'Caught in the middle' of the trespass law
By KYLE PFANNENSTIEL
Jul. 14, 2018
NAMPA, Idaho (AP) — Travis Hyer grew up on a hunting reserve, running hounds against waterfowl and tracking game through the backcountry. Hyer, now vice president of the Owyhee County Farm Bureau, helps run his family farm in Homedale, growing hay and running a beef operation when he's not volunteering in the sheriff's posse.
He fears changes to Idaho's trespass law that took effect July 1 could put a criminal offense on his record for a mistake — or even worse, for saving his animals.
Before July 1, trespass law was spread across three areas of code: civil, criminal and recreational. A bill the Idaho Legislature passed this year aimed to collapse those in efforts to bring more clarity in enforcing trespass law.
The bill also made sweeping changes to posting requirements and punishments, creating tiered sentences for criminal trespass violations, whether the trespasser caused any damage or not.
Before, trespassers could only be charged with a criminal offense if they committed another offense, such as killing livestock or game illegally or damaging property.
Now, someone commits trespass if they're on private property reasonably seen as a house or business without the owner's consent. The law says there must be enough signage for a reasonable person to understand it's private land.
This "reasonable person" standard allows for leeway in the bill's enforcement, said state Rep. Judy Boyle, R-Midvale, who sponsored the bill in the House.
"That's going to be up to the prosecutor and sheriff to use the reasonable person standard and case law and account for reasonable mistakes," Boyle told the Idaho Press.
However, law enforcement and other groups have said the bill makes trespass law hard to enforce.
"Law enforcement and citizens will find this legislation very challenging and confusing. It has the potential for penalizing and criminalizing individuals for inadvertently trespassing on someone's property," Canyon County Sheriff Kieran Donahue, also president of the Idaho Sheriff's Association, wrote in an email to the Idaho Press.
Boyle counters that in creating the bill with property rights attorney Gary Allen, "Our intent is not to hurt any innocent people. Our intent is to show respect to private property. And for those who don't, they have to pay the penalty. Just like in any other state."
Civil trespass is now considered a "strict liability" offense, which means intent is not considered when determining the amount of damages, said Ryan Stoa, assistant professor at Concordia University School of Law in Boise.
"If you are on private property without permission from the landowner, you are subject to a civil penalty even if you made an honest mistake or didn't cause damage," Stoa told the Idaho Press in an email.
Hyer said the bill goes too far.
"It's going to take average people who make honest mistakes, and just give them the boot," he said.
But he didn't always think that way. Hyer said his roles as both a farmer and a sportsman had him "caught in the middle" of a debate between rural landowners and vocal sportsmen.
Ultimately, Hyer felt that the bill was lawmakers' knee-jerk reaction against small demographic of people who "just don't seem to get what it means to be a good sportsman."
By and large, he said, farmers and sportsmen get along.
"Your average producer doesn't view sportsmen as bad. They really don't," he said. "They're good people, and we really need them to be on our side."
THE LEGISLATIVE PROCESS
Sportsmen and rural landowners testified passionately on the proposed bill earlier this year in legislative hearings. They agreed that clarifying the trespass law was overdue, yet were at odds over whether the legislation offered was the best option.
Some sportsmen representatives and law enforcement condemned the legislation introduced — both the initial and revised version — as ambiguous and said they could criminalize benign actions. They also complained of not being involved enough in drafting the bills.
Meanwhile, farmers and producers pointed to fields and pastures torn up and trashed by trespassers as evidence the current laws are too lax, stressing urgency for a revamp. The bills drew support from many agricultural organizations; it was created with input from a group of 34 agricultural and landowners associations, called the Idaho Property Rights Coalition, and attorney Gary Allen.
The first bill, HB 536, had language referring to "willful trespass" but was scrapped and replaced after an attorney general analysis said it likely violated state law and the U.S. Constitution.
The bill that became law, HB 658aaS, received wider support from some sportsmen, but many still felt it was flawed.
In a rare move on the last day of the 2018 legislative session, outgoing Idaho Gov. Butch Otter allowed the bill to become law without his signature, fearing it would criminalize innocent conduct.
