Property Rights / Trespass
The most controversial issue to address the legislature this past session, that drew the involvement of the Association, was the Private Property Rights Bill, also known as the Trespass Bill. There was near unanimous agreement from all interested parties that Idaho’s current trespass laws were confusing, out dated, and inconsistent. There were notable flaws in the existing system with regard to how the law defined civil trespass, as opposed to criminal trespass, as opposed to recreational trespass related to hunting and fishing. Furthermore, proclamations and regulations issued by the Department of Fish and Game were inconsistent with statutes passed by the legislature with regard to private property access. A coalition and group of private property owners was developed to clarify these issues. The Idaho State ATV Association was not part of this initial coalition. A bill was drafted and formed by this coalition and brought forward to the legislature. As originally drafted, the Association had significant concerns because of the alterations it was making with regard to the posting of private property boundaries adjacent to public property. Obviously this is a concern to our users as we travel in many areas of public land where fence lines do not always indicate a private property boundary, but rather are located upon public property to contain livestock. The original bill would have provided that a fence line in and of itself was notice of a private property boundary. I took our concerns to the persons involved with the coalition and the drafting of the bill. They were sensitive to our concerns, and in fact made changes to the legislation in order to alleviate the concerns we have as motorized recreationists. After those changes were made, the Association publicly indicated its support for the Bill because of its intended effect of instilling respect for private property, responsible recreation, and ensuring there was proper notice of private property boundaries adjacent to public to property. The Bill ultimately passed both the House and the Senate with such high majorities that the legislature could have overridden any veto issued by the Governor. The Governor received the bill and did not sign it, but he also did not exercise his veto, thereby allowing the Trespass Bill to become law without his signature. The new trespass laws go into effect on July 1, 2018. As I know many of you, and many of your club members, have not had an opportunity to review the bill in its entirety, which is lengthy, I will summarize the key provisions in the following paragraphs.
What is Trespass. Trespass is the act of entering or remaining upon the real property of another person without permission. Entry can be affected by the person going upon or over real property, or by a person causing an object or force under his control to go upon or over real property. Remaining on property means failing to depart from a person’s land when asked to do so by the owner or his agent. Permission means that you have obtained a written authorization to enter the property of another, or the person has given you some other permission or invitation recognized by law, such as an oral invitation, or an implied invitation by means of a pattern or practice of allowing your use of the property.
Giving notice that entry is not permitted. The new law will provide that under certain circumstances a person is deemed to have knowledge that their entry upon the property of another is not permitted. These circumstances include the following:
- The property is reasonably associated with a residence or place of business,
- The land is cultivated, meaning it has growing crops, pasture, or tilled soil for the purpose of raising crops or pasture,
- The property is fenced or enclosed in a manner that a reasonable person would recognize as a private property boundary, but if the private property adjoins public land, then the fence line adjacent to the public land must be posted with no trespassing signs or bright orange or florescent paint at all corners of the fence adjoining the public land, and at all areas where navigable streams, roads, gates, and rights of way enter the private land from the public land, and that such posting exists in such other areas that a reasonable person would be put on notice that the land is private,
- If the property is unfenced and uncultivated then it must be posted with conspicuous no trespassing signs or bright orange or florescent paint at all property corners and at all boundaries where property intersects navigable steams, roads, gates and rights of way and otherwise be posted in a manner that a reasonable personable person would be put on notice that the land is private.
In actuality, these posting requirements are not too different from what current common law, or statutory law, provides. The most notable difference is the fact that there is no longer a requirement that there be bright orange paint every 660 feet. Now the orange paint is only required at property corners, and at points of entry. This was the provision that we insisted upon. As you know, motorized recreation these days is limited to roads and trails. By ensuring that no trespassing signs or orange paint is located at all areas where motorized vehicles might go between public and private land, we have ensured that there is proper notice so that motorized recreationists understand where they are going, and where they are permitted to go.
Examples where entry is permitted. As mentioned above, certain circumstances exist where a person will have permission to enter private land, even knowing that the land is private. These include circumstances where a person has been invited, expressly or impliedly, to come upon the property. For instance, the property may be open to the public. Or, there may be an easement or other privilege that exists that allows the person to enter the property.
