Fencing in a Technological Age: Utilizing Federal Regulatory Frameworks to Implement Virtual Fencing on Federal Public Land

Across the country, particularly the western United States, ranching and livestock rearing plays an important economic and cultural role. Fences are critical to these operations because it enables effective range management. Fences, particularly barbed wire fences, were a pivotal development that led to the prevalence of grazing on western lands, which continues today. In western Wyoming alone, over 6,000 km (3,728 miles) of fencing traverse the landscape.^[1]

Emerging technologies, particularly virtual fencing systems, have the potential to revolutionize both rangeland management and associated public policies in the West. Virtual fencing is a relatively old idea that now has the technological and economic traction to be successful in large-scale livestock management. Trials using virtual fencing in range management date back to at least 1994.^{^[2]} However, high costs, technological failure, and social factors prevented landowners from beginning to fully embracing the technology until 2016.^[3]

Virtual fencing utilizes GPS collars and cell or radio towers to virtually set fence boundaries, decreasing reliance on physical fences. Livestock, particularly cattle, are equipped with GPS connected collars that track animal location.^{^[4]} Users can set a virtual boundary from a remote device.^{^[5]} The collars speak to base station communication towers (“base stations”), which relay the set boundary to the collars.^{^[6]} As cattle approach the boundary, they receive an auditory warning and then a small electric shock if they don’t move away from the boundary.^{^[7]}

Fences have long been an important tool for ranchers and government agencies to administer public land grazing allotments and leases. Government agencies, particularly the Bureau of Land Management (“BLM”) and the U.S. Forest Service (“USFS”), must manage public lands for multiple use, meaning they manage federal land by balancing competing land uses and values at once.^[8] Fences challenge this mandate, as they effectively contain cattle along allotment boundaries, but limit wildlife management and conservation objectives. Fences can cut off wildlife from habitat and migratory routes, decreasing survival rates.^[9] Fence maintenance is costly and time consuming for permittees year after year too.^[10]

Virtual fencing helps conserve wildlife while preserving ranching operations and sustaining natural resources by removing disruptive land uses, like physical fences.^[11] The federal government has many advantages to help implement virtual fencing on a landscape scale. BLM and USFS land make up 314,141,151 acres across eleven Western states.^[12] The BLM administers nearly 18,000 permits/leases on 21,000 allotments.^[13] The U.S. Forest Service administers over 5,364 permittees on grazing allotments nationwide.^[14] Given the sheer scope, implementing virtual fencing on public land is a prime opportunity to achieve these benefits.

Given virtual fencing’s benefits, it is imperative that government agencies, landowners, and other stakeholders grasp the legal and policy considerations of virtual fencing use on public land. New technological opportunities come with many uncertainties. The legal and policy influences for virtual fencing’s public land use have not been fleshed out. These considerations will be discussed in five parts: first, an introduction to virtual fencing technology and a background on the history of fencing use and public lands. Second, a discussion on how virtual fences fit into the legal and regulatory framework for fencing, Communication Use Right of Ways (“ROWs”) law, and regulations on BLM and USFS land. Third, a discussion on NEPA considerations for virtual fencing and physical fences. Fourth, case studies of virtual fencing projects in Colorado and Nevada will highlight how government agencies and stakeholders are implementing virtual fencing within the existing framework. Finally, a discussion on takeaways and future policy considerations regarding virtual fencing will follow.

II. Virtual Fencing Overview

Due to its grazing management and conservation implications, virtual fencing offers an opportunity to transform fencing regimes on western rangelands. A detailed virtual fencing overview discussion will occur in three parts: first, an overview of virtual fencing technology, second, a discussion of the grazing management benefits it provides, and third, an analysis of its benefits to wildlife.

A. Virtual Fencing Technology

Virtual fencing operates like a backyard pet’s shock collar system but operates on a wider scale with greater sophistication. Virtual fencing systems are powered by radio communication technology through a base station tower.^[15] Base stations are either wireless or solar powered.^[16] From a remote device, a virtual fence user can set a virtual boundary.^[17] The base station will communicate this boundary to a GPS-equipped collar.^[18]

Collars typically contain batteries for “stimuli-providing equipment,” which usually provide an audio signal and electric shock.^{^[19]} The stimuli within the collar communicates the boundary to each animal.^[20] If an animal is approaching the boundary, they will receive an auditory cue.^[21] This will alert the animal that they are approaching the boundary and cannot move any further in their current direction.^[22] If the animal keeps going, they will receive a small electric shock.^[23] If a cow leaves a boundary, they can reenter without being shocked.^[24] The auditory cue helps teach cattle the boundary before they receive the electric shock.^[25] Electric shocks tend to range from 600–4000 volts.^{^[26]} This shock can continue for a few yards, especially as ranchers can set the boundary beyond the point where livestock receive an electric shock.^{^[27]} Unless the collar model is solar-paneled, batteries are required to run the collar and may need to be continuously replaced.^[28]

Virtual fencing gives landowners flexibility because they can adapt boundaries to graze cattle in desired areas and set new boundaries at any time.^[29] The GPS collars allow landowners to know precisely where cattle are at all times, which is unprecedented for most ranchers.^[30]

B. Rangeland Benefits of Virtual Fencing

Virtual fencing has many benefits for grazing and rangeland management. Ranchers are optimistic about the potential of virtual fencing to decrease fence labor and maintenance while supporting conservation.^{^[31]}

Virtual fencing can allow ranchers to rotationally graze their pastures to manage density and control vegetation rejuvenation with even greater efficiency. Since landowners can change the virtual fence boundary from a remote location, cattle can easily be moved around from place to place, keeping both livestock and lands healthy.^{^[32]} This protects vegetation and helps take in carbon from the atmosphere, ensuring both agricultural and environmental benefits.^{^[33]} Virtual fencing may allow ranchers to meet carbon sequestration goals, helping support environmental outcomes and economic markets in carbon credits.^{^[34]}

Second, virtual fencing enables landowners to better protect the quality of rangeland resources. For instance, virtual fencing is more effective than physical fences at excluding cattle from riparian areas.^{^[35]} Protecting riparian areas can help maintain water sources, increase water quality, and prevent soil erosion.^{^[36]} Fencing cattle away from stream banks can decrease soil erosion by forty percent.^[37] Virtual fencing has been shown to be effective at keeping cattle out of undesired riparian areas, creating an opportunity to further extend the benefits of physical fences to riparian areas.

Virtual fencing could also alleviate the unintended consequences of fences. For instance, cows tend to walk along fences,^[38] which compacts soil, decreases the ability for plants to root, increases erosion, and makes rangeland less productive.^[39]

There are benefits to cattle themselves too. Cattle tend to have healthier lifestyles, as they are more active.^{^[40]} Cattle graze more evenly across a pasture as a result.^{^[41]} Cattle tend to quickly learn the predictable patterns of the audio cue to avoid the mild electric shock,^{^[42]} even when boundaries change.^{^[43]} Virtual fencing has little negative effect on cattle’s well-being while cattle graze with less intensity, ruminate more, and produce more milk.^{^[44]} However, more research is necessary to fully understand the technology’s potential and its impact on cattle.^{^[45]}

Virtual fencing may assist in adaptive management by better controlling cattle impacts. While cattle can impact vegetation and stream flow along a river, elk and other wildlife have similar effects.^{^[46]} Virtual fencing may allow researchers and landowners to separate cattle and wildlife to further study of how each impact riverbanks. This may identify more specific management strategies that were not possible before. The same goes for adapting management after wildfire. Virtual fencing has also shown promise in excluding cattle from recently burned pastures.^{^[47]} This expedites the recovery of recently burned lands.^{^[48]}

C. Wildlife Benefits of Virtual Fencing

Fences can often be both an obstacle for migrating game and a tool to achieve conservation goals.^{^[49]} Research shows effective fencing for wildlife benefits diminishes both the direct and indirect effects of fencing.^{^[50]} Virtual fencing is one of the only species-specific means of managing livestock and reducing fence impacts to non-target species. Virtual fencing use may reduce the need for physical fences, thus improving wildlife outcomes^[51]

When wildlife crosses fences, wildlife risks physical injury and death.^{^[52]} In Wyoming, two and a half miles of fencing produces at least one ungulate death per year.^{^[53]} Indirect effects encapsulate the behavioral changes in animals as a result of fences, including exerting more energy to travel, avoiding resource-rich habitats, experiencing stress from finding a way over a fence, and experiencing separation between mothers and offspring.^{^[54]} In the Yellowstone ecosystem, pronghorn avoid forty percent of the best habitat areas because of fencing.^{^[55]} If no fencing existed along migration routes and key areas of habitat in sagebrush steppe, pronghorn access to quality habitat would increase by sixteen to thirty-eight percent.^{^[56]}

Animals, particularly large ungulates like deer and pronghorn, utilize the same migration routes, known as migration corridors, year after year to navigate between seasonal habitat ranges.^{^[57]} Fencing inhibits migration corridors and decreases habitat for wildlife.^[58] Targeted fence removal can help make migratory corridors more sustainable and can help wildlife populations while being cost-effective for managers.^[59]

III. Fence History on US Public Lands

Because of its importance, fencing on U.S. public lands is closely tied to evolving federal land management policies and the enduring role of livestock grazing in the American West. Fences were a tool that helped settlers survive and develop communities on western lands. Its importance to rangelands not only helped support profitable ranches but also proved to be an effective tool at shaping grazing and range management policies. As fencing technology changed and evolved, the laws that governed rangelands evolved with it. As virtual fencing emerges as a promising range management tool, it is poised to shape range management on U.S. federal land, particularly how it allows the BLM and USFS to better meet their multiple use mandate and land use planning requirements. This is explored through the history of physical fences and a history of U.S. federal land management policy.

A. U.S. Fence History

Innovations in fencing technology throughout history—most notably barbed wire and electric fencing—have profoundly shaped livestock management. These fencing innovations have enabled ranchers to respond to the unique environmental challenges presented by the arid landscapes of the American West.^{^[60]} Barbed wire revolutionized grazing in the American West. Before barbed wire, the federal government and cattle ranchers saw western rangelands as an open range for grazing and cattle development.^{^[61]} The open range, open to all and unfettered by fences, allowed Western settlers to graze livestock on plentiful rangelands near their homesteads.^{^[62]} Open ranges weren’t to last, as harsh winters, overgrazing, and subdividing land uses required ranchers to prioritize controlling resources and intensified territorial control.^[63] With barbed wire, ranchers could corral cattle into desired areas while excluding competing livestock.^{^[64]} This was especially necessary in arid locations because they needed extensive acreage to support viable cattle operations, such as in the American Southwest.^[65]

Another pivotal fencing advancement, electric fencing, emerged in an economically viable form in 1936 to prevent property damage from livestock.^[66] Electric fencing soon took on an expanded role in livestock management, as it gave ranchers even greater control over range resources through rotational grazing systems.^[67] This management approach strategically relocates cattle throughout pastures, optimizing production while preserving rangeland health.^{^[68]} Unlike static barbed wire, electric fences offer the crucial flexibility needed for responsive land management because they allow ranchers to temporarily confine livestock in smaller areas, compelling livestock to consume less desirable vegetation.^{^[69]}

Throughout western history, fencing innovations have consistently emerged as adaptive responses to evolving environmental and economic challenges on rangelands. From barbed to electric fencing, each technological advancement reshaped management strategies. Virtual fencing represents the next chapter in this ongoing evolution, offering unprecedented opportunities to utilize technology to enhance livestock range consumption while preserving wildlife habitat, simultaneously serving agricultural productivity and conservation objectives.

B. Federal Public Land Policy

Virtual fencing technology continues the historical pattern of fencing technology adaptations addressing complex land management needs while potentially reconciling traditionally competing interests. Fences have played a large role in shaping grazing policy in the West. The first law to control land use with fencing rules was the Unlawful Inclosures Act in 1885, which prohibited fencing in public domain lands.^[70] The law helped prevent private interests from monopolizing range resources, protected smaller operations, and promoted open access.^{^[71]} At the time, ranchers and cattle companies would use barbed wire to illegally enclose millions of acres with barbed wire fences.^[72] The Act established a critical precedent for federal fence regulation of public lands: ranchers and public land users could not fence in public land.^[73] This legal framework laid the groundwork for the later creation of formal grazing permit systems and remains a cornerstone of public land policy to this day.^[74]

Fencing shaped the permitting system used on federal rangelands when Congress sought to address overgrazing and resource degradation again during the Dust Bowl.^[75] In 1934, Congress passed the Taylor Grazing Act, which created a system of grazing allotments and districts to help preserve public land grazing.^{^[76]} The Secretary of the Interior could issue permits and adopt rules governing grazing practices, including fencing regulation.^{^[77]} Permittees could construct fences with the permission of the Interior Secretary or through cooperative agreement; improvement installers were entitled to compensation for their share upon transfer of an improvement.^{^[78]} This allotment system for grazing remains in use today, administered primarily by the BLM.^{^[79]} Even as public land management priorities evolved to reflect broader societal values, livestock grazing remained a central use of federal lands. In 1960, Congress passed the Multiple Use-Sustained-Yield Act which established the multiple use standard.^{^[80]} The allowed multiple uses, including “outdoor recreation, range, timber, watershed, and wildlife and fish purposes.”^{^[81]} The BLM followed suit, adopting a nearly identical multiple use definition.^[82] In 1976, Congress reinforced and expanded this management framework through the Federal Land Policy and Management Act (“FLPMA”) and the National Forest Management Act (“NFMA”), which imposed land use planning requirements on both the BLM and the USFS.^{^[83]} Through land use planning, agencies utilize their discretion to determine the specific uses and management priorities for parcels of land.^{^[84]} Virtual fencing is poised as an emerging fence technology that will influence federal grazing policy. Federal land management rules originated in a time when the West was unfenced, then evolved with the introduction of barbed wire, and now has an opportunity to evolve again.

