El Jason
Well-known member
Well, as a state agency, until the AG offers a different opinion FWP is obligated to defer to the last standing AG opinion.
I disagree with the AG standing their ground on this but it isn’t an FWP thing.
FWP lies about Corner Crossing
- Thread starter Elky Welky
- Start date
I disagree with the AG standing their ground on this but it isn’t an FWP thing.
El Jason
Well-known member
Given Knudsen’s votes on the land board, is it any surprise he would run this one out to the bitter end?
BuzzH
Well-known member
The FWP Director can choose to say nothing, yet....
Straight Arrow
Well-known member
However, FWP's position must be clear as those unfortunate, underpaid, under appreciated wardens have to be in the field enforcing.
El Jason
Well-known member
Unless they were told to issue a statement.
BuzzH
Well-known member
I agree, finding anyone with a backbone these days isn't easy.
El Jason
Well-known member
She works for Gianforte. She’s marching to his directives. Knudsen hasn’t and won’t issue an opinion contrary to the long standing one. Knudsen hates public land and access agreements. I don’t know why this would surprise anyone.
BuzzH
Well-known member
Remember when GF/FWP Directors worked for wildlife and the citizens of the State?
Those were the days, and not in the too distant past (at least in WY).
El Jason
Well-known member
I do. Hagener V 1.0 was probably the last FWP director to do so. And in fairness, I think V 2.0 tried to.
Elky Welky
Well-known member
Where are you getting this AG opinion? There was an interdepartmental memo from 2001 written by a paralegal, and then another memo updated in 2018, but both were done within FWP.
El Jason
Well-known member
I personally held a copy in my hand about 28 years ago. I have no idea where you would find it.
Elky Welky
Well-known member
Interesting... I once found a memo from Park County around that time, but it was the Park County Attorney, not the AG. Would love to see what they were up to back then.
Rack Daniels
Well-known member
Hunting without permission is a strict liability offense with no need to prove intent.
87-6-415. Failure to obtain landowner's permission for hunting, MCA
archive.legmt.gov
If someone is blaming you of guilt, you’re damn right there is a need for proof.
El Jason
Well-known member
You clearly don’t understand criminal law. Go read up on mens rea and strict liability crimes. There is no requirement for mens rea for trespassing while hunting in Montana.
Not sure if it's the same, but Judge Nels Swandle thought it was legal to cross with enough room for riding and packstock also.
Elky Welky
Well-known member
@Rack Daniels @El Jason You are talking past each other. Here's the language of Montana's statute:
...a person commits the offense of criminal trespass to property if the person knowingly:
...enters or remains unlawfully in or upon the premises of another
Mont. Code Ann. 45-6-203
El Jason is incorrect to state that under our criminal statute no mental state is required, as they must "knowingly" enter or remain. However, the "knowingly" applies to the act of entering or remaining, not if they knew that it was private property, which is what El Jason is trying to get to. You can still be convicted of trespass if you are on private property and didn't know it was private, because you did choose to enter that property. Ignorance of the law is not an excuse for breaking it.
And yet, the open question with corner crossing is does it even constitute as trespass in the first place? Did they ever "enter" the premises of another? The argument from landowners is they own the airspace, and they rely upon a case wherein a government plane flew too low and created sonic booms. That was seen as a government trespass. But between private citizens it is a separate question, and one that isn't answered in statute.
Rack Daniels
Well-known member
Thank you for the clarification.
El Jason
Well-known member
@Elky Welky show me in this statute where it lists a mental state requirement.
87-6-415. Failure to obtain landowner's permission for hunting. (1) A person may not hunt or attempt to hunt furbearers, game animals, migratory game birds, nongame wildlife, predatory animals, upland game birds, or wolves on private property without first obtaining permission of the landowner, the lessee, or their agents.
(2) A person who violates this section shall, upon conviction for a first offense, be fined not less than $135 or more than $500.
(3) A person convicted of a second or subsequent offense of hunting on private property without obtaining permission of the landowner within 5 years shall be fined not less than $500 or more than $1,000.
(4) In addition, the person, upon conviction under subsection (3) or forfeiture of bond or bail:
(a) shall forfeit any current hunting, fishing, or trapping license issued by this state and the privilege to hunt, fish, or trap in this state or to use state lands, as defined in 77-1-101, for recreational purposes for not less than 12 months or more than 3 years from the date of conviction or forfeiture of bond or bail; and
(b) may be ordered to make restitution for property damage resulting from the violation in an amount and manner to be set by the court. The court shall determine the manner and amount of restitution after full consideration of the convicted person's ability to pay the restitution. Upon good cause shown by the convicted person, the court may modify any previous order specifying the amount and manner of restitution. Full payment of the amount of restitution ordered must be made prior to the release of state jurisdiction over the person convicted.
