At its core, the conflict between Occupy Boise and the state is over what constitutes protected speech and assembly.

Is the tent city that the local group set up on the grounds of the old Ada County Courthouse in November a vigil site for government protest or an illegal camp?

The answer could be far-reaching in its ramifications. But for now, the court is focused on a smaller question:

How to care for the grass.

In February, U.S. District Judge Lynn B. Winmill granted a preliminary injunction, prohibiting the state from removing Occupy’s tents under a new state law that bans overnight camping on state grounds. Soon after, the state sought the court’s permission to temporarily remove the tents for lawn maintenance.

At a hearing Thursday, Idaho Deputy Attorney General Carl Withroe argued that the state needs eight weeks of unfettered access to the grounds to assess damage and begin rehabilitation. He said 10,000 to 25,000 square feet is damaged.

The judge asked whether protesters would be allowed back on the grounds after eight weeks.

“We don’t have any intention of permanently kicking anybody off the grounds,” Withroe said.

But after eight weeks, the state would like the protesters to set up tents at 6 a.m. and take them down at 6 p.m., allowing for watering of the grass at night. The state told Winmill that it would like protesters not to set up anything at all one day each week.

Ritchie Eppink, legal director for the ACLU of Idaho and co-counsel for Occupy Boise, said he’s concerned about the state’s “unbridled discretion” over state grounds, elevating lawn-mowing over free speech and assembly.

Eppink said state officials can find a way to maintain the grounds and allow the protest to continue, especially now that the encampment has contracted to just a few tents on a small corner of the courthouse property.

He asked the judge how it’s less damaging to the property — as state officials suggest — if the protesters come in every day to set up and tear down the tents.

Winmill said he’ll issue a written decision by Friday. He also asked attorneys for both sides to participate in a conference next week to discuss the state’s new rules governing use of state property.

At a later date, Winmill will make a decision on whether the state law is constitutional — and whether the tents can stay or must go.

Katy Moeller: 377-6413