made or acquired in good faith, or an asserted right thereto by or under claim, made in good faith with a view to entry thereof at the proper land office under the general laws of the United States at the time any such inclosure was or shall be made, are declared to be unlawful, and the maintenance, erection, construction, or control of any such inclosure is forbidden and prohibited; and the assertion of a right to the exclusive use and occupancy of any part of the public lands of the United States in any State or any of the Territories of the United States, without claim, color of title, or asserted right as above specified as to inclosure, is likewise declared unlawful, and prohibited. "

1062 - "It shall be the duty of the United States attorney for the proper district, on affidavit filed with him by ANY citizen of the United States that section 1061 of this title is being violated showing a description of the land inclosed with reasonable certainty, not necessarily by metes and bounds nor by governmental subdivisions of surveyed lands, but only so that the inclosure may be identified, and the persons guilty of the violation as nearly as may be, and by description, if the name cannot on reasonable inquiry be ascertained, to institute a civil suit in the proper United States district court, in the name of the United States district court, or territorial district court, in the name of the Untied States, and against the parties named or described who shall be in charge of or controlling the inclosure complained of as defendants;...In any case if the inclosure shall be found to be unlawful, the court shall make the proper order, judgement, or decree for the destruction of the inclosure, in a summary way, unless the inclosure shall be removed by the defendant within five days after the order of the court. "

BLM Fencing Standards Manual H-1741-1

PDF pg. 13 - 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.

PDF pg. 14 Taylor Grazing Act
"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.

Chapter 4 has the fencing descriptions. PDF Pg. 18 Standards for Big Game Habitat and pronghorn antelope, continued on Pg. 20, Deer, Elk or Moose Habitat

(1) Woven wire, 5- or 6-strand barbed wire fences and fences exceeding 42 inches in height all pose serious negotiation problems for deer...Other factors affecting negotiation of fences include the age and condition of deer and elk, wire tautness, and the physical setting of the fences. Fences constructed next to borrow pits, on steep slopes, and in areas where snow accumulates, may not be negotiable by deer, elk, or moose....When the lower strands of wire are both close to the ground and to each other, they impede the movement of fawns and yearlings which tend to go under or through a fence.

Cont. on PDF pg. 21 Normally deer jump with their hind legs forward. If the top two wires are too close together or loose, deer often entangle their hind legs, resulting in broken legs, entangled animals dying of starvation or shock, and broken fences. Elk jump the same way, but usually move on after breaking the fence or injuring themselves. Within elk herd movement areas, fence damage can be extensive.
Pg. 21 explains big game ranges fencing at top height of 38", smooth bottom wire with a space of 16", continued on page 22, listing 3 wire fence or post-pole-and-wire fence.

PDF Pg. 25 lists domestic livestock for cattle only is 4 wire barbed fence top height of 42 inches.

PDF Pg. 40 has the charts with number of wires and wire spacing. Anything with antelope, deer, elk and moose is 3-4 wire. Illustrations are on pg. 41.

BLM Survey Manual

Here are a few of the legal cases I was reading through last month when I heard the rumor and began compiling the fencing resources.

Cheyenne Journal; When Antelope Don't Roam Free

Free At Last (1992)

United States ex rel. Bergen v. Lawrence
"Lawrence constructed a twenty-eight mile fence enclosing over twenty thousand acres of private, state and federal lands in an area of south central Wyoming known as the Red Rim.

The land in this area is owned in the familiar "checkerboard" pattern as the result of the federal land grant to the Union Pacific Railroad.

Lawrence has fee title or permission to fence from the title owner of the private sections and has grazing permits on the federal and state sections. The fence enclosed 15 sections, or approximately 9,600 acres of unreserved public domain. However, the fence was constructed entirely on private lands, except where it crosses the common corners of state and federal sections.

Lawrence grazes his cattle on the Red Rim during the spring and summer months for about 60 days. But during the winter, portions of the Red Rim provide critical range for Wyoming pronghorn antelope. The fence Lawrence constructed, however, was antelope-proof, denying antelope access to this critical winter range. The winter of 1983 was unusually severe (even for Wyoming) and the testimony to the district court indicated that antelope collected against the fence and starved in an unsuccessful attempt to reach the Red Rim.

The government brought this action under a statute adopted by Congress in 1885, the Unlawful Inclosures of Public Lands Act, 43 U.S.C. §§ 1061 to 1066 ("UIA"), seeking an order compelling removal of the fence or modification to allow free and unrestricted access by pronghorn antelope to the enclosed public lands.

The Wyoming and National Wildlife Federations were joined as intervenors and moved for a preliminary injunction to have portions of the fence removed before the winter of 1985. At the hearing on the motion for a preliminary injunction, the district court consolidated the matter into a full hearing on the merits pursuant to Fed.R.Civ.P. 65(a)(2). At the conclusion of the hearing, the court orally granted the preliminary injunction, ordering Lawrence to remove certain portions of the fence within 10 days and to remove the entire fence or modify it to conform with Bureau of Land Management ("BLM") standards within 60 days. A few days later, the district court entered a final judgment and order directing that the entire fence be removed or modified. Lawrence appeals from the district court's order."

Camfield V United States

Don't Fence Me In: Application of the Unlawful Inclosures of Public Lands Act to Benefit Wildlife