MT Civil Trespass Bill

RobG · Feb 28, 2013

Eric Moore's bill SB 299 to create a civil penalty for trespass <click here> passed the Senate 27-23 and will move onto the House soon. It would bypass the criminal trespass law.

I'm not good at reading laws, but I think the way this works is the landowner can collect not less than $1500 from you if he catches you on his land. Since it is a civil case the burden of proof is small. In fact, a photograph is "prima facie" evidence (sufficient proof).

Don't you think that in the age of photoshop this is ripe for abuse? It seems like we need corroboration source such as footprints, etc witnessed by a law enforcement agent. Otherwise folks like Kennedy are going to be transferring us fishermen from being below the high mark to above the mark, and we aren't going to have the resources to prove the photo has been shopped. Hunters obviously face the same problem.

Also, a photograph cannot necessarily prove that you entered the property "knowingly," which is a requirement of the first part of the law. How can this be an enforceable law?

What is the plan with this one? Maybe the best way to get this killed is to photoshop our favorite Senators and Reps or maybe Don Peay on our private land?

RockyDog · Feb 28, 2013

wow getting it from every angle in the legislature this year, bend over again average montanans!!!

ginkgo72 · Feb 28, 2013

Montana politics is sounding a lot like California lately

shoots-straight · Feb 28, 2013

It's another attach on sportsman. Pieces of private that aren't marked well, only need trail cameras set up. Can you imagine a kid screws up, walks past a camera, then has to pay a fine of $1500. I think this will have a negative effect on youth hunters as well as the OYO types.

Houndsmen will have a big problem if this makes law.

shoots-straight · Feb 28, 2013

What is the plan with this one? Maybe the best way to get this killed is to photoshop our favorite Senators and Reps or maybe Don Peay on our private land?

The plan is to get enough people off their butts and over to Helena to testify against this when it gets scheduled in the House committee.

SB 341also passed through the Senate yesterday. It will virtually end transplanting, or augmenting sheep or any other big game in Montana in the future.

FishN4Eyes · Feb 28, 2013

I guess I can't see how this is an attack on sportsmen.

If it's private, you shouldn't be on it without permission whether it's marked or not and shouldn't we all always know where we are?

I would agree that penalty is pretty severe but as a landowner, my family has had some pretty egregious trespass incidents that I would have been happy to apply some sort of civil penalty.

One guy shot SEVEN elk with a .223 and left them lay. Obviously that is one extreme but I would have been more than happy to slap a civil penalty on his ass.

Looks like the bill could use some tweaking but trespass penalties are fairly minor as it stands now.

Bowhuntrben · Feb 28, 2013

I'm not sure what the law is in Montana about responsibility of the landowner to mark their property, but being a landowner in MN, I feel that if you want people to stay off your property, the landowner should have the responsibility of marking their property appropriately with a fence at minimum. If somebody is on public adjacent to private, at least they would know to expect a fence of some sort to help them.
We maintain our fence, and we are only adjacent to other private property where people should know their boundaries. If I were adjacent to public ground, I would want to do it even more. I spend a lot of time on public land too, and I really appreciate it when a good fence is in place because I don't want to trespass if I can help it.
If the landowner does have their land marked well, I can see the landowner wanting a civil penalty, but I agree that this could easily be abused. There are certain cases where it could be reasonable that the person is on the private property.

MTELK · Feb 28, 2013

So if I take a picture of a guy walking across my front lawn he gets nailed for $1500?

RobG · Feb 28, 2013

FishN4Eyes said:
I guess I can't see how this is an attack on sportsmen.

If it's private, you shouldn't be on it without permission whether it's marked or not and shouldn't we all always know where we are?

I would agree that penalty is pretty severe but as a landowner, my family has had some pretty egregious trespass incidents that I would have been happy to apply some sort of civil penalty.

One guy shot SEVEN elk with a .223 and left them lay. Obviously that is one extreme but I would have been more than happy to slap a civil penalty on his ass.

Looks like the bill could use some tweaking but trespass penalties are fairly minor as it stands now.

I believe the existing criminal trespass laws has got you covered. IMO the problem with this civil trespass is the lack of proof required that you were there "knowingly." In your case I think the correct approach would be a picture as part of the overall evidence, but they'd have to match the bullet or find some other corroborating evidence. This is especially important in the day of photoshop.

