## Facts

- Taylor Lawrence, operating as Grizzly and Daley Ranch, built a 28-mile fence in Wyoming’s Red Rim area.
- The Red Rim consisted of a checkerboard of private, state, and federal sections created by historic land grants.
- The fence formed a large enclosure of more than 20,000 acres containing private, state, and federal land, including approximately 9,600 acres of unreserved federal public domain.
- The fence line was built on private land, except where it crossed common corners of state and federal sections.
- Lawrence had fee title to, or permission from owners to fence, the private sections; he also held grazing permits for the intermingled federal and state sections.
- Lawrence used the area for cattle grazing during spring and summer for about 60 days.
- Portions of the enclosed area served as important winter range for Wyoming pronghorn antelope.
- The fence was “antelope-proof,” preventing antelope from reaching winter forage within the enclosed public-land sections.
- During a severe winter, antelope gathered along the fence and many died after being unable to reach the winter range; evidence indicated roughly 700 antelope starved at the fence.
- The fence included several gates intended for people and livestock, but they did not allow effective passage for antelope.
- The United States, on relation of private relators Brent Bergen and John Ernst, sued Lawrence under the Unlawful Inclosures of Public Lands Act of 1885 (UIA), 43 U.S.C. §§ 1061–1066; wildlife organizations intervened.
- The district court relied in part on the Federal Land Policy and Management Act (FLPMA) to assess whether wildlife forage on public lands is a “lawful purpose” under the UIA and ordered Lawrence to remove the fence or modify it to allow antelope passage consistent with agency standards.
- Lawrence appealed to the Tenth Circuit.

## Issues

1. Does the UIA apply when a fence built on private land effectively encloses unreserved federal public domain?
2. Is wildlife movement and forage on public lands a “lawful purpose” protected by the UIA’s guarantee of free passage over public lands?
3. Does a federal grazing permit or other non-fee interest allow a land user to invoke the UIA’s good-faith/color-of-title defense to justify enclosing federal lands?
4. Does an injunction requiring removal or modification of an unlawful enclosure create an easement for wildlife or amount to a compensable taking of private property?
5. Do gates in the fence defeat UIA liability when they do not provide functional access for the excluded wildlife?

## Decision

- The Tenth Circuit affirmed the district court’s order requiring Lawrence to remove the fence or modify it so it would not unlawfully enclose public lands and would permit antelope passage.
- The UIA was violated because the fence, though placed on private land, effectively enclosed unreserved federal public domain and blocked use of those public lands.
- Wildlife access and forage on public lands qualify as a lawful use under the UIA; the court looked to FLPMA’s management directives confirming that federal lands are to be managed to provide habitat and forage for wildlife.
- Lawrence could not rely on the UIA’s title-based defense because his interest in the federal sections was limited to grazing permits rather than fee ownership or a qualifying ownership claim to the enclosed public land.
- The injunction did not create an easement in favor of antelope and did not effect a taking; it enforced a federal statute that declares such enclosures unlawful and requires their removal, without imposing a servitude granting public rights across Lawrence’s land.
- The existence of gates did not cure the unlawful enclosure because they were inadequate for antelope passage and the fence’s practical effect was to exclude wildlife from the public-land winter range.

## Legal Principles

- The UIA forbids enclosing unreserved federal public domain, and a fence can violate the statute based on its practical effect even if the fence is built on private property.
- Congress may require removal or alteration of private fencing that functions to appropriate public land by excluding access or passage over the public domain.
- “Free passage or transit over or through the public lands” for lawful purposes under the UIA is not limited to human travel; lawful purposes include uses recognized by federal land-management law, including wildlife habitat and forage.
- A grazing permit or similar authorization is not fee title and does not supply a statutory defense for enclosing federal public domain.
- An order to remove or modify an unlawful enclosure enforces the UIA and does not, by itself, grant an easement or require compensation where it does not confer a property right in the private land to others.
- Gates or openings do not avoid UIA liability when they do not provide meaningful access for the use that is being blocked.

## Conclusion

The Tenth Circuit held that Lawrence’s antelope-proof fence violated the Unlawful Inclosures of Public Lands Act because it effectively enclosed unreserved federal public domain and prevented pronghorn antelope from reaching winter forage on public lands; wildlife use was a lawful purpose under the UIA as confirmed by FLPMA, grazing permits did not supply a fee-title defense, the remedy did not create an easement or a taking, and gates that did not allow antelope passage did not make the enclosure lawful.


United States ex rel. Bergen v. Lawrence, 848 F.2d 1502 (1988)