As of Friday, June 29, 2018
For many of us, myself included, Memorial Day marked the unofficial start of summer. I spent the holiday weekend camping in the Sawtooth National Forest, humbled by the surrounding jagged peaks still locked in winter’s grasp. Driving up on the Ponderosa Pine Scenic Byway, I passed through the Boise National Forest and Salmon-Challis National Forest, making note of countless summer adventures to be had in the Mores Creek, Payette River, and Salmon River watersheds. When I look at Idaho’s wildlands, I can’t help but see a landscape to be explored. In this I am sure I am not alone.
And yet, the seduction of outdoor wanderlust must be tempered by the responsibility that comes with a Western land ethic. We are blessed to live in a state with an abundance of public lands – more than 60 percent of Idaho’s land area. Our public lands include state and federal parks, forests, refuges, and wilderness areas, many of which are managed to provide a diverse range of recreational opportunities. The other 40 percent of our state must be respected for what it is – private.
Most Idahoans understand and respect the difference between public and private lands, and their distinct access rights. Still, given the wild and vast nature of the Idaho landscape, it can be difficult to know if a parcel of undeveloped land is public or private. Fences and “no trespassing” signs can be few and far between. Maps can be hard to read. Trespasses happen, often inadvertently.
Idaho’s trespass laws have been criticized over the years, largely for being confusing or inconsistent. During the 2018 Legislature, Idaho lawmakers passed a sweeping bill that altered the meaning of “trespassing” and increased penalties for violators.
Unfortunately, the bill was hastily drafted and pushed through into law, without meaningful input from sportsmen or law enforcement. If the goal was to eliminate confusion and inconsistencies in Idaho’s trespassing statute, the bill largely missed the mark.
As Idahoans prepare for summer adventures, it is important to understand the impact and consequences of our new trespass law, which went into effect July 1.
For private landowners, it means significant changes to posting and marking requirements, as well as unclear rules about where public land ends and private land begins. The law is inconsistent regarding the ways citizens can obtain access permission from landowners; one provision requires “written authorization,” while another provision suggests an “implicit invitation” is sufficient.
The trespass bill also imposes harsher penalties on violators. Civil trespass is now considered a “strict liability” offense, meaning violators may be subject to a civil suit even if their mistake was honest and didn’t cause damage. The standards for criminal trespass are similar, such that any trespass could be considered a criminal offense with the possibility of criminal sanctions and a criminal record. In some cases, repeat trespassers will be subject to a mandatory felony charge. Parents or guardians with minors in their care should be aware that the trespass bill does not provide extenuating circumstances or special provisions for juveniles.
Those of us who enjoy Idaho’s great natural wonders and wild landscapes must practice responsible land stewardship. That responsibility includes an awareness of our access rights to public and private lands. Unfortunately, the new trespass bill makes it harder for landowners and citizens to navigate this responsibility. Let’s hope these problems are addressed during the 2019 Legislature.
In the meantime, Idahoans venturing into their favorite wild places must know their rights and responsibilities. Recognize the difference between public and private lands, get permission to access private land, and tread lightly. The Idaho summer we’ve all been waiting for is here. Plan ahead and enjoy responsibly.
Ryan Stoa is an associate professor of Law at Concordia University School of Law in Boise, where he teaches and writes in the areas of property law, administrative law and natural resources Law. He can be reached at email@example.com, or www.ryanstoa.com.