Vermont Legislature SmartTranscripts:

[Chair Amy Sheldon]: Good morning, and welcome to the House Environment. You can see this morning we are going to walk through changes to h seven twenty three and after leading to posting of land with our legislative council. Welcome.

[Bradley Sheldon, Office of Legislative Counsel]: Thank you. Happy to be here. My name is Bradley Sheldon, office of legislative council. I'm gonna go ahead and share my screen with a copy of the bill. And I'm going to take a moment to set up these controls. I there we go. Okay. So this bill is an amendment to house bill number seven twenty three, an act relating to the post suing of land. Permit bills will strike all to because we made some pretty substantial changes to the bill, and I will walk through what those changes are. This bill proposes to enable hunt property owners to post their land against hunting, fishing, trapping, or taking of wild game or taking of game or wild animals. By either posting notice signs or purple paint markings. I'll walk through this bill because each of those requirements are slightly different. And Excuse me, brother.

[Chair Amy Sheldon]: We have one question from representative.

[Rep. Sarah “Sarita” Austin (Clerk)]: Sassy, just walking. Is there another sign that people need to post, or can that be is that an assumption on this?

[Bradley Sheldon, Office of Legislative Counsel]: That is not an assumption on this.

[Chair Amy Sheldon]: What's the question?

[Rep. Sarah “Sarita” Austin (Clerk)]: Just walking, trespassing. Like, if you just wanna hike on some beforehand.

[Chair Amy Sheldon]: Well, no trespassing would prohibit walking.

[Rep. Sarah “Sarita” Austin (Clerk)]: Right. But there's nothing in here that says

[Bradley Sheldon, Office of Legislative Counsel]: And and if I may Yep. The no trespassing law is a different statute

[Rep. Rob North]: Mhmm.

[Bradley Sheldon, Office of Legislative Counsel]: With different requirements. And so a no trespassing sign should say no trespassing. And and so this statute, and we'll go into that, only affects hunting, fishing, trapping, or taking of game or wild ants. If a property owner wanted to further restrict other kinds of activities, they had to post a no trespassing sign pursuant to the criminal statute. I have that written down. It's 13 VSA thirty seven zero five. The interesting thing with the no trespassing sign in the criminal statute is that there's you'll see in this bill that there are a lot of requirements to provide information to hunters about what is and is not permitted. The no trespassing signs, you know, that statute is fair a little more straightforward and about just posting the sign of no trespassing and then having it be reasonably, having posting it in such a way that a reasonable person will be able to see it, and that would protect your law, property from criminal trespassing.

[Rep. Sarah “Sarita” Austin (Clerk)]: So if just had no trespassing signs, would that also forbid hunting, trapping, fishing?

[Bradley Sheldon, Office of Legislative Counsel]: So that is potentially an open question and subject to different interpretations. So the Department of Fish and Wildlife has some guidance, and it's just guidance, so it's not an official rule. They have guidance saying that if a property is posted against trespass, don't hunt on it. One could imagine because these are two different statutes of two different rules. One could imagine a scenario where a hunter hunts on property with a no trespass sign, and the property owner wants to take a civil action against that person for actual damages or wants to just one moment. And wants or contacts the police for a criminal violation because no and and I'll talk a little bit more about this too. No trespassing under title 13 is a criminal statute. And so the police could potentially press some kind of charges against someone for trespassing on a person's property. Most violations under title 10, fish and wildlife violations, are civil. And some are criminal, some are civil. And but most I believe the statutes were amended last year or two years ago to change the jurisdiction from the criminal court to the civil court for most violations under titles head. And and so those are civil violations. And so one can imagine a scenario where a hunter hunts on land that's posted against trespass but doesn't mention signage in this way and a legal challenge therein. And I think both sides have reasonable arguments on this. And, you know, it it could be if both sides would have reasonable arguments, I think one thing that I would want to impress upon the committee is that this statute is effectuating, if that's the word I wanna use, but it is it is addresses a constitutional provision. Provision. Right? It is giving it is putting into into law the constitutional provision that addresses a specific issue. So under in Vermont law excuse me. In Vermont law, individuals have the right to hunt on property that is not enclosed to hunting, and that is what the the constitution says. And so because there's a constitutional right to hunt and there's also a corresponding constitutional right to enclose your land from hunting, So there's two constitutional rights there that are in conflict. This statute, 10 VSA fifty two zero one, pro or doesn't propose. It it it tries to effectuate those things such that both people with different different sets of rights know what is is correct and what is not correct. Right? Hunters know what land is posted. Property owners know how to enclose their land from hunting if that if they so choose. So the the your your question's a simple question, but it's a complex environment given our constitutional right to hunt, your constitutional right to enclose land, and the difference between civil penalties and criminal penalties on trespass, it's it's a complex issue.

[Chair Amy Sheldon]: So thank you for asking that question. The a property owner could I'm I'm surprised this hasn't been litigated. So a property owner, if I understand correctly, could post no trespass and expect that no one could be trespassing or hunting on their property, meet meet the letter of the law, and have legal grounds for not allowing hunting. So And not have a strict posting rate. Potentially.

