Trespass laws in Idaho are now harsher - and more confusing

Photo: Ryan Stoa

Photo: Ryan Stoa

In the 2018 legislative session, the Idaho Legislature passed a sweeping new bill aimed at reforming Idaho's trespass laws.  It will go into effect tomorrow - July 1 - but not without controversy.  The new law changes the definition of trespass, while ramping up penalties for potential trespassers.  It represents the latest installment of the public vs. private lands battle taking place across much of the western United States.  I wrote an op-ed on the new law that appeared in newspapers in Idaho, Washington, and Oregon.  Link to the Idaho Press edition here.  Text below:

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 — over 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 goes 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.

Ghani's Dilemma: Land Reform in Afghanistan

Ghani's Dilemma: Land Reform in Afghanistan

When Ashraf Ghani was elected President of Afghanistan in September 2014, he inherited a country in turmoil.  The election results sparked a political crisis challenging Ghani's right to power, the Taliban was ramping up operations just as NATO troops were preparing to withdraw, relations with key neighbors (e.g., Pakistan) were shaky, and the economy was still reliant on the illegal opium trade.  Afghanistan ranked 169th on the UN's Human Development Index.  Here's a less publicized but just as important problem facing Afghanistan today: it has a weak legal framework for land administration and management.  

Effective ownership of land provides economic and political opportunities to landowners, stability to the economy and government, and reinforces state functions like tax collection and security.  The absence of an effective legal framework for land does the opposite, weakening the economy, corrupting politics, and threatening security.  A 3-part series on land theft in Afghanistan - produced by the UN Assistance Mission in Afghanistan (UNAMA)'s Rule of Law Unit - claims that weak land administration is not just a critical issue in Afghanistan; it may be the most critical issue in Afghanistan:

Whether related to the opium trade, extractive industries, or land transactions, land conflict drivers likely affect a far greater proportion of the Afghan people on a daily basis than the ongoing military conflict...Land ownership disputes are estimated to be the cause of over 70% of all serious crimes (murder and crimes of violence) in Afghanistan.

So far Part I and Part II have been released, and the research effort is impressive.  Some key findings:

  • Most land in Afghanistan is not titled or registered in any formal legal sense.  The Land Management Law of 2008 provides a path towards ownership for individuals with customary or traditional land tenure, but the bureaucratic requirements and administrative costs needed to establish ownership are unrealistic.
  • Assuming customary tenure can be shown, formal title is no guarantee of effective ownership since many institutions provide some claim to title.
  • Property laws are skewed toward protection of the state, not individuals.  Lands are often claimed by the government (and often corruptly) without compensation provided to landowners.
  • The various land dispute resolution mechanisms that exist - be they formal, informal, or a hybrid - encourage forum shopping and create ambiguity.
  • Land grabbing is not criminalized.  In theory a penalty of 2 years can be imposed, but criminal land grabbing cases must wait until the associated civil case concludes.  To date no criminal prosecution of land grabbing has been recorded, an open invitation to steal land.  

Reforming this system means accepting some rather uncomfortable possibilities. 

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