Fence fight nears boiling point

Local officials are concerned that a state land lease has created a dangerous situation near Sundance, where two ranchers now find themselves at loggerheads over grazing rights.

When the state purchased a parcel of land in the Moskee area a few years ago, it allowed the grazing lease to pass into new hands.

In any other circumstances, this might not have been a problem, but the parcel forms the filling in a sandwich of properties that were previously all owned or leased by the same rancher.

For more than 40 years, no fences were necessary.

Rising tension

The state failed to listen to local advice when it awarded the grazing lease to someone new, says Sheriff Jeff Hodge.

“This has pitted leaseholders and adjoining landowners against each other and, to my mind, that was completely unnecessary and should have been avoided at all costs,” agrees Representative Chip Neiman.

It’s a complicated issue, but it boils down to a simple fact: with no fences between the state land and its neighbors, there’s nothing to stop livestock from straying across the border.

If something isn’t done, Hodge fears that an already heated situation could come to blows.

“We’re in an absolute mess up there,” he says. “We have two ranchers…fighting. We have deputies going to their houses…we have families that are fearing to go on the leases…It has turned into an absolute disaster.”

Hodge enlisted the help of Neiman and Senator Ogden Driskill when the issue became apparent earlier this year, when cattle were turned out onto the parcels for the first time. Without a firm answer from the state as to who is responsible for the fencing, he says, it’s tough for his office to defuse the situation.

“It puts us in a precarious position where we are basically just doing civil standbys, or keeping the peace before something does happen,” he says.

Hodge told the Joint Agriculture, State and Public Lands & Water Resources Committee recently that he was instructed by Office of State Lands and Investments (OSLI) Director Jason Crowder to “let nature take its course.”

“That is not an acceptable statement to me. Nature taking its course, we’re going to end up with a bad deal down on that lease,” he says.

Crowder explained that OSLI does not want to find itself in a situation of having to issue management directives on its leases. “The best solution is always those guys creating their own solutions and then we make sure that it follows existing rule and statute,” he said.

But while that works when neighbors are in agreement, it’s less easy when there’s conflict.

Speaking to the same committee, Neiman said, “It concerns me when an agency says, and I quote, ‘We have many times left natural selection to straighten out these leases. We’ll lease this, and we’ll let these folks work it out’. The problem I have is that now I have a sheriff and I have current landowners that are in actual danger, I believe.”

Two herds, no fences

Until 2020, Moskee Land Corporation owned the 4714-acre parcel in the Grand Canyon area of Moskee, bordered by the U.S. Forest Service (USFS) on one side and private land on the other.

For more than four decades, Schloredt Inc. either owned or held a grazing lease on all three parcels.

There was no need for a fence on what was, for all intents and purposes, one large tract of land.

Had the grazing lease been left with Schloredt Inc. when the state acquired the parcel, this situation would have continued indefinitely.

However, according to Crowder, emergency rules happened to be in place for OSLI at that time in an effort to resolve an ambiguity in the statutes describing preference, which had created a backlog of more than 140 permit applications across the state.

These rules temporarily defined “preference” as being only towards a high bidder.

If the lease was put out to bid now, preference would be given to Schloredt Inc. as the adjacent landowner, says Neiman – at the very least, Schloredt Inc. would be offered the chance to match any bid that came in higher than their own.

But the emergency rules did not allow for this. Antler Angus, based near Pine Haven, was the high bidder.

A new leaseholder was now poised to run their livestock on a parcel bordered on both sides by livestock belonging to a second landowner – with not a single barrier between them.

Local warnings

Local officials saw the train coming down the tracks long before the lease was put out to bid.

During the original land acquisition, the county commissioners were told that there would be no obligation to the current leaseholders, who would need to bid like everyone else.

Concerned over the implications of this and other aspects of the deal, such as usage types and road closures, the commission penned a letter of concern and asked for coordination status, which would have allowed them to represent the county’s interests in the project.