IV. Fences on Federal Public Lands

Physical fences are considered a range improvement on federal lands and play a critical role in grazing management. Improvements are “any activity or program on or relating to rangelands which is designed” to improve range conditions.^[85] Improvements enhance rangelands by boosting water access, soil health, and wildlife habitat.^[86] Both the BLM and the Forest Service administer fencing regulations, but under distinct statutory and regulatory frameworks. Both BLM and USFS are governed by FLPMA.^[87] FLPMA provides authority to approve fencing and other improvements on grazing allotments, often tied to grazing fees, permits, and licenses.^[88] The BLM is also under the authority of the Taylor Grazing Act.^[89] In contrast, grazing on USFS lands is managed under the Organic Administration Act and the Multiple Use Sustainable Yield Act, with additional guidance from the NFMA.^[90] The USFS issues grazing permits that may include provisions for constructing and maintaining fences as part of broader range improvement requirements.^[91]

Grazing regulations have evolved to better equip permittees and government agencies to administer improvements and support sustainable range resources. Major regulatory changes occurred in the 1990s and mid-2000s. In 1994, the Clinton Administration passed new regulations that sought to address land quality deterioration.^[92] These rules established that the United States owned all range improvements made through cooperative agreements, including fencing.^[93] They created standards to establish desired ecological conditions on federal grazing rangelands.^[94] The ranching community sued over the rules and the suit eventually made it to the U.S. Supreme Court.^[95] The Supreme Court upheld many of the regulations, including the regulations stating that the United States held title to range improvements.^[96]

The Bush Administration changed course in 2006 by passing regulations more supportive of livestock owners’ interests.^[97] The rules again allowed the United States to share title to range improvements.^[98] These rules were eventually struck down in the District Court of Idaho for failing to meaningfully comply with the Endangered Species Act and National Environmental Policy Act (“NEPA”).^[99] When range regulations change, controversy has ensued. Debate around them has assessed how government agencies will implement new developments into range land management systems.

Virtual fencing implementation will surely face many challenges, as with other improvements, as unanswered questions remain. Virtual fencing has some characteristics of physical fencing but also has unique characteristics that current regulations may not account for. In this sense, virtual fencing base stations may be considered Communication Use ROWs, like communication towers. Regardless of how they are classified, virtual fence users will also need to consider the NEPA processing requirements for installing virtual fence technology, especially as projects move from trial phases into more permanent infrastructure on the land. Legal and policy considerations are threefold: first, law and regulations on improvements; second, law and regulations regarding communication ROWs; third, NEPA considerations.

A. Law and Regulations of Improvements

The BLM and USFS administers land management improvements and grazing permits and allotments through their own regulations. While similar, they each have their own unique features and mechanisms.

1. Bureau of Land Management

The BLM is the legal owner of improvements, holding title in structural improvements and nonstructural improvements on public lands.^[100] Structural improvements are not formally defined by the BLM, but they typically include “fences, wells, and pipelines.”^{^[101]} The United States also owns nonstructural improvements, including “seeding, spraying, and chaining.”^{^[102]}

However, permittees can modify ownership interests in improvements on BLM-managed lands through two types of improvement construction agreements: Cooperative Range Improvement Agreements and Range Improvement Permits.^{^[103]} Under these agreements, the BLM and permittees allocate ownership shares based on each party’s financial and labor contributions; permittees cannot transfer improvements unless the transferee compensates the transferor for their fair share of the improvement.^{^[104]} Cooperative range improvement agreements allow the government and allotment permittee to construct and maintain improvements while splitting title in proportion to each party’s contribution.^{^[105]} BLM may require multiple lessees to participate in a cooperative agreement when the improvement benefits more than one party.^{^[106]} Alternatively, a lessee may apply for a Range Improvement Permit to “install, use, maintain, and/or modify removable range improvements” on their allotment to “achieve management objectives.”^{^[107]} The BLM has discretion to issue permits with improvement maintenance standards.^{^[108]} Virtual fencing may be considered removable depending on implementation.^[109] Lessees cannot move range improvements without the BLM’s permission.^{^[110]} The government can pay a permitee fair value to remove any improvements that no longer help meet land use goals or permit standards.^{^[111]} The BLM may also use Range Improvement Funds to construct range improvement projects and virtual fencing to preserve rangeland quality achieve conservation objectives.^[112] The BLM can allocate either $10 million or fifty percent of the revenue generated from grazing fees—whichever is greater—toward projects like fence planning, construction and monitoring.^{^[113]} Since virtual fencing could meet these terms, the BLM could conceivably fund its construction using grazing fee revenues with more guidance on how virtual fencing will be defined, subject to appropriate environmental review.

2. U.S. Forest Service

The USFS has authority to construct structural and nonstructural improvements on its land to manage rangelands.^{^[114]} Structural improvements are “improvements requiring construction or installation undertaken to improve the range or to facilitate management or to control distribution and movement of livestock.”^{^[115]} Non-structural improvements are “practices and treatments undertaken to improve range not involving construction of improvements.”^{^[116]} Both types of improvements allow the USFS to meet land use planning objectives.^{^[117]} Title to temporary nonstructural improvements will remain with the improvement’s installer if the United States did not assist in its creation.^{^[118]} Temporary improvements are “short-lived and portable,” which includes “troughs, pumps and electric fences.”^{^[119]} Permanent improvements become fixtures to the land, which includes fences.^{^[120]} Virtual fencing would likely qualify as a temporary, structural improvement, but it would depend on how permittees use the technology. Virtual fencing projects may only involve the construction of a base station that has minimal disturbance.^[121] But, if the virtual fencing base station were mobile, they may not classify as an improvement.^[122]

The USFS must authorize all improvements with either a Cooperative Improvement Agreement or Memorandum of Understanding (“MOU”).^{^[123]} The Forest Service incorporates the terms of both agreements into the associated grazing permits to ensure consistency with land management objectives.^[124] For either of these options, the USFS has no rules regarding the assigning, transferring, and terminating of improvements because no title is shared. So, improvements revert to the owner upon termination or transfer of a permit.

Cooperative Improvement Agreements allow the agency to partner with interested non-federal entities on projects that serve the public interest beyond just monetary gain.^{^[125]} These agreements can support virtual fencing initiatives, particularly where the technology helps improve grazing distribution, protect sensitive habitats, or reduce wildlife-livestock conflicts.^[126] These agreements do not confer ownership rights despite allowing for cost-sharing.^{^[127]}

One pathway for implementing Cooperative Improvement Agreement projects is through coordination with local livestock associations when they represent a majority of involved permittees and meet specific requirements.^{^[128]} So, livestock associations that support both grazing and conservation objectives may be well-positioned to lead virtual fencing projects.

The Forest Service may also authorize range improvements through MOUs. The USFS uses MOUs to establish partnerships and document each party’s specific responsibilities, with all partners coordinating efforts to carry out activities.^{^[129]} Unlike Cooperative Improvement Agreements, MOUs do not exchange funds.^{^[130]}While agency approval is needed, MOUs allow stakeholders to implement virtual fencing without coordinating funds while potentially increasing permittee control over the project.

The USFS could fund virtual fencing projects through Range Betterment Funds. The USFS uses these funds to improve range conditions and prevent range deterioration to benefit “wildlife, watershed protection, and livestock production.”^{^[131]} However, due to the minimal impact of most current virtual fencing projects, the USFS has refrained from utilizing Range Betterment Funds in this way, although the projects do qualify.^[132]

The Forest Service applies grazing fees to the Range Betterment Funds. Grazing fees collected by the Forest Service support the Range Betterment Fund, spending either fifty percent of the grazing fees collected from a given allotment or $10 million—whichever is greater—on rangeland improvements.^{^[133]} Half the funds return to the state of collection, but the USFS has discretion to use the rest to rehabilitate, protect, and improve range resources.^[134]

Both the BLM and the USFS’s existing regulatory framework offer multiple pathways for authorizing, funding, and implementing innovative tools like virtual fencing. Through different collaborative agreements, stakeholders can integrate virtual fencing into rangeland management practices that serve both livestock and conservation goals—supporting the agencies’ broader mission to improve range health and promote collaborative stewardship of public lands.

B. Communication Use Right of Way Law and Regulations

The USFS and BLM may also consider Communication Use ROWs as a second mechanism for authorizing virtual fencing projects on public lands. Under FLPMA, both agencies have the authority to grant ROWs for communication uses, including “systems for transmission or reception of radio, television, telephone, telegraph, and other electronic signals, and other means of communication.”^{^[135]}

Communication facilities are broadly defined to include “any infrastructure, including any transmitting…tower, …and any equipment…associated with the licensed or permitted unlicensed wireless or wireline transmission of writings, signs, signals, data, images, pictures, and sounds of all kinds.”^{^[136]} Virtual fencing systems—relying on portable towers or base stations to transmit radio signals to livestock collars to establish virtual boundaries—fit within this definition.

Using a Communication Use ROW to authorize virtual fencing infrastructure may offer strategic advantages for virtual fence implementation. It may streamline environmental review by possibly building on previously reviewed ROWs and allowing government entities to pay no rent if they spearhead the project.^[137] Leveraging public agencies to hold ROWs may be especially useful in building scalable, region-wide systems that facilitate broader network expansion while lowering financing barriers to virtual fencing technology.

1. FLPMA ROW Requirements

To fully leverage Communication Use ROWs for virtual fencing infrastructure, it is important to understand the specific requirements imposed by FLPMA and federal agencies. FLPMA authorizes agencies to issue Communication Use ROWs, but agencies implement the law with environmental safeguards and other procedural requirements.^{^[138]}

Individuals, businesses, and nonprofits are generally eligible to receive Communication Use ROWs.^{^[139]} ROW holders typically pay annual rent based on fair market value.^{^[140]} Agencies must limit ROW authorizations to the land necessary to carry out the proposed project while protecting the environment, public health, and safety.^{^[141]}To protect the environment, wildlife habitat, and preserve scenic values, ROW authorizations under FLPMA establish the terms and conditions governing how holders may operate on federal land.^{^[142]}

FLPMA also grants the Secretary the authority to co-locate compatible uses “to the extent practicable…on or adjacent to rights-of-way granted pursuant to this Act.”^{^[143]} This creates a valuable opportunity for virtual fencing infrastructure to be sited alongside existing communication facilities, such as cellular towers. This reduces the need for new environmental analysis and leverages existing coverage areas to support broader adoption.

Although both the BLM and USFS operate under FLPMA’s ROW provisions, each agency has adopted its own implementing regulations. While similar in purpose, these regulatory frameworks differ in their procedural details and may affect how agencies review virtual fencing projects on lands managed by each agency. The sections below outline each agency’s ROW process and highlight considerations specific to the deployment of virtual fencing infrastructure.

2. BLM ROW Regulations

BLM regulations ensure that the BLM will authorize Communication Use ROWs, including towers, in a way that protects natural resources, orderly develops public lands, promotes the expansion of rural communication uses, and coordinates with relevant stakeholders as much as possible.^{^[144]} While the rules support the policy of establishing broadband internet development, virtual fencing’s tower and cellular system use still fall under its regulatory aims.^[145]

A grant is necessary for a stakeholder to acquire an ROW.^{^[146]} Applications for a Communication Use ROW must include relevant information such as project descriptions and operation details, a stakeholder’s financial and technical capability to carry out the project, and a submission of when the applicant will finish their Plan of Development (“POD”), which includes the project purpose.^{^[147]} The BLM determines the locations of communication towers by analyzing many factors, including conformance with applicable land use plans, environmental impacts, cultural resources impacts, and “economic efficiency” of the ROW.^{^[148]} The BLM can deny a grant application if it’s inconsistent with law and policy, not in the public interest, the applicant is unqualified, or the project interferes with other uses.^[149]

Once the BLM authorizes a grant, the applicant has the rights and privileges expressly contained within the grant.^{^[150]} Grant holders can usually build authorized facilities, sublease and assign the grant with BLM permission, conduct vegetation maintenance, and request renewals.^{^[151]} With the BLM’s permission, a holder can assign their ROW to a third party or new business holder.^{^[152]} New holders must agree in writing to the transfer and to the grant’s terms and conditions.^{^[153]} Grants usually are for thirty years, but parties can negotiate length.^{^[154]}

ROW holders must pay rent in accordance with a predetermined rent schedule, which the agency determines by considering the population that the facility serves and facility use.^{^[155]} Virtual fencing does not support a population like a cell tower does and no virtual fencing projects have yet been considered under this framework. So, it is unclear how rent would be calculated for a virtual fencing project. Federal, state, and local governments that hold ROWs may be exempt from the rent schedule.^[156]So, virtual fencing rent schedules may be reduced if a government entity supported the construction and installation of virtual fencing towers.

3. USFS ROW Regulations

The USFS has similar rules for administering FLPMA Communication Use ROWs. Communication Use ROWs are “special uses,” which is a catch-all term for all uses that are not specifically identified.^{^[157]} Virtual fencing project may fall under the special use designation.

To receive a special use permit, a non-commercial entity must include relevant information in their application, including a description of the permitted activity, the desired project location, and the project’s timeline.^{^[158]} The project description must include maps and other resources to help the agency determine project feasibility, public benefits, safety concerns, applicable terms and conditions, and compliance with law and policy.^{^[159]} The applicant must show the BLM they have the financial and technical capacity to operate the project.^{^[160]} Special uses must be consistent with relevant laws and doesn’t substantially impact environmental resources and public safety.^{^[161]} If the USFS rejects a permit, they must state why in writing.^{^[162]} NEPA procedure may apply depending on the scope of the proposed use.^{^[163]}

Authorizations contain the terms and conditions under which the permit holder will operate. These terms protect federal interests and minimize damage to the environment, scenic values, and wildlife habitat.^{^[164]} The Forest Service, consistent with FLPMA, can stack special uses together if the land uses don’t interfere with each other.^{^[165]} Authorizations do not transfer: if a holder dies or passes the permit via sale or due to a valid legal proceeding, the permit will terminate.^{^[166]} New or changed uses need a new permit.^{^[167]}

Permit holders must pay rent based on the fair market value of the use.^{^[168]} The agency can waive fees if the entity in question is a government or non-profit entity.^{^[169]} So, government and nonprofits that assist in implementing virtual fencing on public land may be able to reduce or avoid rent payments altogether.

4. Unresolved Questions

Several virtual fencing questions remain unresolved. There is no guidance on how data generated by virtual fencing—such as animal location and pasture use—will be managed, shared, or protected. Ranchers have expressed concern over how the government may use their data and if virtual fencing data could be used to condition permits in unfair ways.^[170] For communication uses generally, data is typically owned by the company that owns and operates the tower.^[171] Communication Use ROWs do not grant any ownership rights in data generated from communication towers on Communication Use ROWs to agencies.^[172] Federal agencies need to address these associated concerns before virtual fencing use on public lands fully matures.