[Bradley Sheldon, Office of Legislative Counsel]: And I think a property owner in that situation might set themselves up for a conflict with hunters if they only post against trespass. Because posting against trespass does not necessarily impact the constitutional provision that this statute does. Right? And because so there because there's that constitutional right because there's that constitutional right to hunt and a constitutional right to enclose your property from hunting if you would like, there are special things a person needs to do in order to engage in those constitutional rights. And so it is an open question of whether someone could post their property against trespass. I mentioned earlier that the Department of Fish and Wildlife has guidance saying that posting against, if you see a no trespass sign, don't hunt there. This is unofficial guidance. It's and and they are because it's unofficial, they're they're welcome to to change their minds. But it it it is it's a sticky question. And the the guidance that we have from the supreme court is similarly unclear on on these issues. And so there is and I might need to refresh refresh my recollection a little bit more thoroughly on this piece, but there is a very old supreme court case that talks about posting no trespass signs and whether that can exclude people from hunting. And it's unclear from that case whether this statute was I mean, this statute wasn't considered in that case. And so the Supreme Court said that, you know, you might be able to get fined if you are on hunting on someone's property if there's a no trespass sign posted. That's that's a Supreme Court case from the early nineteen from the early nineteen hundreds. Hundreds. And and we don't know if you know, because the law has changed, we don't know how things would shake out today because there's different laws that are meant to effectuate an individual's rights to hunt and enclose their property. It's confusing. And there and is unfortunately, there just isn't clear instructions from the supreme court. There isn't a a slam dunk either way on this piece. There could be a policy solution. You know, it it could be the case that, I mean, I don't wanna propose a policy solution. If the if the committee asked me to, I I can, but that that might be a policy solution for the committee to to consider, you know, whether posting a general trespass sign and just make it clear that that is possible.

[Chair Amy Sheldon]: Representative Tagliavia?

[Rep. Larry Labor (Vice Chair)]: Hi. Good to see

[Rep. Michael “Mike” Tagliavia]: the gears. Light up.

[Rep. Larry Labor (Vice Chair)]: It's not

[Chair Amy Sheldon]: that I can see the gears. Terrific. You know, the question, do have

[Rep. Michael “Mike” Tagliavia]: a question? Do you smell smoke? You said something about this question bringing up policy questions. Is it a good idea to discuss policy, to try to take away, to clear it up, to not Don't get me wrong here. I'm not suggesting we make more restrictions, but to alleviate conflicts

[Chair Amy Sheldon]: That's what we're trying

[Rep. Rob North]: to do.

[Rep. Michael “Mike” Tagliavia]: That our wardens are gonna have to deal with, or state police are gonna

[Chair Amy Sheldon]: have Yes. And this is a piece of information that we needed. So, yeah, that's what we're absolutely And working representative labor.

[Rep. Larry Labor (Vice Chair)]: You, Chitt. As a landowner, I caught people trespassing on my land for the purpose of firewood extraction. Oh. So it's timber theft. Oh. Yeah. Was the reason for the no trespass signs. It had nothing to do with fishing or traffic. Well, that was ten years ago. When I did catch them, I went out and interrogated the hawk. I said, oh, we didn't know this you're a victim. Okay. So they went within the 300 seat at that time. So I guess my question is, why not just have a chat with those people? I did. They apologized. I said, well, take your wood out. You've already killed the tree. It was

[Rep. Rob North]: a beautiful yellow

[Rep. Larry Labor (Vice Chair)]: birch. 12 inch diameter. That might have

[Chair Amy Sheldon]: been overly reasonable of you.

[Rep. Larry Labor (Vice Chair)]: I'm a reasonable person. Oh, they never transbounded again. So I think there was, at that time, separation of the definition of treatment versus posted for hunting, fishing, and trapping. At that time, you had to date and put your signature on the side, the yellow side, which clearly identified your purpose. Well If I may? You may.

[Bradley Sheldon, Office of Legislative Counsel]: So the and and that is the law today. The the law does require that if you want to prohibit hunting, fishing, trapping, taking game, or wild animals, you you have to post in particular that desire. If you want to exclude from other kinds of trespass, like taking of timber timber theft, a no trespassing sign would be the way to to effectuate that. And now we're getting a little bit away from we're getting more into kind of criminal law, when we're talking about no trespass. But, you know, if you don't have a no trespass sign and someone starts taking timber on your property and it's obvious that it's your property, you may still have a person I shouldn't say you, but, you know, a person may still have some legal remedy in that situation, whether it's criminal or civil, even if it's potentially, even if it's not posted. I I say that because now we're getting just a a hair away from what the the issue at hand, which is how does a landowner effectuate their legal rights to enclose their land from hunting, fishing, and trapping. And while it is related to trespass, and and this committee could consider solutions to make that clearer for folks. The the remedies and the certain actions that a property owner could take when facing a certain situation, it is is getting us a little bit a little a little way from the the legal analysis here. And so related to questions, but focusing here on the on these issues here.

[Chair Amy Sheldon]: Yeah. So with that, I would like

[Rep. Larry Labor (Vice Chair)]: to keep and continue with the

[Chair Amy Sheldon]: for us, but we may be asking you if

[Bradley Sheldon, Office of Legislative Counsel]: there's time to walk us through that title 13 Yeah. I can show the statue. Yep. And so this Statute. Is 10 v c a fifty two zero one, and we make some changes to his or her to conform with our practices and has exclusive so what we're doing here is we're changing the statute to make two ways that a person can post against hunting. I might just say post against hunting to include all of these other hunting, fishing, trapping, taking up game, or wild animals. I might just say hunting moving forward, to save myself, to save my tongue. So prohibit hunting by maintaining signs. And this is the statute that's currently written, except I break it out because it it is getting more complicated, so I break it out so it's easier for the public to understand. Shooting, trapping, or taking of game or wild animals is prohibited by permission only. Fishing or taking of fish is prohibited by permission only, or hunting, fishing, trapping, or taking of game is prohibited or per or is by permission only. So you can prohibit, give permission, or prohibit, or do both. You know? And so hunters or property owners have the option to prohibit these activities, permit these activities, or prohibit and prohibit permit, some of the activities depending on their desires. The new piece here is maintaining paint markings on trees, posts, or other objects provided that the marking shall consist of one painted line of purple paint that is a minimum of eight inches in length and one inch wide and be painted at between three and five feet above the ground level. So this is the purple paint provision. This provision is modeled after a proposed statue in New Hampshire. That statue did not pass, and a word of warning, if you look it up, and you Google it, artificial intelligence, I think incorrectly says that it did pass, and it did not pass. And so it's it's it's it's been an interesting rabbit hole to dive in on that piece, but, suffice to say, there is a proposed statute in New Hampshire, and that's what that those requirements are based off of. Aren't there other states that There are other states.

