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United States ex rel. Bergen v. Lawrence

Citation: 19 ELR 20119
No. No. 86-1085, 848 F.2d 1502/(10th Cir., 06/17/1988) Aff'd

The court holds that a landowner's construction of a fence on private land, enclosing an area of the public domain and preventing pronghorn antelope from reaching their winter range, violates the Unlawful Inclosures of Public Lands Act (UIA). The court first holds that the district court's order requiring the fence to be moved or modified does not amount to the granting of an easement to the antelope for which compensation is required. The UIA declares enclosures of federal lands to be unlawful and orders that such enclosures be removed; however, it creates no easements or servitudes. The court similarly holds that the district court's order did not effect an unconstitutional taking. No servitude was imposed on the land, and none of defendant's property has been taken. Moreover, defendant retains the right to exclude antelope from his own lands if it can be accomplished without enclosing public lands. The court rules that the UIA applies to wildlife, since the language of the statute and its early interpretations make it clear that the statute was intended to protect free passage over public lands for every lawful purpose. The Federal Land Policy and Management Act, which directs that the federal lands be managed in a manner that will provide food and habitat for wildlife, makes clear that forage by antelope is a lawful purpose. The court holds that defendant is not entitled to assert the UIA's defense of fee title to the enclosed lands, since defendant has only leasehold title. Finally, the court holds that the existence of several unlocked gates in the fence does not render it lawful, since the gates are clearly insufficient to permit access by antelope.

[The district court's opinion is published at 16 ELR 20339.]

Counsel for Plaintiffs-Appellees
J. Carol Williams
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2757

Counsel for Defendant-Appellant
Catherine MacPherson
Johnson, MacPherson & Noecker
Ste. 8, Osborne Bldg., P.O. Box 1959, Rawlins WY 82301
(307) 324-2713

Before MOORE and ANDERSON, Circuit Judges, and PHILLIPS*, District Judge.