Civil Trespass. The law clarifies now that a landowner can bring a private, civil lawsuit against an individual that may trespass upon the land of the landowner. This is what is known as civil trespass as there are no criminal penalties at play. If you enter upon private property without permission and commit an act of trespass, the landowner can sue you in civil court to obtain an award of money damages for the act of trespass. The damages that can be awarded include a minimum award of $500.00, recovery for any damage the trespass may cause to the property, costs of the landowner associated with investigating the acts of trespass, and the landowner’s attorney fees and court costs incurred in the lawsuit. Additionally, if the act of trespass includes damage to the landowner’s property, then the damage award to the landowner can be three times the amount of actual damages. Of course, a landowner will have to prevail in his lawsuit to recover any of these damages. In the event the landowner does not prevail in the civil lawsuit, and the court determines that the landowner brought the action frivolously or without foundation, then the Defendant (or alleged trespasser) can recover from the landowner his attorney fees and court costs.
Criminal Trespass. Criminal trespass occurs when you trespass upon the land of another without permission, and a law enforcement officer either arrests you or issues you a citation for trespass, thereby imposing the criminal law against you for the act. The first offense of trespass, if there is no damage caused to the landowner’s property, and the person departs immediately upon being told to do so, results in an infraction and a fine of $300.00. If the first offense of a trespass does involve damage to the property, or a refusal to leave when ordered to do so, then the penalty becomes a misdemeanor subject to up to six months in jail and a fine of between $500.00 and $1,000.00. A second offense of trespass within a five year period is an additional misdemeanor, for which an additional period of jail of up to six months may be imposed, and a fine of between $1,500.00 and $3,000.00 may be imposed, and if the act relates to a trespass for the purpose of hunting or fishing, then there can also be fish and game license suspensions imposed. A third offense of trespass within a 10 year period is another misdemeanor charge, for which jail of up to one year may be imposed, together with a fine of between $5,000.00 and $10,000.00, together with a fish and game license suspension if the act of trespass relates to hunting or fishing. In cases where the act of trespass involves destruction to or damage to the landowner’s property further and other enhanced penalties can be imposed, including a potential felony charge, but only for a third offense within 10 years where damage is caused. As part of any criminal trespass conviction, the wrongdoer can also be required to pay restitution to the harmed landowner.
Trespass to Hunt or Fish. The fish and game statutes have been revised to define trespass to hunt or fish in the same manner as the civil and criminal sections. Existing Idaho law that provides that a license to hunt, fish or trap may be suspended for a conviction of trespassing in relation to an act of hunting, fishing or trespassing remains the same. With respect to the fish and game statutes, there is an important provision located therein that states that “no person shall post, sign, or indicate that any public lands within this state, not held under an exclusive control lease, are privately owned lands.” This was an important provision that the Association worked to keep in the statutes. We were successful in this regard. We feel this provision is important to ensure that public lands such as public roads are not posted in a way to indicate that they are private. Importantly, as part of this legislative package, a provision has been included that makes it a misdemeanor for any private landowner to post public land as if it is private. This did not exist under prior law and is a good step forward.
Overall, the trespass bill did a lot to clean-up the existing statutes and remove inconsistencies. The most notable change really only relates to the use of orange paint every 660 feet. However, even under the old law, it was not technically required that a landowner paint orange every 660 feet. That was just one of the options available to the landowner, and was probably the most widely used. However, with the changes to the bill made per our request, the loss of paint every 660 feet is really of no consequence to motorized recreationists because there will still be posting and/or paint at all points of entry for motorized vehicles. I know that several sportsman’s groups had concerns with this change, but it was not a change that effects our interests. The coalition that put together the Trespass bill will continue to consider whether any amendments are necessary to clarify or correct problems encountered in implementation, which will be addressed next year. The Association will continue to be involved with that effort so that we can provide any input necessary with respect to the interest of motorized recreation.
I hope the foregoing has provided a good and clear explanation of the activities in which the Idaho State ATV Association was involved during the 2018 Idaho legislative session. If you have any questions or concerns with regard to these activities, please do not hesitate to contact any board member or officer.
David P. Claiborne, President
IDAHO STATE ATV ASSOCIATION, INC.