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SUN VALLEY, Idaho — While many agriculture groups in Idaho supported a new stiffer trespass law passed by the Legislature this spring, it could have unintended consequences for irrigation district employees.
Proponents of the controversial legislation argued that Idaho’s trespass laws were a “mess,” Kent Fletcher, an attorney who represents three irrigation districts, said during the Idaho Water Users water law conference on Monday.
They contended the laws lacked protection for property owners and were confusing and inconsistently applied, he said.
But the new law comes with increased penalties and adds felony trespass for a third offense to the books and could prove detrimental to irrigation district employees engaging in day-to-day practices, he said.
The concern lies in the new definition of trespass: “any person who enters or remains upon the real property of another person without permission.”
Trespass used to be just remaining on property when told to leave. Now entering property is also trespass under the law, he said.
It used to be that a person was told to get off of property and given a warning not to return. Now just being on property is assumed to be trespass, he said.
It’s a common practice for irrigation district employees to cut across property to reach a headgate, not necessarily staying within the district’s easement. Sometimes that came with an objection from the landowner, with landowners wanting to press trespass charges, he said. But sheriffs and prosecutors were reluctant to pursue the charge, given no damages and the relatively innocent behavior.
With the new law, it will be more difficult to ignore these types of complaints by landowners, and the employee — who typically doesn’t make a lot of money — is going to be the one charged, he said.
“If a landowner gets upset with an irrigation entity, he will use trespass as a weapon against the irrigation district. They’ll use a trespass charge not because there’s damage” but because they have an issue with the district, he said.
“My concern is that under the law, it makes it much easier to sue employees for trespass and makes it more costly to them if they’re convicted criminally or become liable in a criminal lawsuit,” he said.
It’s not trespass to enter or stay as long as you have right to use the easement and the easement is being used for its designated purpose, he said.
He suggests irrigation districts review their easements and educate their employees. An easement is not going to protect employees if they’re walking down a canal bank to go fishing or get to their house, he said.
The law also has implications for water users who walk up a canal bank to change a headgate. Even if their irrigation district has an easement, the water user is not the owner or operator of that entity that holds the easement, he said.
“It’s easy to see all the horrible things that could happen,” he said.
Maybe they don’t happen, it’ll depend on how the law is handled, he said.