Guest Opinions

Plain and simple: Idaho’s new trespassing law is unconstitutional

Richard Renstrom
Richard Renstrom

During and after the recent Idaho legislative session, there has been considerable discussion of the new law governing trespassing. The state now requires a citizen to obtain written permission from the landowner using the state’s format. Both the landowner and the citizen must sign the agreement. The permission to trespass is, therefore, a contract between the landowner and the person wishing to enter their property. Contractual agreements between two people are protected by our state and federal constitutions.

The state cannot force anyone to use the state’s format for simple contracts such as this. This would violate the sanctity of contracts as is guaranteed by our constitutions.

The state can require a citizen to use the state’s format if the state is involved in the agreement, such as your wish to record a real estate contract with the state. But this trespass permission does not involve the state — it is a private contract between two people. Many ranchers have given me verbal permission to enter their property. They have this right — the state cannot force the landowner to use their form. The state cannot force anyone to speak for the state.

In a recent U.S. Supreme Court decision, Justice Clarence Thomas wrote that California could not compel an anti-abortion clinic to give its patients a referral paper to abortion clinics. The court held that government-compelled speech violates the free-speech rights. They have a right to any form of speech they wish to use — verbal, a scribbled note or use the state’s form.

Another problem is the “implied consent” part of the law. I have ranchers who open their gates in the late fall after their cows are off the land. To most people, this is implied consent. Then there is the implicit wording in the new law that any fence I come across in the mountains is a private fence. I have areas where in one day I can cross fences on Forest Service land, BLM land, state land, county land and private land. There are no signs or postings. How can a user of the mountains know which is what?

Under the old law, the landowner had to post his land every 660 feet and at all reasonable points of entry. All I had to do was walk 200 yards to determine whether the property was posted. With the new law, private land next to public land must be conspicuously posted. This wording is vague and could be struck down by the courts.

The only circumstances where the state can require the public to use the state format (speech), is where the state has a compelling need, such as recording a real estate sale. The state must have a property description and ownership in order to levy the appropriate tax and send the tax bill to the owner. There is no compelling public need for a state form for a simple contract between a property owner and me. It is private.

Perhaps the most absurd part of the new law is the requirement that the landowner must state a description of the property involved. This is easy to do for a farm here in the valley, but what about up in the mountains where there can be a bewildering mix of land ownership? I have places I hunt that would require a surveyor to show me all of the property boundaries. And is a fence on the ground that hasn’t been maintained in 30 years a “legal fence”?

Richard Renstrom of Caldwell is a researcher and writer who has published seven books.