Trespass laws in Idaho are now harsher - and more confusing

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.

Public Lands and the Social Media Effect

Photo: Ryan Stoa

I have to admit, I'm a sucker for nature photography.  I love taking landscape shots, and I love seeing them.  A couple months ago I visited the Boise Art Festival to check out the multitude of drool-worthy nature portraits being hawked by the pros.  And although I don't really follow celebrities on social media, I do follow many federal public lands agencies on instagram (more interesting than it sounds).  The Bureau of Land Management, Department of the Interior, Fish and Wildlife Service, and local Idaho photographers keep my Instagram feed populated with photos of our country's most iconic natural landscapes, and some that are off the beaten path.  When I get the opportunity, I like to contribute my own amateur photography as well.  The above shot was taken in Idaho's Sawtooth Wilderness on a beautiful Sunday in late September.

The rise of nature photography on social media may be motivating people to get outside, but it is also taking its toll on wild places.  The Ringer's Molly McHugh explains the conundrum:

Manifest Destiny is defined by the nation’s westward territorial expansion, but it’s also a philosophy about the need to conquer, to discover. What happens when social media increases the rate of outdoor discovery? How long until every corner of the planet has been Instagrammed and geotagged?

These may seem like ridiculous questions, but they’re more legitimate than you might think. It’s become so easy to tell the world what you’ve discovered, and technology can so accurately plot it, that we have arrived at a curious moment in a kind of digital manifest destiny: keep cataloguing, or keep things secret? As every place becomes attainable and collectible, tourist attractions that aren’t prepared — or, really, meant — to host hundreds or thousands of yearly visitors are bombarded with them; national parks visitor numbers have increased 26 percent over the last decade, according to the Associated Press [...]

While the National Park Service and bigger recreation agencies in general have courted the social media ticket, smaller staffs don’t have the same ability to do that, and instead find themselves struggling to deal with the onslaught. National Parks can find this a challenge, too, but the degree of impact is lessened by their resources. “Oregon only has one national park, Crater Lake, and even it’s struggled with crowds,” the Statesman’s Urness told me when I asked about the disparity between larger and smaller departments. “But national parks were already designed for high volumes. A lot of the areas getting hit now weren’t designed for it, and the management in place was never prepared for this. The mechanisms to do anything about it are slow — it’s government paperwork.”

The effect is emblematic of a broader tension between wanting the public to care about wild places and public lands on the one hand, while preferring not to run into other people when visiting those places on the other hand.  Leave No Trace principles can help, and the LNT Center publishes an annual list of Hot Spots designed to raise awareness of places where public use has intensified and threatens the ecological integrity of an area.  Several hot spots are popular rock climbing destinations I'm fond of (North Carolina's Linville Gorge; Kentucky's Red River Gorge; Nevada's Red Rock Canyon).  In general, many share the same characteristics: natural beauty and reasonable access.  Surely there are many other places stressed by increased traffic that didn't make the list.  

While the public can take measures to reduce impacts, appropriations should reflect the increase in demand for park administration and services.  When I was conducting research on Biscayne National Park, a large marine preserve off the coast of Miami, it was evident that both the Florida Fish and Wildlife Commission and the National Park Service were not receiving sufficient funding necessary to enforce public use and fishing regulations.  Many state and federal public lands agencies are under similar constraints.  With an election next week and new governments in place in January, it's a good time to revisit the impacts of recreation on public lands, and the resources agencies need to maintain access sustainably.  

Malheur and Misfortune on Federal Public Lands

The Malheur National Widlife Refuge. Photo: John Bromley

Over the weekend armed protesters stormed and occupied a federal building at the Malheur National Wildlife Refuge in northeastern Oregon.  Their complaint?  In this instance, the group is protesting against criminal charges brought against ranchers starting fires on federal lands in the region.  In general, the group is part of a small but vocal movement to return federal lands to states or private landowners.  Here is Jed Purdy on why their argument stands on shaky ground:

The Bundys’ side of these fights is rooted in the radical idea that the federal government was never supposed to hold Western lands permanently, but instead should have ceded them to the states or granted them directly to private owners. It is possible to piece together this argument from the text of the Constitution, but courts have never accepted it. It is not really a legal theory but a political wish that history ended in 1891, when the federal government began to create national forests, or even back in 1872, when Congress made Yellowstone the country’s first national park.

So it seems the best bet, if the law isn't on your side, is to make a spectacle of federal lands management.  In the Malheur Refuge, the group is exploiting recent disagreements between ranchers and wildlife refuge officials, who are required to prioritized the well-being of (you guessed it) wildlife.  Except that those disagreements may be overblown.  The ranchers in question have not backed the largely out-of-state protest group, and locals who participated in the most recent management planning process saw the Malheur as a model for collaboration, not conflict:

In 2013, Malheur completed its Comprehensive Conservation Plan. This is a long-range vision and management plan that all refuges are required to complete. Malheur stood alone in the refuge system for deciding to have a very inclusive, transparent stakeholder process which included local ranchers, county commissioners, tribes, conservation groups, local, state and federal agencies, etc.

We met many times over the course of three years and much to everybody’s surprise emerged with a consensus, collaborative approach that includes major initiatives on both the refuge and surrounding ranch lands. It is a plan that tries to respect both the ecology and the economics of the region. The groups involved have remained actively engaged in implementing the plan. It includes one of the largest wetland restoration efforts ever undertaken.

Having witnessed and participated in the stakeholder engagement process for Biscayne National Park's General Management Plan, which sparked a similar conflict between marine conservationists and fishermen, I can attest to the challenge it can be to satisfy every stakeholder's demands.  That's especially true when ideals like exploitation and conservation appear mutually exclusive.  There is some irony in the calls for federal relinquishment of public lands, as well.  First, because it was federal control that may have saved the Malheur in the first place:

Before the federal agencies came to eastern Oregon, large ranching operations from California had monopolized hundreds of thousands of acres of rangeland. Irrigation developers controlled water, cattle barons controlled the grass, and settlers were essentially locked out. Tensions were high.

During the 1890s, a populist, anti-monopolist rhetoric emerged among settlers and news editors. The local newspaper deplored the fact that the great Western ranges were passing into “the hands of a few big cattle or sheep companies,” and predicted that soon “an aristocracy of range lords and cattle kings would rule our mountains and plains.” In 1897, Peter French, the cattle baron who controlled the largest ranching empire in America, along the Blitzen River, was murdered by an angry homesteader. Arson, violence and grinding poverty flourished.

And second, because these lands were already occupied when the federal government laid claim to them on behalf of western settlers.  Purdy again:

Harney County was largely Paiute land until the Civil War, and later settler pressure and violence eroded the tribe’s claim to lands that were nominally reserved to it. The age of settlement lasted a few generations in eastern Oregon, beginning with the bloody dispossession of indigenous peoples and ending with the rather gentle conclusion of federal privatization.

American vigilantism is never racially innocent. Its two parents are self-mobilization on the frontier, usually against Native Americans at a time when homesteading was reserved to whites, and the racial terror of the Ku Klux Klan in the South during and after Reconstruction. It is too much to call the occupiers “domestic terrorists,” as the Oklahoma City Bomber Timothy McVeigh or the Klan were, but it is also obtuse to ignore the special comfort that certain white men have using guns as props in their acts of not-quite-civil disobedience. After all, guns were how they acquired their special sense of entitlement to public lands in the first place.