But Otter said hammering out the long-mulled matters then would extend the 2018 legislative session, signaling it would likely have to wait until the 2019 legislative session.
"I offered to help legislators resolve these issues before their 2018 session adjourns sine die in order to bring about the stated goal of fostering 'a new culture of respect' for private property in Idaho," Otter wrote in a letter to House Speaker Scott Bedke. "Since that idea was rebuffed, it will fall to a future Legislature and governor to address the identified concerns as they move from hypothetical to actual."
Boyle said she stands by the bill and its process.
However, the five-term lawmaker left the door open when asked if she thinks the Legislature will change trespass laws again next session.
"You know, you never know that until the first year (of it taking effect)," Boyle said. "When you have a giant re-write of three sections of code, there are always things that you can always word better or change somehow."
Boyle, who faced no primary opponent this year, said she did consult with sportsmen groups and law enforcement officials in the bill's creation.
Most notably she said she met with the Idaho Fish and Game Advisory Committee weeks before the first bill was introduced. The members — appointed by state leaders to represent wildlife and agricultural interests — were split on whether they supported it or not. However, the committee didn't vote to take a stance on the revised bill.
A separate group, the Idaho Fish and Game Commission initially stood against the first bill, but changed to a neutral stance on the revised bill. The commission, made of up governor appointees from different state regions, administers recreation policy.
The revised bill that ended up passing received no public testimony after going through final amendments just days before the session was due to end.
'CAUGHT IN THE MIDDLE'
Hyer understood the arguments both in support and opposition of the bill.
He knew about cases of trespassers trashing people's land and leaving gates open for herded livestock to disperse, sometimes even resulting in livestock deaths.
But he could also imagine instances where he might be forced to make a quick judgment call that could result in criminal charges. What if he were hunting legally and one of his hounds ran after a mountain lion onto private land marked as "no trespass"? Should he try to get it to safety first, or contact the landowner for permission before running over? He stresses the need for an exception for instances like that, commonly called a "good neighbor" or "right to retrieve" clause.
The way the law's written, Hyer worries there's no opportunity to do that without the possibility of being cited for trespassing, which could fetch him a criminal infraction and a $300 fine.
"Because I can see that it is clearly marked, obviously I can't set foot on that ground without intentionally committing trespass," he said.
However, Boyle says there's no need to worry about that, even with the revised law. There's a long-established right to retrieve personal property on someone else's land through common law, largely based on customs and judicial precedent, Boyle said. That's why, she said, Idaho recreational trespass law forbids wildlife retrieval without consent on private land and has since 1976. It does not explicitly forbid retrieval of domesticated animals.
"Law is mostly things that say you can't do this and you can't do that ... so if there is not a law that says you can't or you have to, then you can," Boyle said. "That's what American freedom is."
WHAT'D IT ALL DO?
Property "reasonably associated with a residence or place of business," like fenced and cultivated property, doesn't have to be marked. Other areas, to be a no-trespass zone, must have "conspicuous" signage.
To enter that property without committing trespass, the bill states one must have written permission from the landowner, or the scenario must fall into one of three established "rights or authorities," including:
An expressed or implied invitation, or some other legal right to be there, such as a contract. This exception could be interpreted as allowing oral consent, however, that's likely open to interpretation.
The legal authority to be on the property to complete "lawful duties," such as law enforcement or emergency aid.
The person has a legally prescribed right to be there.
The bill also created a set of criminal trespass penalties increasing in severity for repeat offenders of both simple criminal trespass and criminal trespass with damages, defined by damages over $1,000.
Any person found liable for a civil trespass with damage, also defined by damages over $1,000, can be held liable for triple the amount of damages. And, as Stoa explained, the law doesn't account for intent when determining damages.
If someone is found to have shot a weapon or hunt, fish, trap or retrieve game while trespassing, they could lose all licenses to hunt, fish and trap for a year.
Additionally, it set a higher standard for people accused of trespass to earn restitution for reasonable attorney fees in civil trespass cases. The only situation defendants in such cases can be awarded that is if they prove the damage is "brought without foundation" and they prevail in the case.
Information from: Idaho Press, http://www.idahopress.com