TAYLOR LAWRENCE, D/B/A GRIZZLY AND DALEY RANCH, PETITIONERS V.
UNITED STATES OF AMERICA, ET AL.

   No. 88-437

   In The Supreme Court Of The United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. xvii-xxxviii) is
reported at 848 F.2d 1502.  The opinion of the district court (Pet.
App. i-xvi) is reported at 620 F. Supp. 1414.

                             JURISDICTION

   The judgment of the court of appeals was entered on June 17, 1988.
A petition for a writ of certiorari was timely filed on September 12,
1988.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether, in an area characterized by a checkerboard pattern of
federal and non-federal ownership of alternating sections of land, a
fence constructed entirely on the non-federal sections violates the
Unlawful Inclosures of Public Lands Act, 43 U.S.C. 1061 et seq.,
because it encloses about 9,600 acres of federal land and obstructs
the free passage of pronghorn antelope over the federal land.

                               STATEMENT

   1. Section 1 of the Unlawful Inclosures of Public Lands Act of 1885
(UIA), 43 U.S.C. 1061, makes unlawful all enclosures of any public
land by any person without color of title to all the public land
within the enclosure.  Section 3 of the UIA, 43 U.S.C. 1063, makes it
unlawful for any person, by force, threats, intimidation, fencing,
enclosing or other unlawful means:  (1) to prevent or obstruct any
person from establishing a settlement under the public land laws or
(2) to prevent or obstruct free passage or transit over or through
public lands.  The presence of an enclosure is therefore not essential
to a violation of the UIA since the actions prohibited in Section 3
can be accomplished with or without an enclosure.  As applied to
fences on private land but enclosing public land, this Act is a lawful
exercise of the constitutional power of the United States to abate a
nuisance.  Camfield v. United States, 167 U.S. 518, 525 (1897).

   2. Petitioner Lawrence constructed a twenty-eight mile fence
enclosing more than 20,000 acres of land near Rawlings, Wyoming (Pet.
App. iii).  The enclosed land is located in the checkerboard
configuration of federal and non-federal ownership which is the legacy
of the Union Pacific Railroad Act of July 1, 1862, ch. 120, 12 Stat.
489, Sections 3-4, 12 Stat. 492, as amended by Act of July 2, 1864,
ch. 216, 13 Stat. 356, Section 4, 13 Stat. 358.  Under that Act, the
railroad was patented a certain number of odd-numbered sections of
land for each mile of track it laid while the even-numbered sections
were reserved by the United States (Pet. App. iii-iv).  Lawrence owns
or has permission to occupy the odd-numbered sections within his fence
(id. at iv).  The even-numbered sections are in state or federal
ownership (ibid.).  About 9,600 acres enclosed by Lawrence's fence are
federal land on which he holds permits to graze cattle for 60 days
during each year (id. at xix).

   Lawrence's fence is built entirely on private sections of land,
except where it crosses common corners of state and federal land (Pet.
App. xix).  Lawrence's fence is not a Bureau of Land Management (BLM)
approved fence /1/ (id. at iv).  It is about five feet high and made
of woven wire with no gap at the bottom and is topped with barbed
wire.  It is designed to be antelope-proof /2/ (id. at iv, xii).  The
fence is broken by 28 gates, 19 of which are unlocked;  and at various
locations "No Trespassing" signs are posted (id. at xii, xxxv n.13).

   3. Within Lawrence's fence is an important geographic uplift known
as Red Rim.  This area contains an abundance of Wyoming big sagebrush
which constitutes the major part of the diet of pronghorn antelope
during the winter months.  In addition, the uplifted area catches
winds during the winter that expose the sagebrush in this area for the
antelope when other areas are snow-covered.  Portions of Red Rim have
been declared by the Wyoming Game and Fish Department to be critical
winter habitat for the pronghorn antelope herd in the Baggs, Wyoming
area.  The antelope have no alternative winter feeding ground.  Id. at
iii.

   The winter of 1983-84 was unusually severe and the antelopes'
access to the winter range in Red Rim was blocked by Lawrence's
recently completed antelope-proof fence.  Unable to negotiate this
fence, the antelope collected along it and starved in their attempt to
reach the critical winter range in Red Rim.  Id. at xix.

   To alleviate this situation, the Wyoming Department of Game and
Fish, the Wyoming Wildlife Federation and the National Wildlife
Federation (Wildlife Federations), and the Governor of Wyoming
received permission from Lawrence to remove eight miles of his fence
at the expense of the Department of Game and Fish.  The fence was
replaced in the spring, again at the expense of the Department of Game
and Fish.  This same process of removing, and then replacing, a
portion of fence at the expense of the Department of Game and Fish to
allow access by the antelope to this critical winter habitat was
repeated the following winter of 1984-85.  Stipulation of Material
Facts, Paragraph 18, attached as Docketing Statement (10th Cir.), Exh.
B.

