Law for Backpackers

[Jack Tarlin]

Um, don't go telling anyone to be still or anything remotely close, Rick.

You're one of the biggest professional whiners here.

The guy spent a lot of time writing an article, and he's one of the rare folks who actually brings true expertise to the subject he's writing about. If you think you can do better, then do so. Have at it. But honestly, this website is peopled by folks who have little better to do than belittle the comments or work of others and it gets old.

Instead of telling folks to be still, why not put your butt in motion and contribute some articles of your own.

[Lone Wolf]

give it a break, boys. freakin' childish

[Jack Tarlin]

Couldn't hurt you write an article either, Wolf. It's not like you don't have opinions on things.

[The Weasel]

Interesting read. I just skimmed the sections I didn't feel were pertinent to me. Thanks for all the work.

One section that has me somewhat confused was regarding Landowner Liability when a trail crosses private property. My understanding, supported by NCTA and NPS is that the Michigan Recreational Land Use Act limits a landowner's liability to virtually zero (except of course for intentional or grossly negligent hazards) if they allow the public onto their property for recreational purposes (free of charge, that is). I was also under the understanding that virtually all states have similar laws on the books.

Not really a major issue for hikers, but as one who is trying to get more folks to open their land to trail construction, it is a real issue. Is this limited liability not as widespread as I thought?

Lyle:

I will look into that, and revise if necessary. My initial take is tuo be cautious about a landowner's over-reliance on such things, and before granting a trail easement, an owner should obtain both independent counsel and a 'comfort letter' from the trail organization. (A 'comfort letter' is an express, "Dont worry, be happy" letter that tells someone the basis for the lack of need to worry.)

Thanks for raising the point!!

TW

[The Weasel]

The section on trespass is so incomplete that it borders on just plain wrong, Jack.

That said, as a general rule it is safe to say "don't go on other people's property" without permission.

That denies the law and tradition in many places, however.

Rickb:

I'm grateful for an suggestions on improvement for this, and if you can be a bit more specific (you don't have to write it for me but more than "it's wrong" would help), I'll look into what changes might make sense.

Thanks,

The Weasel

[The Weasel]

Rick:

I've gone back, and you made a point about trespassing well over a year ago. I responded to it fully here, and (in Post 68, I think) I noted that I had revised the Trespassing section. You've said nothing since then, and this thread only became active when another user found that the link to the article was broken. Your current post says nothing more than that the section of my article "borders on just plain wrong."

As I said in the post above, and as you so pointedly note, I welcome suggestions about how to improve this. Recognizing that law is often a matter of opinion among attorneys ("One lawyer in a small town will generally starve, but two can make a pretty good living." - A. Lincoln), it is inappropriate to simply say, "Wrong!" without indication of why. Doing so raises understandable concerns about whether the writer is pot-stirring.

The link you provided a year ago has been responded to, in detail, both in this thread and in the revision to the article. If you have any more specificity, let me know and I'll look at it, as my goal is to be as accurate as possible in a short work like this, in order to be useful. But the user is cautioned at the beginning that it is a general reference, and I'm not going to parse the fine points of why (if at all) Arizona laws regarding trespass are different from those of the Virgin Islands.

Thank you. I look forward to you comments; if they are extended, send me a PM and I will give you an Email address you can forward them to.

TW

[Lyle]

TW,

Here is a link to the wording of the Michigan Law that I am referring to:

http://asci.uvm.edu/equine/law/recreate/mi_rec.htm

Thanks again for your time and effort.

[Rockhound]

Pebble:

First, don't waste your time if you think that's what it is. There are a lot of urban myths about the law, however, that even some lawyers believe. But it's a lot more risky for you to be unaware of them. A few examples: Can you legally have alcoholic beverages in your pack in Baxter? Can you tell a police officer she can't search your pack? Is it legal to hike nude on the Summer Solstice? If you don't have insurance, does a hospital have to treat a trail injury? There are more. Ignore them if you think it waste of time. Not my problem. But don't later say, "I didn't know."

Second, yes, some places have rules on what to do with human waste, and some parks that backpackers use require waste to be packed out. Most parks have their own rules, and you should consult the place you will be hiking in for them.

TW

I will not say "I didn't know" I'll just say "I didn't care". Laws serve a purpose but to often times they are not combined with common sense. For example, If I want to take a bottle of champagne to summit Mt K to celebrate is that illegal? I don't care. It's not as if I'm going to throw a keg party in Baxter and smash bottles all over the place. And if local law enforcement is too obtuse to realize what a ridiculous waste of time it would be to arrest or attempt to cite me for such a horrible transgression so be it. I'll have a good laugh on the ride back to the station with Barney Fife. As long as one brings no harm to others and uses common sense in their daily lives I say good for them. Unfortunately the lawmakers and those that enforce the laws do not always use common sense. and therein lies the problem. Another example happened to me just the other day. I was buying a bottle of wine and got carded. I did not have my I.D. and was denied purchase. I'm 41 years old. A 60 something year old man in front of me said they card him every time. And he was talking to his friend at the time. The cashier! Even though they are friends he still has to show her his I.D. each time he wants to buy alcohol! I understand the law was made to prevent underage drinking. If someone is of questionable age card them. Makes perfect sense, but carding a man in his sixties who you've known for years? This is why I will say "I don't care" instead of "I didn't know".