C. NEPA Considerations

Virtual fencing infrastructure construction, regardless of classification, may trigger NEPA review. NEPA requires federal agencies to consider the environmental consequences of major federal actions before undertaking projects that “significantly impact the quality of the human environment.”^[173] Agencies must issue Environmental Impact Statements (“EIS”), which detail the project’s environmental impacts and the project’s possible alternatives.^[174] These projects could be through site-specific reviews or programmatic in nature.^{^[175]} Agencies may prepare an Environmental Assessment (“EA”) to determine if an EIS is necessary.^[176] If an EA determines that an EIS is not necessary, a project can proceed.^[177]

Many virtual fencing projects may qualify for Categorical Exclusions (“CX”) on both BLM and USFS lands, particularly when surface disturbance is minimal or infrastructure is mobile. CXs are “actions that normally do not have a significant effect on the human environment, individually or in the aggregate,” and therefore do not require preparation of an EA or an EIS.^{^[178]} Agencies issue CXs to expedite projects with little environmental impact.^[179] Some procedural review requirements, such as tribal consultation, may still be required.^[180] CXs may not apply if any extraordinary circumstances or specific range conditions exist that warrant further review.^[181] The mere presence of range conditions doesn’t trigger further review, but rather the effect the factors have on range environment and land quality.^{^[182]}

Virtual fencing projects will likely need either an EA or CX to get agency approval. Only the siting of base stations will warrant environmental review, significantly narrowing the scope of analysis. As a result, only a CX or EA will likely be necessary for a virtual fence user to satisfy environmental review requirements.

1. Environmental Assessments

Without a CX, each virtual fencing project will need a site-specific NEPA review, which requires the proper assessment of environmental impacts for each specific project.^{^[183]} However, virtual fence projects, like some physical fence projects, may occur with a programmatic EA, an environmental review that broadly assesses the environmental impact of similar uses across a wide area.^[184] Projects analyzed in a programmatic EA have minimal direct impacts and are often previously considered in land use planning.^{^[185]} A programmatic EA ensures that if a permittee used conventional fencing measures that were collectively analyzed in one document, participating in those conventional fencing activities would not require further environmental review.

An example programmatic fencing EA is the 2017 EA from the U.S. BLM High Desert District Field Office in Rawlins, Wyoming for fence construction, modification, and conversion across the district.^{^[186]} The Programmatic EA analyzed the potential impacts of various types of fencing across BLM-managed lands within the High Desert District and resulted in a Finding of No Significant Impact (“FONSI”) for all fence projects that conformed to the specific design standards and qualifications outlined in the EA.^{^[187]} However, projects that fall outside of the EA’s scope, such as those involving different fence types or construction methods, including virtual fencing, would require a separate, site-specific NEPA analysis.^{^[188]} This approach allows for the speedy approval of fencing projects and maintenance.

As virtual fencing interest grows, federal land managers may consider whether they can apply similar programmatic approaches to virtual fencing. Agencies could develop a programmatic EA to evaluate virtual fencing’s potential environmental impacts for common virtual fence systems.^[189] Agencies could then establish clear use parameters and streamline the approval process for future virtual fencing projects that meet established criteria.

2. Categorical Exclusions

The second virtual fencing NEPA approval method is through CXs.^{^[190]} Each federal agency has their own CXs, some of which influence fencing, such as allowing fence replacement after wildfires and modifying fencing for wildlife.^[191] Agencies can share CXs with other agencies, allowing agencies to quickly implement projects across agencies.^[192] Agencies have already adopted CXs relevant to virtual fencing, as USFS adopted BLM and DOE CXs that categorically excluded grants of ROWs that fall entirely on another ROW.^[193]

Early virtual fencing projects demonstrate that CXs have proven to be a reliable tool for NEPA compliance and approving virtual fencing projects. For example, the BLM has gained experience authorizing virtual fencing projects under three primary CXs: data collection, the construction of small protective enclosures, and ROWs. Other CXs may also apply depending on the specifics of a given project.

One BLM CX approves projects for nondestructive data collection, study, research, and monitoring activities.^{^[194]} The BLM used this CX to approve a pilot virtual fencing project in Moffat County, Colorado, where a landowner temporarily placed a base station on BLM land.^{^[195]} The base station is on a trailer so it can adapt to coverage needs.^{^[196]} The BLM approved the project under the CX because the project advanced the goals of the allotment’s resource management plan while supporting rangeland health and livestock management.^{^[197]}

The BLM has also authorized virtual fencing projects using the CX for “construction of small protective enclosures, including those…to protect small study areas.”^{^[198]} For instance, the BLM Bakersfield Field Office approved extending a private virtual fencing network onto two BLM allotments.^{^[199]} The project sought to protect ground cover and study virtual fencing impact on wildlife.^[200] While the project qualified under the CX, the BLM imposed additional stipulations to protect cultural resources, sensitive species, and habitat, as well as to manage noxious weeds and avoid conflicts with migratory birds.^{^[201]}

In other instances, the BLM has issued short-term ROWs that authorize temporary land uses lasting three years or less for virtual fencing projects.^{^[202]} For instance, the BLM approved a two-year virtual fence trial project for grazing on the South Horse Lake Allotment in California.^[203]

As virtual fencing infrastructure becomes more permanent, the BLM may continue to rely on CXs to avoid more rigorous environmental review. One promising approach is to reauthorize projects within existing compatible ROW corridors, such as near communication towers, to utilize prior environmental analyses.^{^[204]} This strategy aligns with FLPMA’s directive to co-locate ROWs whenever feasible.^{^[205]}

The BLM can also tier virtual fencing projects to existing NEPA documents when project goals and impacts are consistent with prior analyses. For example, in Oregon’s Verley Pasture, the BLM extended the grazing season to evaluate whether virtual fencing and targeted grazing could help control invasive grasses.^{^[206]} Because the project supported objectives already outlined in the Resource Management Plan and the Sage-Grouse Management Plan—and introduced no new impacts—no additional NEPA review was required.^{^[207]}

For virtual fencing project on USFS land to fall under a CX, some actions only need a USFS case file and a decision memo to operate.^[208] The case file includes records that identify parties and demonstrate that no extraordinary circumstances apply.^{^[209]} Only certain actions fall under this approach.^{^[210]} Virtual fencing projects can, and have, fit these categories.^{^[211]} This procedure provides a critical mechanism to support virtual fencing projects and specific land management objectives. Since virtual fencing base stations need little acreage to operate, they can likely fit under this CX.

While the USFS and BLM have approved many virtual fencing pilot projects, they have done so using various NEPA pathways. Virtual fencing projects generally have minimal environmental impact, making them strong candidates for CXs even if stipulations attach. As virtual fencing becomes more established, CXs, especially those tied to ROWs, may be a practical path forward. To ensure predictability for landowners and consistency in implementation, the BLM should consider developing a more streamlined and uniform NEPA approach for virtual fencing projects.

V. Case Studies

While virtual fencing remains in its early stages, a few groups have begun implementing the technology on federally managed lands. The following two case studies—the Eagle County, Colorado project and the Cottonwood Ranch project in Nevada—demonstrate how stakeholders use virtual fencing across both private and public lands. Each highlights the technology’s benefits and challenges, NEPA elements, and future use planning, offering insight into the evolving role of federal law in supporting virtual fencing deployment.

A. Eagle County, Colorado

In 2022, the Eagle County Conservation District (“ECCD”), in collaboration with the BLM, USFS, Natural Resources Conservation Service (“NRCS”), and local ranchers, established an extensive virtual fencing network spanning Eagle and Garfield Counties in Colorado.^{^[212]} The project currently involves eight producers, covers approximately 400,000 acres, and manages around 1,800 cattle.^{^[213]} The project utilizes Vence and Gallagher virtual fencing technology.^[214]

As one of the earliest virtual fencing initiatives in the country, it spans BLM, USFS, and private deeded lands.^[215] The project area includes one of the most contiguous public lands holdings in the United States, making it an ideal testing ground for both the legal and practical application of virtual fencing.^{^[216]} The project has shown strong potential to use virtual fencing to support, reinforce, and maintain rangeland restoration efforts while also minimizing NEPA constraints. However, further technological development, particularly in reliability, coverage, and affordability, will likely be necessary before ranchers can adopt virtual fencing full time.

1. Beginnings of Eagle County Colorado Project

The idea for the project emerged locally when the BLM’s Eagle County Range Management Specialist identified virtual fencing as a promising tool for rangeland management and coordinated with the ECCD to move the projects forward.^{^[217]} ECCD secured funding through NRCS’s Conservation Innovation Grant (“CIG”) program on behalf of interested producers within the conservation district.^{^[218]}

The CIG program is sponsored through the NRCS’s Environmental Quality Incentives Program (“EQIP”).^[219] The Secretary of Agriculture issues Conservation Innovation Grants “to stimulate innovative approaches” to protect the environment while supporting agricultural production.^{^[220]} The grant program is specifically designed to allow for “pilot testing of new technologies or innovative conservation practices.”^{^[221]}

Private agricultural groups, NGOs that work with agricultural producers, and government organizations are eligible for CIG grants.^{^[222]} CIG grants are one program within EQIP.^[223] The ECCD applied for the CIG grant to help local ranchers adopt virtual fencing and to test the effectiveness of the technology in mountainous terrain.^{^[224]} The CIG grant required ECCD work exclusively with EQIP eligible landowners.^{^[225]} The project began with six producers.^[226] Initial CIG funds were used to purchase a limited number of virtual fence base stations and collars.^{^[227]} The BLM later expanded its involvement by funding additional collars and base stations, the latter costing between $8,100 to $10,000 each.^{^[228]} Additional grant funding is on the horizon to sustain the project.^[229]

The project allows stakeholders to explore the technology’s potential with fewer preliminary NEPA hurdles. The BLM had to evaluate impacts with little help from established NEPA precedent.^{^[230]} The BLM found that virtual fencing required minimal physical infrastructure, which limited potential environmental impacts.^{^[231]}The base stations, which cover up to twelve miles, were the project’s only surface disturbance.^{^[232]} Base stations need little maintenance, so no increased human presence was expected.^{^[233]} Through this project, the BLM sought to review the environmental impacts of virtual fencing within existing NEPA categories in a practical, low-impact setting.

The BLM also conducted an internal review to assess whether virtual fencing warranted changes to existing grazing permits.^{^[234]} The agency considered potential impacts such as those to sage grouse, vegetation, wildlife corridor movement, physical fence infrastructure, soil health, and cultural resources.^{^[235]} The BLM determined that the impact from virtual fencing was too minimal to justify any permit modifications.^[236] The BLM found that the technology would not alter existing fence lines or cause new surface disturbance that required additional NEPA review.^{^[237]} The primary difference, facilitating freer movement of wildlife, was viewed as an ecological benefit.^{^[238]} Given the minimal on-the-ground impacts and consistency with earlier analyses, the BLM determined that no further action was required.

To maximize efficiency and minimize disturbance, the BLM strategically placed virtual fencing towers near existing communication towers to get broad cell coverage to a wide area.^[239] Because roads and cleared ground were present on current ROWs, installing the base stations required little to no new surface disturbance.^[240]

With installed towers, ECCD launched the project with four distinct components.^{^[241]} First, the project monitors how virtual fencing influenced restoration efforts, particularly in riparian areas, sensitive ecological sites, and burn scars.^{^[242]} Second, the project collects qualitative data on rancher experiences through annual interviews over the three-year grant period to better understand perspectives to help inform future implementation.^[243] Third, the project creates mechanisms to alleviate data privacy concerns.^{^[244]} Ranchers expressed worry that if government agencies had access to real-time data, the BLM could identify stray cattle, pursue trespass violations, rescind leases, or condition permits in novel, undesired ways.^{^[245]} The fourth component involves the use of GIS tools to monitor the effectiveness of virtual fencing across the landscape.^{^[246]}

The Eagle County project illustrates how the BLM can leverage virtual fencing to advance both agricultural and environmental objectives under its multiple use mandate to help responsibly steward public land and support values such as rangelands and fish and wildlife habitat.^{^[247]} Virtual fencing promises to be a method to allow the BLM to support values in ways they couldn’t easily do before. For instance, the BLM can identify cultural sites on allotments and utilize virtual fencing to keep cattle out entirely.^{^[248]}

2. Results from Eagle County Project

The ECCD project has allowed the BLM to see benefits to both range health and multiple use management because of the virtual fencing use, seen through three main components: restoration, water management, and ranching operations.

a. Restoration

First, the Trail Gulch Allotment near Gypsum, Colorado, illustrates how the BLM is using the technology to restore rangeland landscapes. Years of ecological succession and overgrazing had degraded rangeland conditions on the allotment.^[249] Juniper encroachment replaced native sagebrush and grass cover, reducing habitat quality for both livestock and wildlife.^[250] To begin restoring the area, the BLM conducted prescribed burns in 2014, laying the groundwork for further management supported by virtual fencing.^[251]

Shortly after the prescribed burns, the BLM implemented a mastication treatment to the Trail Gulch Allotment.^{^[252]} This process mechanically removes unwanted vegetation and lays the shredded vegetation on the ground, where it naturally decomposes and returns nutrients to the soil.^{^[253]} The BLM aerially seeded the area with sagebrush and grasses to help promote even grass distribution and reestablish sagebrush without competition from woody species.^{^[254]} For monitoring purposes, the BLM left a portion of the pasture untreated, creating a control area to study long-term changes in soil health, plant diversity, and water quality.^{^[255]}

Virtual fencing in masticated pastures has led to clear restoration success. In May 2024, 100 cattle grazed a pasture restored through mastication in the Trail Gulch Allotment. Heat maps showed that cattle primarily congregated around a central pond.^[256] Despite this focused use, vegetation in the area recovered to pre-grazing levels by the end of the summer.^[257] To support continued recovery, permittees will rest the area for at least two years.^{^[258]} This decision helps ensure long-term restoration success and supports the BLM’s broader conservation goals.

b. Water Management

Second, water infrastructure has benefited under the virtual fencing system. Since the 1970s, the Trail Gulch Allotment and surrounding allotments have utilized water savers that capture and funnel rainwater into tanks for livestock use.^[259] However, water savers are not always reliable thanks to inconsistent rainfall and collection inefficiencies.^[260]

Virtual fencing has given new relevance to water infrastructure like water savers. By enabling more precise control of livestock movement, virtual fencing allows ranchers to rotate cattle more efficiently than with physical fencing. This opens longer windows of time for water savers to collect rainwater and replenish wells, improving the availability of a limited resource.^[261] While study data is still forthcoming, the BLM and local permitees are hopeful that they can more comfortably harness water savers, especially during drought conditions.^[262]

c. Ranch Management

Third, rancher feedback gathered through qualitative surveys highlights persistent challenges with the technology itself. Many participants described a “steep learning curve,” and early experiences led most to rate the technology as a “C” or “D.”^{^[263]} Few were willing to fully endorse it until it performs at a “B+” or “A” level.^{^[264]} In its current, still-maturing form—often compared to a “brick cell phone”—the Vence system was seen as only 50–60% effective.^{^[265]} Ranchers said they couldn’t replace physical fencing until virtual fencing was at least 90% reliable.^[266]