   4. On April 11, 1985, the United States filed a complaint against
Lawrence seeking a declaration that Lawrence's fence is an unlawful
enclosure within the meaning of the UIA and an injunction compelling
the removal or modification of the fence so as to allow unobstructed
access for pronghorn antelope and the public to the public lands
enclosed by the fence.  The Wildlife Federations later intervened as
party plaintiffs.  Motion to Intervene filed April 25, 1985;  Order of
May 17, 1985.

   Following a hearing on a motion for a preliminary injunction filed
by the Wildlife Federations which was consolidated into a full hearing
on the merits (Pet. App. ii), the district court orally granted the
injunction on October 29, 1985.  It ordered (id. at ii-iii) Lawrence
to remove within ten days the portions of his fence which in the past
two winters had been let down and to remove or modify to conform to
BLM standards within sixty days all 28 miles of his fence.  The court
confirmed and further explained its order in written form on November
1, 1985, holding (id. at iv-vi) the case to be controlled by this
Court's decision in Camfield v. United States, 167 U.S. 518 (1897).
This Court there ruled that a fence surrounding a checkerboard area of
publicly- and privately-owned land violated the UIA.  The district
court noted (Pet. App. v) that the Camfield fence, like Lawrence's,
was built entirely on private sections but enclosed public land.

   The court of appeals affirmed.  It held (Pet. App. xxiv-xxxii) that
the UIA prohibits the enclosure of public land (43 U.S.C. 1061) and
the obstruction of access over public land necessary for any lawful
purpose (43 U.S.C. 1063), including the management of
federally-protected antelope, and rejected (Pet. App. xxxv-xxxvi)
Lawrence's argument that the presence of gates prevented his fence
from being an unlawful enclosure.  The court distinguished (id. at
xxiii) Leo Sheep Co. v. United States, 440 U.S. 668 (1979), in which
the United States had claimed that it had reserved an easement over
the privately-owned sections of land in a checkerboard area, on the
ground that the present case involved simply the question whether the
fence constructed by Lawrence unlawfully enclosed public land in
violation of Sections 1 (43 U.S.C. 1061) and 3 (43 U.S.C. 1063) of the
UIA.  Like the district court, the court of appeals noted (Pet. App.
xx-xxv) that the government's power to abate such a nuisance had been
settled by Camfield in a case strikingly similar to the present one.
The court also held (id. at xxvi-xxvii) that nothing of Lawrence's had
been "taken," and noted (id. at xxvii-xxviii) that he retained the
right to exclude antelope from his land if he could do so without
unlawfully enclosing public land.  Finally, the court rejected
Lawrence's claim, in its various forms, that the passage of the Taylor
Grazing Act, 43 U.S.C. (& Supp. III) 315 et seq., distinguished his
case from Camfield.  Specifically, the court ruled that his Taylor
Grazing permits did not give him color of title under the UIA (Pet.
App. xxxii-xxxiii), and that his fence was an unlawful enclosure under
the UIA even though it did not violate the terms of his Taylor Grazing
Act lease since it is built on private, rather than leased, land (id.
at xxxiii).

                               ARGUMENT

   The decision below is a correct and straightforward application of
this Court's holding in Camfield v. United States, 167 U.S. 518
(1897).  It does not conflict with any decision of this Court or any
court of appeals.  Accordingly, review by this Court is not warranted.

   1. The court of appeals correctly ruled that Camfield is
controlling here.  Camfield, like this case, arose because the
defendants had fenced in an area of land characterized by the
checkerboard public/private ownership that resulted from the Union
Pacific Railroad Act land grants.  Like Lawrence's fence, the fence in
Camfield was built entirely on the privately-owned odd-numbered
sections of land in the checkerboard.  And, like Lawrence's fence, the
Camfield fence enclosed not only the private land but also thousands
of acres of public land.  At each section line, a swinging gate had
been placed to provide "access" to the enclosed public domain land.
The defendants denied any intention to monopolize the public land or
to exclude the public.  In addition, the defendants claimed that the
fence was needed to carry out an irrigation project on the private
land in the enclosure.  Camfield, 167 U.S. at 519-521.  This Court
held (id. at 522) that the enclosure violated Section 1 of the UIA,
which makes unlawful all enclosures of any public land by any person
without a good faith claim or color of title to the public land
enclosed.  Despite the defendants' ownership of all the odd-numbered
sections which were also enclosed, the claimed need for the fence, the
presence of gates at each section or the disclaimer of any intention
to exclude the public, the Court concluded (167 U.S. at 522) that
defendants were "certainly within the letter of * * * (the UIA since)
(t)hey did enclose public lands of the United States." It was
sufficient under the UIA that public land had been enclosed by someone
without claim or color of title.