[Chair Amy Sheldon]: That have it in place.

[Bradley Sheldon, Office of Legislative Counsel]: That is correct. That is correct.

[Chair Amy Sheldon]: Presumably looked at those also.

[Bradley Sheldon, Office of Legislative Counsel]: I have. I have. And for states that permit the the painting and just the painting, it's usually one painted line eight inches. Sometimes it's one inch wide. Sometimes it's two inches wide. Sometimes it's three and five feet. Sometimes it's three and six feet. But this is kind of in line with those statutes. Some statutes require both painting markings and notice signs. We're not going that route, but that's that's a possibility as well. And then the permission only signs, nothing changes here. But if you're getting if you're hunting by permission only, hunter or excuse me, property owners shall, contain their name and method by which they they can be contacted so that a hunter can get permission. Notice signs are erected at or near the boundaries of the land, and at each corner and not over 400 feet apart. So that's current law. I I made a change here just to kind of now we're clarifying. We're talking about notice signs in one place, paint markings in another. So I just changed the language to kinda make it consistent here. Paint markings, this is the new piece. Paint markings under the sub subsection shall be painted upon or near the boundaries of lands to be effective with the paint markings at each corner, not over 100 feet apart. And so this is a change from the notice signs. If you're doing paint markings, it's 100 feet. If you're doing the notice signs, it's 400 feet. That distinction is based on instruction that I received from the committee, and is is a is a policy choice. That's not based on any objective reasoning. I will say that some statutes say a 100 feet and some statutes say a 100 yards and which is a very big difference. And so so that is that is the choice, right, to have it more or less frequent. And that's not based on anything that that I did here. Notice signs or paint marking shall be maintained at all times at all times, and then the instruction I've received is to take out the date requirement. And so, we're just taking out the date requirement on the signs entirely. And then the notice sign shall be of standard size and design as the commissioner self shall specify. And that's, current the current law. The owner or person posting lands with notice signs or paint marking shall record this posting annually in the clerk's office, the town, and the posting shall be valid and enforceable for one year after the date the posting is reporting. So what I changed based on feedback from the committee, but I can change this back, in this section that in this line that I have underlined here, it used to say March after the date the posting is recorded. And when I did the walk through with this committee a couple of weeks ago, I think there were some feedback that three hundred sixty five days felt awkward. And so I changed it to one year after the posting is recorded. I can change it back, but that I just want to highlight that change. And then the recording forum oh, was there a question?

[Chair Amy Sheldon]: Questions or representative, Zachuents?

[Rep. Larry Satcowitz (Ranking Member)]: Just so I'm clear, Bradley, that line is specifically referencing the reporting in the town hall.

[Bradley Sheldon, Office of Legislative Counsel]: That is correct. That is correct. So the recording still has to be annual, and, and the recording itself is effective one year after the date the recording is made. And that's what this this is supposed to give effect to.

[Rep. Larry Satcowitz (Ranking Member)]: So so under this new language, if if a hunter wanted to know where a land was was where a land was prohibited or not prohibited for hunting, they could go to the town clerk and see parcel by parcel where that was in effect. And if if a landowner did not record with the town clerk, but they had signs up, they would be considered not enclosed.

[Bradley Sheldon, Office of Legislative Counsel]: The second part, that is correct. The first part is that is my assumption, is that the clerks would be able to provide this information. And how easy that information is to get might depend on the clerk, the town, or how they're how they're record keeping, but the assumption would be that hunters would be able to go to the clerk and see what's posted ahead of time if they, if they're planning their routes or or or, planning their their outings.

[Rep. Sarah “Sarita” Austin (Clerk)]: Representatives, that was my oh,

[Bradley Sheldon, Office of Legislative Counsel]: I'm sorry. Okay. Okay. Thank you. And then the $5 fee for recording, all of that stays the same. And so this is section d, and this this has changed quite a bit. And, so the statute used to say land posted as provided in subsection b of this section shall be enclosed for the purposes herein. Right? And so what that meant was, as as a reminder, we're we're giving giving life to a constitutional provision. You have the right to hunt. Property owners have the right to enclose their land. And, and so this section borrows that language from the constitutional provision and saying, okay. So when you post your land in accordance with subsection b, that it isn't closed for the purposes herein. Subsection b, is the section about the notice signs, erecting the signs 400 feet. Paint now now it it's proposed to include paint markings. So subsection b talks about the signs and how you post them themselves. It does not incorporate the recording requirements as written in law right now. And so land could potentially be enclosed without being recorded. And there is a footnote in a Supreme Court case that suggests as much that if you don't record your land, it it is it is unclear whether that's for purposes of this statute. If you don't actually record it, it is not necessarily meaning that your land is enclosed.