However, once the ranchers adjusted to the learning curve, they were excited by virtual fencing’s potential.^{^[267]} Virtual fencing saved significant time and presented unprecedented ability to monitor cattle herds.^{^[268]} With near real-time tracking, ranchers could quickly identify when cattle were sick, injured, or stuck and initiate faster, more targeted responses.^{^[269]} Ranchers used the technology to graze cattle in areas with old or deteriorating physical fences, which had previously been difficult or impossible to use effectively.^{^[270]}

Ranchers especially appreciated the involvement of the ECCD and the NRCS.^{^[271]} Because these entities do not issue or revoke grazing permits, their leadership helped build trust among participants.^{^[272]} As a conduit to the BLM, they also helped ease concerns about data privacy and government overreach.^{^[273]} ECCD coordinated with Colorado State University to manage the data to ensure security and neutrality.^{^[274]} Parties either publish data in the aggregate to prevent individual identification or publish data from individual ranchers and allotments with rancher consent.^{^[275]}

3. Future Implications for the Eagle County Project

Since its launch in 2022, the Eagle County virtual fencing project has grown steadily with continued expansion ahead. The BLM and permittees envision extending virtual fencing to other areas of public land, including challenging landscapes like Bocco Mountain, where steep terrain has made traditional fencing—and therefore grazing—impractical for decades.^{^[276]} With virtual fencing, livestock- and BLM-active land management can return without physical fencing within allotments, improving both grazing and wildlife habitat.^[277] As the Trail Gulch Allotment demonstrated, ecological succession in the absence of management can lead to degraded rangeland conditions; virtual fencing offers a proactive tool to reverse these trends.^[278]

Virtual fencing allows the BLM to rethink range management. With less need for interior physical fencing, the BLM hopes to explore alternatives like issuing grazing permits by landscape blocks rather than by fenced allotments.^{^[279]} This would increase flexibility while maintaining herd separation, potentially with lightweight visual markers instead of intrusive fences to mark boundaries.^{^[280]} This could lead to the removal of outdated tall wildlife fence along the I-70 corridor that failed to reach its conservation goals and now hinders migration.^{^[281]}

Ongoing monitoring and research are essential to fully understanding virtual fencing’s ecological impacts and inform future management decisions. The BLM is conducting long-term studies across the project area, collecting soil temperature, moisture, and composition on restored and unrestored control areas.^{^[282]}

The project is also contemplating policy development. Currently, Vence and Gallagher systems are in use, and the BLM anticipates allowing additional providers to enhance flexibility and reduce data privacy concerns.^{^[283]} But challenges remain. Connectivity failures, such as base station outages, can still result in escaped cattle.^{^[284]} Network reliability and labor costs for collaring livestock must improve before widespread adoption can occur.^[285] Still, the Eagle County project continues to show that virtual fencing holds significant potential to modernize public land grazing and support the BLM’s multiple-use mandate well into the future.

B. Cottonwood Ranch, Nevada

Another notable case study in virtual fencing use on public lands comes from Nevada’s Cottonwood Ranch (“CWR”), which partnered with the University of Nevada, Reno Extension (“UNR”) to implement the technology in 2021. The CWR, which sits near Elko, NV, runs cattle and horses and is known for its hunting and recreational opportunities.^{^[286]} The CWR has a reputation as a progressive ranch that is willing to try out new ideas and concepts in the pursuit of achieving agricultural and conservation benefits.^[287] Because of the possible grazing benefits of virtual fencing, the ranch gave virtual fencing a try.^[288] Unlike the Eagle County project, which was led by a conservation district, the Cottonwood Ranch initiative was driven by a single private landowner. As a result, the project followed a different NEPA pathway and was more narrowly tailored to support the rangeland production and rangeland conservation goals of one private ranching operation.

1. Beginnings of Cottonwood Ranch Project

After CWR expressed interest in using virtual fencing on its property, it partnered with UNR.^{^[289]} The project began as a trial across USFS, BLM, and private deeded land.^{^[290]} Initial funding came from UNR and a grant provided by the U.S. Fish and Wildlife Service through an Inflation Reduction Act program.^{^[291]} The environmental review and NEPA processes for both the BLM and USFS were informed by precedents from earlier virtual fencing efforts.^{^[292]} As a result, the applications were fast-tracked, significantly reducing approval timelines and minimizing procedural delays.^{^[293]}

To operate on BLM-managed land, Cottonwood Ranch received a three-year temporary ROW permit.^{^[294]} This permit allowed the installation and use of virtual fencing base stations on federal land.^{^[295]} The BLM approved the CWR project under CX 516 DM 11.9(E)(19) as a temporary ROW.^{^[296]} This provision authorizes the issuance of short-term (three years or less) ROWs permits, provided the proposal includes measures to restore the land after the ROW expires.^{^[297]}

Similar efforts shaped the CWR’s approval process for the South Horse Lake and Shaffer and Antelope projects.^[298] The BLM approved these projects with some stipulations, including for sage grouse protections.^[299] Building base stations in sage grouse habitat was unavoidable to ensure full network coverage.^[300] They needed to avoid leks, sage grouse mating and breeding sites, and prioritize disturbance in non-habitat areas whenever possible.^[301] They also required design features to prevent nesting birds, prevent the spread of weeds, avoid wildlife harassment, and restrictions to loading equipment.^[302]

Utilizing CX 516 DM 11.9(E)(19), the CWR project was able to proceed without the need for an EA or EIS, but included several limitations and stipulations that were specifically applicable to virtual fencing, like similar projects.^{^[303]} These included seasonal restrictions that limited the ability of stakeholders to maintain base stations during sage-grouse breeding periods.^[304] They also must place reflectors on wires to protect low-flying birds.^{^[305]} They were also required to add spikes to flat surfaces to deter raptor nesting.^{^[306]} Additional stipulations addressed the protection of cultural resources, avoidance of nesting bird habitat, site cleanliness, road use, and weed control.

CWR also received permission to use Forest Service land. The USFS approved the project as a special use.^[307] Although initially approved for a single grazing season through a case file and decision memo, the Forest Service later granted a five-year extension.^{^[308]} The extension also allowed the CWR to move two of the base stations to better maximize the network coverage.^[309]

The Forest Service determined that the project qualified for a CX because it was a temporary special use that disturbed less than five acres.^{^[310]} This CX includes “communication facilities, associated improvements, or communication uses at a site already identified as available for these purposes.”^[311] In this case, the special use required less than one acre.^{^[312]} The Forest Service found that no extraordinary circumstances applied, but without any detailed analysis.^{^[313]}

2. Results and Future Implications

a. Technical Challenges

The project took several years to fully take off. Early implementation was marked by technical challenges—particularly in getting the collars to reliably connect with the towers—which led to what one participant described as “disaster years” while working through the system’s initial shortcomings.^{^[314]} They utilized Vence, which was a good resource for customer support, but Cottonwood Ranch had difficulties getting Vence to compensate them for replacement technology when technology failed.^[315]

b. Land-use benefits

Virtual fencing has enabled CWR to access and manage USFS land that was previously unusable due to the limitations of physical fencing.^{^[316]} Virtual fencing allowed for rotational grazing and boosted vegetation recovery from grazing.^[317] Meeting the conservation stipulations presented few issues. The parties believe that this has helped wildlife, including raptors and sage grouse, adapt to the fence changes.^[318] Mindfully implementing virtual fencing can help achieve numerous benefits without having to enthuse onerous steps into the process.

c. Leadership Transitions

A critical step toward the project’s long-term sustainability was transitioning CWR into the lead role.^{^[319]} This shift gives the ranch greater autonomy over decision making and allows it to continue using virtual fencing as long as it remains beneficial to their operation.^{^[320]} CWR can pursue its own funding opportunities and avoid insurance indemnification issues that occurred through pairing with a University partner.^[321] Identifying flexible partnerships allows for the ranch to continue with virtual fencing if it is practical to do so.^[322] While virtual fencing is not a one-size-fits-all solution, CWR stakeholders expressed that they found virtual fencing to be a powerful tool for achieving range management and conservation goals.^{^[323]}

VI. Takeaways

Virtual fencing shows considerable promise as a conservation and agriculture tool. To achieve these outcomes at scale, stakeholders will need to implement virtual fencing on public lands. Because the technology is relatively new, both stakeholders and government agencies must carefully consider the legal and policy dimensions associated with its use on federal land. Stakeholders must navigate current permitting and range improvements approval frameworks, while agencies like the BLM and USFS consider how to adapt rules to accommodate this evolving tool.

To support more effective and widespread adoption, seven steps emerge: first, the BLM and USFS should clarify regulations to support permanent virtual fence use on public lands as either an improvement or ROW; second, increased BLM and USFS coordination would reduce complexity and promote consistency; third, stakeholders should explore opportunities to leverage federal conservation programs to support virtual fencing adoption; fourth, public-private partnerships could help reduce project risk and build trust among permittees; fifth, agencies should consider developing a dedicated conservation project classification for virtual fencing, allowing projects to take full advantage of NEPA CXs and conservation incentives; sixth, continued research into the ecological and economic impacts of virtual fencing, such as possibilities for use in carbon and biodiversity markets; seventh, the BLM should directly address data privacy to ensure that data is sufficiently protected for the benefit of landowners.

A. Clarify Virtual Fencing Regulations

As virtual fencing becomes a more prominent feature on public lands, the BLM and USFS must streamline and clarify how it fits within their regulatory frameworks. A major consideration is whether virtual fencing should be implemented as a range improvement or through a ROW. Each pathway carries distinct implications for ownership, management, and cost-sharing. Without clear guidance on how government agencies will define virtual fencing, landowners and agencies face uncertainty that can delay implementation and limit broader adoption.^[324]

Virtual fencing deployed as a range improvement will most likely be classified as a structural improvement, giving USFS title over the project.^[325] This may result in the USFS having title over the project. The BLM is more flexible, utilizing cooperative title arrangements based on each party’s contributions.^[326] These distinctions matter when determining maintenance responsibility and infrastructure duration. For instance, a mobile base station mounted on a trailer may qualify as a temporary, non-structural improvement, potentially allowing the user to retain full ownership.

Implementing virtual fencing as a ROW presents a different set of considerations. This pathway may bring more legal clarity and consistency on both BLM and USFS land.^[327] Stakeholders must still assess how it fits with their long-term goals for renewability and shared responsibility. ROWs allow for greater use of co-locating compatible infrastructure, such as communication towers, which reduces permitting complexity and surface disturbance.^[328]

To support widespread adoption, the BLM and USFS should develop standardized guidance for approving virtual fencing projects. A clear practice standard, defining how the technology is treated under existing regulations, would give stakeholders the certainty they need to move forward and help agencies consistently process applications.^[329] Passing regulations and laws that specifically give title to virtual fencing projects to permittees who independently installed the technology would be beneficial.

The BLM and USFS could provide cost-sharing options, such as through cooperative agreements and cost-sharing models with permittees and conservation partners to expand options for implementation.^[330] Ultimately, clarifying how virtual fencing fits within existing regulatory tools and encouraging shared ownership frameworks where appropriate will help make the technology more accessible, scalable, and effective.

B. Increase Coordination between the BLM and USFS

Greater coordination between the BLM and USFS would help streamline virtual fencing implementation, reducing permittee confusion and increasing implementation efficiency across diverse landownership patterns, such as areas where federal, state, and private lands are interspersed.

Closer coordination would also facilitate more efficient environmental review processes. When agency policies are aligned, projects are better positioned to utilize existing environmental review documents to avoid undergoing duplicative analysis. For instance, the Verley Pasture project in Oregon was approved by the BLM without additional analysis because the impacts of virtual fencing had already been evaluated in a Final EIS and in sage grouse management plans.^{^[331]} In Eagle County, the BLM found that virtual fencing resulted in no greater environmental impact than traditional fences, eliminating the need for further review.^{^[332]} While the Verley Pasture and Eagle County projects occurred all within the BLM, agencies could increase efficiency by utilizing documents that featured the same analysis. Aligned agency processes would enhance opportunities for cross-agency tiering and documentation, speeding up approvals and reducing redundant analysis.

Encouragingly, steps toward coordination are already underway. In 2024, the USFS adopted the BLM’s ROW CXs thanks to the Fiscal Responsibility Act NEPA amendments, which allow federal agencies to adopt each other’s CXs when appropriate.^{^[333]} This harmonization creates shared tools that can support virtual fencing deployment across jurisdictional boundaries. There is a need for a mutual BLM and USFS CX or programmatic EA that excludes commercially accepted virtual fencing projects from further review. Such documents would simplify and accelerate virtual fencing adoption across federal land types—bringing conservation and management benefits more quickly to large, multi-jurisdictional landscapes. Increased agency coordination supports federal multiple-use mandates while minimizing administrative and environmental review barriers for stakeholders.

C. Integrate Virtual Fencing into Federal Conservation Programs

Federal conservation programs administered by the NRCS, such as the EQIP and CIG, can help support virtual fencing adoption.^[334] These programs offer financial and technical assistance that can help reduce the risks and upfront costs associated with deploying new technology.^[335]

The Eagle County project serves as a strong example of this approach. The ECCD, in coordination with the BLM and USFS, secured CIG funding to help launch its virtual fencing initiative.^{^[336]} Although NRCS programs are primarily designed for private lands, current rules allow certain government and nonprofit partners to apply funds to public lands under specific circumstances.^{^[337]} These programs are well-positioned to support innovative conservation practices, boost collaborative partnerships, and improve rangeland outcomes. While virtual fencing may not be suitable for every operation, federal conservation programs offer a promising opportunity for those looking to implement the technology that supports both production and conservation goals.