[rickb]

Rick:

I've gone back, and you made a point about trespassing well over a year ago. I responded to it fully here, and (in Post 68, I think) I noted that I had revised the Trespassing section. You've said nothing since then, and this thread only became active when another user found that the link to the article was broken. Your current post says nothing more than that the section of my article "borders on just plain wrong."

As I said in the post above, and as you so pointedly note, I welcome suggestions about how to improve this. Recognizing that law is often a matter of opinion among attorneys ("One lawyer in a small town will generally starve, but two can make a pretty good living." - A. Lincoln), it is inappropriate to simply say, "Wrong!" without indication of why. Doing so raises understandable concerns about whether the writer is pot-stirring.

The link you provided a year ago has been responded to, in detail, both in this thread and in the revision to the article. If you have any more specificity, let me know and I'll look at it, as my goal is to be as accurate as possible in a short work like this, in order to be useful. But the user is cautioned at the beginning that it is a general reference, and I'm not going to parse the fine points of why (if at all) Arizona laws regarding trespass are different from those of the Virgin Islands.

Thank you. I look forward to you comments; if they are extended, send me a PM and I will give you an Email address you can forward them to.

TW

You may also want to revisit your comments to Weary's corrections regarding lawful entry onto non posted land in Maine. And Mogli's post regarding NY. Other AT states too.

Simply put, there are plenty of places along the AT corridor where tradition and law allow one to enter onto non posted private property in the backcountry.

[rickb]

Another place the article errs is regarding Alcohol within the bound of Baxter State Park.

The Park Authority lists the following regulation:

"General laws of the State pertaining to liquor and drugs apply within the Park. Maine law prohibits drinking of alcoholic beverages in public places."

The article states that since the park is a public place, it necessarily follows that one cannot legally drink within its bounds.

Not so.

Maine Law prohibits having sex in public places too. Were we to accept the article's interpretation of law, it would be illegal to have conjugal relations with your spouse in your tent or private cabin along Daicy pond!

Simply put, with regard to Alcohol laws, certain area within the park are in effect "private places" and other are "public". Even though the park is public. A discussion of the difference would be useful (ie table in front of your cabin or fire ring by your tent vs inside your tent or on at a communal shelter). The blanket statement in the article is wrong.

There are others.

[Blue Jay]

I've never been a big fan of Weasels, however I went back and reread this one. It remains one of the best things ever posted on Whiteblaze. I don't like all the fact that some of the information is true, but reality has to be considered.

[The Weasel]

For those who read the above, I have three comments as a practical attorney:

(1) For those who, like Pebble, say "I don't care" what laws say, that's fine. As long as you know what the rules are, and are willing to bear the consequences if any ensue, you're making a rational choice. But if you don't know what the rules are before you decide to do something, you're no different than someone who jumps off a cliff and hopes there's a soft landing below. It's smart to 'look before you leap.'

His example of being 41 and "carded" is a good one, from the liquor store owner's perspective. There's someone who owns a valuable right (the liquor license) who knows that even one underage sale can cause a license suspension or revocation. The owner also knows that clerks may not be perfect in estimates of ages around 21, and also knows that a mistake is still a violation. So the owner makes a "fail safe" decision: Card everyone. Inconvenient for some? That's the owner's choice. But the point is clear: The owner knows the law and has made a rational decision. That's safer than, "What the heck!"

(2) For those who, like rickb, want to say, "The law doesn't mean what it says," I also say, "Good luck." It's a now-standard law enforcement tool (our retiring police chief, Bill Bratton, formerly of Boston and NY City, pioneered it) to use a "stop" for a minor violation to check for other, more serious, crime. That's why there are so many stops for broken tail lights: LEOs often want to look in a car to see what really might happening and to check on who is doing it. So yeah, have a beer at your picnic table by your tent. But if the Rangers want to, you've just giv en them cause to search your table, demand your ID, and check out your tent. If you don't care, I don't care either, and if it usually isn't going to be that way, fine. But I just saw a picture of one of my Eagle Scouts who just got his NPS badge as a LEO Ranger a couple months ago; it shows him with 240 lbs of drugs confiscated from a traffic stop in his park.

I wrote this article so that those who wanted a map of the legal territory could have one. Just as with topos, you're free not to use one, and you're free to go off the marked trail without one. But a lot of people like to know what might happen and what to plan for. It's for those that I wrote it, and I hope it helps make hiking better for them.

