Texas couple sues to upend Teton County wildlife fencing regs

Fall Creek homeowners want to remove regulations intended to protect migration

JACKSON — A Texas couple is suing to remove Teton County’s new wildlife-friendly fencing regulations, sparking a legal debate about “tall horses,” the “police power of government” and who should protect Jackson Hole’s wildlife.

Wildlife advocates call the lawsuit alarming.

The opening lines of the 2012 Jackson/Teton County Comprehensive Plan, a document that guides local governments as they plan for development, say the county’s No. 1 priority is to “preserve and protect the area’s ecosystem in order to ensure a healthy environment, community and economy.”

“That’s exactly what that land development regulation was written for,” said Renee Seidler, executive director of the Jackson Hole Wildlife Foundation. “To protect the ecosystem so animals can migrate across the landscape as they need to, to get access to summer range, winter range, fawning, calving, all that.”

If the regulation is removed, Seidler said it would be a major setback for the community and its wildlife.

However, Michael J. Clement, the attorney representing Richard Craig Rathmann and Kimberly Watson Rathmann, said the regulation is too broad, contradicts other county regulations, and runs afoul of state law. He said it doesn’t recognize the “vested rights of property owners” and is a misuse of the county’s “police power.”

“Any time a municipality passes a regulation restricting an owner’s use of the property, that is considered an exercise of police power,” Clement told the News&Guide. “Sometimes the police power can overreach.

“In this instance I think it has,” Clement said.

Teton County, meanwhile, is trying to have the case dismissed. 

In his legal fillings, Teton County Chief Deputy Attorney Keith Gingery questioned whether the landowners’ needs — as people who own “horses that are taller than most” — supersede “the need for the community to protect wildlife.”

The fight comes during one of the most challenging winters for wildlife in decades. 

At a recent town hall in Pinedale, hundreds of residents packed into the Sublette County Library to hear how winter was decimating mule deer and pronghorn south of Jackson. There, Brian Nesvik, the director of the Wyoming Game and Fish Department, said that maintaining animals’ habitat and migration routes was the most important thing state officials could do to ensure that female ungulates are productive enough to weather harsh winters.

The Jackson Hole Wildlife Foundation, Game and Fish and countless community volunteers have spent years trying to improve migration corridors in Teton County by removing fencing that obstructs animals’ ability to move across the landscape. Most of that work has occurred on public land, where Seidler said the U.S. Forest Service and Bureau of Land Management are “dialed in to protecting their landscapes for wildlife.” But there are “big issues” on private land, Seidler said.

Landowners aren’t aware of how fencing can impact wildlife, Seidler said. It can obstruct daily movements as well as longer seasonal migrations, and injure or kill animals that get stuck in them.

And landowners are often not aware of Teton County’s regulations until after the fact, Seidler said.

Those rules, based largely on Wyoming Wildlife Foundation’s “A Wyoming Landowner’s Handbook to Fences and Wildlife,” were years in the making. The county worked with the Wildlife Foundation, Game and Fish, Teton Conservation District and other wildlife biologists to craft the regulations.

Mark Gocke, Game and Fish’s Jackson-area spokesman, said the department stands by the county’s “stips.”

He wasn’t, however, able to speak to the specifics of the Rathmanns’ lawsuit.

“It’s definitely a priority for our agency to do what we can to help wildlife move across the landscape and get to their seasonal ranges,” Gocke said.

County commissioners approved the new regulations unanimously in 2021, but not without consternation from livestock owners in the valley.

While agricultural properties of 70 acres or more are exempted from the rules, building or rebuilding a type of fence that’s not expressly permitted requires an exception. The county set the maximum height for most livestock fences at 42 inches, which livestock owners said was too short.

Stefan Fodor, a Jackson Hole attorney and horse owner who opposed the regulations, said in November 2021 that livestock owners’ stance wasn’t about “trying to impede wildlife.”

“We’re trying to protect our horses and protect our investment in those horses in terms of the purchase price, the veterinary bills, the time and the training and effort we put into them,” Fodor said.

Commissioners barred people from replacing more than 25% of a fence that doesn’t comply.