D. Conservation Districts and Local Entities as Key Partners for Virtual Fencing Implementation

Conservation districts, local governments, and nonprofits are well-positioned to support virtual fencing projects by coordinating funding access and providing technical and logistical support. They can reduce risk and build trust with stakeholders. In the Eagle County case study, the local conservation district collaborated with Colorado State University to manage sensitive data.^[338] To protect rancher privacy and address concerns about BLM oversight, only county-level data is released publicly unless a rancher gives explicit permission to release their data.^[339] This third-party structure reduces perceived risk and creates a buffer between landowners and federal agencies, especially when agencies have authority to modify or cancel grazing permits.^[340]

Local entities can also ease the administrative burdens associated with permitting and compliance. For instance, agencies exempt some local entities from paying rent for holding a ROW, reducing costs and risks for landowners.^[341] Ranchers are less directly involved with project implementation and environmental review when another entity takes the lead. These collaborative models are already proving effective. For instance, the University of Nevada, Reno played a key role in launching the Cottonwood Ranch virtual fencing project, which is now increasingly managed by the ranch.^{^[342]} Even coordinating with neighboring allotment holders to share virtual fencing systems can expand coverage, distribute cost and risks, and provide community to adjust to new technologies. Local public and private partnerships offer a strong foundation for transitioning from pilot projects to more permanent virtual fencing systems.

E. Leverage Conservation Objectives to Support Virtual Fencing Implementation

By aligning virtual fencing with conservation outcomes such as wildfire recovery, wildlife habitat protection, or riparian area restoration, projects have greater access to federal funding, create opportunities for cooperative arrangements, and trigger NEPA CXs. By designing projects with clear ecological goals, landowners and agencies can maximize the environmental and operational benefits of virtual fencing.

1. Wildfire Recovery

Studies show that virtual fencing has proven useful in post-wildfire recovery efforts. Virtual fencing can keep cattle off burn scars, allowing vegetation recovery while providing targeted grazing on adjacent land.^{^[343]} It often offers a cost-effective and resilient alternative to rebuilding physical fencing lost to fire.^{^[344]} Virtual fencing can support both ecological restoration and operational recovery.^{^[345]}

When stakeholders use virtual fencing to restore land and grazing operations after wildfire, it may qualify under existing CXs. The USFS has a CX that allows fence rehabilitation after wildfire with minimal documentation.^{^[346]} While novel, virtual fencing’s functionality can align with this CX, as projects disturbing fewer than twenty acres may qualify.^[347] By clearly linking virtual fencing to post-fire recovery goals, users may be able to streamline approval and implementation and see post-wildfire benefits faster.

2. Wildlife Conservation and Habitat Connectivity

Virtual fencing can support wildlife conservation by reducing reliance on physical fences that fragment habitat or block migratory pathways. By enabling flexible, targeted grazing that preserves wildlife movement corridors, virtual fencing advances ecological and operational goals.

Implementing virtual fencing in high-conservation-value areas may increase access to federal conservation programs designed to support these outcomes. One example is the USDA’s Migratory Big Game Initiative, which operates in Wyoming, Montana, and Idaho.^[348] The Initiative allows landowners to participate in multiple programs such as EQIP and CRP if funds are used to address different resource concerns.^{^[349]} EQIP has funded virtual fencing within this framework.^{^[350]} Priority is given to landowners managing property along designated migration corridors.^[351] In Wyoming, the Initiative has invested $11 million to conserve over 307,000 acres.^{^[352]} While this support is aimed at private lands, Wyoming’s state management systems help federal allotment holders implement voluntary habitat improvements.^{^[353]} Virtual fencing offers a clear opportunity to support dual goals.

3. Riparian Area Protection and Water Resource Management

Riparian areas are among the most ecologically sensitive parts of rangelands. Virtual fencing allows ranchers to keep cattle out of these areas without physical barriers, supporting water quality, soil stability, and habitat integrity.^{^[354]} Agencies and researchers can study livestock impacts more precisely by controlling grazing patterns.^{^[355]} Riparian protection CXs could allow for virtual fencing projects without extensive environmental review. The BLM has previously used a CX for the “construction of small protective enclosures” to approve virtual fencing projects focused on water body protection and study.^{^[356]}

Riparian protection goals could create more funding opportunities. For example, the Eagle County project partnered with the Foundation for America’s Public Lands to secure funding under the Drought Resilience Fund, using virtual fencing to better manage water availability during dry conditions.^{^[357]} Both the BLM and USFS can also allocate grazing fees through the Range Improvement Fund or Range Betterment Fund to support projects that restore riparian areas.^{^[358]}

4. Virtual Fencing in Carbon and Biodiversity Markets

Carbon credits enable companies to compensate for emissions by investing in projects that capture or store carbon, while biodiversity credits allow companies to offset habitat loss by supporting conservation outcomes elsewhere.^{^[359]}Virtual fencing could support both, by improving soil health, reducing overgrazing, restoring native vegetation, and enhancing wildlife habitat—particularly on public rangelands. The Eagle County, Colorado project is already monitoring soil and vegetation health on grazing allotments.^{^[360]}If future scientific studies can quantify the carbon sequestration potential of soils and vegetation in virtual fencing pastures, these projects could possibly participate in emerging carbon and biodiversity credit markets.

This would offer landowners and permittees an additional incentive to adopt conservation-based practices and create new revenue streams. However, more research is needed to determine how virtual fencing can contribute to carbon sequestration and biodiversity credits systems.

5. Establish Appropriate Data Privacy Mechanisms

The BLM and USFS must clarify rules for data use, management, and ownership. Under current frameworks for radio communication uses, the owner and operator of the tower would own the data produced.^[361] This creates ambiguity for virtual fencing systems, as users can both own base stations and use them. Government agencies and producers want to avoid FOIA requests to protect data and preserve privacy.^[362] Virtual fencing producers recognize that data isn’t stored on any base stations, suggesting that data ownership rests fully with the base station owner.^[363] The owners of service agreements, (i.e. the users of virtual fencing systems) would own the data, not the virtual fence company.^[364]

The Eagle County project features safeguards to protect data that may be useful for developing mechanisms to protect data. A co-partner to the grant was Colorado State University, which holds the data.^[365] The University has FOIA protections in place and acts as a third-party data holder.^[366] Data is only released in the aggregate and is not traceable to individual permittees.^[367] University and local partners helps facilitate the protection of data so ranchers are in control of how it is used, which is a viable model that others could follow.

The BLM and USFS should create formal rules and guidelines to ensure that base station users own their data and create sufficient mechanisms to help protect it. Rules should address when FOIA could apply and provide guidance on possible future risk. How does federal ownership of base stations influence landowner control over personal data? If a landowner owns data, what trespass liability do they assume? With no official guidance from agencies, we simply do not know the answer to these questions. Federal agencies can directly address concerns by outlining rules for stakeholders and constituents to follow.

VII. Conclusion

Virtual fencing represents a promising shift in how land managers, ranchers, and agencies approach grazing, conservation, and resource stewardship on Western landscapes. As pilot projects across BLM, USFS, and private lands demonstrate, this technology has the potential to reduce infrastructure costs, improve ecological and conservation outcomes, and encourage flexible rangeland management.

Unlocking virtual fencing’s full potential on public lands will require modernizing how agencies classify, authorize, and support its use. Ambiguities around range improvements, ROWs, ownership, and permitting processes create barriers for interested stakeholders. Greater coordination between the BLM and USFS, clear regulatory guidance, clear NEPA guidelines, and integration into federal conservation programs will be essential steps toward more consistent, streamlined implementation.

In addition, aligning virtual fencing projects with specific conservation objectives, such as post-wildfire recovery, riparian protection, and wildlife habitat connectivity, could facilitate additional support from NEPA CXs, NRCS program funding, or emerging carbon and biodiversity credit markets. Conservation districts, local governments, and public-private partnerships can serve as important intermediaries in supporting and scaling virtual fencing efforts.

Virtual fencing is not a one-size-fits-all solution, but it is a powerful tool that, with thoughtful policy and regulatory support, can help meet the multiple-use mandate across federal lands. By proactively addressing the legal, administrative, and technical challenges ahead, agencies and stakeholders can ensure that virtual fencing continues to evolve as an innovative solution for resilient, sustainable land management in the West.

