13

I know, from this question it is not illegal to be on private property without permission if you do not know and could not reasonably be expected to know that it is private property. Does this apply to hunting as well?

Someone
  • 17,046
  • 10
  • 84
  • 177
  • How is it that you would not know it's private property? – jwh20 Aug 22 '22 at 19:03
  • 3
    @jwh20 this is a very common situation in the western US. Private lands abut, or are even surrounded by public land (US Forest Service, BLM, state forestry lands etc). The boundary is often not marked. – Charles E. Grant Aug 22 '22 at 19:22
  • @jwh20 like Charles E. Grant said, it's very common in places like Oregon. There are "no trespassing" signs in seemingly random places. It's very possible that there are a lot of unmarked property lines that you can't see unless you have a map that shows private property. – Someone Aug 22 '22 at 19:31
  • 1
    This question is about Oregon law. But it is worth noting that Oregon law is not the same as all other states and indeed is probably a minority rule. Strict civil liability in tort is the majority common law rule. – ohwilleke Aug 22 '22 at 22:18
  • 1
    As others have noted, the rules vary by state. In NM hunting on private land requires that you carry written permission from the landowner or their agent. The state offers a smart phone app to show you if you're on private land. However, landowners are required to either fence their property or post signs no more than 500' apart. – Llaves Aug 23 '22 at 16:21
  • 1
    @jwh20 - in areas where I go, topo maps shade private land so it's easy to stay on public land. The maps don't show who the owners are, but that's not necessary for avoiding private land. I don't know if all states do this or not. – Don Branson Aug 23 '22 at 16:41
  • 1
    @DonBranson - this is a function of which topo maps you get. For example, USGS topos of recent vintage do not show private land in the area where I live. That said, it's not hard to find topos and other smart-phone map apps that should private land, so there is little excuse for not knowing. – Llaves Aug 23 '22 at 17:08
  • 1
    The title says "legal to", while the question refers to "trespassing", a far more specific offense. Do you want to know about legality, or specifically trespassing? – Technophile Aug 23 '22 at 17:40
  • 1
    @DonBranson that wouldn't help in our area, because one major land owner here allows the public to hunt on their land. – Someone Aug 23 '22 at 17:43
  • @Technophile legality in general. – Someone Aug 23 '22 at 17:43
  • @Llaves this isn't really on topic for Law SE, but can you recommend any no-cost (and preferably open source) ones for Android? All the ones I've seen require a paid subscription. – Someone Aug 23 '22 at 17:45
  • 1
    Isn't this effectively asking if it's legal to break the law if you don't know you're breaking a law? – rob Aug 24 '22 at 13:14
  • @rob trespassing requires knowledge (except where a reasonable person would know), and I am asking if that same requirement/defense applies to hunting on private land as well. – Someone Aug 24 '22 at 14:01
  • @Someone - I like Avenza maps. The app is free. You get maps from the app's Map Store. It has every 7.5' USGS topo (for free), as well as other maps, some of which are free, others are not. There are maps for each Oregon hunting unit (or whatever they're called in Oregon). Those maps are $5 each, but that's a one-time fee, not an annual subscription. Buy it once, use forever. Another topo app that I've found to be pretty good is Topo Maps US. App is free and contains coverage of the entire US. It does not appear to show private land, though. – Llaves Aug 25 '22 at 03:04
  • @Someone - Avenza maps allows you to add KMZ files as overlays on maps. The Oregon Spatial Data Library has a land ownership layer in shapefile format. If you have any GIS skills (or a friend who does), you could convert that to a KMZ file and use it with the USGS topos to show land ownership on top of the 7.5' quads. That's really an issue for GIS.SE – Llaves Aug 25 '22 at 03:07

4 Answers4

20

Aside from the law regarding trespass, ORS 498.120 specifically forbids hunting on another’s cultivated or enclosed land. The land need not be fenced or posted with "No trespassing" signs:

For the purpose of subsection (1) of this section, the boundaries of “enclosed” land may be indicated by wire, ditch, hedge, fence, water or by any visible or distinctive lines that indicate a separation from the surrounding or contiguous territory,

Apparently hunters have some obligation to be aware of private land boundaries in the areas they hunt. The degree of this responsibility is something that is still regularly disputed in court. In the linked case of State v. Hinton, a hunter was convicted of criminal trespass with a firearm. This was prosecuted as a violation rather than a misdemeanor which reduced the state's burden of proof to a preponderance of the evidence. The hunter moved for a dismissal, claiming that the state hadn't proved that a reasonable person would have known they were on private land:

The evidence presented at trial shows that there was nothing about the border between BLM land and the GI Ranch where defendant walked that would cause a reasonable person to believe that permission was required to enter. The landscape was the same. There was no fence. There were no signs posted. The border between the GI Ranch and the BLM [land] was in the middle of thousands of acres of the high desert of central Oregon.

