Guest commentary: ‘No trespassing’ laws create personal playgrounds for the wealthy
August 16, 2018
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.
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.
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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 a contributor to Writers on the Range, the opinion service of High Country News. He is the author of "This Land Is Our Land: How We Lost the Right to Roam and How to Take It Back."
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