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CapitalPress.com
Friday, August 26, 2022
Ranch lawsuit opposes ‘brand new’ trespass defense
By MATEUSZ PERKOWSKI
Capital Press
A trespassing dispute in Wyo-
ming has raised legal questions
that livestock groups worry may
set a bad precedent
for ranchers whose
land is adjacent to
federal lands.
The lawsuit pits
a ranch against
hunters
who’ve
developed a “brand
new legal theory”
Karen
of public lands Budd-Falen
access, said Karen
Budd-Falen, an attorney for con-
cerned livestock organizations.
The controversy is likely to rise
to the appellate level, eventually
creating new case law, she said. “I
don’t think anybody is going to let
this go.”
Earlier this year, Elk Mountain
Ranch fi led a trespass complaint
accusing several hunters of cross-
ing over its private property in
Carbon County, Wyo.
The particulars of the law-
suit have broader implications for
ranchers in the West, whose pri-
vate property commonly alternates
with federal rangeland in a “check-
erboard” pattern.
The complaint claims the hunt-
ers used a stepladder to climb diag-
onally from the corner of one fed-
eral tract to another, violating the
ranch’s private airspace.
The defendants — Bradley
Cape, Zachary Smith, Phillip Yeo-
mans and John Slowensky — have
asked a federal judge to dismiss
the case, arguing the ranch doesn’t
have grounds for a lawsuit.
A federal law passed in 1885,
Capital Press File
Cattle graze on rangeland. Hunters are defending against a ranch’s trespass lawsuit by claiming they
can’t be prohibited from crossing onto public land.
the Unlawful Inclosures Act, pro-
hibits ranchers from blocking
entry or travel across federal land,
including the airspace above com-
mon corners, the defendants said.
Common corners are often
“the only contiguous land route
between some sections of the pub-
lic domain,” so the ranch cannot
obstruct movement across them,
according to their motion.
“Plaintiff has no right to exclude
others from the public domain,”
the defendants said. “This court
should not grant plaintiff this right
and, accordingly, repeal the UIA
by implication.”
The ranch urged a federal judge
to reject this interpretation of the
UIA because only the U.S. govern-
ment can enforce that law, which
doesn’t “imply rights-of-way”
across private property.
Last month, U.S. District Judge
Scott Skavdahl decided not to
dismiss the ranch’s lawsuit, but
he also refused to throw out the
defense theory involving the UIA.
While the prohibition against
unlawful enclosures can’t be
enforced with a “private right of
action,” the statute can be cited to
defend against trespass claims, the
judge said.
At this point, however, the fac-
tual record in the case isn’t suffi -
cient to decide whether the UIA
precludes the trespass lawsuit “as
a matter of law,” he said.
A national sportsmen’s organi-
zation, Backcountry Hunters and
Anglers, wants to weigh in on the
case, arguing that corner-cross-
ing is crucial for ensuring public
access to federal land.
About 8.3 million acres of pub-
lic land are “corner-locked” and
cannot be entered any other way,
the nonprofi t said.
The complaint raises the possi-
bility that private landowners can
“close access to millions of acres
of public land by threatening to sue
or suing for trespass when individ-
uals move from public land to pub-
lic land over common corners,” the
group said.
“This case exemplifi es the
national interest in deciding the
fate of those millions of acres of
corner-locked public land,” the
group said.
The Wyoming Stock Growers
Association and Wyoming Wool
Growers’ Association have asked
to support the ranch in court,
alleging that corner-crossing has
never been an “accepted means
of accessing federal lands.”
The UIA is meant to prevent
ranchers from strategically fenc-
ing off property to give their cat-
tle exclusive access to federal
land, but this ranch simply wants
to exclude trespassers from its
own property, said Budd-Falen,
attorney for the livestock groups.
The lawsuit is probably
intended as a test case for the
defense’s legal theory, which
hasn’t previously been argued in
federal court, said Budd-Falen,
who’s a former solicitor for the
U.S. Interior Department.
This case involves hunters but
the UIA theory would apply to
anyone trying to access federal
land, she said.
If the defense theory is
accepted in federal court, it
would be harder to keep tres-
passers off private land, since
they’d have a ready explanation
for entering otherwise inaccessi-
ble federal pastures, Budd-Falen
said.
