They have a right to trample your property rights. Some say they take even more than that-

Urban folks have rarely heard of open range laws, but people who own land outside town in “open range” areas certainly have.  It is a long time and contentious issue that is heating up as more people own rural property they don’t intend to graze and especially when drought conditions prevail. It is also an issue to travellers who might injure or suffer injury from cattle, horses, or mules.

As Idaho law defines it, ” Open range” means all uninclosed [sic] lands outside of cities, villages and herd districts, upon which cattle by custom, license, lease, or permit, are grazed or permitted to roam.”  Simply put, it means that if you own rural property in most of Idaho (and other western states) cattle owners can turn their livestock loose to eat whatever they choose on private property that is not fenced.

Idaho, and some other states, are “fence out” states where livestock owners have complete immunity to damage claims from the acts of their livestock. This includes not only damage from  trampling and consumption of gardens, shrubbery, trees, but also bodily injury to people.  It is the cow that has the rights, actually the cattle owner. If you harm the cow (livestock) in a collision with your vehicle, you will pay all the damages including injury or death of the cow or cattle. You cannot sue for bodily harm or unlawful death of a person.

A paved highway, even one with a county, state or federal designation, is no protection of your liability to not harm livestock. Idaho’s open range law also reads that no livestock owner “shall have the duty to keep such animal off any highway on such range, and shall not be liable for damage to any vehicle or for injury to any person riding therein, caused by a collision between the vehicle and the animal.”

The law allows cattle and sheep owners to drive their stock on paved highways and immunity from damage they cause, including negligence by the herders. Drivers going through a herd of cows must be very cautious. They have no legal protection of any kind, only potential liability.

Adverse weather such as fog, blinding snow, or black ice is no legal protection for motorists either.

If rural land is part of a “herd district” they might have to fence in their cattle, reversing their rights. However, it is not easy to tell what kind of area you are in.  Highways often have signs announcing “entering open range,” but usually not a sign about leaving it.  Signs are on the more important roads but usually not required.

Sometimes what might appear to be a herd district is not.  Smart or responsible livestock owners in an open range area might well have their stock well pastured as a matter of choice while others let their stock scrounge whatever they can along roadsides, ditches, broken fences, and unfenced private land. If you have a “lawful fence”,* however, you are allowed to capture “estrayed” livestock on your land.

It is often conceived that open range applies only to cattle and sheep, but it often applies to  horses, mules, asses, goats, and even chickens as well.

A herd district is created by the county commission, and it is one reason why these elections are of great importance to property owners.

Legality is not necessarily a true defence of one’s private property from livestock. There are situations, especially in droughts or overgrazing, where “lawful fences” seem to develop holes, repeatedly.  People who have fenced their private springs also have problems with broken or cut fences when nearby open range grazed, watering places dry up. These situations are often flat out illegal trespass, but it is often hard to interest the sheriff in the offense.

It is often thought that livestock grazing and damage controversies apply only to public lands. As we see, private property is hardly exempt. Perhaps new laws are needed . . . would a “stand your ground law” do the trick?

The status quo is likely to continue. Change requires political organization by non-livestock property interests. Recently at a weekend outing a person who had rural property belabored me at length about the abuses he had suffered from livestock on his mostly unfenced property. I asked him about organizing his neighbors . . . “oh, that would be a lot of trouble for me.”

– – –

* “Lawful fence.” A lawful fence, except as hereinafter provided, must be not less than four and one half feet (4 1/2′) high, and the bottom board, rail, pole or wire must not be more than twenty inches (20″) above the ground, and the space between the top and bottom board, rail, pole or wire must be well divided.

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About The Author

Ralph Maughan

Dr. Ralph Maughan is professor emeritus of political science at Idaho State University with specialties in natural resource politics, public opinion, interest groups, political parties, voting and elections. Aside from academic publications, he is author or co-author of three hiking/backpacking guides.

60 Responses to Open range laws, legal and illegal abuse by livestock interests

  1. avatar Matthew Perkins says:

    So much is wrong with this….

  2. avatar Jim Wiegand says:

    I am very aware of this problem having lived with it a few years back. People do have a right to protect their property and shoot these animals. There is also another disturbing fact about open range laws. Many ranchers deliberately exceed the number of animals they are permitted to have grazing on public lands.

