Watch out for bill to change Idaho’s trespassing law
A version of this first appeared in the Idaho State Journal on Feb. 25.
Five-maybe ten years ago, I was driving around the backroads of Bannock County and I saw some amazing clouds that looked kind of like UFOs, flying saucers. I had a camera but wanted a photo unmarred by powerlines and one framed by trees and the mountains the clouds were sailing over.
Some of the backroads were marked “no trespassing.” Others were obviously public roads. I drove, and not far there was a side road leading up to a grove of trees that was perfect. No sign or orange mark (meaning “no trespassing”) was present.
I drove maybe a quarter mile up the road and parked my pickup near the good photo spot. I was just starting to walk toward it and I saw an SUV turn up the road toward me. It was the landowners. A man and a woman, maybe in their thirties, rolled up to me and put down the passenger side window.
“We own this land.” Are you huntin?” They asked as I stood there with my Nikon in my hand. “No, I’m just takin pictures of those clouds.” I pointed to them. “Well, we’ve had some trouble with hunters.” I said, “I’m not hunting.” I don’t know if they didn’t believe me, but he said “You know we could shoot you. Me and my wife are (or was it “were”?) in the military.” “You see that rifle in the backseat?” I saw a semi-automatic rifle, but one not in a position for them to grab it quickly.
Dark images coursed through my head. It is not at all unusual to have a pickup show up with a rifle or shotgun on a rack in rural areas, but why the dark threat? I did have my pistol back in my truck, but they hadn’t seen it. I thought, “No, they are just playing with me.” I countered, “do you want me to leave?” He said, “no,” just don’t damage anything up here.” They drove off, and I deliberately waited a bit to show I wasn’t afraid after their little passive-aggressive game.
I don’t want to write about guns here. I want to write about trespassing.
I tell the story to illustrate several things. They did not post their property, I could legally be there. However, they had every right to come up and say, “leave.” They hadn’t done that. They did not have a right to threaten me with injury or shoot me even if they had told me to leave and I had said, “I’m stickin around.” They would have to call law enforcement to remove me. Of course, then I would be in trouble.
I could tell more unpleasant trespass and trespassed on stories, but I just want to convey how trespass can be a dangerous matter.
Idaho agricultural organizations think our present law needs changes, and in the legislature, they are considering substantial modifications to it. Their legislative vehicle is House Bill 536 (no other name).
Step one for HB536 was the Idaho House Agriculture committee. In the hearing before that committee, hardly anyone outside of agriculture was heard. In addition, the Committee gave little public notice. Nevertheless, their bill easily passed the first step. The Committee voted it out to the House floor, 14-1.
The committee chair, Rep. Judy Boyle, R-Midvale introduced the bill. We should know a bit about her background. She’s a rancher and she was natural resources director for former Congresswoman Helen Chenoweth. In 2016, Boyle and two other state legislators traveled to Oregon to the then Bundy-occupied Malheur National Wildlife Refuge. There they talked amiably to lawless Ammon Bundy himself. Their visit came over the opposition of the local Oregon state Representative in the area. He was Cliff Bentz, also a Republican. All this indicates she has no use for public land. Will we be welcomed on private?
She began by telling about some bad trespassing on her land, but it oddly included trespassing during the recent solar eclipse. The cow is out of the barn and half way to Pluto on that one. Members of the Ag committee and testifying landowners then gave their own anecdotes of vandalism, gross trespassing and property damage . . . bas stuff, but these are already illegal under the current law and other Idaho statutes. So, Boyle’s changes in the law wouldn’t make much difference to these violations because it is more of an enforcement matter.
Boyle told her committee that her bill was not so much aimed at people who get lost or accidental trespassers as it is aimed at repeat offenders, and her bill prominently features a new “3 strikes provision.” If you have 3 trespasses in ten years, your third will make it a criminal trespass. The fine will rise tenfold, and you will pay treble damages, but more importantly you become a felon. Then you can’t vote or have a hunting license in Idaho.
