Ralph Maughan

Ralph Maughan

Last Sunday I read the column in the Journal by Martin Hackworth, executive director of Sharetrails.Org. He wrote he’s stepping down, retiring from his position.

Sharetrails.org advocates for off highway vehicle users (OHVs). Before the group was Sharetrails, it was named the Blue Ribbon Coalition. I don’t know details of the name change, but I have been pleased with the new attitude of Sharetrails in working to keep our heritage of public lands in public hands.

I recall the old Blue Ribbon Coalition as being entirely devoted to how public land would be managed regarding vehicles, and not seeming to care that the public lands themselves were under constant threat of abolishment.

This is especially important now when our United States public lands — (61 per cent of Idaho) is threatened by privatizers. In addition to these privatizers, there has also been a growth in the activity of private land fundamentalists who have no concern in any way about their effect on we average outdoors enthusiasts.

The privatizers want to grab public lands in one way or another. They have various purposes in mind. I won’t list their motives except that for some of them privatization is not just for themselves. I think they want to keep common people from traveling around, and one place they’ve already started is with land that is already private. These people now have a new Idaho trespassing law to accomplish their objectives.

Of course, among the public there’s near total agreement that private property in land — real property — should be respected, and any who improperly enter it and refuse to leave, and especially those who harm it, are guilty of trespass and should be made to leave and/or pay damages.

Sadly, some landowners must bear a lot of damage because of not enough local law enforcement or other reasons. Some people illegally cut private trees, divert waters, trash farm equipment, build trails or make deep ruts in the land, and they get away with it.

On the other hand, people get lost, they might need help, some get confused, they might not know a property has been closed due to poor signing, poor maps, and the like. House Ag committee chair Judy Boyle is wrong when she thinks almost everyone carries an app nowadays that shows their location and nearby property ownership.

We need smart laws on trespass that protect everyone, but the new Idaho trespass law takes rights from the average person and gives them to a much smaller group of rural (mostly large) landowners. It tries to achieve its goals with harder penalties, when consistent enforcement with penalties that are lighter will get more public cooperation. The new law assumes the worst, and so, Idaho’s new trespassing law makes it easy for you to stumble into a big fine or even a felony.

It is also a no excuses law. In effect you must prove your innocence. The way it’s worded, you are not innocent until proven guilty. You are guilty from the start — guilty even if you didn’t know it was private land, or if you were lost, needed help, couldn’t find the property corners and thought you were legal. The new law increases penalties but reduces the amount of no trespass signing required. It is not the American way.

This law was drafted exclusively by a coalition of agricultural interest groups with no input from townspeople, and certainly not from city folks.

Not part of the ag coalition, but often reported by the state media, were at least several billionaires who had plenty of behind-the-scenes say.

Near the beginning of the new law it reads “(6) It is the intent of the Legislature in passing this act to cultivate a new culture of respect for private property rights and a renewal of the neighborly ways that have been a hallmark of our state.” Then follows twenty pages of hostile text telling the many ways you can be ordered about, fined, directed to pay court and attorney fees, assessed treble damages, get thrown in jail, and so on. “Respect for private property rights and neighborly ways . . .?” It’s more like bow down to the landed gentry.

The real idea behind it is that if you were not born to “a spread” or haven’t been able to buy a large tract of Idaho range or forestland, you should stay in town or on paved, numbered highways.

Now I am not saying this is the idea or attitude of all or most owners of large rural land, but it is the attitude of the groups in the powerful coalition that pushed the new law through.

I know members of Sharetrails, members of conservation groups, hunters and fishers, and backpackers are usually intrepid people who don’t want to be kept on the sidewalk and want to reach their public lands legally whether the public lands are county, state or federal. With a law like this one who wants to venture down an unmarked gravel, dirt, or two-track road passing through what is at least partly private land, so you can get to your public land, like the national forest boundary?

The new law lists elaborate written permission required to enter private land. Such a permit would be time consuming and not likely to be given. Who would want to go to the trouble on either side, even well ahead of time? Here in Pocatello, maybe I should have all the neighborhood children sign “permission to trespass” documents in case they step on my lawn? Of course not, but then that underscores how this is a law for large rural landowners.

Once you are out in a rural or rangeland location, doing the right thing —asking for permission or directions — might put you on unfriendly private property or even target you. If you approach on foot, it might be especially dangerous, but this is exactly what can happen if the road ends just before the public land boundary.

Are you injured or have been a victim of a crime seeking help? The law doesn’t care.

Idaho sportsmen fought hard to kill this bill. I don’t know about Sharetrail’s efforts and other vehicle groups, nor did I see much from conservation groups except the Idaho Wildlife Federation.

All these groups need to work together on this kind of thing and other kinds of groups need to be pulled in.

As for the political parties, all the Democrats in the state opposed the new trespass bill. Some Republicans opposed it too. Locally in districts 28 and 29, Democrats Mark Nye and Elaine Smith of Pocatello opposed the trespass bill. So did Pocatello Republican Dustin Manwaring and Republican Randy Armstrong of Inkom. Unfortunately, Republicans Jim Guthrie and Kelley Packer of McCammon voted with the majority for it. Packer is now running for higher office — Lt. Governor. Senator Jim Guthrie is a rancher, perhaps the main occupation of those behind the new law.

Despite the two local Republican state representatives against it, Republican votes overall were plenty to push the bill through. Governor Otter did not sign the bill into law, but it became law anyway without his signature after 5 days.

This is not legislation for many us. It’s for a small minority longing for a time when there were fewer economic, cultural and political interests that affected land. Thinking we can go back to the 1950s when Idaho land interests were few is just a dream, and a bad dream for most of us.

The United States has been a leader in protecting public lands, but that it is changing. The United States has not been a leader in putting together the protection of private property rights and the interests or concerns of those affected by strident, rigid trespassing law.

Don’t get me wrong, there has been an effort to allow private land to work for conservation by the purchase or donation of conservation easements on private land. These limit the kind of development that can take place, but usually don’t do much for access although there are sometimes easements for trails and roads.

Many countries in Europe have long enjoyed or have developed the concept of the “right to roam.” According to the Wikipedia, “in Scotland, the Nordic countries of Finland, Iceland, Norway and Sweden, the Baltic countries of Estonia, Latvia and Lithuania and the Central European countries of Austria, Czech Republic and Switzerland,” the freedom to roam took the form of an obvious public right. It is a concept so basic it was not written in law until recently.

Development and crowding have made writing down the details of the right to roam necessary. In Scotland, for example, the Scottish Outdoors Access Code clearly states that you have a right to be on land for recreational, educational and certain other purposes and a right to cross land. That includes private lands, and, of course, there are responsibilities as well as rights and an effort to harmonize private land rights and the rights to walk, to cycle, ride a horse and wild camping.

In Scandinavia the right is called “the everyman’s right.” It provides broader access still. Perhaps it is because Scandinavia did not have a feudal tradition, but England and Scotland did.

The Western United States did not have a feudal tradition either, and I think we need to enact some kind of right to roam law, or are we willing to act like feudal peasants with no rights to move around? Peasantry is not the image Idahoans have of themselves.

I think there is great support for moving from the bad position the legislature left us in, but the many of us need some group or person to help us organize.

Dr. Ralph Maughan of Pocatello is professor emeritus of political science at Idaho State University. He retired after teaching there for 36 years, specializing in voting, public opinion and natural resource politics. He has written three outdoor guides, including “Hiking Idaho” with his wife Jackie Johnson Maughan. He is currently president of the Western Watersheds Project.