[Rep. Rob North]: So

[Bradley Sheldon, Office of Legislative Counsel]: what this proposes to do and there's a reason for it, and I will get to it in a moment. What this proposes to do is make it in a make it clearer that the requirement is to both post your land in accordance with the set of the of this section and record it. And so so that that is a change, and there's a reason for that change based on the instruction I received from the committee. There's a reason for that change. One, to make it clear, which I think is kind of the assumption that you have to record to make it effective. But two, there is there's a reason for that, and I can go on. So last time, we discussed property owner the issue is we discussed property owners who attempt to post but might have one defect. One of the signs might be written, ripped. One of the signs might say 2024 instead of 2025. You know, there might be some some minor defect in one sign, and the feedback, some of the committee took testimony that saying that the game warden would come out and say, because this one sign is ineffective, defective, the whole property is not posted against trespass. And so the instruction from the committee was to provide some kind of reasonableness standard that says that that that would kind of correct that situation. And so long as the property owner is making a good faith effort or something, we'll get into the language that the the land is enclosed for that purposes. So what we what the language here that we came up with is accidental or unintentional deviations from the requirements of subdivisions A and B of this section shall still be deemed effective to prohibit or permit by permission only hunting, fishing, trapping, or taking of game if the notice signs or paint markings would lead a reasonable person to believe that hunting, fishing, trapping, or taking of game is prohibited on the land. Property owners with actual notice that their their notice signs or paint markings deviate from the requirements of the section shall take reasonable steps to ensure that their notice signs or paint markings comply with the section. So what this says is that you have requirements in subsection a. You have requirements in subsection b. As long as a reasonable person would look at those signs and determine that I'm not allowed to hunt here or I can only hunt by permission here, that's still effective to enclose the land. What this does not give leeway to is the recording requirement. So individuals are still required to record and they don't get an excuse for mistakes with recording requirement. So the recording requirement provides note the notice statute provides notice. The recording requirement provides a way for for hunters to determine if land is posted. And and so property owners have to record, and and this as written, the committee is welcome to change this. But as written, this statute would not give property owners leeway to fail to record, and still have their land enclosed for purposes of hunting, fishing, and trapping. There's a reason for that. Sometimes, there are, I I haven't looked at all the statutes, but I I've seen some statutes where property owners, get, the benefit of hunting without hunting certain game without a license if they don't post their land. And so what this does is kind of has a little bit of checks and balances. Because if a property owner is posting the land against hunting but doesn't record, the the state might still give them the benefit, the license benefit of not posting their land because they might not have an actual record that the land is posted. So this would kind of, in that very narrow scenario, this would kind of prevent that from happening, kind of like gamesmanship. That's not necessarily a problem that has been raised to the committee, but it's a potential issue. So the statute is is or this section of the statute is amended to give property owners some leeway with the actual notice signs or the paint markings. It does not give them leeway in recording, and it makes recording it makes it clear that recording is a requirement to enclose the land.

[Chair Amy Sheldon]: Representative Austin? Yeah.

[Rep. Sarah “Sarita” Austin (Clerk)]: You know, you can record electronically, if that would be because of

[Bradley Sheldon, Office of Legislative Counsel]: With the town clerks?

[Rep. Sarah “Sarita” Austin (Clerk)]: Yep.

[Rep. Larry Satcowitz (Ranking Member)]: I'm not sure.

[Rep. Larry Labor (Vice Chair)]: I'm not

[Bradley Sheldon, Office of Legislative Counsel]: sure if they have an online an online way to do that.

[Chair Amy Sheldon]: Representative labor.

[Rep. Larry Labor (Vice Chair)]: Many of my towns, the town clerk's office is open one half day of one week. So is there a way we could get a leeway in? Posting must be must have occurred thirty days to thirty days after physical posting of the land.

[Bradley Sheldon, Office of Legislative Counsel]: You mean recording? Recording it. Yeah. And that would be a policy decision for the committee, but that that's certainly a possibility is is to give, like, some kind of leeway, for that kind of situation.

[Chair Amy Sheldon]: But this statute is no longer requiring a landowner to register by a certain date. It's it's just one year from when they register. So there's a fair amount of flexibility built in on that side of it right now.

[Bradley Sheldon, Office of Legislative Counsel]: That that is a correct interpretation of the statute as written. Say the draft statute.

[Chair Amy Sheldon]: Further questions on this for Bradley?

[Rep. Sarah “Sarita” Austin (Clerk)]: Just one more question on the to get no trespassing on and all this all on one sign, it would take an act of congress, it sounds like. Is that correct?

[Bradley Sheldon, Office of Legislative Counsel]: No. No. And so when I say a constitutional provision, I mean a state constitutional provision.

[Rep. Sarah “Sarita” Austin (Clerk)]: Mhmm.

[Bradley Sheldon, Office of Legislative Counsel]: And so

[Rep. Larry Labor (Vice Chair)]: Oh.

[Chair Amy Sheldon]: Well, sorry. This but that's a segue. If folks are finished with this, I would like to walk through that title 13. Sorry.

[Bradley Sheldon, Office of Legislative Counsel]: So I'm going to

[Chair Amy Sheldon]: One question or a question from representative North. Thank you, chair.

[Rep. Rob North]: Just maybe just some technicalities here. One being that if we are trying to reference in section d there on page three, reference back to the constitution. The constitution uses that funny word, enclosed rather than enclosed. Should we

[Rep. Christopher “Chris” Pritchard]: we stick with that same verbiage? I know that's strange.

[Chair Amy Sheldon]: So what line are you on?

[Rep. Rob North]: Line nine on page three.

[Bradley Sheldon, Office of Legislative Counsel]: Yeah. And so to to give some context, the constitution spells the word enclosed with an I. And and most often today, spell with an e, and and it it would not be necessary.

[Rep. Rob North]: Okay.

[Bradley Sheldon, Office of Legislative Counsel]: I'm trying make sure that

[Rep. Rob North]: we weren't people weren't gonna point to that.