  3. avatar Barb Rupers says:

    There is an interesting article in the Observer of Wallowa and Union counties in Oregon. A Joel Rice had informed his neighbors regarding cattle on his 1000 acre property; the ranchers had removed about 55 head over a month. Some still remained near the man’s residence and he shot and killed 7 of them. He was arrested for his actions.

    He had been a member of Union County Planning Commission for 10 years and worked to change the open range laws; also, he had partnered with the Rocky Mountain Elk Foundation and others to have his property and adjoining land open for elk and other hunting during season.

    In 2010 he was the president of The Blue Mountain Conservancy and may still be in that position.

    Union county has mixed designation for “livestock range”.

    http://www.lagrandeobserver.com/News/Local-News/Doing-all-they-could

    • avatar Jim Wiegand says:

      You can shoot them if you feel they are a threat to you or your family.

      • avatar zach says:

        You step on my property (human or animal) without permission, you’re going to be shot at.

        I don’t apply “shoot, shovel, and shut up” to wolves, I apply it to roaming live stock. Keep your fucking animals on your own land. Poor land management and property management don’t fly with me.

        I hold people accountable to their actions.

  4. avatar Ralph Maughan says:

    Here is an Arizona example how open range laws, and the preferential low taxation of grazing land interacts with greedy land devlopers’ profits, but to harm the misfortunate who bought land in the development.

    BAD COW PUBLIC RELATIONS
    http://www.bandersnatch.com/badcow.htm

  5. avatar John says:

    I reviewed these laws some years back and it used to be that the owners of livestock had to control their livestock on public highways. I have been dealing with trespass for 20 years here in Paris Idaho while trying to develop a wildlife preserve and restore the land from a century of abuse by ranchers. Over $50k later, many trespasses and the most recent nearly killed one of my akitas while charging it and myself. This cow came thru a maintained fence and even though I called the rancher, no help. All the forage on the grazed side of the fence has been eaten, so they press on the fences every August and some get thru, after all, an 1800 pound cow doesn’t find a mere fence much of an obstacle if there is clean water and two foot tall grass on the other side.

    I would like to see some action on this issue, particularly a class action suit to test the property clause as a taking of private property rights. An Iowa Supreme Court case I once read declared this open range against the state constitution as I recall. No state could be more AG oriented than Iowa, yet here was an enlightened outcome.

    Livestock owners should be responsible for their stock, after all dog owners have to be accountable for their dogs.

    Essentially this law allows legalized theft and they take full advantage of the opportunity.

    • avatar MAD says:

      unfortunately, your story is not uncommon in the West. Ranchers have become embedded in the landscape like engorged ticks. There’s an amazing book that was written by a University of Wyoming law school professor called, “The Western Range Revisited.” Since she’s a lawyer, and was previously a biologist, she examines the issues of ranching on public lands in the arid west from both a legal and biological standpoint.

      The ranchers were so pissed off when she published the book, they tried to get the Governor to fire her. when that failed, they tried to cancel the charter for the law school and shut it down. they will do anything to perpetuate their rapeof the land in search of the almighty $.

  6. avatar WyoWolfFan says:

    These laws show just how backwards the West can be. Sometimes I think the governments in these states seem to have missed out on the fact that the 19th and early 20th centuries are long over.

    • avatar IDhiker says:

      It’s hard to let go of tradition, especially when it means lots of money in one’s pockets! And, consider the legislatures are dominated by the ranching / agricultural community.

      • avatar Ralph Maughan says:

        One might say it means a lot of money for them because they created a system where they could milk other people and keep themselves in power.

      • avatar WyoWolfFan says:

        I agree, the legislatures are under the ranching lobby’s control. A shame really.

  7. avatar Robert R says:

    Ralph I know you have a hatred for livestock in general.
    The United States as a whole is one big open range for wildlife yet where is the protest to keep deer,elk,moose or bear etc. off of the roads.
    I to have some reservations about agriculture/livestock but I’m not selfish enough run them out of business.
    Maybe if the government was lobbied to get rid of all free programs we would all be out of a job. Watch what you wish to control or abolish because there is a huge trickle down of jobs.
    We have some open range and I have a higher chance of hitting a game animal.

