A no-trespassing sign indicating private property beyond. (Rutebega/Wiki Media Commons)

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.

Lawmakers on the Joint Judiciary Committee listen to public comments in a room at the community college campus in Gillette. (Andrew Graham/WyoFile)

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.

Andrew Graham

Andrew Graham is reporting for WyoFile from Laramie. He covers state government, energy and the economy. Reach him at 443-848-8756 or at andrew@wyofile.com, follow him @AndrewGraham88

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  1. I am just a regular human being. The federal government made a law back in the 1800s concerning this very subject of accessing public land. Everyone seems to be ignoring it in all these court cases. The law specifically states that everyone has right to access all public lands, even if it means crossing private land without giving permission. Of course, this law also states that the person crossing private lands cannot do anything on that private land without the landowners permission. In the supreme court case of Leo Sheep Company vs the United States in 1979, the supreme court stated clearly that the only reason that the case was won by the Leo Sheep Company was because the government did not pay fair compensation. In this same case, the supreme court stated clearly that the federal government had the right of eminent domain and could take the property corners to allow public access-they just should pay fair compensation. This case was the start of the great frenzy of everyone saying that it was illegal to corner cross, and that is where we are today. Why does everyone ignore the federal law, which trumps all state laws regarding public land? If everyone, especially politicians and private landowners, would just follow the federal law regarding federal lands that trumps all other laws regarding federal lands, the issue had already been answered. But alas, the lawyers try to constantly say that private property rights are the supreme law, and are always trying to make the area more gray as to clarity. By the way, I have read everything about the subject, and I am absolutely correct about what I said. The federal law is easy to find, and the supreme court case is easy to find. The absolute law does trump any and all court cases that may conflict. A court case can never overturn or twist a law; a court case can only confirm and verify an existing law, as did the supreme court did in the Leo Sheep Company case in Wyoming. Food for thought: lets get the federal government to uphold their own law and require all states to change their laws concerning access to public land. For the states are supposed to support and follow the federal laws and make their state laws that follow the direction of the federal laws. Thanks for listening.

  2. The issue of access to public lands via private lands needs to be addressed. If you look at land for sale, adjoining public lands are listed as if they are part of the land for sale. This is presumptuous. The ranching and ag community need to make some concessions to access in return for the priviledge of grazing permits on adjoining public lands.

  3. Simply put, Wyoming and 13 other states are ” Fence Out States “. This legal notion is installed at bedrock in state law. It states that if you do not want an animal or person on your property, you have to actually ” fence” them out. Doesn’t mean you need to install a physical fence; it means you define your property somehow and say so.

    Do we not recall the many instances where a cow or horse wanders onto your property, and somehow it is your fault , not the owner of the errant animal ? Fence Out was created by ranchers , for ranchers. It basically gives their private property and land and more importantly their domestic livestock ( also property ) more rights than citizens, and fewer responsibilities mandated to manage their ” property”. In cases of trespass, Cows have more rights than People in Wyoming, and this proposed law would make that situation worse.

    The Ag community lobby , by way of the Stockgrowers, are trying to have it both ways. They want to retain their decided advantage under Fence Out law and still thrust more onus onto the rest of us for alleged trespasses. personally, I think the greater part of this perceived problem is imaginary. Having said that, the expectation that citizens now have GPS capability to better inform them of legal location , and thus have no defensible excuse for not knowing they are on somebody’s place …. well, that is preposterous. It makes two huge presumptions: that GPS works , and the data in the land use mapping is 100 percent accurate to six decimal places like my Magellan GPS handheld. Except neither of those presumptions is solid, therefore not tenable. E. G . the GPS feature in my Nikon DSLR cameras has been known to be off by more than 500 meters. We’ve all heard the stories about GPS units sending people off into the boondocks and beyond , and the Sheriff has to form a search party. Allowing the Wyoming Stockgrowers to decree that nevertheless we must all use GPS as a legal defense going forward in order to protect THEIR cows and land etc. would be uproariously laughable were it not of serious consequence. What is really behind this initiative is ranchers trying to bully environmentalists and anyone else they don’t like.

    Fence Out with exisiting trespass statutes already gives ranchers and other property holders all the protection they need. What is proposed here is Reverse Democracy : special interest legislation to benefit a relatively few by burdening the vast majority, by fiat.

    Maybe we should talk instead about repealing Fence Out law and demand ranchers be responsible for the property and especially their livestock 24/7/365 like the expectation of the rest of us. Field test that cattle baron , “Sir in the Stetson, do you know where every one of your cows is at this moment in space and time ? ” Stockgrowers can’t be allowed to put the entirety of the legal burden of both absolute cartographic compliance and Fence Out onto citizens at the same time in the same place, without upholding their own obligations to the extent possible and reasonable to demarcate their spread and further proactively enforce their own boundaries from their side of the property line.

    Fence out, or Citizen cartography compliance. Pick one.

    ——-
    Opinion: This proposal to ratchet up trespass laws is just an offshoot of the so-called Ag Gag law lobby , which is vena democracy . It reminds me of the year that a big sheep rancher from Shoshoni who happened to be a powerful State House legislator tried to pass an omnibus piece of pro-Ag social legislation. . Frank Philp was a Wyoming Ag Hall of Famer , and he was dead serious when he proposed a bill to make the verbal or written disparagement of anything agricultural a serious crime. High midemeanor ? Yup. We would all become criminals for standing on a street corner and yelling { insert colloquial term for male bovine excrement here ] out loud. He really thought Wyoming ag needed that level of protection. It did not and never has. This trespass bill is no better.

    Philp’s Ag Disparagement bill reflected a belief in the stockgrower cabal that we have a lot of Sacred Cows in Wyoming. Some of them are actually cattle …

  4. As usual, the legislature backs subsidized livestock farmers, who contribute a pittance to the national meat supply. When will Wyoming grow up? The era of the cowboy (mostly myth to cover the fact that cowboys were essentially low-paid slaves of wealthy landowners) ended long ago.

    The legislature should make them fence IN their stock rather than making others fence them OUT, too, which is a huge subsidy for stock owners. As well, if stock are on a public roadway, the stock owner should be the one responsible for damages if someone crashes into one of their beasts.

  5. As I remember, two or three decades ago, some legislator brought up a bill making it illegal to put no trespassing signs on BLM leased and other public lands. In the papers, all the legislators agreed that the bill made sense. When it came up to vote, the only vote it got was from the person who proposed it.
    This state is run by ranchers and extraction industries. In the above article, Chad Trebby has a good point. The public land owners need more rights.

  6. Private landowners private lands bordering any public lands should be clearly marked by landowner defining their private property. Boundary

  7. Not everyone can afford a gps and all the landowner changes every year ..These ranchers that block off public land should be prosecuted as well for land theft., and as far as leased land stands i believe these lands do not belong to the rancher cause they have grazzing rights , They should be opened up for hunting etc ..cause the rancher is actually just renting it so his cattle can graze there , which should not be marked as private property ..

  8. Somebody please take Magagna to the woodshed to ” inform” him that the Wyoming Stockgrowers no longer run this State. Then show him a calendar… the part where it says it is currently the year 2019 , not 1892.