[Bradley Sheldon, Office of Legislative Counsel]: Yeah. Yeah. I I imagine if someone I mean, nothing stops anyone from trying interesting arguments in court. However, I don't see a judge ever that was Yeah. No. No. But that's an interesting question.

[Rep. Rob North]: Control And maybe more sticky question is it doesn't appear that any of the posting requirements require anybody to identify the landowner's name on any of the sign or any kind of contact information? So if it says by permission only, how are gonna know who's permission and how to get it?

[Bradley Sheldon, Office of Legislative Counsel]: That that's a good question. And I can, go up to we're in subsection a, on page two. Line four, permission only signs authorized under the sixth section shall contain the owner's name and method to which by which to contact the property owner or a person authorized to provide permission to hunt fish trap property.

[Rep. Christopher “Chris” Pritchard]: Yeah. Okay. Very good.

[Rep. Rob North]: Now so then, obviously, a painted line can't have any information. So Right. That's correct. So how do we accommodate that?

[Bradley Sheldon, Office of Legislative Counsel]: So the painting would only serve to prohibit hunting, fishing, trapping, taking a game, or wild animals. And so it would not be sufficient to grant by permission only. You would need a separate sign to do that.

[Rep. Larry Labor (Vice Chair)]: K.

[Rep. Rob North]: And Interesting.

[Chair Amy Sheldon]: Yeah. I wonder about because one of the things we're trying to address is the ease of posting to property owners. What if and I actually, in my mind's eye, I was imagining that at the access point, someone would have a sign that said who they were and that it was posted, but that around about the nonopen parts of the parcel, you'd see paint. That's what I was imagining. Where an obvious person might walk in from the road or maybe a neighboring property or a class four road or trail or something.

[Rep. Rob North]: I guess I'm really not comfortable with the paint only option. Seems to me just simply because there's then, therefore, no indication of who posed to them. And that could lead to false posting by somebody else. Really not comfortable with that. I'm not even all that comfortable with just painting at all, just because it could wear off. There's just so many problems with being durable enough and visible enough that I'm the right color. So many nuances there. A sign is a sign at the sign. The words say what the words say, and

[Chair Amy Sheldon]: the words are in statute here. It's all very clear. Can you remind us which states have implemented this success?

[Bradley Sheldon, Office of Legislative Counsel]: Well, there's about 20 states. And so places like Maine have done it. Tennessee requires words and paints. Arizona has done it. Idaho recently changed their statute. They used to have you could post against hunting, fishing, or you could post to prohibit, and then they changed their statutes to say that, it's hunting on private properties prohibited. And so they don't have their statute anymore because they made hunting on private property more restricted unless it's by permission only.

[Rep. Larry Labor (Vice Chair)]: So So

[Bradley Sheldon, Office of Legislative Counsel]: and then there there are a number of other statutes I could pull on my list, but

[Chair Amy Sheldon]: Would you happen to know which of

[Bradley Sheldon, Office of Legislative Counsel]: the 20 also have a constitutional right for hunting? I I do have that information, but I I wouldn't be able to to pull it off the top of my head.

[Chair Amy Sheldon]: Okay. That would be the pool we'd wanna look at. Right.

[Bradley Sheldon, Office of Legislative Counsel]: So let me take a note on this. So provide information to the committee on states of constitutional rights and and painting. Is that correct? A constitution right to hunt and and statutes that prohibit property owners to prohibit hunting by painting.

[Chair Amy Sheldon]: Yeah. I mean, I don't have a sense of the universe of states that have it in their constitution. But if it's not too many, I'd be curious just to hear how they

[Bradley Sheldon, Office of Legislative Counsel]: address this broadly. It's about half.

[Chair Amy Sheldon]: With or oh, so 25 states. Yeah. Okay. So, you know, I don't want you to spend a ton of time, but a sampling of how they address it would help regardless of whether it's paint or not.

[Bradley Sheldon, Office of Legislative Counsel]: Yeah. I have I have, those two lists separately, but, I'll I'll combine and compare.

[Chair Amy Sheldon]: Great. Others, I now have questions.

[Rep. Ela Chapin]: Yep.

[Chair Amy Sheldon]: Representative Pritchard.

[Rep. Christopher “Chris” Pritchard]: You. So, Bradley, getting back and and I know I I asked these questions couple times previously, concerns I have, and I know they're not in this bill, one of them, what was I, as Representative North said, I'm concerned again about painting up the state of Vermont. Easy thing to do. And the other thing is that we had talked about is if somebody does that, what penalties do they face? If they're not a homeowner or landowner or agent of landowner, and how do you correct that? I mean, it's easy to remove a sign. It's not so easy to remove the paint. There's no penalties. There's nothing that says One of the things that we had talked about is having how long is this pain should it be refreshed? Every three years, every five years, ten years? And I think that's important to be in this bill, and none of it's there.

[Bradley Sheldon, Office of Legislative Counsel]: If I may. And so I drafted a bill with instruction from the committee that I received, and I'm happy to draft whatever instruction the committee would like to give me. And that said, I do wanna share that there is a statute 10 VSA fifty two zero four that provides a penalty of not less than $25, not more than a $100, to for people who poach. So if hunting is prohibited on property and and you hunt anyway, there's a civil penalty. And $25? 5 to $100. It's a civil penalty, and, that penalty also goes toward people who, mutilate or deface the notice signs, posted pursuant to the bill that we're talking about. It does not create a penalty for people who post land. Can we just for yeah. Yeah. There you go. Down. So we're back. And, you know, against the property owners' issues. So a third party coming out and painting that that doesn't it doesn't contemplate that. You property owners do have, the rights under the statute to also engage in a civil action against someone who violates their rights in this way. So that that is the law as it stands on that piece.