    • avatar Ralph Maughan says:

      Robert R,

      I think there is more local concern about trespass.

      Yes, you are allowed to capture estrays if they come through your “lawful fence.” However, people who are not equipped to handle livestock cannot capture large cattle or horses, and especially if there are more than one.

      The sheriff should help. That might be dealt with through elections locally if he or she doesn’t help. However, people need to know what they can do legally, and I know this knowledge is not well communicated.

      If people think their property rights are violated without any recourse known to them, the livestock might well disappear, especially the smaller varieties.

      We don’t want things such as this to happen: Riders say they were looking for loose cattle for days before they were shot

      That is why I write articles like this. The goal of journalism is make news available to the community, however, it may be defined.

    • avatar Mal Adapted says:

      Robert R,

      Ralph’s article is about ranchers who avoid the cost of preventing their own animals from stealing forage, damaging property and threatening people with bodily harm. The ranchers are profiting by making someone else pay their business costs.

      Those ranchers are taking advantage of their neighbors’ unselfishness and the American public’s romantic notions about The Ranching Way of Life, to keep themselves in business.

      In other words, your unselfishness enables their selfishness. Looks like they’re milking you too.

      • avatar Robert R says:

        I do believe all land owners are responsible not just the ones running livestock. Are these private land owners not taking a risk by not fencing their property boundaries to even protect them selves from wildlife destroying vegetation,fences or injuries etc.
        Who is milking who, we all use dairy products and we all use beef biproducts weather your vegitarian or not.

        • avatar Mal Adapted says:

          Are these private land owners not taking a risk by not fencing their property boundaries to even protect them selves from wildlife destroying vegetation,fences or injuries etc.

          So, whatever damage trespassing livestock do is OK because wildlife might do the same things, is that what you’re saying?

          we all use dairy products and we all use beef biproducts weather your vegitarian or not

          Once again, if cattle are no longer allowed to graze on public lands, how much might the price of those goods rise, Robert R?

          • avatar Robert R says:

            Mal I’m not saying destruction by any animal is ok but IF your private property is fenced the cattle most likely will not destroy it. On the other hand unless you have a high fence deer and elk will jump your fence.
            There are a lot of IF’S and no grazing on public land is far beyond are lifetime.
            I don’t know what the rise in goods will be, but it won’t be cheap.

    • avatar Ralph Maughan says:

      Robert R,

      I also take exception to your statement, “Ralph, I know you have a hatred for livestock in general.”

      I do not hate the livestock in any personal way, and I have never harmed any livestock animal other than lawful slaughter in veternary practice and for food.

      I rarely eat beef or mutton. I don’t think it is good for people, but I eat a lot of chicken, turkey and some pork . . . farmed bison too when I can get it. It is inevitable that I eat cattle derived products because they are processed into so many things, but I don’t drink milk.

      I sense injustice in some of the ways livestock interests produce their product by passing their costs of production onto others and thus create many harmful and uncompensated side-effects. Not only that, but they often secure legal protection to monetarily harm or otherwise hurt people and the property. Then there is the matter of environmental damage . . .

      The current situation is not just, and as more and more people are saying, “no justice; no peace!”

    • avatar Eddie Berry says:

      I live in open rangeand hate the freekin cows. I have never seen 50 deer elk or bears in my yard.

  8. avatar Richie G. says:

    Ralph all I can say is great article and you are very brave for writing such an article. You live in Idaho and still you write the truth no matter where it falls. Again great reading things I would never know unless I read your articles.

  9. avatar CodyCoyote says:

    The state of new York has more cattle than Wyoming, but I’m pretty sure that New Yorkers do not allow free roaming cows to batter down fences , obstruct highways, or claim special exemptions from a wide variety of property damage. I’m also pretty sure that New York requires adult supervision of cows.

