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Eye On Boise

Attorney General’s analysis finds trespass bill could raise risk of shootings, adding to critics’ complaints

Here’s an article from the Idaho Statesman:

By Cynthia Sewell

Ominous words from the Idaho Attorney General’s Office on two pending pieces of legislation:

“The overlap between the proposed (bills) would likely increase the risk of serious injury or death to otherwise innocent trespassers.”

Both bills are attempting to update and clarify two confusing, yet critically important laws. One governs the use of deadly force in self-defense. The other governs private property rights.

The “stand your ground” legislation has moved fairly seamlessly through the legislative process. However, the bill rewriting Idaho’s trespass laws got off to a rocky start, with groups representing law enforcement, attorneys, hunters, fishermen and public access deeply opposed. Its first draft may have been unconstitutional, and sportsmen fear it contains too many incentives for landowners to sue.

A last-ditch effort to save the trespassing measure appears to have solved its constitutional problems. But the controversial bill could still have unintended consequences.

Late do-over

Trespassing comes in all forms, from someone intentionally busting through a locked gate to get to a favorite recreation spot, to someone picking huckleberries on public land and unknowingly wandering onto unfenced private land.

Idaho trespass laws are in three different sections of code: civil, criminal and Fish and Game. Rep. Judy Boyle, R-Midvale, spent the summer crafting a bill reworking those myriad laws. A House committee on Valentine’s Day then advanced her bill in a 14-1 vote despite objections from the Idaho Sheriffs’ and Prosecuting Attorneys’ associations.

When a subsequent attorney general’s opinion found the bill possibly unconstitutional, Boyle went back to the drawing board. Nine days later, she presented a new draft.

With the Legislature winding down, Boyle’s new bill, H 658, must move quickly if it is going to get full House and Senate approval and make it to the governor’s desk for his signature. Lawmakers currently hope to adjourn by March 27.

Critics quickly claimed the new bill has weaknesses, too. But the House Agricultural Affairs Committee, which Boyle chairs, voted 11-3 Tuesday to advance the measure. Members said any problems can be fixed when lawmakers return next year.

“What I would ask is we give this a try and if sportsmen are being abused by landowners, or we find things that don’t work, then next year we bring forth a bill to correct that,” Boyle said before the vote.

That same day, a new attorney general’s opinion found the bill now met constitutional muster. But the analysis revealed new concerns that it may conflict with existing laws and the “stand your ground” legislation, which the Senate has already approved.

The opinion states the two pending bills will “make it likely trespassers will be deemed to have nefarious intent,” and such presumed intent “would permit unreasonable uses of force against such trespasser by landowners while limiting the landowners’ civil and criminal liability.”

“HB 658 increases the risk of potential injury to trespassers … even if such people enter or remain on property in the absence of malicious or threatening intent, such trespassers are at greater risk for potential injury from land owners,” the opinion says.

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.

The House is set to debate the bill on Monday. If the House approves the bill, it heads over to the Senate for another committee hearing.

Confusion abounds

Lawmakers, attorneys, landowners and recreationists who spoke during the trespass bill hearings agreed the current law is inconsistent and confusing. It costs more to investigate and prosecute a criminal trespass violation, they agreed, than it is worth to collect a penalty as small as $25.

“People do not understand what is in the code right now,” Boyle told the committee on Tuesday. “Some law enforcement don’t understand what is in the current code.”

One group in particular — sportsmen — feel left out of the attempt at a fix.

“Many hunters and anglers are landowners themselves and we want to help solve the problem,” said Brian Brooks, executive director of the Idaho Wildlife Federation. His group, which has more than 30,000 members, would like to see a more collaborative effort involving all interested parties, he said.

Rep. Christy Zito, R-Hammett, quizzed Brooks on that push during the February hearing.

“Landowners have paid for their land. They pay the property taxes on it. They pay the upkeep,” she said. “What is your stake? What would give standing to these other entities in this decision?”

Brooks pointed to a long Idaho tradition of its government, property owners and sportsmen working together, with the latter “paying for many programs that directly help private landowners — things like private land crop loss to wildlife, fencing to keep wildlife out of fields,” he later told the Statesman.

He argued the proposal’s civil conditions put more of the risk on recreationists — who if they lose a case, have to pay the landowner’s attorney fees, but do not get the same benefit if they win. “This law sets the stage for landowners to harass recreationists through lawsuits, forcing them to spend money to defend themselves that won’t be recuperated,” he said.

And, he noted, the measure states Idaho Fish and Game money will be used for the bill’s main expense: updating and distributing written permission forms landowners can give to people they want to allow on their land. Idaho Fish and Game is almost entirely funded by hunting and fishing license fees.

“Are sportsmen the only recreationists? Are sportsmen the only trespassers?” Brooks asked. “The answer is obvious. So why is the sportsmen community solely responsible for paying for the bill’s implementation?”

Boyle insists her bill in not anti-sportsmen.

“I am the author and sponsor of our constitutional amendment of the right to hunt, fish and trap because I felt it was so important that we have that issue in our constitution, that those rights could not be taken away,” she told her committee. “But also in that constitutional amendment it says, ‘this will not allow trespass on private property.’ So both of those things are extremely important.”

And the bill’s backers point to several elements they say will improve things for everyone.

Boise attorney Gary Allen represents the Idaho Property Rights Coalition, and is assisting Boyle with her bill. Under current law, simply posting “no trespassing” signs is sufficient indication the land is private, he said. Under the new proposal, “we added the requirement that the signs be conspicuous,” he said. “They have to be big enough that somebody can see them, and be in places that can be seen.”

The permission forms “protect both parties,” Boyle said. “It used to be in the old days you could get by with a handshake. Well, that doesn’t seem to occur anymore because there are people who do not honor their word. The sportsmen seem to have forgotten that they are guests on private land.”

Kahle Becker, a former deputy attorney general for the Idaho Land Board and Department of Lands, remained unconvinced. He spoke against the bill at both hearings, saying it “criminalizes innocuous conduct like throwing a Frisbee over a fence, dispatching a wounded animal that crossed a property line you might not know existed.”

He is also concerned what would happen if both the “stand your ground” and new trespass bills become law.

“The Attorney General’s Office has determined that when these two laws are read together, it allows a landowner or his agent/employee to infer that the trespasser is there for a nefarious purpose and allows the landowner or his agent to use deadly force,” Becker said.

“So if you step 1 inch off a trail in the Foothills you could be shot. Is this good public policy?”

Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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