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Mark Freeman Commentary Trespass law won't have very much bite By MARK FREEMAN A new law making it easier and cheaper for landowners to post their property as "no-trespass" land creates a new and potentially expensive penalty for hunters and others who illegally hunt or fish on private property. In the end, it looks like lawyers will be the only ones to benefit significantly from the new law. At least, for now. Beginning Oct. 23, Oregon landowners can forgo buying stacks of "No Trespassing" signs for their property lines and instead mark rocks, trees and fence posts with large blotches of fluorescent orange paint. The new law is modeled after a similar one in Montana, which makes violation a crime subject to criminal convictions and penalties. But the version adopted this summer by the Oregon Legislature waters it down to where its effects are dramatically different. Under the Oregon version, crossing a fence lined with blaze-orange blotches is not a crime. Instead, violators may face civil suits filed by landowners in small claims court, with the possible penalty of a civil judgment of up to $1,000. "It doesn't do anything for criminal trespass," says Capt. Lindsay Ball, who heads the Oregon State Police's Fish and Wildlife Division, which handles most hunter trespass cases. "It provides landowners with another tool to dissuade people from trespass," Ball says. "It's something they didn't have before." So, instead of a trespasser standing before a judge and paying your $100 fine, you have a different scenario: The landowner hires an attorney; the attorney files a civil suit against the trespasser; the trespasser gets an attorney; and the trespasser, the landowner and their two attorneys all hack it out in small claims court. Regardless of who wins, only two of those four people make money. "The attorneys are going to get paid on both sides now," Ball says. That was not the original intent of House Bill 2801, which has become known as "the beloved fence-post bill," says its author, Rep. Jason Atkinson, R-Jacksonville. Atkinson's original bill was designed to make it less expensive for landowners to post their property. Instead of placing $3 "No Trespassing" signs along their property, the change would instead allow landowners to use 8-by-11 inch blotches of fluorescent orange paint on trees or rocks, or to paint the top six inches of a fence post. Atkinson's original bill called for violators to be subject to a third-degree trespassing violation, subject to fines of up to $1,000. After the bill passed the Oregon House, it was sent to the Senate Judiciary Committee, which took out the criminal language and replaced it with civil proceedings. The changes passed both the House and Senate. The bill was signed by Gov. John Kitzhaber. After the required waiting period, the law becomes enforceable Oct. 23. But the change from criminal to civil penalties has amounted to major dental work to the bill's teeth. To make a violation stick, police and prosecutors must prove that violators intentionally have trespassed. Historically, walking past a "No Trespassing" sign helped prove that intent. But crossing a fence with orange posts doesn't carry that same weight yet. The new law's decree is not as universally understood as a bright orange-and-black "No Trespassing" sign. A violator could simply say that he did not know what orange fence posts mean -- even if he's lying -- and that could be enough to stiff-arm a criminal trespass conviction. And what if he's colorblind? How can a prosecutor convict a guy on the claim that he intentionally bypassed a fence painted with a color he can't see? When it comes to criminal prosecution, the Fence Post Bill simply doesn't count. "It doesn't affect us, one way or another, in what we're doing in criminal law in this area," Jackson County District Attorney Mark Huddleston says. So, if your property is marked only with orange fence posts and you catch someone trespassing, don't expect the OSP to cite him. Don't expect Huddleston's office to prosecute him. And don't expect a judge to convict him. "We'll respond to a trespass complaint, but we can't cite anyone into court under (the law)," Ball says. "The parameters of criminal trespass may not exist." Atkinson acknowledges that the new law does not yet make a dent prosecuting hunting and fishing trespassers. "Without the fence post bill, that's all you have now anyway," Atkinson says. "But there are some new, good things the bill adds." The new law can become a useful tool for landowners in two ways. First, threatening a trespasser with a $1,000 civil suit may be enough to get him to leave without landowners having to wait for police. Second, a rich landowner could target a habitual trespasser by filing a civil suit just to make a point -- and suck up the attorneys fees as worth the cost and effort. The more likely scenario is that landowners will keep buying the $3 "No Trespassing" signs to keep the criminal trespass option viable, and paint their posts on the off chance a trespasser irritates them enough to file a civil suit. Atkinson says the new law is a first step. Like with other acceptable symbols like "No Smoking" signs, it will take some public education for hunters and anglers to understand the symbolism of orange-painted fence posts, Atkinson says. Once they do, the Oregon Legislature can add to the law by making violations of painted fence posts a crime. "I'm about halfway to where I want to be on this," Atkinson says. (Staff writer Mark Freeman covers the outdoors for the Mail Tribune. Call him at 776-4470, or e-mail him at: [email protected] ) Outdoor Journal main page Mail Tribune Copyright � The Mail Tribune 1999, Medford, Oregon USA