Trespassing and the Idaho Code, A Primer. by Margo Mandella

Editor’s Note: Owners of private property have an absolute right to deny access to their property. In 2018, the Idaho legislature amended and strengthened trespassing laws, making it imperative that you understand the law and its implications when you set out on a climb.

There may be a few peaks discussed on this website that are either located on private property or have access blocked by private property. The inclusion of any such peak is not a guarantee that the private landowner allows public access nor a recommendation that you trespass.

Finally, the following article is not legal advice but instead provides an overview of publically available Idaho Law. If you have specific questions you should consult an attorney.


No Trespassing GenericPublic land is managed by federal, state, county and local governments/agencies on behalf of the public. You can access and use your public lands within the requirements and conditions the managing government/agency has set forth for land access and use. However, it is up to you to figure out:

• if the land you are accessing is public, and
• are the roads/trails you are using to get there public?

On July 1, 2018, a new trespass law goes into effect. Unfortunately, from a peak bagger’s perspective, the new law’s signage requirements for private owners are weaker in some respects than the previous law, which required the use of specific amounts of fluorescent orange markings at specific intervals all along private property boundaries.

The new law uses the concept of “conspicuous” signage and specific placement of some markers. However, we’ve seen under the old law, and expect to still see under the new law, is that a private property owner’s interpretation of “conspicuous” signage may not be interpreted by you, a climber, as conspicuous. Therein lies the problem. Thus, the new law, overall, may make it more likely that you may inadvertently trespass onto private property.

Much more importantly, the Idaho Attorney General’s Office recently published an opinion of the possibility of imminent danger or harm to trespassers because of Idaho’s “stand your ground” law that is being passed at the same time. The Office stated, the trespass law “increases the risk of potential injury to trespassers…even if such people enter or remain on property in the absence of malicious or threatening intent, such trespassers are at greater risk for potential injury from landowners,” the opinion says.

So as a result of the new law, the penalties for unintentional trespass, however inadvertent, are much harsher in fines, jail time, and possible personal injury, up to and including, of which I hate to even state, death.

Thus, it is imperatively your responsibility to know if you are legally entering and using public lands. This primer’s goal is to present information about the topic and provide additional resources to help you.

However, over and above ANY discussion in this or any article about trespassing in Idaho, remember the Orange Rule:

If In Doubt, Get OUT !!!


Identifying Public Lands

Bureau of Land Management (BLM), Forest Service (USFS), United States Geological Survey (USGS), and State of Idaho maps show public and private land ownership patterns. Some of these maps are available online but oftentimes the size and scale of these maps are difficult to read.

Software applications/internet sites, such as Google EarthIdaho Public Lands Information CenterGAIA GPSLists of John.com, and CalTopo are typically easier to use than federal and state maps. However, these applications rely on the availability and accuracy of BLM, USFS, USGS, and State maps.

At present, federal agencies and the State do not coordinate or update their maps on a routine or timely basis. As such, software apps/internet sites update their applications sporadically. It is good to consult multiple map providers when you are identifying public lands. Another thing to know, none of these map resources identify public roads access across private lands.

But once you’ve identified the public land and management agency(ies) of interest for your climb, find them online or contact them directly. They have experts, physical maps, and other resources to help answer your ownership questions. Take notes, including the names and phone numbers of people you speak to. The agency’s job is to assist you, and your tax dollars pay for this service. In my experience, they have always been friendly, helpful, and provided accurate information.


A no trespassing sign on the south side of Packer Butte.

A no trespassing sign on the south side of Packer Butte.


Accessing Public Lands

The State of Idaho, federal agencies, and tribal governments have the authority to close lands and access, permanently or temporarily, that impacts your ability to get to public land. Before you reach your destination, know if there are closures in place. Some closures may not be notated on maps or found through online resources.

State of Idaho

The State of Idaho owns and manages a lot of land in Idaho. Pursuant to the Idaho Constitution, the State manages much of this land to maximize profits to support schools. They often lease the land to private entities, but frequently under terms that exclude public access.

The State of Idaho also closes land to carry out agency missions. For example, the Idaho Department of Fish and Game manages large sections of Idaho’s public lands as part of its wildlife management responsibilities. The agency has legal authority to close lands to public use to further its management goals. Winter big game habitat closures are one example of this type of closure.

