A mid-session rewrite of a bill overhauling Idaho’s trespass laws has not been enough to assuage concerns about its legal ramifications.
The House passed HB 658 on a 45-22 vote on Monday after nearly 10 hours of committee hearings and a two-hour floor debate.
During its first Senate committee hearing Wednesday, the bill’s sponsor, Sen. Mark Harris, R-Soda Springs, asked to send the bill to the Senate’s amending order. That means more changes could be made to it.
“As we have reviewed this bill and talked to other senators about it, there have been concerns raised regarding some language,” Harris told the Senate Resources and Environment Committee.
The committee unanimously granted Harris’ request after listening to two hours of testimony that raised new concerns.
“Clearly this bill is almost like peeling an onion,” said Sen. Maryanne Jordan, D-Boise. “Every time we identify an issue, we find an unintended consequence that may apply.”
The bill attempts to update trespass laws in three different sections of Idaho law — something everyone involved seems to agree is needed. It revises private property notice requirements and hikes the penalties for trespassing.
The changes have the backing of the Idaho Property Rights Coalition, whose three dozen members largely come from agricultural groups — such as the Idaho Cattle Association and Idaho Onion Growers — and large landowners like the Idaho Forest Owners Association. The bill started in the House Agricultural Affairs Committee, where it was sponsored by the committee’s chairwoman, rancher and Rep. Judy Boyle, R-Midvale.
Scroll down for details of the current bill.
This go-round, a city mayor, a police chief and others raised questions about the effect of the bill on urban areas.
As written, the bill creates problems for law enforcement officers, said Michael Kane, an attorney for the Idaho Sheriff’s Association and a former criminal prosecutor.
“The chiefs and the sheriffs are together on this. We are the sharp end of the spear. We are the one who have to enforce this law,” he said.
Under current law, a person has to enter land and then do some sort of action for their violation to be a trespass crime.
“What this bill does is it creates a crime for simply entering and remaining,” Kane said, noting the bill does not contain a definition of “remaining.” “You essentially have a victimless crime by entering and remaining.”
Under the bill, a person is not permitted on any property “that is reasonably associated with a residence.”
“That is every house in every subdivision in every city … it is every house in the state,” Kane said. “This is not about agriculture. This is about me stepping over a property line.”
Meridian Police Chief Jeff Lavey, representing the Idaho Police Chiefs Association, explained why this could become a problem for law enforcement officers in urban areas.
“We have neighbors that do not like each other and they share adjoining property. We respond to those calls every single day,” he said. “We have neighbors that will antagonize other neighbors for the most silliest of stuff. This bill just empowers them to further do what they do.”
Lavey continued, “If a neighbor steps onto another person’s property while he is mowing his grass, that is criminal trespass. … If you are walking your dog on the sidewalk and your dog does his business in the grass and you decide to do what is right and pick it up, you are trespassing.”
The legislative session is winding down, which means time is running out to again rework the bill, have it reviewed and debated.
“We have heard a lot of suggestions today. Many of them were valid concerns. I do not know that we can take this and make it a better bill in the time frame that we have,” said Sen. Jeff Siddoway, R-Terreton, while discussing sending the bill out for possible amendments. “But, I guess, being the gambler that I am, I am willing to give that a shot.”
What does the new bill do?
First off: If a property is fenced, cultivated or “reasonably associated with a residence or place of business,” the bill expects a “reasonable” person would know it is private property. The same holds true for unfenced or undeveloped land that has “conspicuous ‘no trespassing’ signs” or bright orange paint at specific locations.
If you have reason to know a property is private and you’re still there without written permission, you could be guilty of trespass. There is a whole list of exclusions: law enforcement and first-responders, meter readers, missionaries, Girl Scouts and other door-knockers, bail bondsmen, tenants with a valid lease.
The proposal would hike a number of punishments for trespassing. It would raise the minimum penalty for civil trespass (proved through a lawsuit filed by the landowner) from $50 to $500 or actual damages, whichever is greater.
Landowners could recover attorney fees and “investigative costs” from anyone they successfully sued in civil court for trespassing. But if landowners lost in court, they would not have to pay the defendant’s attorney fees.
Currently, simple criminal trespass is a misdemeanor punishable by up to six months in jail and/or a fine of $25 to $1,000. The bill would create a rising tier of fines, starting at $500 to $1,000 for a first offense and reaching $5,000 to $10,000 for a third conviction within 10 years. Jail time would cap at one year for the third offense.
Cause more than $1,000 in damage while trespassing? Those punishments would grow again, up to one to five years in prison and a $15,000 to $50,000 fine for the third offense, which would be a felony. (This is now the only felony in the bill, which originally contained a broader three-strikes clause for any trespass convictions.)
And for the second and third offenses with damage, trespassers would lose their hunting or fishing license for one or five years, respectively, if the trespassing involved hunting or fishing.
For each fine collected, 65 percent would go to the county, another 25 percent to the Idaho Rangeland Resource Commission for expanded education programs regarding private property rights and land user responsibility, and 10 percent to the district court fund.