Open grazing vs. barbed wire in New West

Ranchers see a court ruling against open-range laws threatening traditions of the West.

As he begins another year running cows near the Big Hole River valley, Montana rancher Bill Garrison is facing a potentially costly expense he hadn't counted on: Stringing miles of additional barbed-wire fence on his property.

Mr. Garrison and hundreds of ranchers believe their cowboy way of life is under siege, following a recent state Supreme Court ruling that struck down the once-sacred "Open Range Doctrine."

They're still lobbying for legislation that will dampen the effects. But the ruling, largely a response to motorists' safety concerns, could mean the end of free-ranging cows in the West.

"The decision hit ranchers in Montana like a lightning bolt," says attorney John Bloomquist, who represented the ranchers. "But the effect could be far-reaching. Every state in the rural West with similar open-range policies is keeping a close watch on what happens here."

Along with cattle drives, branding irons, and spring calving, open-range laws have long been central to ranching in the West's wide open spaces. The 19th-century doctrine, which grew from British common law and predates the arrival of autos, roads, and even statehood, allows cattle in certain areas to roam anywhere they can find grass and water.

If a landowner wants to keep roving bovines out, he uses barbed wire. The practice worked well for much of the 20th century in a dozen states stretching from the Dakotas to Nevada. But as the rural character of the New West has been infused by more people, and motorists traveling faster, the open-range doctrine is increasingly disparaged as a public nuisance and safety hazard.

With residential subdivisions pushing deeper into former agricultural pastures, exurban owners of "ranchettes" don't want cows tromping through their gardens, leaving cow pies on their sod lawns, and scaring their kids.

The biggest complaint, however, relates to the safety concerns of cows along roads. The Montana high-court ruling, rendered in mid-December, sprang from a lawsuit brought by a motorist injured when her vehicle crashed into a bull on a public highway.

It wasn't the first time motorists have been injured or killed by cows, but in the past ranchers were held liable only if they were shown to be managing their herds with gross negligence. In the high-court opinion, justices wrote that ranchers have a legal responsibility to prevent their livestock from reaching roads, not just on major federal and state highways - most of which are already fenced - but on secondary dirt roads.

"This decision has created quite a buzz," says Garrison. "Most ranchers I've visited with believe it would be plum ridiculous to have to fence some of these county roads."

Logistically, requiring ranchers to fence every mile of public roadway flanking their property could be a nightmare. In Montana, the 2.6 million cattle and calves outnumber humans by a ratio of almost 3 to 1. Encompassing some 93 million acres, Montana's rural environs are webbed by tens of thousands of miles of roads.

Forcing ranchers to contain their cows is not only a potentially "devastating economic proposition," according to Steve Pilcher, vice president of the Montana Stockgrower's Association, but the barbed-wire barriers also pose a disruption to livestock management.

Mr. Pilcher says most urban transplants who want livestock tightly controlled fail to understand how much acreage is needed to fatten a cow for market. The drier the landscape, the more ground is needed to raise a calf to adulthood. Historically, open-range laws have given animals plenty of latitude to move between grasslands and water sources, often through areas bisected by roads.

The cost of putting up a standard four-string, barbed-wire fence can easily approach $2,000 per mile, according to John Holden, a rancher and former state legislator. And some ranchers, to reduce their liability and bring down insurance premiums, would have to fence dozens of miles of roadway or more.

Many Western cattle ranchers are already struggling, due to fluctuating beef prices, high energy costs, consolidation of the grain and meat-packing industries, and drought. "If ranchers are forced to build more fence line, it very well could be a straw that breaks the camel's back for smaller operators," Pilcher says.

The court ruling could also complicate liability questions. Critics say the court went too far when it decided ranchers are responsible for damages caused by cattle-auto collisions, even if their own actions did not result in the cows roaming free.

For example, if an elk topples a fence, or if a visiting hunter forgets to close a cattle gate and cows escape their confined pastures, the rancher is still responsible if the animals hurt a motorist in a collision. "It has created a question of liability we hope the state legislature will resolve," Bloomquist says.

Still, not everyone laments the arrival of more barbed wire. Environmentalist George Wuerthner says reforming open-range laws is long overdue. He claims 150 years of wandering cattle have produced numerous problems for fish and wildlife habitat.

Mr. Wuerthner would like to see cattle eliminated from public lands in the West, and has no sympathy for ranchers who complain about the added cost of fencing. He says they already enjoy a host of taxpayer subsidies. Keeping livestock off roads should be a cost of business.

(c) Copyright 2001. The Christian Science Publishing Society