[Chair Amy Sheldon]: Representative Austin?

[Rep. Sarah “Sarita” Austin (Clerk)]: Would it be possible to put in in terms of the posting at the town clerk that if put in an option where people could do it electronically to, you know, allow people if they can, you know, to be able to do it electronically? That's one. And then another state has is using on it, which is a a way to use your phone to see or or your computer to see posted land so that hunters can look ahead and but it's all electronic. And I was just wondering if that would be a pass if that would be a possibility.

[Bradley Sheldon, Office of Legislative Counsel]: I think that would be a good question for our clerks. And because I'm not familiar with the systems that they use Right. The technology that's available to them, whether it's

[Rep. Sarah “Sarita” Austin (Clerk)]: Or be the posting. Mhmm. You know, you know, on a tree, there'd be something that would say, go to Onyx or, you know, have some kind of QR code or something where they could go and they could see whether the land was posted or not.

[Chair Amy Sheldon]: I There is a remind you that what representative labor just brought up, which is some town clerks are on a shoestring Right. Open half a day a week. But this one

[Rep. Sarah “Sarita” Austin (Clerk)]: if anything, the town clerks.

[Rep. Larry Labor (Vice Chair)]: Well, but the first part

[Chair Amy Sheldon]: of your question, registering electronically.

[Rep. Sarah “Sarita” Austin (Clerk)]: Oh, okay.

[Chair Amy Sheldon]: Anyway, representative Tagliavia.

[Rep. Michael “Mike” Tagliavia]: To representative Austin's point, I think it would have an effect on town clerk's on Onyx. There is a notice that says that they are not 100% accurate because of dates of land transfers. Yeah. And that you need to double check. It's stated on that path.

[Chair Amy Sheldon]: I would I would say we have a lot here to debate, and we should make it more complex. Yep.

[Rep. Larry Labor (Vice Chair)]: I've got the reaction there.

[Rep. Sarah “Sarita” Austin (Clerk)]: Trying to make it easier for landowners. That's all.

[Chair Amy Sheldon]: So I'd love to take a minute to look at that title thirteen secondtion if you're okay with that, Bradley. I don't

[Rep. Larry Satcowitz (Ranking Member)]: want to stay on the spot

[Bradley Sheldon, Office of Legislative Counsel]: walking through it. I'm going to unshare my screen and reshare Westlaw.

[Rep. Larry Satcowitz (Ranking Member)]: A comment?

[Rep. Rob North]: Yes. I think one of the things that we have done or that the current proposal does is eliminate the dating of any marketing. So that at least makes them sort of permanent. You've posted it once, you don't literally, the way it's working now, ever have to go back around and check the signs to make sure other than that whole reasonable misstatement. Like, if somebody says, oh, you're missing a sign on your back 40 over there. You gotta go fix that. But

[Rep. Larry Labor (Vice Chair)]: a lack of a refresh period to to represent this point, Pritchard. But I

[Rep. Rob North]: don't know. I'm not not a I don't know that permanent posting once and done forever. I used to get signs that are five, ten, fifteen years old. Nothing lasts that long. I mean, painting your house does not last that long.

[Rep. Larry Labor (Vice Chair)]: You got the wrong painter.

[Bradley Sheldon, Office of Legislative Counsel]: Final siding. I'm sure we'll put you.

[Rep. Larry Labor (Vice Chair)]: Yeah. Yep.

[Chair Amy Sheldon]: I mean, I think there's stuff for us to be thinking about here.

[Rep. Larry Labor (Vice Chair)]: Yeah. Oh,

[Rep. Kristi Morris]: we did we did add in and record it. Yeah.

[Chair Amy Sheldon]: Yeah. Alright. Is this oh, this isn't

[Bradley Sheldon, Office of Legislative Counsel]: This is the unlawful trespass statute, and I I I Should we yeah. Go Vermont statutes unlawful. Yeah. I I just had Westlaw up, and let me just I'll get us to Vermont statutes online. Here we go.

[Rep. Larry Satcowitz (Ranking Member)]: Okay. Just keep

[Bradley Sheldon, Office of Legislative Counsel]: looking back to make sure that I'm sharing what I'm actually sharing. Okay. And so this is title 13. And so title 13 is crimes and criminal procedure, and this chapter talks about trespass. And so a person shall be imprisoned for not more than three months and fined not more than $500 or both if without legal authority or the consent of the person in lawful possession, the person enters and remains in a land or in any place as to which notice of trespass is given by. So, basically, creates a crime if you if a property owner says no trespassing, then give us the property owner options to do that. One, by telling the person. So actual communication. And so you confront someone, please leave my land. That's enough. And signs or placards so designed and situated as to give reasonable notice, or in the case of abandoned property, signs of placards posted by the owner, the owner's agent, law enforcement officer does so designated and situated to give reasonable notice, or actual communication by a law enforcement officer. And the rest of the statute talks about abandoned property, prosecutions for the offenses, motor vehicles, entering a residence. I think the piece at the top here is most relevant to us. I can walk through the rest of it if you'd like, but the piece at the top of it is most relevant to us because it talks about how we give notice in criminal law to notice against trespass. So you can tell someone, and you can post signs and placards designed and situated to give reasonable notice. And, and and so there is a little bit more litigation on this piece. You know, I I recall a Supreme Court decision where, an individual is being prosecuted for criminal trespass, and their defense was, I didn't read the sign. And the Supreme Court says, you don't need to actually read the sign. They just need to be the signs or placards need to be designed and situation situated as to get reasonable notice. So it doesn't actually even require the person to read it so long as court would make a finding that the signs or placards are designed and situated to give reasonable notice. In the law, when we use the word actual notice, actual notice means that we know that a person has that knowledge. Right? You tell them. We know that they've read it. That's that's why we we mean by actual notice. And because section B about the signs and placard is just says reasonable notice, that's a more objective standard. Right? So we're not really thinking about the subjective thoughts or opinions of the person who is trespassing. We're looking at an objective reasonable person. Would an objective reasonable person walk onto this land and and determine whether or not it's posted against trespass? And so if you have your blinders on and you say, I don't see these signs, not it's necessarily a defense when the signs are posted, and a reasonable person would see those.