   The courts below found the facts here to be "virtually identical"
to those in Camfield (see Pet. App. vi (district court), xix n.1, xxii
(court of appeals, quoting and adopting findings of district court)).
Petitioner does not challenge any findings of fact as clearly
erroneous.  /3/ Rather, petitioner argues that this Court's subsequent
decision in Leo Sheep v. United States, supra, modifies the
applicability of the UIA to this situation as established in Camfield.
 That contention is refuted by the Court's opinion in Leo Sheep
itself, which specifically stated (440 U.S. at 683) that "the Unlawful
Inclosures of Public Lands Act of 1885 (is not) of any significance in
this controversy."

   The issue before the Court in Leo Sheep was whether the United
States had reserved an easement that it could use to build a public
road over the privately-owned sections of land in a checkerboard area.
 The Court found that the United States had not reserved such an
easement;  thus compensation was due the private landowners.  The
Court's holding that the government could not take private land
without compensation is irrelevant to this case, which, like Camfield,
concerns the obstruction of public lands by an unlawful enclosure.
/4/

   2. Lawrence also argues (Pet. 15-22) that the court of appeals
erred in finding that the UIA prohibits obstructions to the passage of
antelope as well as people.  He adds (Pet. 17) that, even if antelope
are protected, his fence had gates in it and so cannot violate Section
3 of the UIA.  His contentions are not supported by either the plain
language of the statute or the case law.

   Section 1 of the UIA, to which petitioner makes no reference, very
broadly prohibits all enclosures of public lands without reference to
what is fenced out of those public lands or to whether the enclosures
have gates:

         All inclosures of any public lands * * * constructed by any
      person * * * to any of which land included within the inclosure
      the person * * * had no claim or color of title made or acquired
      in good faith * * * are declared to be unlawful * * *.

43 U.S.C. 1061.  The court of appeals rightly concluded (Pet. App.
xxx) that petitioner's fence is clearly an "inclosure() of any public
lands * * * declared to be unlawful" by Section 1.

   Petitioner eschews Section 1 to rest his claim entirely on Section
3 of the UIA (43 U.S.C. 1063).  That section adds to the fencing
prohibition in Section 1.  It prohibits:  (1) the prevention or
obstruction by any means of any person from entering on public land
subject to settlement or entry;  and (2) the prevention or obstruction
by any means of "free passage or transit over or through the public
lands" (43 U.S.C. 1063).  The court of appeals correctly concluded
(Pet. App. xxx-xxxii, xxxv-xxxvi) that, despite the presence of gates,
petitioner's fence is unlawful under this section as well because it
"prevent(s) or obstruct(s) free passage or transit over or through the
public lands" of federally-protected wildlife.  The fact that the
first clause of Section 3 speaks of preventing entry by "people" for
purposes of settlement or entry under public land laws does nothing to
limit the applicability of the second clause in Section 3 to the
"passage or transit" of "people" only, just as it does nothing to
remove the general prohibition of Section 1.  The plain and broad
language of Section 1 and the second clause of Section 3 should not be
restricted absent clear legislative intent to do so.  See North Dakota
v. United States, 460 U.S. 300, 312 (1983).  /5/

   The Tenth Circuit's holding accords with previous decisions.  In
Camfield, this Court interpreted Section 1 of the UIA to prohibit an
unlawful enclosure without indicating that only enclosures infringing
grazing or other specific rights would trigger the statute.  Rather,
the Court stated (Camfield, 167 U.S. at 526) more comprehensively that
Congress has the power of legislating against a nuisance "for the
protection of the public lands, though it may thereby involve the
exercise of what is ordinarily known as the police power, so long as
such power is directed solely to its own protection."