However, months later, the commission reported that their concerns had gone unanswered and requests to be included in the planning process had been ignored.

Neiman says he also warned both OSLI and the state’s top five elected officials, who together make up the State Lands and Investments Board, that the train was certain to wreck.

“My position was: don’t do this now. Give it time to really look this over, give temporary permits, let these folks work through this, but don’t award this right now because there’s so much more at stake here than what we even realize,” he says.

“[I told them] this is going to create a train wreck – these lands are in other people’s unfenced properties, you’re talking about policing a piece that tied federal, state and private lands all together and didn’t require fencing.”

Other problems also existed, such as water issues and isolated parcels with no access.

“I said, this is way bigger than somebody just coming in to lease this, please don’t do this. The only one who supported me was [State Treasurer] Curt Meier,” he says.

The board voted to continue on with the lease.

“I’ve got people who are afraid to even go up and be on their leases because they’re afraid of how contentious this has become,” Neiman says. “That’s not good – my state should not be creating this situation for its stakeholders. They can do better than this.”

Who should fence?

To keep two parcels of land separate, you need a fence – but whose responsibility is it to build one? Wyoming is a “fence out” state, which means it’s your obligation to build a fence if you don’t want cattle or horses coming onto your land.

If Antler Angus was unhappy about cows trespassing on its lease, this theoretically laid the responsibility for the fence on its shoulders – which, in turn, puts the problem in OSLI’s corner.

However, Crowder has suggested several times that the state is exempt from the fence-out rule on the basis that state land isn’t specifically mentioned in the statutes.

At a meeting of the Joint Agriculture, State and Public Lands and Water Resources Committee last week, he said that OSLI has worked under this assumption since before his time with the agency.

“We feel we are sovereign and that the laws provided need to explicitly discuss state lands and how they are to be managed and if they don’t discuss it, if they remain silent there, then they are not applicable to state lands,” Crowder said.

“So, the fence out provision, or the case law that describes a fence-out scenario, doesn’t necessarily apply to state lands and that’s how we’ve operated since I’ve been here.”

This echoed the official letter that Crowder sent to Hodge in August, in which he wrote, “No statute or rule requires the State of Wyoming to fence its land so as to separate state trust land from another landowner. In fact, there are numerous examples where the boundary of state trust land remains unfenced from adjoining private and federal lands.”

He told the committee that fencing the Moskee parcel, “Could correct the current situation, but it puts the burden and the expense where it hasn’t been before.”

Crowder instead pointed to Wyoming Statute 36-9-116, which states that any person on state land without lease or certificate of purchase is considered a trespasser and can be fined up to $500.

He argued that this means, “Anybody who does not hold a lease or certificate of purchase to occupy state trust land would have the burden of fencing so as to not trespass on state land.”

To the committee, he suggested that fencing is not always necessary to prevent trespass, mentioning, “New technologies of remote fencing or GPS collars or something like that.”

In his response, Hodge addressed Crowder’s statement that fencing is often managed on a case-by-case basis, pointing out that this, “Highlights a lack of consistency that can lead to operational difficulties.”

“The burden placed on lessees to navigate this without clear, uniform guidelines creates inequities, particularly when adjoining private and federal lands have different fencing norms,” he wrote.

He also pointed out that OSLI, “Should have been aware of the impossibility of fencing the state lease in question due to the extreme terrain”. According to Hodge, the estimated cost would be up to $380,000.

This wasn’t the first time Hodge had been told that he was expected to enforce the trespass statute, he says. At a meeting with Governor Mark Gordon soon after the issue emerged, he says, OSLI’s position was to simply have his office write trespass tickets.

Hodge says his response to that was a firm “no”.

Complicating the issue further is that one of the two Schloredt Inc. parcels is federal, Hodge says, and it is well-established law that the USFS does not fence such pieces of land. Is the state now claiming it trumps federal law?

At the most recent meeting of the Joint Agriculture, State and Public Lands & Water Resources Committee, Cheyenne attorney Karen Budd-Falen went a step further.