Wenjing Xu et al., Barrier Behaviour Analysis (BaBA) Reveals Extensive Effects of Fencing on Wide-Ranging Ungulates, 58 J. Applied Ecology 690, 690 (2021). ↑
D.M. Anderson, Virtual Fencing – Past, Present, and Future, 29 Rangeland J. 65, 66 (2007). ↑
Mathilde Chatin, Tearing Down Barriers: Virtual Fencing as the Future of Livestock Management, Innovation News Network (Feb. 20, 2025), https://www.innovationnewsnetwork.com/tearing-down-barriers-virtual-fencing-as-the-future-of-livestock-management/55615/ (The first commercial virtual fence system for livestock was released by Nofence in Norway in 2016). ↑
D.S. Jachowski, R. Slotow & J.J. Millspaugh, Good Virtual Fences Make Good Neighbors: Opportunities for Conservation, 17 Animal Conservation 187, 190 (2014). ↑
Id. at 191. ↑
E.g., id.; Logan Riley Vandermark, Impact of Virtual Fence Technology on Yearling Steer Behavior, Performance, and Energetic Expenditure 9 (2023) (M.S. Thesis, South Dakota State University) (on file with South Dakota State University.). ↑
Jachowski, Slotow & Millspaugh, supra note 4, at 190; Vandermark, supra note 6, at 9; Piotr Golinski et al., Virtual Fencing Technology for Cattle Management in the Pasture Feeding System—A Review, 13 Agric. 91, 93 (2023). ↑
Compare 43 U.S.C. § 1702(c) (2024) (Bureau of Land Management Multiple Use Standard), with 16 U.S.C § 531(a) (2024) (Forest Service Multiple Use Standard); Shawn Regan et al., Opening the Range: Reforms to Allow Markets for Voluntary Conservation on Federal Grazing Lands, 2023 Utah L. Rev. 197, 208 (2023). ↑
See, e.g., Xu et al., supra note 1. (Xu et al.’s study found that 40% of animals “fence encounters” alter their behavior, with pronghorn two times as likely to be impacted than mule deer. Id.). ↑
1,320 feet of barbed wire fencing costs was estimated to cost 2,629.80 in labor and equipment in 2024. Ralph Mayer & Tom Olsen., Estimated Costs for Livestock Fencing, Iowa State Univ. Extension & Outreach: Ag Decision Maker, https://www.extension.iastate.edu/agdm/livestock/html/b1-75.html (last updated Dec. 2024). ↑
Dana Hoag et al., Beef Cattle Producer Perspectives on Virtual Fencing, 96 Rangeland Ecology & Mgmt. 143, 145–47– (2024) (Study participants noted that “traditional fencing was expensive and required a lot of maintenance, but VF could offer adaptability and lower costs… but some thought costs would increase.”). ↑
Laura A. Hanson & Carol Hardy Vincent, Cong. Rsch. Serv., R42346, Federal Land Ownership: Overview and Data (2020) (The 11 western states include Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming). ↑
Livestock Grazing on Public Lands, Bureau of Land Mgmt., U.S. Dep’t of the Interior: Rangelands & Grazing: Livestock Grazing, https://www.blm.gov/programs/natural-resources/rangelands-and-grazing/livestock-grazing (last visited May 2, 2025). ↑
U.S. Dep’t of Agric., Forest Serv., Grazing Statistical Summary Fiscal Year 2021 (2021), https://www.fs.usda.gov/rangeland-management/documents/grazing-stats/2021s/2021_GSR_final.pdf. ↑
Jachowski, Slotow & Millspaugh , supra note 4, at 191; Vandermark, supra note 6, at 9. ↑
Prop. & Env’t Rsch. Ctr., Unlocking the Conservation Potential of Virtual Fencing 6. ↑
E.g., id. ↑
E.g., id. ↑
Goliński et. al., supra note 7, at 3,8; Jachowski, Slotow & Millspaugh, supra note 4, at 190 (This technology relies on “irritating cues. . . to actively dissuade animals from leaving or entering a particular area.” This may include visual or other stimuli, but these are now less favored.). ↑
See, e.g., Goliński et. al, supra note 7, at 3. ↑
Jachowski, Slotow & Millspaugh, supra note 4, at 188, 190; Vandermark, supra note 6, at 9; Goliński et. al., supra note 7, at 3. ↑
See Goliński et. al, supra note 7, at 3. ↑
Vandermark, supra note 6, at 9. ↑
U.S. Dep’t of Agric., Nat. Res. Conservation Serv., Virtual Fence Systems for Managing Livestock 2 (2024). ↑
Id. ↑
Goliński et. al., supra note 7, at 8–9. ↑
Kat Dwyer, PERC Partnership Helps Rancher Launch Innovative Virtual Fence Project, Prop. & Env’t Rsch. Ctr. (Nov. 29, 2023), https://www.perc.org/2023/11/29/perc-partnership-helps-rancher-launch-innovative-virtual-fence-project/. ↑
U.S. Dep’t of Agric., Nat. Res. Conservation Serv., supra note 24, at 1. ↑
See Prop. & Env’t Rsch. Ctr., supra note 16, at 5. ↑
See Krista Elhert et. al., Virtual Fencing: Emerging Companies, Functionality and Benefits, S.D. State Univ. Extension (May 2, 2023), https://extension.sdstate.edu/virtual-fencing-emerging-companies-functionality-and-benefits. ↑
Hoag et al., supra note 11, at 147–48. ↑
Goliński et. al., supra note 7, at 3–4. ↑
See Virtual Fencing: A Climate Adaptation Strategy, Climate Hubs, U.S. Dep’t of Agric., https://www.climatehubs.usda.gov/hubs/northwest/topic/virtual-fencing-climate-adaptation-strategy (last visited Apr. 5, 2025). ↑
Susan E. Ward et. al., Legacy Effects of Grassland Management on Soil Carbon to Depth, 22 Glob. Change Biology 2929, 2929–38 (2016) (analyzing how maximizing carbon sequestration in greater soil depths has management and climatic benefits); e.g., Taryn Bradley, Anika Pyle & Theresa Barosh, Ask the Experts: Carbon Credits 101, Warner Coll. of Nat. Res., Colo. State Univ. (Apr. 11, 2024), https://warnercnr.source.colostate.edu/ask-the-experts-carbon-credits-101/. ↑
Dana L. M. Campbell et. al., Temporary Exclusion of Cattle from a Riparian Zone Using Virtual Fencing Technology, Animals, Jan. 2019, at 1, 1, https://www.mdpi.com/2076-2615/9/1/5 (Animals were “almost exclusively” contained outside of desired riparian areas by the virtual fencing system). ↑
Michael C. Anderson, Livestock And Elk Grazing Effects On Stream Morphology, Brown Trout Population Dynamics, Movement, and Growth Rate, Valles Caldera National Preserve, New Mexico 4-7 (May, 2009) (M.S. thesis, New Mexico State University) (on file with New Mexico State University). ↑
L.B. Owens, W.M. Edwards & R. W. Van Keuren, Sediment Losses from a Pastured Watershed Before and After Stream Fencing, 51 J. of Soil & Water Conservation 90, 90 (1996). ↑
E.g. Livestock Access Limitation Practices, Mass. Dep’t of Env’t Prot. Clean Water Toolkit, https://megamanual.geosyntec.com/npsmanual/livestockaccesslimitationpractices.aspx (last visited May, 1 2025); see Silje Marquardsen Lund et. al., Spatial Distribution and Hierarchical Behaviour of Cattle Using a Virtual Fence System, Animals, July 2, 2024, article 2121 at 2 (Cows tend to follow specific cows and form groups, further compounding impacts along fences, where they congregate. Virtual fencing could prevent these effects, but more research is necessary). ↑
Fay Benson, Abbie Teeter, and Nancy Glazier, Pasture Soil Compaction: Prevention and Remediation, Cornell Univ. Coop. Extension (Sept. 9, 2019), https://blogs.cornell.edu/scnydairyandfieldcrops/2019/09/09/pasture-soil-compaction-prevention-and-remediation/. ↑
Dina Hamidi et al., Grid Grazing: A Case Study on the Potential of Combining Virtual Fencing and Remote Sensing for Innovative Grazing Management on a Grid Base, Livestock Sci., Dec. 2023, article 105373, at 1. ↑
Id. ↑
Goliński et al., supra note 7, at 3 (Studies show that 50% of cattle learn to avoid the boundary within 6 interactions with the virtual fencing system) (citing Dana L.M. Campbell et. al., Virtual Fencing of Cattle Using an Automated Collar in a Feed Attractant Trial, Applied Animal Behav. Sci., Mar. 2018, at 71, 71). ↑
Id. at 6. ↑
Megan Verdon, Adam Langworthy & Richard Rawnsley, Virtual Fencing Technology to Intensively Graze Lactating Dairy Cattle. II: Effects on Cow Welfare and Behavior, 104 J. Dairy Sci. 7084, 7084 (2021), . ↑
See generally Pernille Arent Simonsen et al., Effects of Social Facilitation and Introduction Methods for Cattle on Virtual Fence Adaptation, Animals, Jan. 2024, article 1456, at 2, 9. ↑
Anderson, supra note 36, at vii-viii. ↑
E.g., Chad S. Boyd et. al., Virtual Fencing Effectively Excludes Cattle from Burned Sagebrush Steppe, Rangeland Ecology & Mgmt., Mar. 2022, at 55, 60 (Cows in a virtually fenced pasture spent 4% of grazing time in a burned area compared to 40% in a traditionally fenced pasture.); Paul Meiman, Virtual Fencing For Increased Livestock Management Flexibility On Nevada Rangelands, Coll. of Agric., Biotechnology & Nat. Res., Univ. of Nev., https://naes.unr.edu/research/project.aspx?GrantID=785 (last visited Apr. 5, 2025). ↑
Boyd et al., supra note 47, at 60. ↑
Xu et al., supra note 1, at 691 (Studies show that fencing can both help facilitate migration routes and hurt animal movement.). ↑
Andrew F. Jakes et al., A Fence Runs Through It: A Call for Greater Attention to the Influence of Fences on Wildlife and Ecosystems, 227 Biological Conservation 310, 312-313 (2018). ↑
See Jachowski, Slotow & Millspaugh, supra note 4, at 188. ↑
Jakes et al., supra note 50, at 313. ↑
Wyo. Wildlife Fed’n, A Wyoming Landowner’s Handbook to Fences and Wildlife 7 (2nd ed. 2015), https://www.extension.colostate.edu/wp-content/uploads/2022/01/A-Wyoming-Landowners-Handbook-to-Fences-and-Wildlife_2nd-Edition_-lo-res.pdf. Studies elsewhere have found similar rates. See Christine Umstatter, The Evolution of Virtual Fences: A Review, 75 Comput. and Elec. in Agric. 10, 12 (2011). ↑
Jakes et al., supra note 50, at 313 (“These impacts can accumulate over time and contribute to increased energy expenditure, higher mortality rates, and decreased overall fitness of individuals.”). ↑
Xu et al., supra note 1, at 696. ↑
Paul F. Jones et al., Fences Reduce Habitat for a Partially Migratory Ungulate in the Northern Sagebrush Steppe, 10 Ecosphere 1, 1 (2019). ↑
Joel Berger, The Last Mile: How to Sustain Long-Distance Migration in Mammals, 18 Conservation Biology 320 (2004). ↑
See Imogen A. Schwandner et al., Predicting the Impact of Targeted Fence Removal on Connectivity in a Migratory Ecosystem, 35 Ecological Applications 1, 2 (2025) (When 15–40% of fencing is removed, connectivity can improve anywhere from 39–54%.). ↑
Id. ↑
Donald Worster, Under Western Skies: Nature and History in the American West 250 (1992). ↑
Regan et al., supra note 8, at 204 (Utilizing public land was necessary for successful operates due to the arid climate of western lands. Id.). ↑
Colin Reynolds, Protecting the Sublette Antelope Migration: An Analysis of the Evolution of the Legal Tools Employed to Protect the Sublette Antelope Herd from Fencing Obstructions, 26 Lewis & Clark L. Rev. 613, 628 (2022); Regan et al., supra note 8, at 204. ↑
Reynolds, supra note 62, at 628 (Ranchers used barbed wire soon after its invention to “protect their investments” after buying land). ↑
Id. at 629. ↑
Lyn Ellen Bennett & Scott Abbott, The Perfect Fence: Untangling the Meanings of Barbed Wire xix (2017); Reynolds, supra note 62, at 628. ↑
See Paul Savory, History of Electric Fencing, 1832 Onwards, Agrisellex (Mar. 18, 2016), https://www.agrisellex.co.uk/blogs/blog/history-of-electric-fencing-1832-to-2016. Bill Gallagher devised a prototype so his horse wouldn’t damage his car by rubbing up against it. People used early models of electric fence in Texas in the late 19^th century and on the battlefields of World War 1. Id. ↑
Benefits of an Electric Fence in a Grazing Management Plan, BEEF Mag. (May 9, 2023), https://www.beefmagazine.com/grazing-systems/benefits-of-an-electric-fence-in-a-grazing-management-plan. ↑
Id. ↑
Id. ↑
43 U.S.C. § 1061 (“All inclosures of any public lands in any State . . . are declared to be unlawful”). ↑
See Burke Snowden, New Life for the Unlawful Inclosures Act: Immunizing Corner-Crossers from State Trespass Actions, 90 Chi. L. Rev. 2013, 2016 (2023) (“In 1885, Congress passed the Unlawful Inclosures Act (UIA) to counteract ‘range wars,’ a practice prevalent in the second half of the nineteenth century in which cattlemen would attempt to control thousands of acres of public land they did not own by monopolizing water sources and fencing off public land to prevent others from grazing it.”). ↑
See id. ↑
See id.; Reynolds, supra note 62, at 631 (“courts have construed the UIA to prevent the obstruction of the passage of both humans and animals on public lands”). ↑
Regan et. al., supra note 8, at 205 (The UIA ushered in an era where the US Congress addressed the “tragedy of the commons” occurring on US rangelands, which includes permitting systems and fee requirements. Id. at 205–206). ↑
E.g., id. at 206; Roger A. McEowen, Agricultural Law in a Nutshell 661 (2017) (“The years immediately preceding the passage of the TGA [The Taylor Grazing Act] were characterized by the worst recorded drought in United States history and declining cattle prices”). ↑
E.g., Regan et al., supra note 8, at 206 (“the TGA charges the Secretary of Interior to regulate grazing on non-Forest Service public domain lands to ‘stop injury to the public grazing lands by preventing overgrazing and soil deterioration, to provide for their orderly use, improvement, and development, to stabilize the livestock industry dependent upon the public range, and for other purposes.’”) (quoting Pub. L. No. 73-482, 48 Stat. 1269 (1934)); McEowen, supra note 75, at 661. ↑
43 U.S.C. § 315(c). ↑
43 U.S.C. § 315(c) (Permittees could not lease improvements, but could get compensation upon transfer of the lease to someone else.). ↑
See Regan et al., supra note 8, at 203–212 (providing a written overview of the evolution of grazing law and policy from the 1800s to modern day, highlighting how the Taylor Grazing Act and other landmark laws continue to shape grazing management today). ↑
43 U.S.C. § 1702(c) (“‘multiple use’ means the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people”); see 16 U.S.C § 531(a). ↑
16 U.S.C. § 528. ↑
43 U.S.C. § 1702(c) (The BLM defines multiple use as: “the management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; the use of some land for less than all of the resources; a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations for renewable and nonrenewable resources, including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific and historical values”). ↑
Regan et al., supra note 8, at 209. ↑
Id. at 210. ↑
43 U.S.C. § 1902. ↑
Id.; Bureau of Land Mgmt., Investing in Range Improvements on Public Lands Factsheet. ↑
John Bourdeau, 63C Am. Jur. 2d Public Lands § 87 (2025); 43 U.S.C. § 1751. ↑
43 U.S.C. § 1751. ↑
Bourdeau, supra note 87. ↑
Regan et al., supra note 8 at 208–210. ↑
See 16 U.S.C. § 565a-1; 16 U.S.C. § 498; 36 C.F.R. § 222.3 (2025). ↑
E.g., Scott Nicoll, The Death of Rangeland Reform, 21 J. Env’t L. & Litig. 47, 52 (2006). ↑
Raymond B. Wrabley Jr., Cowboy Capitalism or Welfare Ranching? The Public Lands Grazing Policies of the Bush Administration, 29 Pub. Land & Res. L. Rev. 85, 107 (2008); Public Lands Council v. Babbitt, 529 U.S. 728, 748-749 (2000). ↑
