A History of Public Lands
March 2, 2023
The right to access public lands was codified into law in 1885. The Federal Unlawful Inclosures act.43 U.S.D.A. was passed to stop private landowners from inclosing public lands for their exclusive use. The act prohibits the maintenance, erection, construction, or control of an enclosure to prevent access to public lands. From its enactment, it has been contested, ignored and state laws passes to undermine it.
Throughout the years, this law have been upheld in the courts.In the following cases illegality of enclosure and the right to access public lands was clearly defined for people, livestock and wildlife.
In Camfield v. United States (1895) the federal government sued and won to have a fence inclosing public lands in Nevada torn down.
Mackay v. Unita Development Co. (1914) also upheld the illegality of building an enclosure of public lands, EVEN IF THE FENCE IS SOLELY ON PRIVATE PROPERTY.
This case also said the law prohibits anyone from obstructing livestock passage to public lands. EVEN IF THIS PASSAGE CAUSES A LOSS OF FORAGE.
Further this case also makes it clear that people can’t be denied access to public lands, either. “No person, by force, threats, intimidation, or by any forcing or inclosing, or any other unlawful means, shall prevent or obstruct, or shall combine and confederate with other to prevent or obstruct, any PERSON, from peaceably entering upon...or prevent or obstruct free passage or transit over or through the public lands.
Another case, Stoddard v. United States, held that the right of passage applied to animals as well as people stating: “the act, in our opinion, was intended to prevent the obstruction of free passage or transit for ANY AND ALL LAWFUL PURPOSES over public lands.
In the Red Rim v. Wyoming Wildlife Federation case, Taylor Lawrence had erected a 10 foot high fence that enclosed private and public land to keep antelope out of their crucial winter range. The United States sued. The state and national Wildlife Federation signed on.
District Judge Brimmer issued a bench order ordering the fence modified so antelope could pass through it. His order was based on findings the defendant was in violation of the Unlawful Inclosures Act.
Regarding antelope access to their winter feeding range, he also said ...the Court cannot accept the intent of Congress that the UIA would allow that outcome, when it is clear that defendant could not build this fence to prevent humans from undertaking mere recreational pastimes, such as hiking or fishing.”
Further, in his decision, Judge Brimmer clarified the decision in an earlier case, Leo Sheep Company v. U.S, which the defendants attorney used for his clients defense.
The Supreme Court required the BLM, in that case, to compensate the Leo Sheep Company for the use of its land because BLM built a road partly on private land to Seminoe Reservoir and invited the public to use it.
Judge Brimmer also agreed that while the law was enacted to prevent “range wars” as defendents attorney argued in the case .....”nothing in the act or its history limits its application.......”
Clearly, the law provides humans, animals and wildlife access to Federal public lands. Court challenges have clarified this. Nonetheless, throughout the west, public lands, especially in the checkerboards continue to be enclosed for private pleasure or profit.
On October 24, 1975 the regional solicitor of the United States in a memorandum to the Wyoming State Director of BLM said that denying access in the checkerboard in a violation of the Unlawful Inclosures Act.
In response, states like Wyoming have passed a body of laws trying to block the enforcement of this act even though the law says. “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...showing a description of the land inclosed...so the land can be identified and the person guilty of the violation.....to institute a civil suit...against parties named.”
If the U.S. Attorney refuses to file suit....it is likely he could be compelled to do so....since the violations of the act is seen as serious by Congress, and is required to have precedence over all other civil cases on the court’s docket...
While this avenue is provided and federal law supersedes state law, western state and county attorneys discourage the act’s implementation and instead enforce conflicting trespass laws which provide illegal privileges to western landowners.
That is likely one of the reasons while state legislators work to transfer federal lands to the state.