U.S. ex rel. Bergen v. Lawrence

• Decision Date: 17 June 1988
• Docket Number: No. 86-1085,86-1085
• Citation: 848 F.2d 1502
• Parties: 19 Envtl. L. Rep. 20,119 UNITED STATES of America, ex rel., Brent BERGEN and John Ernst, Plaintiffs/Appellees, and Wyoming Wildlife Federation, a Wyoming non-profit corporation, and National Wildlife Federation, a District of Columbia non-profit corporation, Plaintiffs/Appellees in Intervention, v. Taylor LAWRENCE, dba Grizzly and Daley Ranch, Defendant/Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1502

848 F.2d 1502

19 Envtl. L. Rep. 20,119

UNITED STATES of America, ex rel., Brent BERGEN and John

Ernst, Plaintiffs/Appellees,

and

Wyoming Wildlife Federation, a Wyoming non-profit

corporation, and National Wildlife Federation, a

District of Columbia non-profit

corporation, Plaintiffs/Appellees in Intervention, v. Taylor LAWRENCE, dba Grizzly and Daley Ranch, Defendant/Appellant.

No. 86-1085.

United States Court of Appeals,

Tenth Circuit.

June 17, 1988.

J. Carol Williams, Dept. of Justice, Washington, D.C. (Peter R. Steenland, Jr., Dept. of Justice, Georgina Guy, Regional Sol., Myles E. Flint, Deputy Asst. Atty. Gen., Richard A. Stacy, U.S. Atty., Cheyenne, Wyo. with her on the briefs), for plaintiffs/appellees.

Thomas David Lustig, Nat. Wildlife Federation, Boulder, Colo., for plaintiffs/appellees in intervention.

Catherine MacPherson (John A. MacPherson, with her on the briefs), Johnson, MacPherson & Noecker, Rawlins, Wyo., for defendant/appellant.

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

STEPHEN H. ANDERSON, Circuit Judge.

Taylor Lawrence appeals from a final order of the United States District Court for the District of Wyoming, ordering him to remove from his lands a fence which enclosed public lands contrary to the Unlawful Inclosures of Public Lands Act, 43 U.S.C. Secs. 1061 to 1066. See United States ex rel. Bergen v. Lawrence, 620 F.Supp. 1414 (D.Wyo.1985). We affirm the district court's order.

I.

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. ¹ 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. ² 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. Secs. 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. ³ 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 ⁴ 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.

II.

The district court concluded that this case was controlled by Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed. 260 (1897) which dealt with a "virtually identical" situation. As the district court explained:

"Camfield acquired from Union Pacific the rights to several odd-numbered private sections of land, and

'in building the fence complained of, the defendants had constructed it entirely on odd-numbered sections ... so as to completely enclose all of the government lands aforesaid, but without locating the fence on any part of the public domain so included. Id. at 519, 17 S.Ct. at 864.'

"The Supreme Court considered Camfield's argument that he could do whatever he wished on his own land, and soundly rejected it. The Court found that the Unlawful Inclosures Act had been promulgated just to avoid such an outcome.

'If the act be construed as applying only to fences actually erected upon public lands, it was manifestly unnecessary, since the Government as an ordinary proprietor would have the right to prosecute for such a trespass. It is only by treating it as prohibiting all "enclosures" of public lands, by whatever means, that the act becomes of any avail. Id. at 525, 17 S.Ct. at 867.'

"Finally, the Court concluded that defendant's intent, whether to irrigate the public lands or use them for pasturage, was unimportant. The only matter at issue was whether or not the fence violated the statute.

'The device to which defendants resorted was certainly an ingenious one, but it is too clearly an envasion (sic) to permit our regard for the private rights of defendants as landed proprietors to stand in the way of an enforcement of the statute.... Considering the obvious purposes of this structure, and the necessities of preventing the enclosure of public lands, we think the fence is clearly a nuisance, and that it is within the constitutional power of Congress to order its abatement, notwithstanding such action may involve an entry upon the lands of a private individual. Camfield, at 525, 17 S.Ct. at 867.'

"The situation in this matter is virtually identical to that dealt with by the Supreme Court in Camfield. Although written in 1897, Camfield is still good law, and in fact was relied upon by the Supreme Court as recently as 1983 in North Dakota v. United States, 460 U.S. 300, 319, 103 S.Ct. 1095, 1106, 75 L.Ed.2d 77 (1983)."

Bergen, 620 F.Supp. at 1416.

Lawrence was unsuccessful in his attempts to distinguish his fence from the fence in Camfield. He renews those attempts on appeal, challenging the district court's interpretation of the applicable law. The district court's rulings on legal questions are subject to de novo review, while determinations of factual questions are reversed only if they are clearly erroneous. In re Tri-State Equipment, Inc., 792 F.2d 967, 970 (10th Cir.1986).

Initially, however, we must address Lawrence's characterization of the issue in this case. He argues that the order of the district court directing that the fence be removed or modified to allow passage by antelope imposes a "servitude" on his land, or grants the antelope an "easement" across them. Lawrence then argues that he must be compensated for this "taking." We disagree with Lawrence's description of the district court's order. In declaring that the fence must be removed, the district court did not grant the antelope any easement across Lawrence's private lands, nor do we. That question is simply not at issue here. Instead, the issue in this case is merely whether the fence constructed and maintained by Lawrence unlawfully encloses federal lands. Federal law declares such fences to be nuisances which must be removed.

In arguing that the district court's order creates an implied easement for antelope, Lawrence relies on Leo Sheep Co. v. United States, 440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979), but we find that decision inapplicable here. Leo Sheep also involved the Union Pacific Railroad grant and land ownership checkerboard in Wyoming. The government cleared a road across public and private lands to provide public access to the Seminoe Reservoir, used by the public for hunting and fishing. When the private landowner sued for relief, this court held that Congress had implicitly reserved an easement across the private lands in the Union Pacific Railroad grant. Leo Sheep Co. v. United States, 570 F.2d 881, 885 (10th Cir.1977), rev'd, 440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979). We relied, in part, upon the Unlawful Inclosures of Public Lands Act and Camfield to reach that decision. Id. at 886-88. But our decision was reversed by the United States Supreme Court, which found the UIA of no "significance in this controversy," Leo Sheep, 440 U.S. at 683, 99 S.Ct. at 1411, and held that neither the UIA nor the railroad grant reserved any easement for a public road across private lands. Thus, the government was required to compensate the Leo Sheep Company for the use of its land. In discussing the UIA, the Court noted that it was "a response to the 'range wars,' " and "the illegal fencing of public lands, which was often the product of the checkerboard pattern of railroad grants. By placing fences near the borders of their parts of the checkerboard, cattlemen could fence in thousands of acres of public lands." Id. at 683-84, 99 S.Ct. at 1412.

Lawrence urges, based on Leo Sheep, that we find the UIA inapplicable here and follow the Supreme Court's holding rejecting any reserved easements in the Union Pacific land grant. Once again, we turn to the district court's analysis:

"[Lawrence] concludes that the Supreme Court held ... that the UIA's purpose was to prevent the continuation of 'range wars,' and that it should not be extended beyond this purpose. That is not what the Court meant. The UIA indeed was a response to the range wars, but nothing in the act or its history limits its application in such a manner. If the UIA was only meant for such a limited purpose, the Court would have said so in Camfield, and Congress should have repealed it in 1934 when the Taylor Grazing Act was passed to end public land disputes....

"Because ...