Don’t Fence Me In!

To fence or not to fence? It’s a question every producer faces at one point or another that has long standing and far-reaching benefits and consequences that usually outlasts the builder. But what does your state say about it?

No matter if your home state leans into “fence in” or “fence out,” a basic understanding of it could help keep you and your operation on the right side of the law. It’s all too easy to get lost in the weeds of agricultural law. Start by answering two important questions:

1. Does your state follow “fence in” or “fence out” statutes and what does that mean for you as a producer?
2. If your livestock find their way onto a roadway and cause an accident, who’s liable for the damage in the event of a car accident?

Both fence in and fence out are quite self-explanatory but it never hurts to fully review the definition and requirements of both. A fence in statute requires livestock owners and managers to contain their animals to prevent trespassing. Should those animals escape their enclosure, the owner is now responsible for the damage they cause to someone else’s property.

In a fence out state, which is sometimes synonymous with open range, landowners can choose if they want to fence their property or not. This means that landowners are responsible for putting up a fence if they want to prevent wandering or free roaming animals from entering their property. This is typically reserved for more remote states and even specific counties within that state. Both Montana and Wyoming are examples of this.

“We get questions on fence law quite a bit and they’re always more complicated than people expect them to be,” said Rusty Rumley, a senior staff attorney at the National Agricultural Law Center. “These statutes are pretty old and a lot of them have been added to rather than updated over the years. That means a lot of what we see written in them are no longer enforced or even an option in their state anymore.”

Open range certainly doesn’t mean what it used to when it was first written into a statute. While open range technically still exists, it comes with a  lot more responsibility on the part of the owner than ever before.

Montana (Fence out)

• Open range: most of the state falls under this classification. Property owners are only responsible for fencing out unwanted or neighboring livestock. The exception to this rule pertains to federal land either owned by the U.S. Forest Service or Bureau of Land Management. Without a federal livestock grazing permit or lease, landowners are required to prevent their animals from roaming on this land, i.e. fencing them in on their own property. 
• Closed range: mostly refers to incorporated cities and towns. Can also exist in unincorporated, rural areas which are called “herd districts.” In these areas livestock owners are responsible for fencing their animals in.
• To better understand the range designation in your area, contact the Montana Department of Livestock.

“Although Montana is still open range, their supreme court has made it clear that ranchers are still liable if their cattle get out on the road and someone hits them,” Rumley said. “Is it really open range if you’re still liable?”

Wyoming (Fence out: cattle, bison & horses; fence in: sheep)

• The fence out system applies to domesticated livestock including cattle, horses and bison. Landowners are responsible for keeping livestock off their property through a properly constructed and maintained fence.
• Wyoming is also considered a fence in state but that’s almost exclusively for sheep. Usually accompanied by a herder, landowners are responsible for preventing sheep from wandering onto private property.  

“Most fence out states are in the west where stocking rate can be super low,” Rumley said. “It’s just not financially feasible to fence thousands of acres. A lot of those open ranges have changed, either closing entirely or putting in more stringent laws.”

South Dakota (Fence in)

• Prior to 1980, parts of South Dakota were open range which allowed cattle to roam and graze without being contained by a fence. Those laws were repealed in 1980 and they transitioned to a fence in state.
• Landowners are responsible for keeping their animals on their own property and are liable for any damage caused when they manage to escape their confinement.

North Dakota (Fence in)

• Livestock owners are responsible for fencing in their animals and operate under strict liability. This is different from simple negligence. Strict liability means owners of livestock are responsible for damage to other property owners regardless of how hard they tried to keep their animals fenced in.
• Similar to Montana, North Dakota has some exceptions to the fence in statute called “grazing areas.” In those designated areas the livestock owner has limited or no liability for any damage their animals may cause.

“I don’t usually look too closely at things like ‘grazing areas’ in a statute because they tend to be outdated,” Rumley said. “Most of these were meant to help the transition period when the state was closing their open range. It’s almost impossible to find out if these still exist.”

Nebraska (Fence in and fence out)

• Nebraska is unique in the fact that it’s both a fence in and fence out state – livestock owners are required to fence their livestock inside their property, and neighbors are required to fence livestock out from their property.

“Applying a uniform standard for anything in agriculture is difficult because it’s so diverse across species and industries,” said Eric Miller whose spent his life in the cornhusker state and is now an attorney. “Application of law within agriculture is very complex as a result.”

Even diversity among and within states – fence in, fence out, open range, or a combination of all three – complicates things for landowners.

“Even though legal fences and construction rules are codified law, no two fields, pastures or fences are made exactly the same,” Miller added. “When it comes down to it, if you’re not a fence in state or don’t have fence in rules that protect other livestock owners and other people there’s only so much someone can do to control what livestock do. If they learn they can get out, you’ll never keep them in; and if they learn they can get in then there’s no way to keep them out.”

This same logic applies to assigning liability when livestock cause an accident with a vehicle. Again, assigning liability varies between states based on fence laws and other details that could point to negligence of the owner.

Liability of livestock owners in highway accidents

“Living in Nebraska, where everything is fenced, the livestock owner is liable as a general rule,” Miller said. “It all depends if there was negligence on the part of the owner. If they maintained a legal fence and didn’t have reasonable knowledge that their animals could escape, then they likely aren’t liable. And sometimes nobody is at fault but that doesn’t work for the world we live in.”

There are so many exceptions to the hard and fast rules of these fence laws that Miller and Rumley both keep it simple: build good fences and have a general farm insurance policy that covers livestock accidents.

“It’s my opinion that every livestock owner should be responsible for their own animals so I think the fence in rule should be the standard,” Miller said. “For the most part, open range is antiquated in most regions, Nebraska included. Most areas are not fenced that way or managed like that. Of course, out west the open range concept can make sense but other places it just doesn’t.”

While we hope this gives you some insight into what your state expects when it comes to running livestock, it should not be used as your only source of information.

“It’s a good idea to contact your state’s cattleman’s association or an attorney in your county well versed in fence law to get more details on this topic,” Rumley added. “We have all the fence law statutes on our website and that’s a great place to start, but you have to do more digging to really understand what they mean.”

The National Agricultural Law Center offers an interactive website where statutes from each state can be found at: nationalaglawcenter.org/state-compilations/fence-laws/

Rusty Rumley is a senior staff attorney at the National Agricultural Law Center. Rumley is also an adjunct professor at the University of Arkansas and has also taught law courses at the University of Oklahoma College of Law and the University of Nebraska College of Law. His primary areas of interest are in estate planning, taxation, business organizations, landowner liability, leasing and agritourism. To contact Rumley, email him at [email protected] or call 479-575-2636.

Eric Miller is an attorney at law and partner with the firm Hart & Huyser in Cozad, Nebraska. Specializing in real estate law, Miller is an avid agriculturalist himself. He raises sheep and crops at his family’s operation in the northeast corner of the state. To contact Miller, email him at [email protected] or call 308-784-4580.