Federal

Federal agencies may close public land for a number of reasons. For instance, when a forest has been burned by a wildfire, the forest and its recreational trails, or other approved uses, may be temporarily “closed” until the forest has had time to recover to re-allow access. Temporary, in this case, is usually 2 years but could be longer.

Tribal

A number of peaks in Idaho are located on lands owned by Native American tribes. Generally, access to these lands is allowed only to tribal members. Most peaks on tribal lands are considered sacred. As such the tribes typically do not approve requests by nonmembers for recreational climbing. However, Native American tribes usually have a public relations person, tribal land management personnel, or tribal leaders who can answer your access questions.


Private Land

Private land is not publicly available unless a private landowner chooses so and makes it accessible, usually through signage. Commonly, private land is signed as closed to the public through the use of “no trespassing” signs.

Idahoans, non-Idahoans, and various organizations and entities are purchasing land in Idaho. Increasingly more public land, for various reasons, is becoming unavailable to the public or access to it is being restricted, or denied by the new owners. We’ve seen where private landowners have cut off access to nearby public lands by closing traditional access routes across their private parcels.

Public land that is completely surrounded by private land (known as an “inholding”), by definition, is also inaccessible unless there is a public easement leading to the inholding. Government agencies can, via eminent domain laws, purchase easements on private lands to access public lands. But such actions are infrequent, costly, and time-consuming. Often, these legal accesses are not signed.

Federal, State, and county governments have secured many easements across private land in Idaho. These easements are most often road easements but can include trail easements. For example, the Forest Service has secured many such easements from private landowners. If a road across private property leading to National Forest land has a Forest Service road designation number on a map or sign, it is likely there via a public easement.


Trespass—Know the Law

Federal and State-managed Public Land

Federally-managed and State-managed land may be signed when a closure applies, especially if it is a temporary closure, but often signs are not provided. For example, there are hundreds of trails across public lands, and these trails are often not signed. You will need an agency trail map that tells you what trails are open and what vehicle types you can/cannot use on them.

Sometimes closure signs are vandalized or removed by vandals, which is another reason to do your research beforehand. Again, contact the agency. The BLM and Forest Service will post closure notices on their websites. Keep in mind that disobeying a Federal closure is a violation of Federal Law.

Tribal Lands

Most tribes have their own law and order codes and include trespassing as a criminal, prosecutable offense.

Private Land

It is your responsibility to know and understand the new Idaho Trespass law. This is a synopsis from reviewing the law and from the perspective of a non-attorney mountain climber. The law has additional rules and penalties for anglers, hunters, and other users that are not addressed in this article.

Under new Idaho Trespass Law, currently known to the public as House Bill 658, effective July 1, 2018, private property that abuts or is contained within public lands is required to be identified by:

(iii) The property is fenced or otherwise enclosed in a manner that a reasonable person would recognize as delineating a private property boundary. Provided, however, if the property adjoins or is contained within public lands, the fence line adjacent to public land is posted with conspicuous “no trespassing” signs or bright orange or fluorescent paint at the corners of the fence adjoining public land and at all navigable streams, roads, gates and rights-of-way entering the private land from the public land, and is posted in a manner that a reasonable person would be put on notice that it is private land; or

(iv) The property is unfenced and uncultivated but is posted with conspicuous “no trespassing” signs or bright orange or fluorescent paint at all property corners and boundaries where the property intersects navigable streams, roads, gates and rights-of-way entering the land, and is posted in a manner that a reasonable person would be put on notice that it is private land.


Types of Trespass

The new law defines two types of trespass: 1) trespass and 2) trespass with damage.

Trespass

Any person who enters or remains upon the real property of another person without permission commits a trespass.

  • “Enter” or “enters” means going upon or over real property either in person or by causing any object, substance or force to go upon or over real property.
  • “Permission” means written authorization from the owner or his agent to enter upon private land, which shall include the signature of the owner or his agent, the name of the person being given permission, the appropriate dates that the permission is valid and a general description of the property; or another form of permission or invitation recognized by law.
  • “Remains” means to fail to depart from the real property of another immediately when notified to do so by the owner or his agent.

Trespass with Damage

A person commits trespass with damage when he/she enters or remains on the real property of another without written permission, knowing or with reason to know that his presence is not permitted, and causes damage to real or personal property in excess of $1,000.

