Public Comment Sought On Illegal Wilks Wildlife Obstructing Fence

This post presents a Public Trust issue, that being the wildlife obstructing illegal fence the Wilks have erected around our BLM public lands known as the Durfee Hills, in Fergus County, needing your Public emails to correct this situation.

The BLM Durfee Hills sits in the middle of a ring of parcels owned by the Wilks. 

Here is the Timeline of the events involving the Wilks Ranch fencing issue.

• The Wilks sought a land trade with the Bureau of Land Management, exchanging ranch land near Bullwhacker road in Blaine County for the Durfee Hills, which is situated right in the middle of their property with no public access, except by plane or helicopter. However, even though it is a wee bit more difficult to access, it is prime elk habitat.
  
• Through efforts spearheaded by the Central Montana Hunters, the Public signed an online petition  as well as hand signed petitions totaling over 1600 signatures and public comments which were then submitted to the BLM State Director Jamie Connell in April. As a result, the BLM rejected the Wilks land exchange proposal.
• The Wilks then began tearing up a swath of land to erect a fence "on their property", encircling the BLM Durfee Hills.
• This fence was first photo documented by a bowhunter (wingman) that flew into the Durfee Hills on Sept. 5th on the Hunt Talk Forum.
• After seeing the first photo of a 5 wire fence, I began posting documents citing legal fencing laws and regulations, even if it was erected on private property.
• On Oct. 1st, as a result of a number of the public raising questions, the Billings Gazette ran an article that the Durfee Hills fence built by the Wilks was okay - it was not.
• Oct. 7th, I contacted the Fergus County Clerk & Recorder, followed by the Assessors office detailed below - there is no professional survey on record!
  

Here are the various aspects of those laws and regulations, which I have stored full documents on a Fencing Page of the EMWH website.

Montana Code Annotated - minimum 3 wire fence, maximum 48" in height, bottom wire not less than 15-18".
Unlawful Inclosures of Public Lands Act - The Unlawful Inclosures Act of 1885 (UIA), as amended, is applicable to fencing constructed along or adjacent to public lands. This law states, in part, that "No person, by force, threats, intimidation, or by any fencing or enclosing, or other unlawful means...shall prevent or obstruct free passage or transit over or through the public lands..." The courts have ruled that the UIA guarantees access to public lands for all lawful purposes and that wildlife access to and use of Federal lands is a legitimate use
The BLM Fencing Standards Handbook - "The [Taylor] Grazing Act regulates fencing on public land, and unless fences on private land conform to those standards, the UIA prevents fences which wrongfully enclose public lands."...In summary, the "Red Rim" fence decision (United States v. Lawrence) establishes that legal action may be taken against parties who construct fencing on private lands that could enclose or block access by wildlife to public (Federal) lands.

The BLM Handbook states 3-4 wire fence involving deer, elk, moose or antelope with a top height of 38", 40 is acceptable if necessary with cattle. The bottom wire needs to be smooth and 16" from the bottom as shown below. Below is a pic of the Wilks fence which has been reported as higher than 48" and the bottom wire in this one is about 6" off the ground - 5 wire.

Wanting the copies of the surveys, I made a call to the Fergus County Fergus County Clerk & Recorder, to see about electronic copies of the BLM land surveys. They could not locate the parcels in question without a Certificate of Survey (COS) number. I had Geocodes and Legal Descriptions from the Montana Cadastral program, which did not list any Certificate of Survey numbers. The clerk referred me to the Fergus County Assessors office who could take my Geocodes and give me the COS for each parcel. Problem was, there has never been any professional surveys on record for these BLM lands in order to have a Certificate of Survey number, not one. I checked all the surrounding Wilks parcels with the Cadastral and none of those show any COS either. I called the Assessors office back and ran a number of these parcels through, providing the Geocodes and no Certificate of Survey numbers for the Wilks parcels either, not even the smaller one that was part of a large block of BLM land.