[Chair Amy Sheldon]: This is so interestingly almost like, you know, the opposite extreme. And I have a very hard time wrapping my non lawyer mind around how hunting is not trespass like, physical being, being on someone's land that is that is reasonably posted no trespassing couldn't fall under this statute. That

[Bradley Sheldon, Office of Legislative Counsel]: that's a good question, and and I think that's it is because the statute that seven thirty seven twenty three reports to amend gives effect to a constitutional rights, these two things are put in related but separate buckets. And it doesn't necessarily have to be that way, but as as written and as the state has has chosen to effectuate the constitutional right to hunt and the constitutional right to enclosure land, they they put these things in separate buckets. Practically speaking, if if a sign says no trespass, you know, even the Department of Fish and Wildlife has guidance saying that don't hunt there, Someone could make an argument, and and it could wind up at the Supreme Court whether that's sufficient. But as as written, these are these are are they they are separate and arguably don't affect each other.

[Chair Amy Sheldon]: Representative Satcowitz.

[Rep. Larry Satcowitz (Ranking Member)]: Yeah. And I just to follow-up on the on the chair's comment and just to make it in my mind, just a little more pointed, perhaps, we're

[Rep. Rob North]: I just wanna make sure

[Rep. Larry Satcowitz (Ranking Member)]: I understand this right, that we're in a situation where a landowner could post no trespass for a a person who wants to who's on their property, and they could they could tell them, basically, please don't come back, and they they wouldn't be allowed to come back under this criminal statute. But if they were to then go out and get a hunting license, they could come back with a rifle, and that potentially could be okay. That strikes me as being trouble. And I know I know you're I know you're just telling me what situation is. I'm making a comment that this seems pretty weird.

[Bradley Sheldon, Office of Legislative Counsel]: And I I think that that's a fair reading of these statutes, and it is an open question what the court would do if it froze to that level.

[Chair Amy Sheldon]: The of the

[Rep. Michael “Mike” Tagliavia]: The keeping the two separate and related but separate buckets, Has it been kept that way to be sure that the constitutional right to hunt is not diminished?

[Bradley Sheldon, Office of Legislative Counsel]: I wouldn't be able to comment on the intent or the policy rationale for for I wouldn't be able to comment on that piece. All I can say to that issue is that they treat related but different ideas differently. And because one is a constitutional right to hunt and also a constitutional right to enclose, and those are those are two rights. Right? In the same statute, have or excuse me. The same provision of constitution, you have two things that are are at odds in a way. Doesn't necessarily mean it's a fight or a conflict or a bad thing. It just means that they're conflicting and can't both exist at the same time without clarity. And so what I can say is that fifty two zero one is meant to kind of create a scenario where we know we can operate with both of those provisions in in some kind of harmony as opposed to having those conflicts. Beyond that, whether the importance of the right to hunt or the importance of the right to enclose your property takes a precedence or has some some kind of impact here. Wouldn't be able

[Rep. Rob North]: to comment on that piece.

[Rep. Michael “Mike” Tagliavia]: With respect to representative Satcowitz' question, could a I live in Orange County. Could a simple no trespass order served by the sheriff and the county help to stop the situation that representative Sakowitz brought out? It would be, obviously, more work, but would it help?

[Bradley Sheldon, Office of Legislative Counsel]: I I think, potentially, that a trespass order could be designed in such a way to have a person get stay out of the property for all purposes. Sometimes trespass orders are particular. Sometimes they're broad.

[Chair Amy Sheldon]: Percent of Chapin and then

[Rep. Ela Chapin]: I've got a number of thoughts going on. I guess I'll just make an observation that I feel like So, working in this bill now to really solve two problems that have come to us. One pretty recently around just a lot of folks who are seniors or have mobility issues, disabilities saying, the ability to post my land is too restrictive. Need a constitutional right to post my land. I'd like to be able to do it. Please help us. And then we've also had a longstanding for all my years I've been here, it's only four, but a lot of problems brought to us around conflicts on land between hunters, particularly hounders and landowners that have gotten very close to violent. And law enforcement is not doesn't seem to have the tools or the guidance with the tools. And I'm not sure if they don't have the tools because what you're showing us suggests it hasn't been clarified by the courts whether this tool can be used to address that situation that was just described. On that problem that we're talking about right now, you're really trying to reduce conflicts. And so one of my observations and curiosities is just why is law enforcement having so much trouble? Do the police just direct to the wardens and the wardens have this long history of sort of looking at the postings in such detail and maybe they're not used. I'm just trying to understand, and this isn't a question necessarily for you, Bradley, but I wonder if we could get a lot more information from talking with law enforcement that get called to these conflicts and trying to understand the tools they do or don't have to hold people accountable. And I'm confused about that. But if they really don't have the tools, then that's where we should be working on this. But I'm not sure that they don't. Not sure that they don't, frankly. If somebody comes in and damages your personal property, like the signs you have up hosting your land, like my understanding, if somebody comes in and damages your home or your garage, law enforcement have tools to help landowners with that. And I don't know why that wouldn't apply to your land posting signs or unlawfully painting up a whole bunch of new trees with something that posts your property without your permission. I think we have a lot of laws in place to help people in general and landowners in particular at that situation. I'm not understanding why those aren't always well applied. That's a curiosity. Question for you, Bradley, is around this sort of the tension between these constitutional. I'm just wondering if you can see a parallel. So I did sit on judiciary for my first biennium, and I learned a lot in that realm. I learned a lot about the words reasonableness and actual communication and how much those kinds of words make a big difference in how we can hold people accountable. They seem like really reasonable things related to this constitutional tug and pull. I'm thinking about free speech and violence. I'm thinking about other places where constitutional, like civil I'm thinking about other places that we have that. And I'm just wondering if you can make an analogy to another constitutional pull in two directions where we use things like reasonableness or we have good tools to be more clear when something crosses the line and is no longer your constitutional right, but an unlawful action.