A person has reason to know that his presence is not permitted on real property that meets any of the following descriptions: The property

  • is reasonably associated with a residence or place of business
  • is cultivated or
  • adjoins public property and signed (see items (iii) and (iv) described in the previous section).

Damage is defined as “any injury or damage to real or personal property” which includes, “but is not limited to” the following acts:

  • Cutting down or carrying off any wood, underbrush, tree or timber, or girdling or otherwise injuring any tree or timber on the land of another;
  • Severing from the property of another anything attached thereto, or the produce thereof;
  • Digging, taking or carrying away any earth, soil or stone from the property of another;
  • Tearing down or otherwise damaging any fence on the land of another, or opening any gate, bar or fence of another and leaving it open, or using the corral or corrals of another;
  • Dumping trash or covering up in any manner the property of another;
  • The unprovoked, intentional killing or injuring of a domestic animal of another on his property;
  • Removing, mutilating, damaging or destroying any “no trespassing” signs or markers of similar meaning;
  • Going through or driving a motor vehicle, as defined in sections 49-114 and 49-123, Idaho Code, into, upon, over or through any cultivated lands; or
  • Injuring or killing livestock.

Consequences of Private Land Trespass

Any person who pleads guilty to or is found guilty of a misdemeanor trespass violation:

  • First time violation: If no damage of any kind was committed during the trespass and the person accused does not remain if ordered to depart by the owner of the real property, then the person shall be guilty of an infraction and fined in the amount $300 (minimum); or sentenced to jail for 6 months and fined between $500 and $1,000.
  • Second-time violation within 5 years: Sentenced to jail for 6 months and fined between $1,500 and $3,000.
  • Third-time violation within 10 years: Sentenced to jail for 1 year and fined between $5,000 and $10,000.

Any person who pleads guilty to or is found guilty of a trespass with damage violation, in addition to up to triple the amount of the actual damage:

  • First-time violation: Sentenced to jail for 6 months and fined $1,500 to $5,000.
  • Second-time violation within 5 years: Sentenced to jail for 6 months and fined $5,000 to $10,000;
  • Third-time violation within 10 years: Guilty of a felony, jailed for 1 to 5 years, and fined from $15,000 to $50,000.

There are also costs associated with investigations and defense against a trespassing charge and you are liable for those changes. And under the new law if you win (i.e., successfully prove you did not trespass), you still may not recoup your court costs.


Reasonable Person

The new law relies heavily on the assumption of what a “reasonable” person would do, or conclude, based on trespass signage. This means you need to “reason” out your legal access. While this may sound daunting and intimidating, tools are available to you to help figure this out.

First: Before You Go, Research, Research!

The most important thing you can do is research. As previously mentioned: many map resources are available that show public land ownership. Lists of John is my personal favorite online site. Select your peak of interest, click on the peak map and the map expands to a full-page map. At the bottom right of the page is the option to “Add Land Management Layer.” While the maps are not printable, you can use them as a start to plan and further research your access.

The Gaia GPS app for smartphone, another app I use, shows you the same maps as List of John. To see their public and private land overlays, you will need a Premium Membership. Download the map of the area you need before you leave home to have the map readily available on your phone, even in low-to-no-signal areas.

Physical maps from the BLM, USFS, USGS and some State maps can be accessed and purchased (though some are free) online or at agency offices. Also, your local office can help you with additional information and access questions you have.

Second: Take Phone/GPS/Physical Maps/Written Permission

IF you have signal and a GPS app or GPS device, you have a great “in the field” tool to use. The GPS/GPS app can show you in real-time where you are in relation to public land boundaries with relative but not absolute accuracy.

The new law also heavily assumes that everyone has GPS and cell service on public land. However, anyone who has actually been to Idaho’s mountains and foothills areas knows the truth: cell service is highly dependent on location and distance to cell towers, the strength of the signal, and terrain between you and the tower(s). Frankly, most of the time, you will NOT have cell signal, so be prepared with a physical map.

If you have permission from a private landowner, or their agent, to be on their property, under the new law that permission MUST be in writing and include the following elements:

  • the signature of the owner or his agent
  • the name of the person being given permission
  • the appropriate dates that the permission is valid and
  • a general description of the property.

