Trespassing In Idaho Now Could Cost You $100,000—Or Worse

A new trespassing law, combined with a new stand your ground law, could get you shot.


Woody Guthrie’s most famous song contains a stirring sentiment in its refrain—“This land was made for you and me.” Unfortunately, that sort of thinking could get you shot in Idaho.

Idaho’s new trespass law went into effect July 1. Combined with a new “stand your ground” law, it could make it easier for landowners to get away with shooting trespassers.

“Trespassers will be deemed to have nefarious intent upon entry into real property,” wrote Kristina Schindele, then Idaho’s deputy attorney general, in an email to the public. “Such presumed intent would permit unreasonable uses of force against such trespassers by landowners while limiting the landowners’ civil and criminal liability.”

The law, written without any consultation with sportsmen and recreationists, raises the trespassing fine to $500 and makes civil trespass a strict liability offense. Kahle Becker, former deputy attorney general for Idaho, says that trespassers who challenge the law and then lose in court will be responsible for the plaintiff’s attorney fees. This could cost anywhere from $20,000 to $100,000.

“You could bankrupt someone for innocently stepping on some undelineated sagebrush,” says Becker. The Idaho Sheriffs’ Association and the Idaho Prosecuting Attorneys Association noted that the bill was vague and contradictory and difficult to enforce. But it easily passed in a Republican-dominated Legislature, and the governor opted to neither sign nor veto, which meant that the bill, as a quirk of Idaho law, automatically became law.


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The bill was sponsored by House Republican Rep. Judy Boyle, a Bundy family supporter who made two trips to the illegal Malheur National Wildlife Refuge occupation in Oregon. The bill was supported by a coalition of agricultural groups and big landowners, including lobbyists for the Wilks brothers, Texas billionaires whose combined holdings make them the 13th largest landowners in America. They own 702,000 acres and pay private security guards to patrol their property boundaries. In 2016, they bought and closed off 172,000 acres of land in Idaho, parts of which had been open under the previous owners.

This new Idaho law makes me think of Georgian England as I’ve just finished researching and writing a book about land-access rights and how we’re losing them today. In the 18th and 19th centuries, English aristocrats got Parliament to pass laws to make the land their own—a process known as “enclosure.” Aristocrats pushed people off the land and hired armed gamekeepers. They excluded whomever they wished and enjoyed exclusive access to deer and grouse. What were once common lands that supported the livelihoods of many people became personal playgrounds and new sources of wealth for the already rich.

This sounds like the West in 21st century America: billionaire landowners who get what they want from legislatures. Vast areas of land closed off. Privatized wildlife. Armed security guards. This trend extends well beyond Idaho; in Montana and New Mexico, wealthy outsiders can close off access to streams.

Today, frustrated sportsmen and recreationists don’t really challenge the status quo. They advocate for amendments, such as the freedom to cross checkerboard corners of public land or for the privilege to retrieve a downed animal on private land. These do little more than loosen the handcuffs.

We should be looking at the bigger picture. We should be arguing for a full-on right to roam.

The English began to reverse centuries of aristocratic rule in 2000, when Parliament passed the Countryside and Rights of Way Act, which opened up privately owned mountains and unimproved grasslands for responsible public recreation.

There is no reason why the people of Idaho can’t have a similar right to roam. For hunters, anglers, and hikers, this would mean being able to legally cross private lands to get to public lands and waters. For landowners, it would mean privacy in and around your home, immunity from frivolous lawsuits, and the right to sue for damages. But it also would mean no more unnecessary “No Trespassing” signs, no more hoarding game, no more draconian trespass laws.

When Europeans are freer than Americans, when the moors of England are more open than the plains of Wyoming, and when our laws are crafted for the sole benefit of the landed gentry, we Americans have clearly lost our way. So let’s stop putting up with enclosure for the few and reclaim our old rights, the rights of the many. It’s not their right to exclude, fine and shoot us. It’s our right to roam.

Ken Ilgunas is the author of This Land Is Our Land: How We Lost the Right to Roam and How to Take It Back. This story was produced and published by High Country News. Photo by Mike.

 

Showing 18 comments
  • gringo
    Reply

    Trespassers will be deemed to have nefarious intent upon entry into real property,” wrote Kristina Schindele, then Idaho’s deputy attorney general

    So innocent until proven guilty in a court of law is no longer a thing huh?

    Why do I pay taxes again?