    By the way , Wyoming is ranked 23rd in the nation in cattle numbers this year, having a whopping 1.4 percent of the nation’s total herdcount at its seasonal max. Montana is ranked 10th , Idaho 13th. Wyoming is outflanked by such cattle metropoli as Florida, Virginia, Kentucky , Tennessee, and Missouri, none of whom would tolerate Open Range-Fence Out situations, I’m sure.

    http://www.cattlerange.com/cattle-graphs/all-cattle-numbers.html

    Does anyone have a good online source page for the history of this Open Range – Fence Out mindset in the context of the settling of the American West ? I do know the use of barbed wire was already widespread by the late 1880’s , so….. ?

  10. avatar WM says:

    Does anyone have a current summary of Western states that still have Open Range laws (applying to all or some of the state outside specified urbanizing areas)? I am thinking there are quite a few, and the land areas involved are massive. “Fencing in” does have substantial economic costs, to which the vested livestock interests naturally and most strenuously object. And, to be clear, not every motorist hits a cow, or a deer, elk or maybe even a bison. In the case of the wildlife the motorist absorbs the cost of damage to the car/occupants (or rather their insurer, usually under comprehensive or first party property or other insurance), but there is no liability claim for the dead animal. A dead cow, on the other hand in Open Range becomes a liability claim against the car driver (or in most states the insurer, because of MANDATORY liability insurance). So, there is some social subsidy. If the cows get in your garden, well it looks like you should have fenced them out. Been that way for nearly a hundred and fifty years now in the West.

    As landscape changes from rural to urban, as it seems to be doing, some might also say those urbanites who own more rural land, or a little “ranchette” now fenced, are also somewhat responsible for the loss of even more wildlife migration corridors and loss of winter range (which might be shared by cattle). Then, of course those new fences, whether to fence something in or something out, also provide another potentially lethal obstacle to wildlife trying to cross through. Ever seen an elk or a horse (maybe run into a corner by a predator)tangled in barbed wire, fighting to get loose? It’s not a pretty sight.

  11. avatar Richie G. says:

    WM I agree with your last comment about a predator running an animal into a fence. But do you have any facts on the laws of other states allowing free roaming cattle and it’s owners ” The Ranchers” to get a free ride with the state laws protecting them, at the cost of the people owning the land. Yes you are correct about wildlife corridors, for wildlife but open range cattle are protected from almost all predators, so which is worse for wolves and bears and mountains lions and all other predators fences or free roaming cattle?

  12. avatar Nancy says:

    “I guess the question for the 21st century is, should a black cow at midnight have more right to a highway than a person?” asked Andy Kerr, director of the National Public Lands Grazing Campaign, which is trying to get Congress to pay ranchers to give up federal grazing permits”

    http://www.publiclandsranching.org/htmlres/openrange_press3.htm

  13. avatar topher says:

    When I first started driving I was returning from Salt Lake late one night in heavy fog in my 84 Subaru wagon (best car ever made) when it got so rough I thought I had driven off the road. I soon saw little heads popping up in front of the vehicle and realized that a herd of sheep had decided to bed down right in the highway. I don’t know how many I hit but would guess at least a dozen. The car didn’t seem to mind much and I didn’t bother to report it although for other peoples safety I should have. If it happened again I would make an anonymous call but I’m sure as hell not paying for someone elses animals when they decide the highway is nice place to spend the night.

  14. avatar JEFF E says:

    I have a question Ralph.
    Do grazing leases have a time constraint; yearly; seasonally?

  15. avatar Kevin Jamison says:

    Just got back from a weekend at the shack. Cows have gotten in after about a decade of successfully keeping them out. The havoc they have made is unbelievable. I have been walking with young guests pointing out moose, deer, various other tracks & etc., now you can’t tell anything. Dinner plate sized flops everywhere & cow tracks, which are more like bulldozer leftovers. With the Big Lost so low, they are wading & shitting their way across my land & in the river and are going to kill what fish are left trying to survive ’till spring. Goddamn miserable situation.

  16. avatar Donna Porteus says:

    So all these sob stories about wolves killing off cows is just another attempt at extortion by ranchers? Or are predator hunters cashing in on this bonanza by piggybacking off rancher complaints? I am just seeing so many “ranchers” backing the wolf killing season because wolves “hack up” their cattle and sheep. I was curious as to how many ranchers there are in Montana and Idaho, and why they have so much time to spend responding to Letters to the Editor! So much money is changing hands over these cows that you have to wonder how people don’t rebel over the situation.