   Indeed, in Stoddard v. United States, 214 F. 566 (1914), the Eighth
Circuit interpreted Section 3 of the UIA to preserve not only the
"free passage or transit" of people over public land but also that of
cattle.  Specifically rejecting the argument that Section 3 applies
only to protect the passage of people, the Stoddard court held that
the UIA was intended "to prevent the obstruction of free passage or
transit for any and all lawful purposes over public land." Stoddard,
214 F. at 568-569 (emphasis added);  see also MacKay v. Uinta
Development Co., 219 F. 116, 118-120 (8th Cir. 1914).  The court of
appeals here followed Stoddard, properly finding the management of
public lands to provide forage for antelope a "lawful purpose." /6/
The court in Stoddard also found (214 F. at 568) that the presence of
gaps in the fence there did not cure the UIA violation, since the
cattle could not pass through the gaps because of natural barriers.
Likewise here, the court correctly found that the presence of gates
could not cure the obstruction to antelope presented by the fence.
/7/

   3. Petitioner further claims (Pet. 10-11) that the court of appeals
held that the intent with which a fence is built is irrelevant to a
UIA violation and that this holding is inconsistent with Camfield,
insofar as it applies, and with Ninth Circuit case law.

   The court of appeals' decision, however, did not rest on a holding
that intent is irrelevant to a UIA violation.  Rather, the district
court in this case found (Pet. App. xiv) that both the effect and
intent of the fence was to exclude antelope, a factual finding found
(id. at xxix n.8) not clearly erroneous.  Thus, the court of appeals
concluded (ibid.):  "whether Lawrence's intent in building the fence
is relevant or not, the fence is unlawful under the UIA." Accordingly,
the question whether intent is relevant to a UIA violation is not
presented by this case.  /8/

   4. Petitioner also errs in contending (Pet. 14-15) that even if
Camfield controls, the court of appeals has departed from Camfield in
upholding the district court's order requiring modification of his
fence to comply with BLM standards or removal of all 28 miles of his
fence.

   In Camfield, the district court ordered abatement of the nuisance
created by defendants' fence by requiring removal of the entire fence.
 Brief of Camfield Appellants before the United States Supreme Court
at 7, quoting from the district court decree, reproduced in Intervenor
Wildlife Federation's Addendum B-13, B-16.  The court of appeals here
has affirmed the same remedy sanctioned in Camfield.

   Moreover, under the UIA, the action required to abate a nuisance
lies within the discretion of the district court (see 43 U.S.C. 1062).
 Because the fence constituted a prohibited enclosure, ordering
modification or removal of the entire fence was well within the
discretion of the district court, as Camfield demonstrates.  /9/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   ROGER J. MARZULLA

      Assistant Attorney General

   PETER R. STEENLAND, JR.

   J. CAROL WILLIAMS

      Attorneys

   NOVEMBER 1988

   /1/ A fence built on public land would have to be approved by the
BLM (see 43 U.S.C. 315c).  An approved fence would be designed to
allow antelope to crawl under it or jump over it (Pet. App. xx n.4).

   /2/ This fence was built ostensively to protect a crested wheat
crop which Lawrence claimed he intended to plant (see Pet. 6).
However, Lawrence has never planted crested wheat on the enclosed land
(Pet. App. xiv).

   /3/ Nor does petitioner press his argument, made in the courts
below, that he has not violated the UIA because he has a good faith
claim or color of title to the enclosed public lands in that he holds
leases under the Taylor Grazing Act allowing him to graze cattle there
for 60 days per year.  Insofar as he makes reference (see Pet. 15) to
such a claim, however, it is insubstantial.  As the courts below
stated (Pet. App. xi, xxxii-xxxiii), the language of the Taylor
Grazing Act itself negates petitioner's claim.  See 43 U.S.C. 315b
("(T)he issuance of a (grazing) permit * * * shall not create any
right, title, interest, or estate in or to the lands.") Further, the
case law has consistently interpreted the good faith exception to the
UIA to refer to claims of fee, rather than leasehold, title.  See,
e.g., Smith v. Third Nat'l Exchange Bank, 244 U.S. 184 (1917);
Cameron v. United States, 148 U.S. 301 (1893).

   /4/ There is no basis for petitioner's suggestion that Camfield is
no longer good law (Pet. 22-23) and that the UIA is no longer
operative (Pet. 18-19) because each belonged to an era when lands were
open to settlement and common grazing.  Congress did not limit its
statutory prohibition of unlawful enclosures to those that interfere
with settlement or grazing rights, although protecting those rights
was clearly a focus of the UIA (see Leo Sheep, 440 U.S. at 683-684).
Rather, Congress declared "(a)ll inclosures of any public lands * * *
unlawful" (43 U.S.C. 1061 (emphasis added)).  Nor does petitioner cite
any legislative history to support the claim that the statute effected
a narrower prohibition than its language indicates.  As the court of
appeals held (Pet. App. xxx), there is no reason to read extraneous
restrictions into the statute when the language of the statute is
clear on its fact.  See Consumer Product Safety Commission v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980) (language of statute
ordinarily conclusive, absent clear legislative intent to contrary).
In addition, Congress amended the UIA as recently as 1984 (see Act of
Nov. 8, 1984, Pub. L. No. 98-620, Tit. Iv, Section 402(43), 98 Stat.
3360), which it would not have done had the repeal of the last
homesteading acts in 1976 by the Federal Land Policy and Management
Act of 1976, Pub. L. No. 94-579, Tit. VIII, Section 702, 90 Stat.
2787-2789, or the termination of open public range in 1934 by the
Taylor Grazing Act, ch. 865, 48 Stat. 1269-1275, implicitly repealed
the UIA.