  • Kyle
    Reply

    Not coming down on any one side here – but that headline is a misleading – $100K if you fight in court and lose, based on a wide-ranging estimate of legal fees. $500 still sucks, but it’s not six figures!! It’s not exactly news that you can’t freely roam private land in much of the states…

  • Andy
    Reply

    There’s a lesser known verse to This Land is Your Land that is especially fitting:

    “There was a big high wall there that tried to stop me;
    Sign was painted, it said private property;
    But on the back side it didn’t say nothing;
    This land was made for you and me”

  • Joshua Horn
    Reply

    “Quirk of Idaho law” uh, not really. This is normal. I don’t know the laws of every state, but the Federal Constitution and my state’s constitution both say that a bill passed by the legislature automatically becomes law in a few days if the governor does nothing (if the legislature stays in session)

  • Kevin
    Reply

    The proliferation of stand your ground laws is concerning. The essentially just result in an increase in firearm homicides everywhere they are instituted (https://www.reuters.com/article/us-health-homicides-standyourground/murders-surge-in-florida-in-decade-after-stand-your-ground-law-idUSKCN1AU1QL). Allowing citizens to become judge, jury and executor doesn’t make a lick of sense.

    • gringo
      Reply

      THIS!!

      Private land is one thing, but attaching the ‘only in America’ travesty of a stand your ground law is insane.

      As I asked above, what ever happened to innocent until proven guilty?

  • The Woodsman
    Reply

    I’ve commented on here before about “Everyman’s Right” in Sweden (google it). I think a good first step would be to open up all CRP (Conservation Resource Program) lands to public acres, including hunting and fishing. I’m paying to lease it with my taxes, I should be able to respectfully use it.

  • David
    Reply

    -It amazes me how adept tiny proportions of society are at convincing majorities of the wisdom of their manifest desires. I live in an American anomaly where there are little rights-of-ways for walker between private properties, many small parks and free access to the water front. Port Townsend is an example of a community oriented society. Most people here, love it.

    -The notion that you can just shoot people on open lands assumes the most violent world view that does not corroborate with reality. Put these laws into perspective. The government can fine you, but you could also get the death penalty for the same offense, sans arbitration, with the presumption of “nefarious” intent. It seems a bit excessive. Do these laws represent justice?

  • james
    Reply

    well it’s just a matter of time before the peasants storm the castle with pitchforks and torches. this is just another instance of the ultra rich gathering and hoarding all the wealth. sooner or later it’s gotta give

  • idahobobb
    Reply

    land owner arms himself to go face armed hunters….this could get fun

  • Chris
    Reply

    I guess I’ll drive through Idaho next time and leave my money elsewhere. The insanity of building more walls, when other countries have made sense of allowing people cross their land without nefarious intent.

  • Jose
    Reply

    It honestly worries me. So I wouldn’t intentionally go onto someones private property. However, I got lost on a trail in Montana (the main trail was little used, and there were game paths and unofficial paths meeting it). Anyway, I ended up going from the public BLM forest road to a private one and into the back of some houses, on the other side of which there was a public road. Zero signs.

    I was genuinely worried that someone would shoot me for trespassing, even though they hadn’t fenced and signposted their boundaries (and maybe a sign saying ”private property, no trespassing, AND the road is 1 mile that way” ..

    Idaho and Montana are on my list of places to head towards in ten years, but I really have grave concerns about this sort of thing there. I wish moving to BC Canada was an option. They don’t seem as dystopian

  • Mashed Potato Johnson
    Reply

    This is fiercely misleading. I am in no way advocating Utah politician style “land grabs”, but we are talking about ALREADY PRIVATE property here. Property that is literally owned by someone else. Tell me, would you want someone to just walk through your backyard whenever they felt like it? How about your farm? Your house? You make it sound like public land is being taken and given to billionaires. I live in Idaho, and I can tell you, there’s millions of acres of public land. Private land is clearly marked, as you would know if you had done ANY research. I have no need to trespass on someone else’s property. If I did, I would have the decency to ask the landowner first. Why is that so hard? God forbid you had to go to some effort or actually talk to someone.

    I am a lot more concerned about the land that gets closed off or locked up by the state or federal government on a regular basis, public land that is supported by my tax dollars (I don’t pay that private landowner’s property taxes for him). I spent several years dealing with the National Parking Lot Service, and can tell you first hand, they will close off areas to the public or charge extra fees or create hassle whenever they please. Don’t believe me? Try to go snowshoeing in the north end of Zion after they decide to lock the whole area up for weeks because there’s an inch of snow on the road.

    This article is a really sad attempt at an election year scary campfire story to scare fence sitting semi-democrats, nothing more. Trespassing is not a right. However, being secure in YOUR private property, that YOU pay the taxes on IS A RIGHT, along with the right to defend yourself without first calling a lawyer / running and hiding / letting yourself be attacked first. Stand your ground laws do not allow you to just shoot first and ask questions later, in spite of whatever you heard from MSNBC. Now enjoy your Starbucks in whatever big urban dump you live, I can assure you the sportsmen and women of Idaho are not lying awake at night worried that some billionaire will shoot them next time they go in the woods.