If the UIA is determined
to allow corner-crossing, that
would likely invite further argu-
ments that private property can
be crossed to enter public land,
said Budd-Falen.
“I think it’s sort of the nose
under the camel’s tent,” she said.
Eff ective response and suppression of wildfi res are key
By DOUG WARNOCK
S
agebrush ecosystems,
such as we fi nd in the
more arid sections of
the Pacifi c Northwest, have
evolved over time with fi re
as a normal factor. However,
more recent conditions have
resulted in higher fi re fuel
loads, longer fi re seasons
and more major fi res.
GREENER
PASTURES
Doug
Warnock
Researchers with Oregon
State University, the Inter-
agency Fire Zone and the
Fields-Andrews Rangeland
Fire Protection Associa-
tion in Southeastern Oregon
studied ways to improve
both response and suppres-
sion of wildfi res in that area.
Here are some of their fi nd-
ings as reported in the June
2022 issue of Rangelands,
a publication of the Society
for Range Management.
Annual grass inva-
sion, a changing climate
and land use eff ects have
each contributed to this
trend of greater fi re hazard
on current rangelands. The
increase in the early grow-
ing annual grasses, such as
cheatgrass and medusahead,
has caused the fuel load to
become mature and dry as
much as four weeks earlier
than before. This increased
the amount of fi re fuel. Pre-
viously there were more
perennials and later matur-
ing annual plants, which
made for later maturity and a
shorter period of fi re danger.
Improving response to
wildfi re through earlier
detection can make a signif-
icant diff erence in outcome.
Southeastern Oregon is a
remote area with complex
topography, which makes
fi re detection and timely
response more diffi cult.
Over 95% of all wildfi re
starts are contained in the
initial attack. The 5% that
escape are costlier and pose
more danger to humans and
resources. In recent years,
early detection technologies
have helped improve the
ability to respond in a timely
and effi cient manner.
In sagebrush ecosystems,
invasive annual grasses and
other plants with low mois-
ture content and those with
volatile oils, such as sage-
brush, rabbitbrush and west-
ern juniper, provide big chal-
lenges for wildfi re managers.
Fire weather and exist-
ing fuels drive fi re behav-
ior, so having more crews,
dozers, air tankers or water
tenders does not necessar-
ily result in better control or
containment.
Fuel breaks are eff ec-
tive in disrupting fuel con-
tinuity, reducing fuel accu-
mulation and fi re volatility.
They also increase the pro-
portion of plants with high
moisture content. By reduc-
ing fl ame intensity and the
rate of spread, fuel breaks
increase the suppression rate
and help to reduce the impact
of wildfi res in sagebrush
ecosystems.
Fuel breaks can be made
by mowing, discing, chem-
ical application, targeted
grazing, or prescribed fi re.
Vegetative fuel breaks use
strips of plants with a higher
fi re resistance, such as
crested wheatgrass or forage
kochia.
In recent years, pri-
vate landowners have
played a larger role in wild-
fi re response in Southeast-
ern Oregon. Many of them
have land adjacent to the
Bureau of Land Manage-
ment property and are leas-
ing BLM land for cattle
grazing. They are very famil-
iar with the land and have a
stake in keeping fi re damage
to a minimum in this area.
They have formed Rangeland
Fire Protection Associations
that work with the BLM and
other agencies in planning
and conducting programs and
practices to lower the danger
and damage from wildfi res.
The improved wildland
fi re response and suppres-
sion in Southeastern Ore-
gon helps to protect this area
from transitioning to inva-
sive annual grass popula-
tions that result from wildfi re
events and helps in keep-
ing the current sagebrush
ecosystem intact. Timely
and eff ective fi re suppres-
sion will aid in slowing the
spread of invasive annual
grasses and reducing the fre-
quency of severe fi res over
time. More information on
the Rangeland Fire Protec-
tion Associations can be
found online.
Doug Warnock, retired
from Washington State Uni-
versity Extension, lives
on a ranch in the Touchet
River Valley where he writes
about and teaches graz-
ing management. He can
be contacted at dwarnock-
greenerpastures@gmail.
com.
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