And they outlawed buck and rail fencing, which has been used in Teton County since European settlers first reached the valley. Known for its classic Western look, buckrail is synonymous with Jackson Hole in some people’s eyes. There’s even a local media company named for the undulating barrier.

But buckrail fencing is also one of the hardest types of fencing for deer, elk and moose to navigate. Grand Teton National Park and other federal land managers have been removing it over the course of years.

Its three dimensions trip up animals. Young animals, in particular, have trouble moving across it because they can’t scoot below the fencing’s two lowest rails, which also makes it hard for them to leap across.

“You’re not jumping over something,” Seidler said. “You have to high jump and long jump at the same time.”

But that’s exactly why Clement said his clients want buckrail fencing.

A top rail height of 3 1/2 feet is “not safe and secure,” Clement wrote in his complaint. “No rancher or rider would spend extra money for a five foot fence if she believed a three and a half foot fence was a safe enclosure.”

The Rathmanns have owned their home on South Fall Creek Road for 20 years.

When the Rathmanns purchased the property, it was surrounded by buckrail. But that fencing had started to deteriorate and, in the first half of 2022, the couple replaced a section of fence that was wearing down. In July of that year they received a notice of violation from Teton County Planning Director Chris Neubecker.

Neubecker sent the Rathmanns a copy of Teton County’s regulations and asked them to come into compliance, offering his help to make that happen. In his filing Gingery said the Rathmanns did apply for a special fencing permit in August 2022, and that planning staff suggested building a different type of fencing or “buck and rail but only in the smallest area necessary.” He said that the county was under the impression it could work with the Rathmanns this spring when snow melted to find a solution.

But that didn’t happen.

Instead the Rathmanns sued, asking 9th District Court Judge Melissa Owens to throw out the regs.

Clement said the county had taken issue with the Rathmanns’ decision to replace buckrail fence with other buckrail fence. Clement said the rules prohibiting landowners from replacing more than 25% of a “nonconforming” fence contradict another county rule, land development regulation 1.9.2.B., which governs replacing nonconforming structures.

That rule appears to allow “maintenance” but only allows “replacement” in natural disasters, interior remodels and for historic buildings.

Clement, however, said the county’s new fencing rules are also superseded by Wyoming Statute 18-5-207, which prohibits county zoning from outlawing using land as it was used before zoning rules changed.

“When a municipal body or a county changes a regulation so that it makes the use of a structure [non-conforming], the county or municipality cannot prohibit the continued use of the structure,” Clement said.

He argued the county’s rules about buckrail fencing are also preempted by two state statutes governing fencing. One, Statute 11-28-101, describes buckrail fencing as a “lawful fence.” The other, Statute 11-28-108, says Wyomingites whose livestock “breaches” someone else’s “lawful fence” is liable for the damages.

“I believe in the rule of law,” Clement said. “If you have a superseding statute, you can’t ignore it.”

In his motion to dismiss, Gingery didn’t engage directly with Clement’s arguments.

But he did take issue with the Rathmanns’ decision to go to the courts.

“It appears the Plaintiffs are no longer interested in obtaining a special purpose fence permit and are refusing to come into compliance to protect the wildlife movement in our community,” Gingery wrote.

When someone refuses to come into compliance with a notice of violation, Teton County resolves the dispute with a process called “abatement.” That involves a hearing in front of the Teton County Board of County Commissioners, which would hear both sides and determine whether a violation occurred. If the commissioners say yes, and the alleged violator disagrees, they can appeal that ruling in District Court.

Gingery said that’s the route the Rathmanns should have taken and that filing a lawsuit was premature. The right time to take up the issue in District Court, he wrote, is on appeal.

“The facts will have been fully fleshed out during the administrative hearing, and the actual facts of the case can be referred to by the Court in determining whether Teton County will be allowed to protect wildlife in Teton County,” Gingery wrote. “Declaratory judgement should not be used to usurp or replace specific administrative relief.”

Clement argued his clients have no option for “administrative relief.”

“The county pretty much said you can’t do what you want,” he said. “It seems like a waste of taxpayer money, client money, court time to go forward with something that has no possibility of succeeding.”