Lawmakers eye stricter trespass laws at agriculture’s request

GILLETTE — A legislative committee will consider a bill that would subject a person to criminal trespass charges even when that person was unaware he or she was on private property.

The Joint Judiciary Committee voted to consider a proposal brought by representatives of the farming and ranching industry that would remove the word “knowing” from the current statute for criminal trespass.

Law enforcement officials including a sheriff from Sheridan County and a prosecutor from Uinta County told lawmakers the change would make it easier for them to prosecute trespassers by removing the requirement to prove intent. The change also would remove the necessity for landowners to post private-property signs or otherwise mark their property if they want to see a trespasser prosecuted.  Fences do not count as a private property marker in Wyoming, according to a Legislative Service Office attorney who addressed the committee Tuesday.

Wyoming law includes both criminal trespass and civil trespass laws that would allow a landowner to sue. Today, criminal trespass is a misdemeanor punishable by up to six months in prison and a $750 fine. The draft bill ordered on Wednesday would up the fine to $1,000. 

The onus not to trespass can be shifted further to the public because better and more available GPS and mapping technologies today allow users to know whether they’re on private or public lands, said Jim Magagna, Wyoming Stock Growers Association vice president. That change, coupled with an increase in outdoor recreation in Wyoming, spurred the discussion among agriculturalists to change the law, he told lawmakers.

The increase in recreation has sparked more trespassing, he said. “Particularly [by] people who are not native to this area and don’t understand land-ownership patterns,” he said. “It’s very easy for people to assume that so many of these wide-open spaces are public lands.”  

Agricultural groups hope the change would make it “more attractive” for county prosecutors to pursue trespass cases, Magagna said. Many landowners feel law enforcement is reluctant to do so today, he told the committee.   

The law change would include a protection for those who are led astray by maps or phones. An accused trespasser who ends up on private land even after “reasonable use” of GPS or a land status map could invoke that use as a defense against the charge.

The committee embraced the change proposed by agriculturalists. Only Rep. Charles Pelkey (D-Laramie) voted against the motion to have a bill drafted while the other 13 members supported the action. The bill would give too much discretion to police and prosecutors to pursue trespassers who may have merely made a mistake, Pelkey said in a phone interview Wednesday.

“Right now there has to be an intent element to criminal trespass,” said Pelkey, who is a defense attorney. “You have to knowingly enter a property knowing it’s private property and knowing you have no right to be there.” The change, “virtually eliminates the intent element,” and would make trespassing as easy to prosecute as speeding, Pelkey said.

“A lot of the private property out there is not marked,” he said.

The Powder River Basin Resource Council landowners’ group also supported the bill, with a representative saying it would help some of its members push back against oil-and-gas industry surveyors and employees who stray, deliberately or not, onto property where companies don’t have the right to operate.

But the suggestion brought by bill proponents — of landowners besieged by rule breakers and clueless outdoor recreationists and unable to see laws enforced — sparked one member of the public to say he’d like to see a matching law change for public land users’ benefit.

Chad Trebby works for the Gillette College Police Department, but spoke to lawmakers not in his official role but as “a private citizen and sportsman,” he said. The judiciary committee meeting was held on that campus.

“I agree that the proposed legislation does strengthen landowners’ rights and … I’m all in favor of that,” Trebby said. “But as a sportsman I think there is some other landowner rights that needs to be considered… and that is public landowner rights.”

While hunting, Trebby uses current GPS technologies and maps to stay off private property, he told lawmakers. But he’s run into efforts by landowners to block his access to public lands, he said. He’s seen fence lines well off private property lines marked with no-trespassing signs and blocking valuable hunting grounds, he said. He’s had confrontations with landowners who attempted to run him off public lands, claiming it as their own when he knew better, Trebby said.

Trebby suggested if the committee is going to make it easier to prosecute the public for trespassing it also should consider accountability for landowners who block access to public lands.

“As we look at revisiting our trespass issues, maybe it would be appropriate to consider something to the effect of interfering with public land access as an inverse response to trespassing [penalties],” he said.

Lawmakers did not act on his suggestion, with several suggesting it was not relevant to the laws being discussed.

But legislators didn’t dismiss the idea completely. “It might be something worth looking into to see what the existing statutes say along those lines, said Sen. Brian Boner (R), a Douglas rancher.

Topic had raised questions

After several contentious legal and political fights over trespass laws in recent years, legislative observers had anticipated this discussion with interest. Some conservationists and civil-rights advocates were concerned energy interests might use the topic to revive controversial legislation to criminalize energy protests, an effort that has failed several times. Though energy industry representatives were in the room, they made no move in that direction.

The proposed change also follows a federal court decision that last fall struck down as unconstitutional a portion of Wyoming’s “data trespass” laws that made people vulnerable to increased penalties if they crossed private lands to reach public lands for data collection — a range of activities that included everything from taking water samples to photographs.

WyoFile reporter Angus M. Thuermer Jr. was a witness in that lawsuit for an attorney for the National Press Photographers Association. He testified that the complex mosaic of public and private lands in Wyoming, incomplete filing of easements, and public roads that may deviate from those easements made for a high likelihood of inadvertently crossing a boundary. As such the threat of enhanced penalties for doing so had a chilling effect on his deadline-driven work as a news photographer.

District Court of Wyoming Judge Scott Skavdahl ruled that piece of the law brought a chilling effect on free speech. He wrote that the “intertwined nature of public and private lands in Wyoming” means some parties won’t exercise their constitutional rights to photograph, research and write out of fear of inadvertently trespassing.

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Under former Gov. Matt Mead, the Wyoming Attorney General’s office chose not to appeal Skavdahl’s ruling. In a brief interview in Gillette, Magagna said he did not anticipate further court action or efforts to revive that section of the data trespass statutes. “That’s gone,” as far as he was concerned, Magagna said.

In his ruling, Skavdahl suggested landowners could better protect their private property without treading on constitutional rights. “The government has not proven a strengthening of the state’s trespass laws would not accomplish the same goals without infringing on protected speech,” Skavdahl wrote.