Nicoll, supra note 92 at 63. ↑
Id. at 78. ↑
Public Lands Council v. Babbitt, 529 U.S. at 750. ↑
Wrabley Jr., supra note 93 at 107. ↑
Id. ↑
Id. at 109. ↑
See Public Lands Council v. Babbitt, 529 U.S. at 748-750. ↑
43 C.F.R. § 4120.3-2(b) (2025). ↑
Id. § 4120.3-2(c). ↑
43 C.F.R. § 4120.3-1(b) (2025). ↑
43 C.F.R. § 4120.3-2(b) (2025);43 C.F.R. § 4120.3-5 (2025). ↑
43 U.S.C. § 4120.3-2(a-b). ↑
43 C.F.R. § 4120.3-1(d). ↑
43 C.F.R. § 4120.3-3(a) (2025). ↑
43 C.F.R. § 4120.3-4 (2025). ↑
See U.S. Dep’t of the Interior Bureau of Land Mgmt. Little Snake Field Office, Categorical Exclusion Placement of a Base Station to Support a Virtual Fence Project DOI-BLM-CO-N010-2022-0023-CX, 2, https://eplanning.blm.gov/Documents/?id=88a74ed1-a7f2-f011-8407-001dd803d7d3&spid=00ef937d-a8f2-f011-8406-001dd80ef717 (The virtual fencing base stations were on mobile trailers, so the BLM considered them to be temporary, removable infrastructure). ↑
43 C.F.R. § 4120.3-6(a) (2025). ↑
Id. § 4120.3-6(b-c). ↑
43 C.F.R. § 4120.3-8(b) (2025)) (“Congress finds that a substantial amount of the Federal range lands is deteriorating in quality, and that installation of additional range improvements could arrest much of the continuing deterioration and could lead to substantial betterment of forage conditions with resulting benefits to wildlife, watershed protection, and livestock production. Congress therefore directs that 50 per centum or $10,000,000 per annum….”); 43 U.S.C. 1751(b)(1). ↑
43 U.S.C. 1751(b)(1). ↑
36 C.F.R. § 222.9(a)(2025). ↑
36 C.F.R. § 222.1(b) (2025). ↑
Id. ↑
U.S. Forest Serv., FSM 2200 – Range Management Chapter 40 – Rangeland Improvements, 2240.3 Policy, (2024); 36 C.F.R. 222.9(c) (Users may be required to meet specific standards of maintenance). ↑
36 C.F.R. § 222.9(b)(3). ↑
36 C.F.R § 222.1(b). ↑
Id. ↑
Western Landowners Alliance, Partnership Models & Economics: How to Fund Your Virtual Fence, at 43:15 (YouTube, Sep. 19, 2025), https://www.youtube.com/watch?v=cf9oY186_c4 (Of the 100 virtual fencing ventures in USFS Region 2 as of January 2025, most had so minimal land disturbance that they were incorporated into pre-existing plans. Most didn’t even need range improvements at all, as they were mobile and only had a minor “transient impact”.). ↑
Id. ↑
36 C.F.R. § 222.9(b)(1) (2025). ↑
Id. ↑
16 U.S.C. § 565a-1; 16 U.S.C. § 498. ↑
See 36 C.F.R. § 222.7(a)(2) (2025). ↑
16 U.S.C. § 498. ↑
36 C.F.R. § 222.7(3)(i); 222.7(2)(iv). ↑
U.S. Dep’t of Agric., Forest Serv., Formalizing Partnerships through Grants & Agreements, USDA Forest Service Partnership Guide Chapter 5 (2013), https://www.fs.usda.gov/sites/nfs/files/r05/angeles/publication/5.pdf. ↑
Id. ↑
36 C.F.R. 222.10 (2025). ↑
Western Landowners Alliance, supra note 121. ↑
43 U.S.C. § 1751(b)(1). ↑
Id. ↑
43 U.S.C. § 1761(a)(5). ↑
47 U.S.C § 1455(d)(1)(A). ↑
43 U.S.C. § 1763 (ROWs shall “reserve…the right to grant additional rights-of-way or permits for compatible uses on or adjacent to rights-of-way.” Id.); 43 C.F.R. § 2866.14(a)(1) (2025). ↑
43 U.S.C. § 1761(a)(5). ↑
Id. § 1764(g). ↑
Id. ↑
43 U.S.C. § 1764(a). ↑
43 U.S.C. § 1765(a). ↑
43 U.S.C. § 1763.↑
43 C.F.R. § 2861.2 (2025). ↑
The BLM updated the regulations dictating the development of communication uses on BLM lands in April 2024. See generally Update of the Communications Uses Program, Cost Recovery Fee Schedules, and Section 512 of FLPMA for Rights-of-Way, 89 Fed. Reg. 25,922 (April 12, 2024) (to be codified at 43 CFR Parts 2800, 2860, 2880, and 2920). This, in part, makes the regulations consistent with the recently passed MOBILE NOW Act, which provides federal assistance for the development of a national broadband system. Id. at 25923. ↑
43 C.F.R. § 2861.9 (2025). A grant is “an authorization or instrument (e.g., easement, license, or permit) the BLM issues under Title V of the Federal Land Policy and Management Act.” 43 C.F.R. § 2801.5(b) (2025). ↑
43 C.F.R. § 2804.12 (2025); See Bureau of Land Mgmt., Communication Site Plan Of Development- Handout #5, https://www.blm.gov/sites/blm.gov/files/Lands_ROW_CommSite_POD.doc.pdf, (last visited Apr. 6, 2025) (POD also includes facility design elements, construction needs, government agencies involved, and restoration after project completion). ↑
43 C.F.R. § 2802.11 (2025) (Other factors include: national security risks, any health safety hazards, “social and economic impacts” to local communities, and “engineering and technological compatibility of proposed and existing facilities,” “access to the site, existing infrastructure, signal coverage, available space, and industry demand.”). ↑
43 C.F.R. § 2804.26 (2025) (Other reasons include failing to promptly supplement their applicant upon the BLM’s request and they do not timely pay necessary costs). ↑
43 C.F.R. § 2805.14 (2025). ↑
Id. ↑
43 C.F.R. § 2887.11(a) (2025) (Assignments and transfers require following the same application process as when the BLM issues authorizations. Id. § 2887.11(c). ↑
Id. § 2887.11(d). ↑
43 C.F.R. § 2865.14(d) (2025). ↑
43 C.F.R. § 2866.30(a)(1) (2025). ↑
43 C.F.R. § 2866.14(a)(1). ↑
36 C.F.R. § 251.50 (2025). Currently, there are at least 74,000 special use permits on USFS lands. Land Uses; Special Uses; Cost Recovery, Strict Liability Limit, and Insurance, 88 Fed. Reg. 14517, 14517 (2023) (codified at 36 CFR Part 251). A special use permit is a “a written permit, term permit, lease, or easement that authorizes use or occupancy of National Forest System lands and specifies the terms and conditions under which the use or occupancy may occur” 36 C.F.R. § 251.51 (2025). ↑
36 C.F.R. § 251.54(d)(2)(i) (2025). All other uses must meet specific requirements listed for each sort of use and user, which is listed under 36 C.F.R. § 251.54(d)(2)(ii). ↑
Id. § 251.54(d)(4). ↑
Id. § 251.54(d)(3). ↑
Id. § 251.54(g)(3)(ii). ↑
Id. § 251.54(g)(3)(iii). ↑
Id. (See below for more information on how NEPA applies). ↑
36 C.F.R. § 251.56(a)(1)(i) (2025) (This includes compliance with air and water quality standards and protecting human health and safety.). ↑
Son Broadcasting, Inc. v. U.S., 52 Fed.Cl. 815, 823–824 (Fed. Cl. 2002). ↑
36 C.F.R. § 251.59 (2025). ↑
Id; § 251.61(a) (2025). ↑
36 C.F.R. § 251.57(a)(1) (2025). ↑
Id. § 251.57(b)(1)-(2). The non-profit must be engaged “in public or semi-public activity to further public health, safety, or welfare.” ↑
Hoag et al., supra note 11, at 149 (One rancher expressed to researchers “I think most ranchers want privacy of where their animals are and what they’re doing”). ↑
7 C.F.R. § 1767 (2025) (Since communication towers owners own the communication equipment, they own the data.); U.S. v. Davis, 785 F.3d 498, 514 (11th Cir. 2015) (Companies who construct and control cell towers and collected the data for legitimate business purposes owned the data). ↑
See 43 C.F.R. § 2861.5 (2025). ↑
42 U.S.C. § 4332(C). ↑
Id. (An impact statement must contain analysis discussing “reasonably foreseeable environmental effects”, adverse effects that the projects will be unable to mitigate, reasonable alternatives to the proposed action, “the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity” and the project’s “irreversible and irretrievable commitments of Federal resources.”). ↑
42 U.S.C. § 4336; 40 C.F.R. § 1501.4(c) (2025). ↑
Daniel R. Mandelker et al., NEPA Law and Litigation § 7:19 (2024). ↑
See id. ↑
40 C.F.R. § 1501.4(a) (2025); see 36 C.F.R. § 220.6 (2025); See U.S. Dep’t of the Interior, Department Manual 56 DM 11, 56 DM 11(9)(E)(17) (Jan. 11, 2025) (fence modifications for wildlife). ↑
See Mandelker et al., supra note 176 § 7:15 (Agencies can use CXs to “reduce paperwork…to define categories of actions that are exempt from [EIS] preparation requirements because they do not have significant environmental effects, individually or cumulatively.”). ↑
U.S. Dep’t of the Interior, Bureau of Land Mgmt., BLM National Environmental Policy Act Handbook H-1790-1 Chapter 4- Categorical exclusions 17 (2008). ↑
See id.; For BLM and Department of Interior CXs, See generally 43 C.F.R. § 46.215 (2025). For USFS range conditions, See generally 36 C.F.R. § 220.6(d-f) (2025) (Includes the presence of federally listed species and critical habitat, wetlands and watersheds, congressionally designated areas, such as wilderness areas, research natural areas, roadless areas and potential wilderness areas, and cultural and archeological sites.). ↑
36 C.F.R. § 220.6(b)(2). ↑
42 U.S.C. § 4336; 36 C.F.R. § 220.4 (2026) (The U.S. Forest Service implements this law through its own specific regulations). ↑
See 40 C.F.R. § 1501.11 (2024) (This regulation was struct down as unconstitutional by Iowa v. Council of Environmental Quality, — F.Supp.3d —-, 2025 WL 598928 (D.N.D 2025). However, other statutes and regulations supports the ability for agencies to conduct programmatic EAs. For instance, 43 U.S.C. § 1761(a) (2025) grants funds to the forest service for programmatic EAs, specifically for communication uses.). The Department of the Interior can tier to programmatic or large scale documents when appropriate to improve administrative efficiency. 43 C.F.R. § 46.410 (2025)). ↑
For instance, See generally U.S. Bureau of Land Mgmt. High Desert District Rawlins Field Office, Programmatic EA Fence Construction, Modification, and/or Conversion DOI-BLM-WY-D030-2016-0213-EA, (March 2017) https://eplanning.blm.gov/public_projects/nepa/70832/99586/120704/DOI_BLM_WY_D030_2016_0213_EA_Program_Fence.pdf (This document describes the fencing, that, if it follows with the stated standards and rules, does not need any environmental review). ↑
See generally Id. ↑
U.S. Bureau of Land Mgmt. High Desert District Rawlins Field Office supra note 185 at 3. ↑
Id. ↑
Id. ↑
See Mandelker et al., supra note 176. ↑
43 C.F.R. § 46.210(l) (2025) (wildlife CX); U.S. Dep’t of the Interior Bureau of Land Mgmt., 516 DM 11 Managing the NEPA Process, supra note 184 at 11.9(A)(1) (fence modifications for wildlife). ↑
42 U.S.C. § 4336c (2025) (“An agency may adopt a categorical exclusion listed in another agency’s NEPA procedures for a category of proposed agency actions for which the categorical exclusion was established”). ↑
Adoption of Categorical Exclusions Under Section 109 of the National Environmental Policy Act, 89 Fed. Reg. 88717, 88718 (Nov. 8, 2024) . ↑
43 C.F.R. § 46.210(e); U.S. Dep’t of the Interior Bureau of Land Mgmt. Little Snake Field Office, Categorical Exclusion Placement of a Base Station to Support a Virtual Fence Project DOI-BLM-CO-N010-2022-0023-CX, 2, https://eplanning.blm.gov/public_projects/2019404/200521193/20059334/250065516/DOI-BLM-CO-N010-2022-0023-CX-Camblin%20Virtual%20Fence%20Base%20Station_for%20web.pdf. ↑
U.S. Dep’t of the Interior Bureau of Land Mgmt. Little Snake Field Office at 1-2. ↑
Id. at 2. ↑
Id. at 1 (The applicable RMP states as a goal: “Manage resources, vegetation, and watersheds to sustain a variety of uses, including livestock grazing, and to maintain the long-term health of the rangelands; provide for efficient management of livestock grazing allotments; and contribute to the stability and sustainability of the livestock industry.”). ↑
U.S. Dep’t of the Interior, supra note 178, at 11.9(k)(9). ↑
U.S. Dep’t of The Interior Bureau of Land Mgmt. Bakersfield Field Office, Categorical Exclusion DOI-BLM-CA-C060-2025-0001-CX 1, https://eplanning.blm.gov/public_projects/2034906/200630736/20121171/251021151/CX_C060-2025-0001-CX_508_signed.pdf). ↑
Id. ↑
Id. at 1-2 (For example, you must conduct weekly bird surveys if activity occurs during migratory bird nesting season). ↑
U.S. Department of the Interior, Department Manual 56 DM 11, supra note 178, at 11.9(e)(19); See U.S. Dep’t Of The Interior Bureau Of Land Mgmt., Eagle Lake Field Office, Categorical Exclusion Documentation Shaffer And Antelope Allotment Virtual Fence Gateway ROW DOI-BLM-CA-N050-2024-0003-CX, 4 https://eplanning.blm.gov/public_projects/2027305/200568686/20088899/250095081/2024_0003_CX_ShafferandAntelopeVirtualFenceGatewayROW_signed.pdf. ↑
U.S. Bureau of Land Mgmt., Decision Record South Horse Lake Allotment Virtual Fence Gateway ROW DOI-BLM-CA-N050-2023-0007-CX, 1 (Mar. 23, 2023), https://eplanning.blm.gov/public_projects/2023366/200545289/20075561/250081743/Vence_2023_0007_CX_DR_signed.pdf. ↑
See U.S. Dep’t of the Interior, supra note 178, at 11(9)(E)(17). (The BLM Excludes “Grants of right-of-way wholly within the boundaries of other compatibly developed rights-of-way” from further review.). ↑
See 43 U.S.C. § 1763. ↑
Bureau of Land Mgmt., Lakeview Field Office, U.S. Dep’t of The Interior, Verley Pasture Virtual Fence and Targeted Grazing of Annual Grasses Documentation of Land Use Plan Conformance and NEPA Adequacy (DNA) (Aug. 24, 2024), DOI-BLM-ORWA-L050-2024-0016-DNA (choose “Virtual Fence&Targeted Grazing DNA 2024.pdf”). ↑
Id. ↑
36 C.F.R. § 220.6(e) (2025). This includes records on the project, such as those that detail: “The names of interested and affected people, groups, and agencies contacted; the determination that no extraordinary circumstances exist; a copy of the decision memo; and a list of the people notified of the decision.” ↑
36 C.F.R. § 220.6(e). ↑
36 C.F.R. § 220.6(e). The project types are Actions that fall under this approach may include virtual fencing depending on the nature of the project, including contracting fence on some acres to rehabilitate land after wildfire, changing “minor management practices” that improve range conditions and wildlife habitat on land with no allotment management plan, and minor projects that disturb less than 20 acres of land, which includes new communication facilities or communication uses. ↑
See Decision Memorandum from Joshua Nicholes, Mountain City, Ruby Mountains, Jarbidge District Ranger, U.S. Forest Service on Virtual Fencing Five Year Project (May 17, 2022), https://www.fs.usda.gov/r04/humboldt-toiyabe/projects/archive/61632. More discussion on this project is present in the case study section of this paper. ↑
Interview with Allegra Waterman-Snow, program manager- Eagle County Conservation District (November 18, 2024). ↑
Id. ↑
Jason Blevins, Colorado ranchers moove into the future with virtual fences that help sustain public grasslands, Colorado Sun (Sep. 28, 2022, at 14:38 MDT), https://coloradosun.com/2022/09/21/virtual-fencing-bureau-of-land-management-colorado/; Interview with Kristy Wallner, BLM Range Management Specialist, in Gypsum, Colo. (Oct. 18th, 2024). ↑
Blevins, supra note 214; Interview with Kristy Wallner, BLM Range Management Specialist, in Gypsum, Colo. (Oct. 18th, 2024). ↑
Interview with Kristy Wallner, supra note 215; Memorandum from Callie Berman to Sam Johnson (October 18th, 2024) (on file with author). ↑
Interview with Kristy Wallner, supra note 215. ↑