  17. avatar RealNiceGuy says:

    The way I read this, if I have cut-and-baled hay on my property and a neighbor rancher comes on my property to take said hay back home to feed the herd, that would be theft. But if neighbor rancher leads the herd to my property and shows them the my plentiful forage or cut-and-baled hay, it’s ok. Yup, sounds like legalized theft to me.

    • avatar Ralph Maughan says:

      RealNiceGuy,

      The rancher could not legally lead his herd to your hay if the cut hay was surrounded by your “lawful fence.” However, one person commented earlier that he his land was in effect under siege from the cattle as huge steers weighed on his lawful fence and collapse it, and he couldn’t get the local sheriff much interested in the issue.
      – – – –
      * “Lawful fence.“ A lawful fence, except as hereinafter provided, must be not less than four and one half feet (4 1/2′) high, and the bottom board, rail, pole or wire must not be more than twenty inches (20″) above the ground, and the space between the top and bottom board, rail, pole or wire must be well divided.

      • avatar Real Nice Guy says:

        Thanks for the clarification. I am glad to see there are some limits. Living in Virginia and not being a farmer or rancher, this is more of a theoretical problem for me. But disturbing nevertheless.

  18. avatar Eric says:

    I think it’s unbelievably stupid that you would have to pay for someones cow or sheep or whatever animal that you hit. Don’t get me wrong, I LOVE animals to death, but if the owner of that animal decides to not control it and the animal crosses a highway where vehicles are constantly driving, and gets hit? Then there’s no way in hell that the driver should have to pay for the damage and death of the creature. You can’t stop on a dime if some big ass cow decides to cross the road when you’re driving 60+ mph. That’s a really stupid law.

    • avatar Ralph Maughan says:

      Eric,

      Laws are often not made because they are logical, but because some groups in society have unaccountable power to compel the rest of us.

    • avatar SaveBears says:

      Not that I agree with them Eric, But you might want to look up the open range laws in many states and you might see where the paying for the animal you hit comes into play.

      • avatar Montana Boy says:

        I found it interesting how open range laws are blamed on western ranchers and their political clout. Yet Hawaii has open range laws also, Hmmmm.

        • avatar SaveBears says:

          And they abuse the open ranges laws in Hawaii as well, I was stationed there for quite a few years, my residence was on the Big Island, where one of the largest cattle ranching operations in the country operate.

          • avatar SaveBears says:

            By the way Montana Boy, I also am a resident of Montana and my wife’s family came to Montana in 1877 and still own their homestead that was established in 1877 in Lincoln Montana, so I am pretty well versed in Western Law, I also worked for FWP, so before we go further….

            • avatar SaveBears says:

              Also, when I was stationed in Hawaii I hit a “prize” bull, guess who paid for it, my insurance, then I was cancelled so there after.

    • avatar WM says:

      I suppose there are a couple ways to interpret your statement, Ralph. Consider the fact scenario where a state/federal government decides someone’s contiguous piece of land becomes the newly proposed path of a new road or highway. The land is condemned by the government, and a nominal price is paid to the landowner. A legal public right of way is obtained for a paved road. Without open range, the landowner must now “fence” both sides of the highway where his/her livestock used to freely pass thru, and absorb that cost because “some groups in society have unaccountable power to compel the rest of us?”

      Seems to me it is a two edged sword, depending on which way it is swung. My recollection is that some states, like WA, leave it to individual counties (don’t know whether it is by statute or County ordinance) to determine which PARTS are open range. It usually has to do with urban type density. There are probably some economic arguments to be made regarding why some parts are Open Range. As Eric points out, it is kind of stupid to have to dodge cows at 60 mph; or you could just slow down and be a vigalent driver. On the other hand, if you hit one (assuming you and your passengers survive it), the car insurance may pay for the cow and the car, and the cost is borne by and distributed to society in general (well at least the rate payers with that insurer), and it is somewhat economically efficient, because the rancher doesn’t have to spend all the money for fencing and regularly checking on the cows. And, the concept just might work in some rural areas or on forest lands where distances are long on gravel roads and fencing might just be kind of STUPID there because of the cost and maybe just who owns the land.

      • avatar WM says:

        ….just who owns the land on both sides of the road.

