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United States ex rel. Bergen v. Lawrence

United States Court of Appeals for the Tenth Circuit
848 F.2d 1502 (1988)


Taylor Lawrence (defendant) built a 28-mile-long fence in a 20,000-acre area in Wyoming that encompassed federal, state, and private land. The area was a significant winter habitat for pronghorn antelopes. Although the fence was built entirely on Lawrence’s land, the fence enclosed federal land. The fence was antelope-proof, and 700 pronghorn antelopes starved against the fence while attempting to reach their winter range. The United States government (government) (plaintiff) sued Lawrence under the Unlawful Inclosures of Public Lands Act of 1885 (UIA), 43 U.S.C. §§ 1061-66, which prohibited the enclosure of federal lands and required the removal of any enclosures. The district court referred to the Federal Land Policy and Management Act (FLPMA) to determine whether the antelopes’ foraging for food on the land was a lawful purpose of federal land under the UIA. The FLPMA required federal land to be managed in a manner that provided food and habitat for fish and animals. The district court ordered the fence’s removal or modification in order to allow entry by the antelopes. Lawrence appealed, arguing that (1) the antelopes had no easement across his property, (2) the UIA did not apply to antelopes because the legislative history did not mention wildlife, and (3) there was no unlawful enclosure in the absence of evidence that the fence denied entry to individuals with a legal entitlement to use the federal land.

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