Idaho’s updated trespass law kicked in July 1.
Here’s a quick primer on the statute and the controversy that swirls around it.
The bill made political waves when it was debated in committees and on the House and Senate floors during Idaho’s 2018 legislative session. While there was agreement among legislators, landowners and recreationists that stiffer penalties and clearer language would be a good thing, many argued the bill that became law actually muddied the water and could serve to sow discord between landowners and lovers of outdoor recreation.
The law stiffens penalties for criminal and civil trespassing and relaxes the requirement for landowners to post their property if they want to pursue charges or lawsuits against alleged trespassers.
For example, it makes the first offense for criminal trespassing an infraction with a $300 fine if the trespasser does no damage and leaves the property when requested. The former fine was just $50.
Criminal trespass carries a fine of $500 to $1,000 and up to six months in jail; a second offense carries a fine of $1,500 to $3,000. A third offense would carry a fine of $5,000 to $10,000 and up to a year in jail. A conviction of criminal trespassing related to hunting, fishing or trapping carries an automatic one-year revocation of Idaho Fish and Game licenses.
Criminal trespass with damages also includes tiered fines and jail time for multiple offenses, starting with up to six months in jail and fines of $1,500 to $3,000. It would grow to a felony charge for a third offense, with one to five years in jail and fines of $15,000 to $50,000.
The bill includes exceptions for emergency responders and people who knock on doors, such as missionaries, Girl Scouts selling cookies, meter readers, those with permission, lease holders or a customer entering a store.
It allows landowners to bring civil cases against people they charge with trespassing and lets them make a case for reasonable legal and investigative costs. In turn, accused trespassers who are found innocent can seek to recoup legal fees if they can prove the charges were without merit.
Gone from trespass law is a provision that once required most landowners to post private property with signs or orange paint every 660 feet. In its place, landowners who want to keep trespassers out and reserve the right for possible prosecution or civil action must conspicuously post their uncultivated property that adjoins public land with signs or orange paint at the corners of fence lines, at navigable streams, roads, gates and right of ways in such a manner that a “reasonable person would be put on notice that it is private land.”
If the property is unfenced and uncultivated, it must be posted at all corners, and boundaries that intersect navigable streams, roads, gates and rights of way, or posted in a way that a reasonable person would know it’s private property. The law does not require posting for cultivated land or land that is reasonably associated with a residence or place of business.
Vaughn Kileen, executive director of the Idaho Sheriff’s Association said the law, even after it was amended to address issues raised by critics, still has problems.
“The language is confusing,” Kileen said. “One of the main intents of this legislation was to clarify some of this stuff in the trespass law. We don’t believe it did that.”
For example, he said the law defines trespassing as entering or remaining on private property without permission.
“Well which is it? Is it the mere act of entering a violation or is remaining a violation. It seems like it’s both.”
He also said the language could snag people who accidently wander onto private land. For example, he said the requirement of land owners to post only corners on private property that abuts public land could easily lead to prosecution of people who accidently enter private ground in the middle of a section.
He said there are fences on both private land and public land, so just encountering a fence doesn’t alert people that they are approaching private ground.
“If a person sees a fence and it goes on forever, we’re talking huge tracts of land, how are they to know, unless they carry a map and GPS device, if that fence line is a public property fence line or a private property fence line? They are potentially ensnaring innocent people, and that is an issue we have a significant problem with.”
In urban areas, Kileen said the act of merely entering private property could lead to an escalation of neighbor disputes. For example, kids playing catch in a yard might enter a neighbor’s property to retrieve a mishandled ball or Frisbee. Or they could be cited or sued if they step off a sidewalk and onto a lawn to let other people pass.
It might sound trivial, but Kileen said it’s those kinds situations law enforcement agents have to deal with.
“Legislators said reasonable people are not going to do this, but we deal with unreasonable people every single day,” he said. “And when you have neighbor disputes, tempers are high and you have very unreasonable disputes among neighbors.”
Kileen said many law enforcement officers will likely have to use their discretion when responding to trespass complaints.
“Unless it’s a clear-cut violation, a person trespassing and jumping a fence that is clearly marked, I think most law enforcement will just take reports and submit them to the prosecutors office without any further action, because there is not clarity in the law.”
Both Kileen and Brian Brooks of the Idaho Wildlife Federation said the law could have been much clearer if legislators allowed both law enforcement personnel and outdoor groups to participate in its drafting.
“The humor about it all, this whole piece of legislation was done for the purpose of clarification, but ... no law enforcement entity in Idaho was invited to the table, and yet law enforcement is left with the task of enforcing this statute,” Kileen said.
Sean Ellis, a spokesman for the Idaho Farm Bureau at Pocatello, said the bill was supported by the 34-member Idaho Property Rights Coalition because it makes trespassing more of a deterrent. Ellis said scores of landowners testified in favor of the change and told legislators horror stories about dealing with people trespassing and abusing their land.
The previous trespass law was contained in three separate statutes and carried a fine of only $50, “hardly a sufficient penalty to deter trespassing or inspire law enforcement to pursue trespassing cases,” he said.
He disputes critics who say the law is confusing and will snag people who accidently wander onto private land.
“The legislation doesn’t criminalise innocent behavior,” Ellis said. “People have to know or have reason to know they are trespassing in order to commit a criminal trespass offense.
He added that property must be posted in a way that people know they are “entering private land. People aren’t going to become criminals because they accidently wandered onto private property.”
Brooks said his organization is hearing from citizens and law enforcement personnel with questions and gripes about the law.
“This law is going to confuse the public and landowners,” Brooks said.
For example, the law is unclear about what constitutes permission to enter private land. In one section it says written permission with specific information is required. In another says oral implied consent is okay.
“I honestly don’t know how to answer them,” he said. “I think we are going to have more incidents of accidental trespass tying up our legal system more and stretching our law enforcement even thinner.”
Kileen predicts it will be up to the next set of legislators to clarify the law.
“I’m ever the optimist,” he said. “Sheriffs, we want to work on this trespass legislation to improve it. We hope we have an opportunity to do that this next session.”