Trespass Is not the Only Problem

As birders, we go where the birds are. While this can take us where we are free to roam, it increasingly takes us where access is restricted. As our population and land development expand, more birding is done on or near areas of limited access. For many reasons, including maintaining the good will of those who influence these constraints, birders have developed behavioral standards such as ABA’s Code of Birding Ethics. Unfortunately, these are not always followed, and when birders stray, we run the risk of adverse legal as well as recreational consequences.

Further complicating matters are the facts that the federal government and each state have their own courts and laws, trespass can be a criminal and civil wrong, and it can be an intentional act. Thus, for a single trespass, one can be potentially subject to a fine, jail time with a criminal record, compensatory damages (intended to compensate for actual harm), and/or punitive damages (intended to punish). Although the laws in many jurisdictions are similar, they are not the same; and the outcome of each case necessarily depends upon its facts and applicable laws. Likewise, while some jurisdictions do not view inadvertent trespasses as more than a minor problem, others consider it a big deal (e.g.: don’t mess with Texas). Thus, the following is an overview; not legal advice. (Also beyond the scope of this article is a discussion of defenses to trespass, or the evolution of the tangential topics of trespasser, licensee, and invitee.)

Generally speaking, trespass is an unauthorized entry onto another's real (e.g.: land) or personal (e.g.: a car) property. Typically, the plaintiff (the person whose property has been violated) may seek civil damages caused by trespass, and consequential damages such as property taxes for sharing possession of the item. Even if there has been no economic loss, trespass can result in an award of nominal damages, and the court may issue an injunction against future/ongoing trespassing.

Most jurisdictions have statutes defining criminal trespass. In New Jersey, where I primarily practiced, criminal trespass can include entering or remaining in any place where notice against trespass is given directly (by spoken or written word to the potential trespasser), by posting no trespassing signs, or by the presence of a fence. However, criminal trespass can also include peering into houses. The first three should be obvious, but how many of us who bird residential areas (such as around Lily Lake in Cape May Point or the suburbs of Austin) realize observing a bird on a feeder between you and a window could be a trespass (not to mention rude)?

While a single transgression is a trespass, multiple transgressions can also be a nuisance. Causing traffic or parking congestion likewise can be a nuisance. Similarly, acts that predictably interfere with the rights of others can be harassment. Both are legal wrongs with potential civil and criminal consequences.

For example, Bob “Bigshot” Birder thought he spotted North America’s first Resplendent Whooper (Maximus ohmygoshii) in a pasture near Outer Jabib. No buildings or domestic animals were in sight; only a fence and gate with a cattle guard (i.e.: pipes over a hole that hoofed animals are reluctant to cross). Bigshot discreetly entered the field, confirmed the bird’s identification, whipped out his PDA, and e-mailed the sighting throughout the industrialized world. When Bigshot returned the next morning, both sides of the road were two to four deep in parked cars, the gate was open, planks covered the cattle guard, and the number of birders exceeded by five fold those at Newburyport in March 1975. Bigshot was hailed a hero, and led an entourage to view “his Whooper”. The bird was re-located on a raised water tank, which then collapsed under the weight of the hordes pressing against it. Numerous fender-benders occurred as those parked farthest from the road tried to leave. That night, the cattle discovered the open gate and planks. Some of the revelers were just then leaving (after having finished a celebratory beverage) and (you guessed it!) collided with three pregnant cows maiming them and themselves. The remaining cattle disbursed throughout the County. The following day, when the owner of the pasture arrived to repair the tank, his way was block by people (including Bigshot) who insisted upon their right to this life bird.

The above, obviously, is fictitious and well beyond (I hope!) anything likely to occur. (An actual trespass occurred in January 1997 with the arrival of Cape May’s first Northern Lapwing. The bird was far out in a posted field making it difficult to see. One birder, tired of waiting, announced he needed the Lapwing for his number “X” state bird, and entered the field. That he was not arrested or sued does not negate the potential harm he did all birders, or the legal risks he ran.) Nonetheless, Bigshot illustrates various issues.

The owners of the pasture, the water tank, the cattle, and the dented cars suffered financial harm; the people in the car which struck the cattle were injured; and birding received a Whooping Black-eye. Who, then, is potentially at fault, and what are the potential consequences?

Legally, each time Bigshot entered the fenced pasture, he (almost certainly) committed a civil and criminal trespass He also created a nuisance by his multiple trespasses, especially when he led his entourage into the pasture. While the initial trespass may warrant but nominal damages and minimal fine, Bigshot’s second trespass could result in liability for the costs of replacing the water tank and cattle, the pain and suffering of the maimed occupants of the car that struck the cattle, punitive damages, jail time, and a substantial fine and criminal record. Given that Bigshot did not open the gate, place the planks over the cattle guard, or coerce his entourage to trespass, others could be “jointly and severally” liable with him. (This would allow the owners to collect from any deep-pocket defendant, and leave the wrongdoers to fight amongst themselves to recover those costs for which the others were responsible.) The harassment Bigshot perpetrated against the owner by obstructing his entry onto his property is another basis for compensatory, punitive, and criminal sanctions. Needless to say, the same could apply to all who interfered with the owner’s attempts to enter his pasture. The owner could also seek an Order prohibiting all identified trespassers from again entering the pasture and, perhaps, from stopping along its road frontage. Should Bigshot or the m[.]ob[.] violate this proscription, he/they could face contempt of court proceeding.

To the extent the fender-benders were caused by persons other than those operating the dented cars, their insurance may pay to fix them (although their insurance premiums would likely increase). If enough damage were done, the insurance may not cover all repairs leaving those who caused the damage financially responsible for the remaining repairs. Also, to the extent that road-rage or intoxication were involved, the insurance companies may deny coverage (in some jurisdictions). It is also possible, depending upon the jurisdiction, that at least some of those who caused the parking problems could be found liable, civilly or criminally, for creating a nuisance.

While Bigshot’s e-mail to the industrialized world is not likely to be unlawful by itself, some jurisdictions may view it as part of a plan to create a nuisance and/or encourage others to commit illegal acts. Likewise, some jurisdictions may deem his leading his entourage as aiding and abetting the group’s wrongful acts (perhaps including incitement to riot because of the resulting property damage) exposing him to additional civil and criminal penalties. The same could be true for his attempts to block the owner from entering the pasture.

Needless to say, Bigshot Birder could be facing some “Big-time” legal troubles, as could any of the others found to have committed the above wrongs. Even if he/they were cleared of all charges, their legal fees could be appreciable. (More importantly, for the rest of us, is the harm Bigshot caused the birding community by his creation of so much ill will.)

One effect of the tremendous increase in birding’s popularity during the last decades has been more people than ever flocking to hot spots which, themselves, have been reduced in size and/or for which access is limited. Likewise, the human urge to compete (demonstrated by some listers) has encouraged certain birders to go beyond the bounds of law or reason. When we as birders fail to observe the rights of others, we not only create animosities that can further restrict access to our favorite birding venues, but we also run the risk of very personal (not to mention unpleasant and expensive) legal educations.

When in doubt, don’t!

Michael R Hannisian