      • avatar WM says:

        Another thing I forgot to mention. That is Open Range in Indian Country – the reservations, and do be assured there are substantial miles of roadway that cross reservation lands in the West. Open range is almost universal to my knowledge, and there will be no changes by non-Indians. Good luck valuing a cow or sheep you hit that shouldn’t be on the road before a tribal court, if your insurance can’t resolve the matter with cash. Even worse if you claim some sort of liability against a tribal member for loose cows in the road (though I suppose a federal court might also hear the case, but I don’t recall Indian law regarding jurisdiction on this sort of thing that well).

  19. avatar Loretta says:

    In Kingman, Arizona a friend of mine was working at a property management for private estate homes, under contract labor she had one encounter with a bull who was grazing open range this business had a fence, which was taken down by the bull she contacted the owner and explained what had happened the bull was then directed off the property. She was not so lucky the second time this occurred she was charged by the bull thrown up in the air she fell very hard on the dirt she substained physical injury however when she had arbitration the owner was deemed not responsible and she now has been ordered to pay for his lawyer fees!
    She has not been able to work due to being hit in the groin substained a Hugh bruise and many medical bills is there anything she can do legally to recoupe funds for medical bills along with owner liable for pain and suffering ?

  20. avatar Patricia says:

    I have rental property in Sublette County, Wyoming. My property is parallel to a well used road. The road is paved and is the only road to many residential properties. Our houseIf sits on 13 acres.If a horse should get out of the fenced area and pose danger to itself or cars on the road, am I responsible or are my tenants responsible for their animals? They have shored up my original boundry fence and they have installed an electric top wire partially around the perimeter…I am concerned. Help, please…

    Thanks

  21. avatar Patricia says:

    This is the comment I received from my renter when I questioned the current fence that is there. I don’t like the idea of an electric fence because wildlife have always roamed freely in our area…my concern is the horses…she keeps horses that belong to others and I do not want to bear that responsibility should they get out on the paved road where traffic is constant.

    Her answer to me:

    The fencing is 3 strand barbless wire with an electric rope going across the top. This encloses 3/4 of the pasture. The other 1/4 is 2 strand livestock approved electric rope. In the 3 years we have been here we have not had any animals get out. We have not installed the buck fence as of yet. Also, Wyoming is an “Open Range” and a “Fence Out” state which makes the drivers responsible should they hit an animal.

    IS THIS A TRUE STATEMENT?

    Thanks,
    Patricia

  22. avatar Nancy says:

    Patricia, would be a good idea (especially if you are renting your land to others) to check with local authorities/or your insurance agent. Some states do not consider horses as livestock.

    I gave some thought a few years ago to allowing short term boarding of horses on my property and my insurance agent said I’d have to have a minimum of well over a hundred thousand dollars worth of coverage.

    • avatar Patricia says:

      Thank you for your comment!

      • avatar Nancy says:

        Its complicated Patricia but it boils to you, as the property owner, could be liable for your renter’s poor decisions, especially if they are keeping horses that belong to other people.

        • avatar Patricia says:

          Thank you Nancy. My house sits on 13 acres. I don’t even know how many horses one should have on that amount of land. I think she has four and then a few that she trains. She gave me that curt answer when I asked about the fencing so I really don’t know. I have had them there for three years but since I don’t live nearby, I rely on their ability to keep the place in shape. They told me they would use a temporary hot fence which I guess has turned into a permanent fixture… I just don’t want to be responsible for an accident on that busy road and needed some advice. Thank you Nancy

          • avatar Nancy says:

            If your renter is training horses, my guess would be they are also boarding them there too. I’d be more concerned about that.

            A two bit nag can turn into a million dollar baby in a heartbeat, if its injured on your property 🙂

            Call your agent and find out what your homeowner insurance policy covers when it comes to renters.

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‎"At some point we must draw a line across the ground of our home and our being, drive a spear into the land and say to the bulldozers, earthmovers, government and corporations, “thus far and no further.” If we do not, we shall later feel, instead of pride, the regret of Thoreau, that good but overly-bookish man, who wrote, near the end of his life, “If I repent of anything it is likely to be my good behaviour."

~ Edward Abbey

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