The other most controversial change is to reduce the amount of signing a property owner must make to properly post their land against public entry.
Presently landowners who post “no trespassing” must generally have signs or slashes of high visibility orange every 660 feet as well at access roads onto their private land. The bill in the legislature would reduce that to merely marking the corners of their property, the beginning of access roads to the property, and fishing streams that cross into the property. As I indicated, at the same time trespass penalties are increased, and belying Boyle’s statement, her bill makes no provision for going easy on unintentional trespassers. They could easily fall into the new felony category. Intent should matter in establishing a crime, but here it apparently does not.
There is also the payment of treble damages to property owners for criminal trespass. Idaho law does allow for special damages in civil actions, but not in criminal. This bill is about rural land trespass. What is so special about rural land that owners should get extra damages from trespass? Look at any criminal case, the complainant is not a party to a criminal action. The state is the plaintiff. If property owners want trespassers to pay damages to them, it should be a civil penalty. Unfortunately, this seems to be a trend. Special criminal damages were in Idaho’s unconstitutional ag-gag law and in Wyoming’s unconstitutional law that criminalized collecting data on open lands in that state. I think some ideological think tank is advising these aggies.
The bill also shifts the burden of guilt in criminal trespass to the defendant rather than the state. The accused person would have to prove he was innocent of trespass, but in crimes you are supposed to be innocent until proven guilty.
A lot of people have reservations about this bill, including the Idaho Sheriff’s Association, the Idaho Association of Counties, and Idaho Prosecuting Attorneys Association. So does the state’s attorney general office, not to mention hunting and fishing groups. You should read the AG office’s objections.
Hunters and fishers are at special risk in this new legislation, and they have organized against it. However, at risk too are bicyclists, off road and pleasure drivers, hikers, horseback, outdoor photographers, snowboarders, snowmobilers, and cross-country skiers. Organizations for these folks have a stake too. They should join in loudly, now.
A special problem with the Boyle bill is private lands inside of our national forests, BLM lands, etc. These are often a sore spot with law abiding public land users, the mere posting of private property corners within public lands is entirely insufficient. It would be confusing. In western Idaho, there is a lot of private timberland interspersed with national forest. Much confusion could result from weak signing, and the bill makes confusion your fault.
Nowadays GPS units are widely available and smart phones have the capability. You can buy a GPS unit and software than shows private property in detail, your location, and even phone number of the landowner for permission. Some of this software works on cell phones too.
Unfortunately, the ag committee chair thinks almost everyone has this equipment, and she thinks if they don’t, they should get it. When Representative Randy Armstrong said a felony was pretty severe for trespassing, Boyle said, “As a property owner, I think that is exactly what we need to teach them a lesson.” Has she forgotten that much of rural Idaho does not even have cell phone coverage?
It should be remembered that Boyle’s sympathies lie not with the public, but in strange places.
Yes, some trespassers do a lot of damage to private property, and they should be prosecuted, yet they are often neither detected or pursued. There is room for a lot of landowner anger at this, but nonetheless, innocent people are often threatened, charged civilly, even shot in anger, or by design over trespass. We should not want to make that easier.
Dr. Ralph Maughan is professor emeritus of political science at Idaho State University. He was a Western Watersheds Project Board Member off and on for many years, and was also its President for several years. For a long time he produced Ralph Maughan's Wolf Report. He was a founder of the Greater Yellowstone Coalition. He and Jackie Johnson Maughan wrote three editions of "Hiking Idaho." He also wrote "Beyond the Tetons" and "Backpacking Wyoming's Teton and Washakie Wilderness." He created and is the administrator of The Wildlife News.
3 Responses to Watch out for bill to change Idaho’s trespassing law
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Based on the Attorney General’s Office analysis, this proposed legislation should be dead on arrival. However, this is Idaho, so I wouldn’t be surprised if it sails right through and is made law without any changes.
It was set to be taken up on the House floor a week ago. So, perhaps the delay is good news.
ALL republicans need to be voted out of office!!