[Bradley Sheldon, Office of Legislative Counsel]: That is an excellent question. And what I'm thinking of when you first say that is regulations of speech, right? And so we have the right to free speech, and we have the right to really bad speech, right? Or I shouldn't say bad speech, right? But speech that some people think is offensive or harmful or or derogatory, you know, things of that sort. But there are some things that you you you can't speak. You can't impersonate a law enforcement officer and say, you know, I'm a police. Well, I'm a police officer. I'm arresting you, something of that sort. Even though that could be potentially a form of speech, that kind of impersonation is unlawful. And so it it it it kind of behoo it leads to the question of, you know, how do you suss out, you know, what is protected speech and what is not protected speech. And and those aren't easy there there isn't easy and clear guidance. And and it's something that the supreme court, so long as we have, you know, the the right to free speech, the supreme court will always be addressing those issues and those kind of like tug and pull kind of questions of, can you have do you have the right to materials that some people think are offensive, Right? A right to a book set people think are offensive in a public library or something of the sort. And so that kind of tug and pull between an individual's right and then the state's interest in potentially limiting some speech for certain reasons might come into play there. But there isn't you won't get any more clear guidance from that framework for this issue because it just gets so messy. I would

[Chair Amy Sheldon]: have to think about it a

[Bradley Sheldon, Office of Legislative Counsel]: little bit more if there's something more narrow that I could analogize this to. And I would have to think about that more. But suffice to say, my answer at this point is that these issues are just messy. And I I think there are ways to make it clearer here, but it's it's never gonna be easy, and there's always gonna be conflicts.

[Rep. Ela Chapin]: I'm hearing is definitely in these situations with constitutional polls in two different directions, it can be really messy and it can be very much the courts who are interpreting this. But in this case, we've actually got pretty good clarity because people are just freely allowed to post their land. And so we just need to make sure that how they do that and how law enforcement what tools law enforcement have. When you say that now, I feel like this situation is really clear.

[Bradley Sheldon, Office of Legislative Counsel]: Right. And and know and and one of the issues that was raised in testimony and I haven't seen all the testimony, but I've seen a lot of it. But one the issues that was raised in testimony is is a game warden saying that, you know, one sign was not dated, so the whole property is not posted. Right? And is that even the law now?

[Chair Amy Sheldon]: That is not.

[Bradley Sheldon, Office of Legislative Counsel]: And and some game wardens might say yes, and some game wardens might say no. And so that is a good question for game wardens, a good question for police. When you're tasked with these issues, what prevents you, if anything, from taking action? And and that might shed some light on holes in the policy that that the committee could address. I don't have an answer what those are, but I I think that those are good questions to explore with testimony.

[Chair Amy Sheldon]: Thank you. It's 10:00. I think representative Morris have one one last question. Is this question? Thank you. And then we're gonna take a break.

[Rep. Kristi Morris]: Riley, thanks for coming in. I wanna move back to the bill at hand here, seven twenty three. And on page three, section d, we've added in, right now, we're looking at a reasonable score posted plan, either signs or paint, etcetera, etcetera. But it also includes section a, which is the property owner's right to post. Mhmm. And we're adding in and recorded

[Rep. Larry Satcowitz (Ranking Member)]: Mhmm.

[Rep. Kristi Morris]: As the to combine that. Is that reasonable mess also applying to the landowner? So if they don't record their posted land Okay.

[Rep. Larry Labor (Vice Chair)]: Yeah. And at least

[Bradley Sheldon, Office of Legislative Counsel]: I can I can provide some clarity to that question? So the reasonableness standard does not the reasonableness exception, right, does not currently apply to recording. Right? And so you either do it or you don't. And and that is an objective standard. There's no there's no wiggle room for a landowner to fail to record. What this gives a little wiggle room to is making the actual postings or making the actual paint markings Right. And then the content of the posting or, like, the spacing of the paint markings and things. That's the only thing that that gets the wiggle room here.

[Rep. Kristi Morris]: Not the landowner's responsibility to record. That's correct. Perfect. Thank you.

[Rep. Sarah “Sarita” Austin (Clerk)]: This but they don't have to do it on the sign. They can just go to the town clerk's. Right? They don't need to go to each sign and change the date.

[Bradley Sheldon, Office of Legislative Counsel]: There is no date requirement, though. I mean, this bill proposes

[Rep. Ela Chapin]: Right.

[Bradley Sheldon, Office of Legislative Counsel]: To remove the date requirement.

[Rep. Sarah “Sarita” Austin (Clerk)]: Right. That's a big help.

[Chair Amy Sheldon]: Mitch Hat, we'll take a five minute break. Thank you, Bradley.

[Bradley Sheldon, Office of Legislative Counsel]: Thank you.