“There is not a statute or a court case that exempts state lands from Wyoming’s fence-out requirements,” she said. “It may have always been done that way, but there isn’t anything in statute or I couldn’t find a single court case that exempted state lands.”

What’s the solution?

There are a number of ways this problem could be solved but, at the present time, no agreement on how to move forward.

Since the issue first came up, OSLI has repeatedly expressed its desire to rely on the trespassing statutes. At the committee meeting last week, Crowder reiterated that it can be used as a tool when cattle are straying onto a state lease.

First, he said, the office would reach out to the trespasser. If they continued to not address the matter, it would be passed to the Attorney General’s Office.

“That’s never happened,” he said. In Crowder’s time, he said, he has sent probably four letters and all were rectified before needing to go to law enforcement.

Neiman, however, does not feel that it should be up to law enforcement to attempt to solve an issue with no clear right and wrong. “I don’t like that it’s coming back on our local officials to try to deal with this. It shouldn’t be that way,” he says.

We’ll just trade it…

Crowder also told the committee that discussions are underway on the possibility of a land exchange with the USFS, which he said would make sense as the Moskee parcel sits between two large USFS parcels. It would also fit with the initial intent of the purchase to protect the land from development, he said, and makes sense from a management perspective.

Meanwhile, the Joint Agriculture, State and Public Lands & Water Resources Committee considered a bill last week that said, “If livestock from privately owned adjoining lands stray onto state lands, [OSLI] or the lessee shall be responsible to fence the affected state lands.” It also would have prevented OSLI from seeking a trespass action if the only grounds were wandering cattle.

After deliberating the bill for a couple of hours and discussing potential pitfalls, the bill failed sponsorship by 9 votes to 6. Neiman does plan to look into the possibilities of sponsoring the bill, but says it’s not necessarily the best route. It would be better, he says, to consider this individual issue on its own merits.

“I think a lot of this can be resolved through the state by reevaluating this lease in particular and maybe others that are under the same stress level,” he says.

The Moskee land is among a handful of issues across the state that came about during the period when emergency rules were in effect. A Park County rancher, for example, described a similar situation to the Joint Agriculture, State and Public Lands & Water Resources Committee last week.

Neiman believes that the solution does not lie in new laws or policies, because these individual issues would not have happened today. Now the emergency rules have been rescinded, state statutes would have required that preference on the Moskee lease was given to Schloredt Inc.

If the situation is to be resolved, the state will first need to admit it acted rashly, Neiman believes.

“They have the ability to fix this. It ain’t gonna be fun and I feel badly for both sides,” he says. “…They need to step up and do the right thing, and that would be the best answer in my mind.”

The sensible solution, he says, would be for OSLI to buy out the lease, making Antler Angus whole, and reissue the bid under the current rules.

Crowder has been resistant to this suggestion, however. In his July letter, he wrote that OSLI has not exercised its right to buy out a lease in at least 30 years and wouldn’t know how to go about it because it has, “Not established a mechanism to value a buy-out, or uncovered specific industry standards from which to pull data to determine a lease’s fair market value.”

He also noted that there is a general provision in the lease that it can be cancelled if any party claims “an impossibility to continue”.

In this case, however, Crowder wrote that, “The lessee has not notified the [State Lands and Investments Board] of any unforeseen circumstances that make it impossible to continue the lease” and said a personality conflict would likely not be considered sufficient reason.

Crowder has offered alternative solutions such as mediation or subleasing, but Hodge pointed out in his response that this, “Shifts the responsibility onto the leaseholders rather than addressing the root cause of these conflicts”. Mediation has now been attempted, but has proven unsuccessful.

Nevertheless, Neiman is still hoping that a unique solution can be found for this unique problem.

“I still think it can be fixed,” he says. “It’s not going to be fun and there’s going to be egg on somebody’s face, I get that, but that’s going be better than asking our sheriff to go up and start fining people for trespass when [the ranchers are]…in an almost impossible situation.”