Interview with Allegra Waterman-Snow, supra note 212. ↑
See generally Nat. Res. Conservation Serv., U.S. Dep’t of Agric., Environmental Quality Incentives Program (EQIP), https://www.nrcs.usda.gov/programs-initiatives/eqip-environmental-quality-incentives (last visited May 4, 2025). Conservation Innovation Grants are just one aspect of the EQIP framework, which is found in 16 U.S.C. §§ 3839aa–3839aa-25. ↑
16 U.S.C. § 3839aa-8(a)(1) (2025). ↑
Id.§ 3839aa-8(a)(2)(H). ↑
Id. § 3839aa-8(c)(1)(A)(i-iii). To qualify, producers must operate on land where they can test innovative conservation practices and minimize economic risk. Id. § 3839aa-8(c)(3)(A). CIG projects typically run for at least three years. Id. at § 3839aa-8(c)(3)(D)(i-ii). CIG grants apply to federal land under certain circumstances, such as when a third party like Eagle County facilitates it. Interview with Allegra Waterman-Snow, supra note 212. ↑
16 U.S.C. § 3839aa(3)(A-C). EQIP supports agriculture and environmental stewardship as compatible goals without further regulation by assisting stakeholders in “food and fiber production” while conserving soil, water, wildlife habitat, grazing land, and forests. Id. ↑
Eagle County Conservation District, Managing Rangelands with Virtual Fencing, https://eccdistrict.org/virtual-fencing-project (last visited Apr. 2, 2025). ↑
Interview with Allegra Waterman-Snow, supra note 212. To participate in EQIP, a producer must be an eligible agricultural producer who operates their agriculture activities on private land, public land they control and is a part of their working agricultural operation while maintaining necessary conservation to improve the land. Nat. Res. Conservation Serv., U.S. Dep’t of Agric., EQIP General Eligibility, https://www.nrcs.usda.gov/sites/default/files/2023-07/EQIP_Eligibility_Requirements.pdf (last visited Apr. 2, 2025). EQIP grants cannot go onto land that is also enrolled in the CRP program. Id. ↑
Interview with Allegra Waterman-Snow, supra note 212; Interview with Kristy Wallner, supra note 215. ↑
Id. ↑
Blevins supra note 214. The CIG grant will run through 2026. Interview with Allegra Waterman-Snow, supra note 223. ↑
Amy Joi O’Donoghue, Helping to save the Colorado River with virtual fencing, Deseret News (Sep. 18, 2024, at 07:48 MDT), https://www.deseret.com/utah/2024/09/12/colorado-river-drought-arizona-colorado/; Press Release, Foundation for America’s Public Lands, Foundation for America’s Public Lands Launches First Grants to Boost Drought Resilience in the Colorado River Basin, (Sep. 12, 2024), https://americaslands.org/foundation-for-americas-public-lands-launches-first-grants-to-boost-drought-resilience-in-the-colorado-river-basin/. The Foundation for America’s Public Lands, the charitable partner of the BLM, administers the Drought Resilience Fund that supports efforts to adapt to drought conditions across the West. Funding allows the project to enhance range management by restoring areas within virtual fencing zones, monitoring pasture soil health, and expanding the use of virtual fencing technology. Id. ↑
Interview with Kristy Wallner, supra note 215. ↑
Id. ↑
Blevins, supra note 214; Interview with Kristy Wallner, supra note 215. ↑
Interview with Paul Meiman, Associate Professor University of Nevada Reno Extension, (October 16th, 2024). ↑
Interview with Kristy Wallner, supra note 215. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Interview with Allegra Waterman-Snow, supra note 212. ↑
Id. ↑
Id. ↑
Id. ↑
Id; Interview with Kristy Waller, supra note 215. ↑
Interview with Allegra Waterman-Snow, supra note 212. ↑
Bureau of Land Mgmt., Our Mission, https://www.blm.gov/about/our-mission (last visited Apr. 10, 2026). ↑
Interview with Kristy Wallner, supra note 215 (If the BLM is familiar with a cultural site, they can work with landowners to virtually fence around the cultural site so there is no disturbance to it at all.). ↑
Interview with Kristy Wallner, supra note 215. ↑
Id. ↑
Id. ↑
Id. ↑
Id.; See generally Jesse K. Kreye, J. Morgan Varner & Leda N. Kobziar, Mechanical Mastication as a Fuels Treatment in Southeastern Forests, in Proceedings of the 18th Biennial Southern Silvicultural Research Conference 198 (Callie J. Schweitzer, Wayne K. Clatterbuck & Christoper M. Oswalt eds., U.S. Forest Serv. S. Rsch. Station 2016) (provides a written explanation for mastication in the context of Southeast forest restoration and recovery). ↑
Interview with Kristy Wallner, supra note 215. ↑
Id. ↑
Id. Virtual fencing allows the BLM and permittees to monitor cattle movement in real time and generate heat maps to analyze grazing patterns within the virtual fence boundaries. Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Interview with Kristy Wallner, supra note 215. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Interview with Allegra Waterman-Snow, supra note 212. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Interview with Allegra Waterman-Snow, supra note 212. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id.; Blevins, supra note 214. (The project sought to limit wildlife access to I-70 to reduce collisions with cars, but the plan didn’t succeed. The fences now obstruct animal movement.). ↑
Interview with Allegra Waterman-Snow, supra note 223. ↑
Interview with Kristy Wallner, supra note 215. ↑
Blevins, supra note 214. Cows have gotten out of the virtual fencing boundaries before. Id. However, GPS collars enable ranchers to quickly locate and recover animals. Interview with Kristy Wallner, supra note 215. ↑
Interview with Kristy Wallner, supra note 215. ↑
Intermountain West Joint Venture, Addressing Drought through Restoration and Resilience, Working with Communities in Nevada, at 01:34-12:08 (YouTube, Sep. 22, 2021), https://www.youtube.com/watch?v=–dQX1mKRd4. ↑
Interview with Paul Meiman, supra note 233. ↑
Id. ↑
Id. ↑
Id. ↑
Id. ↑
Id. One important project was in Malta, Montana. BLM officials in the Nevada office had experience with virtual fencing in Montana, which was valuable for getting this project off of the ground. Id. ↑
Id. ↑
Bureau of Land Mgmt., Elko District, Wells Field Office, U.S. Dep’t of the Interior, UNR/Cottonwood Ranch Virtual Fence Land Use Permit NVN-099923 Categorical Exclusion, at 4 (Nov. 24, 2024), DOI-BLM-NV-E030-2020-0025-CX (choose “NVN-099923_VirtualFence_CX_Signed_20201124.pdf”)[hereinafter Cottonwood Ranch Virtual Fence]. ↑
Id. at 1–4. ↑
Id. at 4. ↑
E.g., U.S. Dep’t of the Interior, Departmental Manual 516 DM 11, supra note 198, at 516 DM 11.9(E)(19). ↑
See Bureau of Land Mgmt., Eagle Lake Field Office, U.S. Dep’t of the Interior, supra note 203; Bureau of Land Mgmt., Eagle Lake Field Office, U.S. Dep’t of the Interior, Categorical Exclusion Documentation Shaffer and Antelope Allotment Virtual Fence Gateway ROW DOI-BLM-CA-N050-2024-0003-CX (Nov. 9, 2023), DOI-BLM-CA-N050-2024-0003-CX (choose “2024_0003_CX_ShafferandAntelopeVirtualFenceGatewayROW_signed.pdf)[hereinafter Shaffer and Antelope Allotment]. ↑
Bureau of Land Mgmt., Eagle Lake Field Office, U.S. Dep’t of the Interior, supra note 203; Shaffer and Antelope Allotment, supra note 298. ↑
Bureau of Land Mgmt., Eagle Lake Field Office, U.S. Dep’t of the Interior, supra note 203, at 2–3; Shaffer and Antelope Allotment, supra note 298, at 2–3. ↑
Bureau of Land Mgmt., Eagle Lake Field Office, U.S. Dep’t of the Interior, supra note 203, at 2–3; Shaffer and Antelope Allotment, supra note 298, at 2–3. ↑
Bureau of Land Mgmt., Eagle Lake Field Office, U.S. Dep’t of the Interior, supra note 203, at 2–3; Shaffer and Antelope Allotment, supra note 298. ↑
Cottonwood Ranch Virtual Fence , supra 294, at 3–4. ↑
Id. at 3. ↑
Id. at 9–12. ↑
Id. at 12; Interview with Paul Meiman, supra note 233. ↑
Nicholes, supra note 211, at 1 (This was presented under 36 C.F.R. § 220.6(e)(3)- “Approval, modification, or continuation of minor special uses of NFS lands that require less than five contiguous acres of land.” This CX includes “[a]pproving new or additional communication facilities, associated improvements, or communication uses at a site already identified as available for these purposes.” 36 C.F.R. § 220.6(e)(3)(vi)). ↑
Nicholes, supra note 211, at 1. ↑
See id. at 1. ↑
Id. at 1. ↑
36 C.F.R. § 220.6(e)(3)(vi). ↑
Nicholes, supra note 211, at 1. ↑
Id. at 1–2. ↑
Interview with Paul Meiman, supra note 233. ↑
Id. ↑
Intermountain West Joint Venture, Addressing Drought through Restoration and Resilience, Working with Communities in Nevada, at 8:50 (YouTube Sep. 22, 2021), https://www.youtube.com/watch?v=–dQX1mKRd4. ↑
See id. ↑
Id. ↑
See id. ↑
Interview with Paul Meiman, supra note 233. ↑
See id. (Pairing with UNR presented some indemnification issues that in permitting that CWR doesn’t have on their own). ↑
Interview with Paul Meiman, supra note 233. ↑
Id. ↑
Prop. & Env’t Rsch. Ctr., supra note 16, at 12. ↑
36 C.F.R. § 222.1 (2026) (Structural improvements are “improvements requiring construction or installation undertaken to improve the range or to facilitate management or to control distribution and movement of livestock.”); 36 C.F.R. § 222.9(b)(1) (2026) (lessees retain title to temporary and non-structural improvements that they solely paid for and constructed); 36 C.F.R. § 222.9(b)(2), (4) (2026) (Title is held to structural improvements by the United States.). ↑
43 C.F.R. § 4120.3-2(b) (2026). ↑
For BLM ROW grants, See 43 C.F.R. § 2861.9 (2026); For USFS special use permits, See 36 C.F.R. § 251.50 (2026). For terms and conditions, Compare 43 C.F.R. § 2805.14 and 36 C.F.R. § 251.56(a)(ii). ↑
43 U.S.C. § 1763; Prop. & Env’t Rsch. Ctr., supra note 16, at 6 (stating that virtual fencing base stations need either wireless GPS connection or connection via a cellular network to operate, so positioning them near current cell towers will support the virtual fencing network under either method. id.); Interview with Kristy Wallner, supra note 215. ↑
See Tom St. Hilare, 5 Farm Bill Revisions That Would Help Wildlife and Habitat, Pew Charitable Trusts (May 22, 2023), https://www.pewtrusts.org/en/research-and-analysis/articles/2023/05/22/5-farm-bill-revisions-that-would-help-wildlife-and-habitat (This author suggests that Congress should create a practice standard that promotes cost sharing among government agencies and/or interested stakeholders and promote virtual fencing for further research purposes); See Prop. and Env’t Rsch. Ctr., supra note 16, at 12 (encourages agencies to streamline permitting and regulatory barriers into one set regulatory standard to encourage CXs when necessary and promote cooperative agreements.). ↑
See id. ↑
Bureau of Land Mgmt., Lakeview Field Office, U.S. Dep’t of The Interior, supra note 206 at 3. ↑
Interview with Paul Meiman, supra note 233. ↑
See Dep’t of Agric., Forest Serv., supra note 193, at 88718. ↑
See Severie Orngard, Virtual Fencing: Pushing the Boundaries of Legal Livestock Fencing in the United States, 29 Drake J. Agric. L. 137, 159-160 (2024). ↑
See U.S. Dep’t of Agric. Nat. Res. Conservation Serv., Environmental Quality Incentives Program (EQIP), https://www.nrcs.usda.gov/programs-initiatives/environmental-quality-incentives-program (last visited Jan. 17, 2026) (EQIP information); U.S. Dep’t of Agric. Nat. Res. Conservation Serv., Conservation Innovation Grants (CIG), https://www.nrcs.usda.gov/programs-initiatives/conservation-innovation-grants (last visited Jan. 17, 2025) (CIG information). ↑
See Interview with Allegra Waterman-Snow, supra note 212; Interview with Kristy Wallner, supra note 215. ↑
Interview with Allegra Waterman-Snow, supra note 212; Interview with Kristy Wallner, supra note 215. ↑
Interview with Allegra Waterman-Snow, supra note 212. ↑
Id. ↑
Id. ↑
See 43 C.F.R. § 2866.14(a)(1) (2026); U.S. Dep’t of Agric., Forest Serv., supra note 117, at 8. ↑
Interview with Paul Meiman, supra note 233. ↑
Boyd et al., supra note 47, at 55. ↑
See Virtual fencing makes ranching less time-consuming, U.S. Dep’t of Agric., Forest Serv. (April 25, 2024), https://www.fs.usda.gov/inside-fs/delivering-mission/deliver/virtual-fencing-makes-ranching-less-time-consuming (New Mexico State University and the Forest Service partnered to use virtual fencing to fence recently burned allotments, which succeeded in keeping cattle out of “where they didn’t belong”, a “first in many years”). ↑
See Prop. & Env’t Rsch. Ctr., supra note 16, at 12. ↑
See 36 C.F.R. § 220.6(e)(3-11) (2025). ↑
See id. § 220.6(e)(3) (The USFS can apply a CX for the “[a]pproval, modification, or continuation of special uses that require less than 20 acres of NFS lands.”). ↑
USDA Migratory Big Game Initiative, U.S. Dep’t of Agric. Nat. Res. Conservation Serv., https://www.nrcs.usda.gov/programs-initiatives/working-lands-for-wildlife/usda-migratory-big-game-initiative (last visited Apr. 5, 2025). ↑
Id. ↑
Email from Chris Bové, Dist. Conservationist Nat. Res. Conservation Serv., Laramie, Wyo., to author (Oct. 31, 2024, 12:03 PM MST) (on file with author). ↑
See USDA Migratory Big Game Initiative, supra note 348. ↑
Id. ↑
299 Wyo. Gov’t Reg. 1 (LexisNexis Mar. 2020). ↑
Dana L. M. Campbell et al., supra note 35, at 1. ↑
See Anderson, supra note 36, at vii-viii. ↑
See U.S. Dep’t of The Interior Bureau of Land Mgmt. Bakersfield Field Office, supra note 199 at 1 (the CX allowed small enclosures to preserve “reservoirs and springs.”). ↑
O’Donoghue, supra note 229. ↑
43 C.F.R. § 4120.3-8(a)(2026); 43 U.S.C. § 1751(b)(1). ↑
E.g. Anika Pyle, Ask the experts: Carbon credits 101, Colo. State Univ. (Apr. 11, 2024), https://warnercnr.source.colostate.edu/ask-the-experts-carbon-credits-101/; See T. Mitchell Aide, The Biodiversity Credit Market needs rigorous baseline, monitoring, and validation practices, 3 npj Biodiversity 1, 1-4 (2024). ↑
Interview with Kristy Wallner, supra note 215. ↑
7 C.F.R. § 1767 (2025) (Since communication towers owners own the communication equipment, they own the data.); U.S. v. Davis, 785 F.3d 498, 514 (11th Cir. 2015) (Companies who construct and control cell towers and collected the data for legitimate business purposes owned the data). ↑
Interview with Jeffrey Moore, BLM Supervisory Range Specialist, Wells Field Office (Oct. 15th, 2024) (The BLM “has no need and no use for the data.”); Western Landowners Alliance, supra note 121 at 49:40; Hoag et al. supra note 11, at 146 (Ranchers expressed skepticism over how people and entities beyond the landowner would handle data) ↑
Western Landowners Alliance, Tales from the Range: Vendor & Product Overviews: What is Virtual Fence and How Does it Work?, at 42:41 (YouTube, Sep.. 20, 2025) (Representatives from Vence, Halter, and eShepherd/Gallagher participated in this presentation). ↑
Id. ↑
Interview with Allegra Waterman-Snow, supra note 212. ↑
Id. ↑
Id. ↑