    • Real Idahoan 208
      Reply

      If you actually live in Idaho like you claim then you will clearly know that private and public lands are intermixed and that it is beyond reasonable and actually really easy to cross from public to private without knowing it. Not all landowners do their due diligence and post their boundaries. I work for the Bureau of Land Management and field requests from the public almost EVERY DAY regarding what is public versus what is private. It is especially difficult to know what is public versus private on grazing lands where fencelines do not indicate ownership but rather allotment boundaries.

      In addition, it is almost always the case that when new gates show up on roads with legal public access it is the result of private landowners illegally putting up gates to keep people out. We have to send our law enforcement rangers out to address these instances.

      When the federal government does cut off access on roads it is because there is fire damage, road erosion, or some other hazard that they need to cut off access to. It is not done willy nilly and is done with the public interest at heart.

      The concerns raised in this article are legitimate. The Wilks brothers (the Texas brothers that purchased over 170,000 acres of Idaho private forest land surrounded by public land) have made it loud and clear that they wish to prosecute trespassers and turn their land into a private game reserve. If you are a true sportsperson as you claim, this should alarm you. Your hobbies depend on public lands and you should be grateful that there are people who are doing every thing they can to defend and protect them. The trespass law is just one piece in a very large picture of corporate and private wishes to see our public lands turned to private lands.

      And I happen to love public lands and enjoy starbucks every now and then so take your hateful and aggressive attitude somewhere else please.

  • Argosinu
    Reply

    Ethical outdoorsmen and women have no cause for concern. Large over-reactions here — both by the legislature (who drafted it poorly — it should be corrected later, like most statutes) and this article. Generally, the law stiffens penalties for criminal and civil trespassing and relaxes the requirement for landowners to post their property if they want to pursue charges or lawsuits against alleged trespassers. If you trespass (when you know or SHOULD know it is private property), you still must be first asked to leave first before any criminal issue arises.
    For example, it makes the first offense for criminal trespassing an infraction with a $300 fine if the trespasser does no damage and leaves the property when requested. The former fine was just $50. (See, https://www.idahostatesman.com/news/politics-government/state-politics/article214561060.html#storylink=cpy)
    Also, stand your ground is not license to kill. It is always good to actually READ the law: Justifiable homicide by any person. (1) Homicide is justifiable when committed by any person in any of the following cases:
    (a) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person;
    (b) When committed in defense of habitation, a place of business or employment, occupied vehicle, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation, place of business or employment or occupied vehicle of another for the purpose of offering violence to any person therein;
    (c) When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or
    (d) When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.
    Don’t we all honor private property already?

  • Rusty Baillie
    Reply

    Come on guys!
    It would benefit Outdoor Recreation more if you showed some discrimination and common sense, instead of jumping on the national, polarized political treadmill.

    Time was, western ranch land was as open as any public land. Your only problem was digesting the acid black coffee that was the staple of western hospitality. But the massive abuses of this open hospitality, as populations increased and gross city dwellers trashed the land and harried the livestock finally drove many folk to post their land.

    Present Stand Your Ground Laws need a strong element of lethal intent to justify a lethal response. If you wish to function in post 9/11 America, and understand your legitimate civil rights, take a Concealed Carry course before you throw a hysterical fit.

    If you prefer the freedoms offered in Europe, try emigrating there, along with millions of Syrians and Africans.

    There is good work to be done by access and advocacy organizations, but only if you can find a balanced and mature position. Let’s just grow up here……………

  • Rusty Baillie
    Reply

    OK ….. Ive calmed down…..

    there are (at least) 3 sets of criminal statutes that apply to entry onto private land (not counting civil actions).
    Recreation Statutes
    Stand Your Ground (self defense).
    The new Trespass statutes

    These all hinge around the concept of “Reasonable” responses from both the trespasser and land owner. It’s very unlikely that an extreme reaction against innocent trespass would survive the legal process but there does seem to be a consensus amongst all branches of the law (except presumably the legislators) that the present situation is confusing and unsatisfactory.
    Suchlike situations prevail throughout the West, which has large tracts of both public and private land, a host of cattle wandering hither and yon and a respect for the Second Amendment.

    What’s needed is funding to hire a promising law student to write a comprehensive brief, reconciling the present law — and then to start working on new streamlining legislation.

    Adventure Tourism, the best way to safeguard our recreational needs and desires, is too important to Western States (and Eastern!) to risk it on jeapodizing our access.

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