Can someone confirm that the landowner would get the $1500?

mdunc8 · Feb 28, 2013

I agree that it's probably an attack on hunters, but it doesn't appear to change the trespass law. If it's not posted, you can access the property as long you're not hunting or fishing or accessing adjacent property to hunt or fish. So to answer your question MTELK, if you have your front yard posted, yes, you would be able to collect $1500. You would not be able to if it was not posted.

mdunc8 · Feb 28, 2013

RobG said:
Can someone confirm that the landowner would get the $1500?

The bill says that the person knowingly trespassing "is liable to the owner for a civil penalty of not less than $1,500".

Rat Fink · Feb 28, 2013

My understanding is that this is mostly an effort to discourage and even try to backdoor corner crossing. The landowners feel that by making the penalty steep enough it will discourage people form "testing the waters" on corner crossing and be one more tool in the fight to keep the legality of corner crossing suppressed.

Can anyone that is more involved than me lend any merit to this? It's what I have heard while frequenting some lunch spots I usually see legislators in.

Jwill · Feb 28, 2013

We (VA) had a couple wading fishermen sued in civil court for trespass on navigable waterway, that landowner claimed ownership of the bottom of the stream. The defendants asked the state to join as a party due to the public trust, but they declined, anglers lost. What I'm saying is make sure this doesn't undercut your stream access laws.

RobG · Feb 28, 2013

Rat Fink said:
My understanding is that this is mostly an effort to discourage and even try to backdoor corner crossing. The landowners feel that by making the penalty steep enough it will discourage people form "testing the waters" on corner crossing and be one more tool in the fight to keep the legality of corner crossing suppressed.

Can anyone that is more involved than me lend any merit to this? It's what I have heard while frequenting some lunch spots I usually see legislators in.

Maybe, but Moore appears to have requested a draft in December before anyone knew about the corner crossing bill (look at the link in my first post). It was on hold until after the CC bill was introduced so it probably provided the impetus to resurrect it.

mdunc8 · Feb 28, 2013

Jwill said:
that landowner claimed ownership of the bottom of the stream.

as well as the fish

1_pointer · Feb 28, 2013

Bowhuntrben said:
I'm not sure what the law is in Montana about responsibility of the landowner to mark their property, but being a landowner in MN, I feel that if you want people to stay off your property, the landowner should have the responsibility of marking their property appropriately with a fence at minimum. If somebody is on public adjacent to private, at least they would know to expect a fence of some sort to help them.
We maintain our fence, and we are only adjacent to other private property where people should know their boundaries. If I were adjacent to public ground, I would want to do it even more. I spend a lot of time on public land too, and I really appreciate it when a good fence is in place because I don't want to trespass if I can help it.
If the landowner does have their land marked well, I can see the landowner wanting a civil penalty, but I agree that this could easily be abused. There are certain cases where it could be reasonable that the person is on the private property.

I sorta, kinda agree with you. Yes, I think you should mark your property, but I don't think that it should have to be a fence. IMO/E, signs or fence posts are more and should be more than sufficient. My land borders public and we just mark it with signs. Haven't had any problems yet, but this piece of public is a long walk from the access point...unless I or my neighbors like you!

One thing this law, due to the $$ amount of the penalty, could bring to light is the location of fences on a private/public boundary. IME, they are often NOT on the line. IJust by using the fence as a reference could make you liable for a $1500 surcharge...

RobG · Feb 28, 2013

In Montana you are required to post your land if you don't want people there (except you don't have to post for hunting). The bill references that posting as part of being on that land "knowingly." However we all know that these signs can be easy to miss if there is no fence, and for $1500 it may be profitable to take them down on busy weekends.

MTbowhunter84 · Feb 28, 2013

This is just an enhancement to the current criminal trespass code. When hunting and fishing most likely if you are caught on private property it would be written as hunting or fishing without landowner permission. To get the civil added I'm guessing it would have to be proved you had been warned or that you purposely or knowingly trespassed.

RobG · Feb 28, 2013

MTbowhunter84 said:
This is just an enhancement to the current criminal trespass code. When hunting and fishing most likely if you are caught on private property it would be written as hunting or fishing without landowner permission. To get the civil added I'm guessing it would have to be proved you had been warned or that you purposely or knowingly trespassed.

NO! NO! NO! That is the problem with the bill. As I read it a simple photograph (which can be faked) is considered "prima facie" (sufficient) evidence unless you can prove otherwise (guilty unless proven otherwise).

MTbowhunter84 · Feb 28, 2013

Correct I understand that but to be charged with criminal trespass to property you have to show the defendant purposely or knowingly remained on the property. If this can't be proved then there is no charge of criminal trespass. If there is a picture it doesn't mean the individual was purposely trespassing.

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