Bill description: HB 658 would consolidate and reform Idaho’s civil and criminal trespass statutes.

Rating: +1

Analyst's Note: The Senate Amendments to HB 658 resolved many of the contentious issues with the legislation. First, HB 658 now allows for a landowner to grant oral permission for an individual to gain access to their property. Second, the legislation makes it an infraction for an individual who unknowingly commits first-time criminal trespass that causes no damage, if the trespasser willingly leaves the property upon request. Third, the bill allows the prevailing party to assess attorney fees and investigation costs on the other party in a dispute. The attorney fees would have to be deemed reasonable by the court.

Does it violate the spirit or the letter of either the US Constitution or the Idaho Constitution? Conversely, does it restore or uphold the protections guaranteed in US Constitution or the Idaho Constitution? 


Idaho currently has convoluted trespass statutes that are burdensome to property-owners. Further, the penalties for trespass are confusing to all. Moreover, permission to enter private property is not clearly defined.

HB 658 would shift the onus of distinguishing private property from the property-owner to the visitor, but not unreasonably so. At present, Idaho law requires that the property-owner place “‘No Trespassing” signs or other notices of like meaning, spaced at intervals of not less than one (1) notice per six hundred sixty (660) feet along such real property.”

This requirement of the property-owner would be struck for both criminal and civil trespass under HB 658 and, in its place, an owner could signify that the land is privately owned in a myriad of ways. Per HB 658, property with one or more of the following characteristics would be considered private:

(i) The property is reasonably associated with a residence or place of business;

(ii) The property is cultivated;

(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.

By removing the requirement that property-owners bear the responsibility for posting notice across their entire property, in a manner that is not always consistent with the use and topography of private land in Idaho, HB 658 would further guarantee the rights of private property owners that are a cornerstone of both the US and Idaho Constitutions.

(+1)

This analysis reflects the Senate amendments to the bill on 3/20.