   /5/ Petitioner objects that the court of appeals' holding amounts
to the seizure of private property for antelope (Pet. 22-23), results
in a drastic modification of property management (Pet. 19-20), and
imposes a servitude upon patented private lands for the benefit of
antelope (Pet. 22).  These are merely variations of the argument that
Leo Sheep should control this case.  As the court of appeals correctly
explained "the district court did not grant the antelope any easement
across Lawrence's private land, 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 law (sic)" (Pet. App. xxii-xxiii).

   The power of the United States to abate the nuisance represented by
a fence built on private land but surrounding public land was settled
in Camfield.  As the Court concluded there:

         The defendants were bound to know that the sections they
      purchased of the railway company could only be used by them in
      subordination to the right of the Government to dispose of the
      alternate sections as it seemed best, regardless of any
      inconvenience or loss to them, and were bound to avoid
      obstructing or embarrassing it in such disposition.  * * *

Camfield, 167 U.S. at 527.  In short, while Lawrence may fence his own
land to exclude antelope if he wishes (see Camfield, 167 U.S. at 528),
the UIA provides that he may not fence his land so as to effect an
enclosure of the public lands.  As the court of appeals noted (Pet.
App. xxviii), "(a)ll that Lawrence has lost is the right to exclude
others, including wildlife, from the public domain -- a right he never
had."

   /6/ The court of appeals found (Pet. App. xxxi-xxxii) the
management of land to provide winter forage for antelope to be a
lawful purpose of public lands by looking to the directive in the
Federal Land Policy and Management Act that requires that "the public
lands be managed in a manner * * * that will provide food and habitat
for fish and wildlife and domestic animals" (43 U.S.C. 1701(a)(8)).

   /7/ Golconda Cattle Co. v. United States, 214 F. 903 (9th Cir.
1914) and United States v. Johnston, 172 F. 635 (C.C. N.D. Cal. 1908),
cited by petitioner (Pet. 17), do not cut to the contrary.  In each
case, the court simply found that the presence of long gaps in the
fence at issue meant that the fence was not an "inclosure" for
purposes of the Act.  See Golconda, 214 F. at 909 (gaps from 90-3400
feet);  Johnston, 172 F. at 636 (gaps of one-half to one mile).

   /8/ Moreover, the 1914 Ninth Circuit case cited by petitioner,
Golconda v. United States, supra, does not, in any event, stand for
the proposition that intent is a necessary element of a UIA violation.
 Rather, the court in Golconda held (214 F. at 904-905) merely that
the existence of an intent to enclose public lands could be considered
in the court's factual determination whether a particular fence was,
in fact, an "inclosure" at all for purposes of the UIA.  The court in
Golconda correctly read (id. at 904) Camfield to consider a
defendant's intent to the extent that intent helped to distinguish
fences on private land that enclosed that land alone from those that
enclosed public land or interfered with access to it.  Cf. Camfield,
167 U.S. at 522 (finding defendants "within the letter of (the UIA)"
without requiring intent as element of offense where defendants "did
enclose public lands * * * and there is nothing tending to show that
they had any claim or color of title to the same, or any asserted
right thereto under a claim made in good faith * * *.") Considering
the existence of intent to enclose land is thus a permissible
approach, not a mandatory one.  It is possible that the court in an
even earlier Ninth Circuit case (Potts v. United States, 114 F. 52
(1902)) considered intent a mandatory element of a UIA violation,
although it appeared to limit its holding to its facts (see id. at
55).  In any event, the Ninth Circuit assumedly rests with its later
conclusion.  In either case, any conflict obviously occurs so
infrequently that it does not warrant this Court's attention.

   /9/ Lawrence's contention (Pet. 14) that the district court is
without authority to order removal of the fence that borders or
"incloses" his own land or state-owned land which he leases ignores
the fact that such a fence was not the enclosure litigated before the
district court.