Idaho's property rights law brings law enforcement changes

BOISE — The Idaho Land Board met on Tuesday to discuss timber sales in the state, the economic outlook as the fiscal year nears its end as well as the impact of legislation stemming from this year’s legislative session.

One of the key laws now impacting operations at the Idaho Department of Lands, Idaho Fish and Game and other agencies with responsibilities that intersect with private land holdings is Senate Bill 1326, the Property Rights Protection Act. 

The legislation, which became effective after its signing on March 31, was passed with the stated aim of codifying Fourth Amendment protections against governments to bar warrantless entry onto private property except under limited circumstances, with ramifications for the land management agencies in the state in particular. 

Under the bill, any government agent who enters private property without a search warrant could face a civil penalty of $1,000 for each violation an individual is able to successfully assert took place. 

Though signing the bill into law on March 31, Idaho Gov. Brad Little issued a transmittal letter stating that the bill aligned with “long-standing principles of privacy and due process sought by property owners,” but noted the change would be significant for the agencies tasked with retooling their operating procedures, including making changes to how they carried out what were previously “routine functions.” 

“Certainly, we do have a regulatory function and requirements to work with private landowners, but certainly the expectation is that we fully implement our policy to adhere to this particular statute,” Department of Lands Director Dustin Miller said. 

When the bill went before committee at the legislature, it brought a divide between property owners and the agriculture industry — both of which supported the legislation — and Idaho Fish and Game, an agency expected to face among the most significant operational impacts from the passage of the legislation. 

Little questioned Tuesday how the law will impact the Idaho Department of Lands' ability to carry out fire suppression operations as a result of the warrantless entry restrictions. Miller responded it was the department’s belief that wildfire — being an exigent circumstance and therefore an exception under the law — would be a permissible case for government employees to enter private land without a warrant. 

Idaho Fish and Game Enforcement Bureau Chief Justin Williams, representing another agency impacted by the legislation, told the Idaho Press on Thursday the changes brought by the bill and the defining of exceptions surrounding exigent circumstances "are still being worked out."

In some ways Williams said the bill would only be making explicit how IDFG already operates. A policy implemented by the department several years ago required individuals doing biological surveys or fish stocking in a river to get permission from private property owners before traversing onto their land. 

With this change already in place, Williams said the largest difference for these types of operations came from increasing the documentation around receiving that permission, both as a "safeguard" for employees (who are now subject to a fine of $1,000 per violation) and a confirmation with landowners about the activities IDFG would be engaged in while on their property.

As for IDFG’s enforcement arm, with duties to ensure compliance with hunting, fishing and trapping law, the changes will be more pronounced. Prior to the passage of the Property Rights Protection Act, IDFG officers were required to either observe hunting, fishing or trapping activity or have reliable third-party information that the activity was occurring before a check could be made. 

The officer would then be able to check whether they were at the bag limit — or the legal number of animals killed — and what type of wildfire a person had. The compliance check would only continue if the sportsman wanted to continue the conversation or a violation had to be dealt with, Williams said. 

Under the new law, facilitating these checks on private property would require either the landowner’s permission, a search warrant or “exigent circumstances” prior to doing so. Williams said the department has already made contacts with landowners across the state to receive permission for compliance checks. 

Historically, IDFG officers would have been able to check wildlife licenses, tags and bag limits or investigate reports of suspicious activity. 

This was carried out under the Supreme Court precedent of open fields doctrine; the court held that the Fourth Amendment Protections did not apply to open fields, including “pastures, wooded areas, open water, and vacant lots,” according to the Library of Congress.

While officers previously could use the legal framework to go on property and contact a person if they saw something suspicious — a threshold known as reasonable and articulable suspicion.

Now officers will need to have probable cause, where circumstances would lead a “reasonable person” to believe a crime had been committed. When this is met, only then will an officer be able to pursue a search warrant or contact the property owner for permission, Williams said. 

For exigent circumstances, another exception in which enforcement action can be pursued, the breadth of the carve-out is still being fully understood. 

“There’s going to be a degree of the officers trying to figure out, ‘is this really exigent, and can I go out there and deal with that right now and be covered under the new code?’” Williams said. “That’s going to take a little bit of time for us to calibrate.” 

Williams said at present the understanding is this could include destruction of evidence, the loss of an ability to identify a suspect or a “hot pursuit.” 

When the bill was still pending before committee, Williams emphasized the best deterrent for poaching was the chance of being caught. Following up on this Thursday, Williams said there remains a concern about officers’ ability to do compliance checks on large tracts of private land holdings.  

While this can lead to some taking advantage of the property to harvest animals unchecked, Williams noted the department already wasn’t entering these properties without reason to believe or direct observation of hunting taking place. 

"We weren't necessarily going into those places before this law was enacted,” Williams said, “but now we won't be able to go into those to those places.”