(5) For the purposes of this section, the term "hunt" has the same meaning as provided in 87-6-101 and includes entering private land to:
(a) retrieve wildlife; or
(b) access public land to hunt.
87-6-415. Failure to obtain landowner's permission for hunting. (1) A person may not hunt or attempt to hunt furbearers, game animals, migratory game birds, nongame wildlife, predatory animals, upland game birds, or wolves on private property without first obtaining permission of the landowner, the lessee, or their agents.
(2) A person who violates this section shall, upon conviction for a first offense, be fined not less than $135 or more than $500.
(3) A person convicted of a second or subsequent offense of hunting on private property without obtaining permission of the landowner within 5 years shall be fined not less than $500 or more than $1,000.
(4) In addition, the person, upon conviction under subsection (3) or forfeiture of bond or bail:
(a) shall forfeit any current hunting, fishing, or trapping license issued by this state and the privilege to hunt, fish, or trap in this state or to use state lands, as defined in 77-1-101, for recreational purposes for not less than 12 months or more than 3 years from the date of conviction or forfeiture of bond or bail; and
(b) may be ordered to make restitution for property damage resulting from the violation in an amount and manner to be set by the court. The court shall determine the manner and amount of restitution after full consideration of the convicted person's ability to pay the restitution. Upon good cause shown by the convicted person, the court may modify any previous order specifying the amount and manner of restitution. Full payment of the amount of restitution ordered must be made prior to the release of state jurisdiction over the person convicted.
(5) For the purposes of this section, the term "hunt" has the same meaning as provided in 87-6-101 and includes entering private land to:
(a) retrieve wildlife; or
(b) access public land to hunt.
MTLabrador
Well-known member
“Knowingly” applies to criminal trespass to property under title 45, not failure to obtain landowner permission for hunting under title 87 as @El Jason stated. Criminal trespass generally requires some sort of notice (a warning, posting land, etc.), hunting without landowner permission does not require intent. Two separate codes.
Regardless, I personally don’t think corner crossing falls under either one and I’d be shocked to see someone successfully prosecuted, although they certainly might try.
El Jason
Well-known member
This is incorrect. In order to be convicted of trespass under the title 45 code you referenced,
the land must be posted as listed below.
TITLE 45. CRIMES
CHAPTER 6. OFFENSES AGAINST PROPERTY
Part 2. Criminal Trespass and Burglary
Definition Of Enter Or Remain Unlawfully
45-6-201. Definition of enter or remain unlawfully. (1) A person enters or remains unlawfully in or upon any vehicle, occupied structure, or premises when the person is not licensed, invited, or otherwise privileged to do so. Privilege to enter or remain upon land is extended either by the explicit permission of the landowner or other authorized person or by the failure of the landowner or other authorized person to post notice denying entry onto private land. The privilege may be revoked at any time by personal communication of notice by the landowner or other authorized person to the entering person.(2) To provide for effective posting of private land through which the public has no right-of-way, the notice provided for in subsection (1) must satisfy the following requirements:
(a) notice must be placed on a post, structure, or natural object by marking it with written notice or with not less than 50 square inches of fluorescent orange paint, except that when metal fenceposts are used, the entire post must be painted; and
(b) the notice described in subsection (2)(a) must be placed at each outer gate and normal point of access to the property, including both sides of a water body crossing the property wherever the water body intersects an outer boundary line.
(3) To provide for effective posting of private land through which or along which the public has an unfenced right-of-way by means of a public road, a landowner shall:
(a) place a conspicuous sign no closer than 30 feet of the centerline of the roadway where it enters the private land, stating words substantially similar to "PRIVATE PROPERTY, NO TRESPASSING OFF ROAD NEXT ___ MILES"; or
(b) place notice, as described in subsection (2)(a), no closer than 30 feet of the centerline of the roadway at regular intervals of not less than one-fourth mile along the roadway where it borders unfenced private land, except that orange markings may not be placed on posts where the public roadway enters the private land.
(4) If property has been posted in substantial compliance with subsection (2) or (3), it is considered closed to public access unless explicit permission to enter is given by the landowner or the landowner's authorized agent.
(5) The department of fish, wildlife, and parks shall
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