A Look at Trespass
One important issue came up during the debate, research, and consideration of the Seattle/King County BOH proposal to tax on site sewer systems, or septic systems. The first question to ask when a government agency attempts a rule-making is “under what authority”. CAPR asked that question and researched the answer. While all citizens were annoyed at yet another tax that would not benefit them, (remember taxation with representation), they were incensed at the notion that this agency may require the owner of an OSS to: (b) Provide dedicated easements for inspections, maintenance, and potential future expansion of the OSS. WAC 246-272-0015 http://app.leg.wa.gov/wac/default.aspx?cite=246-272A-0015 A major flaw in the rule-making of the BOH was the attempt to make a rule based on this WAC without addressing all of the components of the WAC. We at CAPR believe this is wrong and cannot be done. We are concerned with the BOH and King County’s tendency to address law in a haphazard fashion and without concern for the rule of law or the property rights of citizens. This has prompted more research and that research will fuel the fight we will take to the legislature, both to address the authority of the WAC, and the over reach in mandating dedicated easements.
One fundamental attribute of property ownership is the right to exclude others from the property. This is commonly thought of as the right to prevent trespass. Two very astute property rights advocates researched this issue in Washington State. Certainly, our State Constitution provides protection from trespass. ARTICLE I DECLARATION OF RIGHTS Article I Section 1 SECTION 1 POLITICAL POWER. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.
Article I Section 3 SECTION 3 PERSONAL RIGHTS. No person shall be deprived of life, liberty, or property, without due process of law.
Article I Section 29 SECTION 29 CONSTITUTION MANDATORY. The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.
Article I Section 32 SECTION 32 FUNDAMENTAL PRINCIPLES. A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government.
Additionally, a recent court case was decided in favor of land owner’s rights, and sparked the research and conversation within CAPR of a Washington State Law that is unbelievable in its complete disregard for private property rights:
Right of entry—Aircraft operated by department.
The director, fish and wildlife officers, ex officio fish and wildlife officers, and department employees may enter upon any land or waters and remain there while performing their duties without liability for trespass.
It is lawful for aircraft operated by the department to land and take off from the beaches or waters of the state.
Emphasis added, with good reason! What could the legislature have been thinking when passing this law? Certainly not about constitutionally protected private property rights! While it intends to address aircraft, it is carelessly written and provides for an agency employee or representative to enter upon any land or waters. Absolutely, this can be read to mean a ticket to trespass. Should we trust in an agency to consider property rights when such a law has been written to benefit the disregard of rights? Times have changed and citizens now also have other types of aircraft to consider, as in drones. This law needs a closer look and change.
CAPR vows to fight this RCW tooth and nail to get it repealed or amended! Will you commit to helping in this fight? CAPR will need funding for research and a daily presence in Olympia, along with the backing of every concerned property owner in terms of phone calls, emails, and visits to the legislature when CAPR calls for this help! Your voices, concentrated with the help of CAPR are very powerful! Your help is essential to winning this victory! It simply cannot be done without you! http://proprights.org/donate/pac
A recent challenge to constitutional rights to exclude others from private property was denied by U.S. District Judge Scott Skavdahl of Casper, Wyoming. Judge Skavdahl wrote "The ends, no matter how critical or important to a public concern, do not justify the means, violating private property rights," http://trib.com/news/state-and-regional/federal-judge-dismisses-challenge-to-wyoming-trespassing-law/article_95ff7bee-a5b1-51cd-8d04-7504002e81ce.html
A previous legal suit was brought for property owners by attorney Karen Budd Fallen in which fifteen landowners in Fremont County, Wyoming and Lincoln County, Wyoming had filed a civil trespass lawsuit in Wyoming District Court, Fremont County, against Western Watersheds Project, Inc. and Jonathan Ratner, WWP Director for Wyoming, Utah and Colorado, and John Does 1-10 with the Western Watersheds Project, Inc. (WWP) for intentionally and without landowner permission trespassing and entering private property. http://buddfalen.com/landowners-file-trespass-lawsuit-against-western-watersheds-project/
I would like to recommend a perusal of Budd Fallen Law Offices website http://buddfalen.com/practice-areas/private-property-rights/ , there a many good references and ideas regarding the legal path to defending liberty to be gained there.
This legal suit prompted the Wyoming Legislature to pass two data trespass laws in the 2015 legislature. The laws created civil and criminal penalties for citizens and citizen groups to trespass or cross on private land to collect data on resources. The laws also prohibited data collected in this way from being used in court or administrative procedure, as well as requiring government agencies in possession of such data to destroy that information.
The Western Watersheds Project had engaged in such practices and challenged the Wyoming trespass law, which was prompted by the lawsuit of the previously mentioned fifteen landowners. Appropriately, Judge Skavdahl ruled against the challenge and in favor of the Legislature, Landowners, and Private Property Rights.
Additionally, I would like to recommend that a clear and precise warning against trespass be posted on your property. It will help you make a statement that cannot be mistaken. You may like to order this sign from the National Association of Rural Land Owners - NARLO: http://www.narlo.org/rtesign.html
CAPR will continue to research these trespass issues and challenge the authority of agencies to trespass and create laws that seem to allow for them to do so. There is a need to strengthen private property rights and trespass law in Washington State, where citizens are not immune to disregard for property rights in the interest of data collection. This is an abuse that must be addressed! We at CAPR intend to fight this kind of abuse with research and reason and look forward to working with legislators in providing better private property protections in Washington State.
Citizens’ Alliance for Property Rights