Third: Heed the Signs

The new law requires private property owners to conspicuity sign their property when it abuts or surrounds public land. So, look for these signs and orange paint/markers (see examples in the next section). However, any time a sign is confusing and makes you question whether or not your intended access is legal, it is always better to abort your trip, report the confusion to the appropriate public land management agency, and try again another day. And…

If In Doubt, Get OUT!!!

Fourth: Leave if Asked to Depart

If you are confronted and told to leave because you are trespassing, just leave. If you refuse or hesitate to leave, you have just increased your probability of being charged with trespass.


Trespass Sign Examples

Over the years of accessing public lands, I have seen many types of trespassing signs, which fall into the following categories: access, good, blazes, poor, and disingenuous.

Access Signage

These are the signs climbers like and want to see more of! Private landowners giving written permission and specific directions for access and use of their lands. Access Yes! is one such type of signage. Respect these (and all) signs to the cross of the “t” and dot of the “i.” If you can, use the contact information to convey your appreciation and thank the landowner.

Access Yes, and similar ly worded signs, give the public specific access and use directions. Photo - courtesy Kari Bohlke

Access Yes!, and similarly worded signs, give the public specific access and use directions on private land. Photo – courtesy Kari Bohlke

Written Permission

If you have permission to access private lands, the new law requires your permission to be in writing (see the previous section). Keep it with at all times to prove you are not trespassing. Consider this: photocopy your permission document and leave one copy visible on your vehicle dashboard. It is likely that someone questioning your access might investigate your vehicle before they encounter you in person.

Good Signage

Good trespass signs are placed straightforwardly, in accordance with the law, to mark private property so that you do not mistakenly venture onto it. The best signs include the owner’s name and even a phone number or other contact information. These signs are clearly intended to only keep you off of private land.

A no trespassing sign on the south side of Packer Butte.

A no trespassing sign on the south side of Packer Butte. It is clear you should not cross the fence.

Orange paint on a fence line denoting private property.

Orange paint on a fence line clearly denotes private property.

Blazes

Orange blazes on a tree could be either a trespass blaze (sign) or a USFS “leave” tree blaze. The USFS uses blue and orange blazes (other colors also) to communicate to logging contractors. Blue-blazed trees may be cut while orange-blazed trees may not. Orange blazes are also used by private property owners to mark their property boundary. Well, how can you tell the difference?

When you see a tree with an orange blaze, immediately look for “context.” Are there any trespassing signs nearby? Are there other trees with orange blazes nearby? If so, when you look at all of the blazed trees do they appear random, or do the blazed trees line up like a boundary?  If you see a linear pattern, then you likely are looking at a property boundary that you should not cross.

Orange Trespass Blaze

Orange trespass blazes on trees parallelling a trail show a private property boundary. This boundary also had several no trespassing signs. In this context, a reasonable person knows to stay on or uphill of the trail to stay on public land.

Poor or Confusing Signage

Examples of poor/confusing signs include those whose words have been obliterated with bullet holes, rusted out, have fallen to the ground, or are poorly attached and flopping about. These signs might have been placed correctly initially but have fallen into disrepair and neglect, ignored by their owners. A sign in this state can be confusing to a reasonable person.

The new law does not specifically address keeping signs in good condition. However, the requirement that signs are to be “conspicuous to a reasonable person” should encourage landowners to assure their signs are in good condition and placed properly.

Disingenuous Signage

Disingenuous signs strive to keep you off private land and to purposely confuse your decision making. Often disingenuous signs are placed next to adjoining public land.  The sign placement and orientation are chosen purposefully to deter you from both the private land and the public land you do have a right to access.

This is an example of a strategically posted sign. The land to the right of the sign is private. The road is public. However, the sign's placement implies the road is also closed to the public.

An example of a disingenuous signage. It is the land to the right of the sign that is private, but the road is public. However, the sign’s angle implies the road may also be closed to the public.

However, the law requires under section 11, 36-1603:

(b) No person shall post, sign, or indicate that any public lands within this state, not held under an exclusive control lease, are privately owned lands.

With these changes in the new law, disingenuous signage should become a thing of the past. But if you encounter disingenuous signage as part of your decision-making process to access public lands, photo-document the sign. Report these signs and provide your photos to the appropriate management agency. Ask them to work with the landowner to comply with the law.

Bottom line climbers…take the time to research and contact the appropriate people to
make sure you are getting to your destination legally.
I
daho trespass is a Class 6 Route – High exposure!

If In Doubt, Get OUT!!