The circuit court denied the dismissal, and the hunter appealed. The Oregon State Appeals court affirmed the circuit court's rejection of the dismissal:

Specifically, the record provides ample evidence that, using maps, people in this area can determine generally where they are and whether they are on GI Ranch land or BLM land. To be sure, they may not be able to know "the very second" that they cross onto private land. But, viewed in the state's favor, the record establishes that reasonable people can know generally once they have made the crossing.

Charles E. Grant
  • 3,482
  • 1
  • 14
  • 18
  • Thank you! So hunters are expected to have maps showing private property boundaries? – Someone Aug 22 '22 at 20:52
  • 5
    Yes. In [taG:Germany] hunters are even demanded to carry a map with them that depicts the extent of their "Jagdpacht" (~hunting ground license). – Trish Aug 22 '22 at 20:59
  • 8
    I don't know that hunters in Oregon are specifically required to have maps, but apparently they are expected to have some "situational awareness" of where they are. I wouldn't be surprised there are higher expectations for hunters as opposed to folks just wandering around, since hunters are obviously there to "extract" a resource, and the serious potential for damage to a property owner (hunters shooting livestock or residents for example). – Charles E. Grant Aug 22 '22 at 21:16
  • These days it is not hard at all to get a GPS with ownership boundaries available on it. – Jon Custer Aug 22 '22 at 22:56
  • 6
    I might add that like many remote areas of Oregon and the western US the area in question is a maze of unimproved roads and jeep tracks. I don't known if this influences the legal thinking, but any "reasonable person" hunting in this area is likely to have a detailed map (or these days a GPS). The possible exception being locals who have been hunting the area for years and know the area (and the property boundaries) well. – Charles E. Grant Aug 22 '22 at 23:48
  • What the court held is clearly at odds with the law you quoted. I suppose they just don't care. – hobbs Aug 23 '22 at 16:19
  • @hobbs the hunter in this case was not convicted of hunting on enclosed land, but of criminal trespass with a firearm, which is a separate law: ORS 164.265 Criminal trespass while in possession of a firearm.

    (1) A person commits the crime of criminal trespass while in possession of a firearm who, while in possession of a firearm, enters or remains unlawfully in or upon premises. (2) Criminal trespass while in possession of a firearm is a Class A misdemeanor. [1979 c.603 §2]

     – Charles E. Grant Aug 23 '22 at 16:45
  • @Someone this is turning into a discussion of side issues. We should take it to chat – Charles E. Grant Aug 23 '22 at 18:55
  • @Trish: I don't know that much about North America in these respects, but from what I gather, German law differs in two important aspects. a) hunting licenses are not a license to shoot one deer somewhere on public grounds. The hunter leases the right to hunt (together with certain duties) in a specific area for e.g. a year. All "huntable" land in that area is in it, publicly and privately owned alike (publicly owned land isn't much different per se from privately owned land, it's just the owner being a commune, state etc.). b) forbidding others access is possible only for certain types ... – cbeleites unhappy with SX Aug 24 '22 at 10:17
  • ... of land. "No trespassing" works as intended for housing/farmyard type land (even there may be public right of ways). But e.g. you cannot tell people to stay out of your privately owned forest. Total strangers can even come and pick berries and mushrooms for their personal consumption (though not hunt, camp, nor get wood). Some states even have a general right for non-motorized travellers to camp on fields/meadows for a night after harvest is done (and before sowing). – cbeleites unhappy with SX Aug 24 '22 at 10:23
  • 1
    From a legal perspective, I'd expect that someone who makes a contract about leasing the hunting rights does know the area "by definition" since it's specified in the contract. (To me that "defense" sounds similarly ridiculous to leasing a field, then plowing into the neighbour field and claiming you didn't know) (BTW, poaching, i.e. violating someone else's hunting rights, is a criminal offense in Germany) – cbeleites unhappy with SX Aug 24 '22 at 10:34
  • @cbeleitesunhappywithSX in this case there isn't a contract; the land owner (a corporation) has given blanket permission for anyone to hunt on their land. – Someone Aug 24 '22 at 14:00
  • @Someone sorry for being ambiguous, I was still referring to the situation in Germany. BTW, over here the county (Kreis) hunting administration has to be notified of hunting area lease contracts. They'll put it into the hunting licesnse (Jagdschein), but the law AFAIK doesn't prescribe a map. – cbeleites unhappy with SX Aug 24 '22 at 16:51
  • @cbeleitesunhappywithSX oh, okay. No problem! – Someone Aug 24 '22 at 16:55
6

There is a difference between unlawful and a crime. For instance, there isn't much doubt that Hilary Clinton's handling of emails was unlawful. However, James Comey came to the conclusion that there was an intent/mens rea requirement for criminal prosecution that he could not prove to a high enough certainty to justify prosecution.

