37-286.01. Duty to exclude unauthorized livestock bond; damages; injunction

A. Notwithstanding the provisions of title 3, chapter 11, article 8, if the commissioner leases land located within the boundaries of a fenced range to a person other than the prior state grazing lessee, the new lessee shall exclude unauthorized livestock grazing by fencing the exterior boundary of the state land or by any other means that the commissioner considers to be suitable. The commissioner may require the new lessee to post a bond sufficient to cover the cost of the fence construction.

B. If the new lessee referred to in subsection A of this section fails to fence the exterior boundaries of the state land, or otherwise exclude unauthorized livestock from the state land, within the time for compliance with the fencing requirements set forth in the lease conditions prescribed by the department, the failure constitutes a default on the lease and the new lessee is subject to default proceedings pursuant to section 37-289 and, if a bond was required pursuant to subsection A of this section, the bond may be forfeited on cancellation of the lease.

C. The commissioner shall include the requirements imposed by this section in the terms of all new leases to which this section applies.

D. If the commissioner withdraws state land from lease pursuant to section 37-132, subsection A, paragraph 11, because the land may pose a threat to human health and cannot be used for livestock grazing, and the land is located within the boundaries of a fenced range, either the commissioner or the party responsible for causing the land to be withdrawn shall be responsible for excluding unauthorized livestock from grazing on the land. The lessee may not exercise the preferred right pursuant to section 37-291 to renew a lease on the land withdrawn.

E. Until livestock are excluded from the state land pursuant to this section, or during the pendency of the lease default for failure to exclude livestock pursuant to subsection B of this section, the unauthorized grazing of livestock on state land within the fenced range shall not constitute trespass pursuant to section 37-501 or wilful trespass pursuant to section 37-502, subsection A or B, but shall constitute prima facie evidence of casual or involuntary trespass pursuant to section 37-502, subsection A. The monetary damages for the unauthorized grazing of livestock under this subsection shall be limited to the greater of the carrying capacity of the state land for the period of unauthorized grazing as expressed in animal unit months or the actual animal unit months of unauthorized grazing actually determined to have occurred on the state land, multiplied by the grazing fee, as most recently determined by the state grazing land valuation commission pursuant to section 37-285, subsection E. The commissioner may seek to enjoin the unauthorized grazing of livestock, and the provisions of sections 37-501 and 37-502 apply on the occurrence of any of the following:

1. The number of unauthorized livestock exceeds the carrying capacity of the fenced range that includes the state land.

2. The owner of the unauthorized livestock does not agree to pay the monetary damages authorized by this subsection.

3. The lease is canceled pursuant to subsection B of this section and the owner of the unauthorized livestock fails to apply for the lease when requested by the commissioner or accept the offer by the commissioner for a lease on the state land.

4. The owner of unauthorized livestock intentionally hinders the fencing of state land pursuant to subsection A or D of this section.

F. Nothing in subsection E of this section shall limit the ability of the commissioner to enjoin unauthorized activities other than grazing that may damage or decrease the value of the state land or otherwise impede the management of the state land.