One of my questions: How can fences be erected without a survey? Also, "After BLM staff conducted a flyover and ground visits using a survey-grade GPS, no encroachment was found," if there has not been a professional survey? After speaking with professional surveyors, confirming with FWP that they did not give approval to the Wilks for the fencing as rumored (which I have stated they did not have jurisdiction to do), and speaking with BLM who confirmed there is no professional survey, I concluded the necessity of requesting the BLM to conduct a professional survey of our public lands to protect our Public Trust from special interests.

 

At issue here is a wildlife obstructing non-compliant fence, which may be partly on private land and partly erected on public (due to WAAS enabled GPS readings), ground disruption and damage to Public Lands, unlawfully enclosing our Public Lands (UIA), possible posting of no trespass signs on Public Lands (should the professional survey corroborate the GPS readings) and the possible intent to privatize our Public Wildlife. The reason I bring this last subject up, is if the Wilks were simply erecting a fence to mark their boundaries for any of the Public that flew into the Durfee Hills, why go to the labor and cost to erect a 5 wire wildlife obstructing fence? A 3 or 4 wire would have sufficed for marking boundaries.

Below is part of a letter which I sent to the Bureau of Land Management State Director Jamie Connell requesting the BLM conduct a professional survey and investigate the Wilks fence around the Durfee Hills. Please use any of this information and the email link below to send a letter, standing up for our Public Lands.
____________________________________________________
jconnell@blm.gov

Bureau of Land Management State Director Jamie Connell,

I am writing to request the Bureau of Land Management, a trustee/trust manager of our public lands, to conduct a professional survey of the Durfee Hills in Fergus County, Montana, which does not have a current professional survey, per the Fergus County Assessors office – to define the legal boundary, to check for ground disruption and that private fencing does not encroach on our public lands.

I would also like to request that you investigate the Wilks 5 wire fencing being erected to determine it's compliance with the Unlawful Inclosures of Public Lands Act, which is cited in your BLM Fencing Standards Manual H-1741-1, “Fences Along Public-Private and Public-State Land Boundaries, The responsibility to install fencing along the boundary between Federal public lands and lands owned by non-Federal entities (i.e., State, local, private) generally rests with the non-Federal landowners...The Unlawful Inclosures Act of 1885 (UIA), as amended, is applicable to fencing constructed along or adjacent to public lands. This law states, in part, that 'No person, by force, threats, intimidation, or by any fencing or enclosing, or other unlawful means...shall prevent or obstruct free passage or transit over or through the public lands...' The courts have ruled that the UIA guarantees access to public lands for all lawful purposes and that wildlife access to and use of Federal lands is a legitimate use. ”

The following BLM properties, known as the Durfee Hills - Geocode, with Legal Descriptions in parentheses.

08-2143-14-1-03-01-0000 (S14, T12 N, R22 E, S2NE4, SE4NW4, E2SE4)

08-2143-13-1-03-01-0000 (S13, T12 N, R22 E, SW4NE4, S2NW4, S2S2, NW4SW4, NW4SE4)

08-2143-23-1-01-01-0000 (S23, T12 N, R22 E, NE4, N2SE4, NE4SW4)

08-2143-24-1-02-01-0000 (S24, T12 N, R22 E, G LTS 2,3,4, W2E2, NW4, SE4SW4)

08-2144-19-3-01-01-0000 (S19, T12 N, R23 E, G LTS 3 AND 4, E2SW4, W2SE4)

08-2143-25-1-01-01-0000 (S25, T12 N, R22 E, G LTS 1,2,3, W2NE4, NW4SE4, NE4NW4)

08-2144-30-1-02-01-0000 (S30, T12 N, R23 E, G LTS 1,2,3,4, E2NW4, NE4SW4, N2SE4, S2NE4, NW4NE4)

08-2144-31-2-02-01-0000 (S31, T12 N, R23 E, G LTS 1,2,3, SE4NW4, E2SW4, SE4)

23-2034-06-1-01-02-0000 (S06, T11 N, R23 E, GOVT LT 2)

_________________________________________________________

Thank you,
Kathryn QannaYahu
www.EMWH.org