Some sort of such requirement is generally present for an action to be a crime. I don't know of any strict liability crimes that arise out of hunting on someone else's property, but in cases of negligence, it could easily be a factor. For example, if a hunter shoots a land owner on the land owner's property, without having the land owner's permission to be there, the fact finder could easily find this to be an aggravating circumstance.

There could also be non-criminal consequences for the activity, such as a civil suit or loss of a hunting license. There are much lower, and often non-existent, mens rea requirements for non-criminal proceeding such civil or administrative. If a statute requires that the defendant's conduct be unlawful for something (such as a civil remedy) to apply, then the presence without consent would satisfy that requirement. The unlawful nature would also make it easier, should the land owner decide to engage in violence against the hunter, for the land owner to pursue a self-defense argument: in some circumstances, one is allowed to use violence against those that are engaging in unlawful activity, even if that person is not aware that their activity is unlawful.

Acccumulation
  • 6,095
  • 10
  • 28
4

Trespass is knowingly entering another owners' property or land without permission, which encroaches on the owners' privacy or property interests. law.cornell.edu/Wex definition of "Trespass"

In an attempt to address the issues behind the question, go beyond legal technical issues to add a bit of common sense, as well as adding a somewhat-cynical speculation that an answer of "yes, it is legal to accidentally hunt on private property" would lead to a significant number of... convenient accidents:

It seems to me that:

  1. If hunting without permission on private property, you are violating property boundaries, knowingly or not.
  2. You may be reasonably expected to know that there are such things as private property boundaries.
  3. You are taking a risk by not keeping to public lands.
  4. If you are indeed doing it by accident, are very polite and apologetic, seem perfectly willing to vacate if they don't want to give permission, the land-owner is convinced it was unintentional, AND it's not a hot-button issue for them, seems like penalties might be just a verbal warning.
  5. OTOH if they are pissed off about e.g. the last twenty seven guys who left trash, shot up outbuildings (apparently some 'hunters' will shoot at explosives magazines for entertainment), shot their car, equipment, pets or livestock, or they are a conspiracy theorist, or like wildlife, or they've had problems with theft or vandalism, seems like you could be arrested, greeted with the muzzle of a firearm or even be shot.
  6. Figure every time they find a trespasser or damage done by one, it uses up a bit more of their tolerance. Hopefully what they do about it is just post "NO TRESPASSING" signs and put up a fence.
Technophile
  • 141
  • 5
3

Unless there are clear signs and/or marked boundaries or it is "cultivated" land, it seems that purely "accidental" trespass to hunt may be permitted in the absence of any law expressly prohibiting it.

eRegulations, which styles itself as an "official regulations" site, states:

It is unlawful to hunt on private property without permission from the landowner. See ORS 105.700 and 498.120.

However, this seems incomplete as the cited statutes impose a requirement on the landowner to enclose their land in a prescribed manner:

ORS 105.700 Prohibiting public access to private land includes:

... a plaintiff who is a landowner shall receive liquidated damages in an amount not to exceed $1,000 in any action in which the plaintiff establishes that:

(a) The plaintiff closed the land of the plaintiff as provided in subsection (2) of this section; and

(b) The defendant entered and remained upon the land of the plaintiff without the permission of the plaintiff.

(2) A landowner or an agent of the landowner may close the privately owned land of the landowner by posting notice as follows:

[it goes on to state the requirements for the placement of signage]

ORS 498.120 Hunting on another’s cultivated or enclosed land similarly states:

(1) No person shall hunt upon the cultivated or enclosed land of another without first obtaining permission from the owner or lawful occupant thereof, or the agent of such owner or occupant

(2) For the purpose of subsection (1) of this section, the boundaries of “enclosed” land may be indicated by wire, ditch, hedge, fence, water or by any visible or distinctive lines that indicate a separation from the surrounding or contiguous territory, and includes the established and posted boundaries of Indian reservations established by treaties of the United States and the various Indian tribes...

NB What counts as "accidental" will depend on the particular circumstances, including what can be shown about the hunter's previous "accidents" in similar circumstances.

  • 1
    Even if there is not criminal liability it isn't obvious to me that there wouldn't be civil liability in tort for conversion or trespass for the FMV of the game taken or the cost that would have been charged to grant permission to hunt. – ohwilleke Aug 22 '22 at 22:21