TW

[The Weasel]

This will be a long-ish post about Landowner Liability, Trespassing and Liability-Limiting Statutes such as the Michgian Recreational Landowner Act referred to above. (I'm admitted in Michigan, and I had it in mind when I wrote the article, but this deals with it, and similar statutes, more precisely.0

First, I want to reprint below the section (pages 19-20) of my Article:

c. Landowner Liability. Landowners can be responsible for
injuries that occur on their property, depending on who is injured and how they came to be there. Almost any injury occurring to a “business invitee” is actionable, since such a person is invited to the business premises of another. “Licensees” are those who have a “license” to be present, which may be express (such as written permission) or implied, such as a landowner allowing a trail to be used for a long period of time, and a landowner is under a care to reasonably keep the open portion of her or his land safe for invitees. A trespasser is a person to whom access is denied, but still goes on the land. Even a trespasser is entitled to have the premises safe from dangers that are open and obvious, such as mineshafts or other dangerous situations. “Posting” laws can further reduce landowner liability, but landowners and hikers should not automatically assume that an injury is, or is not, one that can be the basis for a lawsuit.

Statutes such as the Michigan Act (which can be found here: http://asci.uvm.edu/equine/law/recreate/mi_rec.htm ) expressly provide that if a landowner is charging for access, or otherwise receives "consideration" (something of value). Such users are the "invitees" referred to above. The Michigan Act is poorly drafted, since it isn't clear if the consideration can be indirect, i.e. if someone else provides consideration to the landowner to permit such uses, such as might be the case for a Trail Organization, e.g. the NCTA or (in a state with an identical statute along the AT) the ATC paying a modest license or easement fee.

Second, the article deals (this is a 'weasel phrase' but then, of course, I am THE Weasel) with common law as it exists throughout the US; common law can, of course, be modified by statutes such as this, each of which is a bit different, and the article was not written, by the way, for the benefit of landowners but for hikers. If there are special statutes in some states, presumably the owners will be aware of them.

Third, and this is not weaseling, the statute continues to keep landowners liable for "gross negligence" and "wanton misconduct." Ahhh! Of such wondrous words are Plaintiff's Lawyer's fortunes made. "Gross negligence" is defined, usefully, in West's Legal Dictionary as:

Gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to persons, property, or both. It is conduct that is extreme when compared with ordinary negligence, which is a mere failure to exercise reasonable care. Ordinary negligence and gross negligence differ in degree of inattention, while both differ from willful and wanton conduct, which is conduct that is reasonably considered to cause injury. This distinction is important, since contributory negligence—a lack of care by the plaintiff that combines with the defendant's conduct to cause the plaintiff's injury and completely bar his or her action—is not a defense to willful and wanton conduct but is a defense to gross negligence. In addition, a finding of willful and wanton misconduct usually supports a recovery of punitive, whereas gross negligence does not.

In other words, if a landowner lets a backpacker leave a banana peel in the trail, there's no lawsuit for a slip-and-fall. On the other hand, what, I may ask, is a "conscious disregard of the need to use reasonable care?" Well, it's what a properly-instructed jury says it is. "Yeah, I knew that tree was a gonna fall down on top of that shelter after that storm, but I really didn't figure it was that big a deal." Dang. Claim like that "goes to the jury" which might find zero bucks for the plaintiff, or a few gazillion.

So as I said in the Article, don't assume that an injury is, or is not, the basis for a lawsuit. If you're a hiker, and you get hurt on someone else's land, see a lawyer. If you're a landowner in an area where there are recreational uses (hunting, camping, hiking) on your land, see a lawyer AND an insurance agent.

I'll tinker the next draft, but my statement of the law is, I think, still pretty good. If you disagree, save your breath. If you just want to go ahead and disregard the risks, well, on behalf of the entire legal profession, I thank you: People who take risks about what the law says and means make it possible for us lawyers to make a living defending the people who make mistakes about the risks.
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[Jester2000]

Another place the article errs is regarding Alcohol within the bound of Baxter State Park.

The Park Authority lists the following regulation:

"General laws of the State pertaining to liquor and drugs apply within the Park. Maine law prohibits drinking of alcoholic beverages in public places."

The article states that since the park is a public place, it necessarily follows that one cannot legally drink within its bounds.

Not so.

Maine Law prohibits having sex in public places too. Were we to accept the article's interpretation of law, it would be illegal to have conjugal relations with your spouse in your tent or private cabin along Daicy pond!

Simply put, with regard to Alcohol laws, certain area within the park are in effect "private places" and other are "public". Even though the park is public. A discussion of the difference would be useful (ie table in front of your cabin or fire ring by your tent vs inside your tent or on at a communal shelter). The blanket statement in the article is wrong.

There are others.

I suppose it depends on how Maine law generally considers tents and cabins. I would imagine it doesn't define those as "public places," and if not the article is correct.

I found the article very useful, and those, like Pebble Puppy, who don't care what the law is might find that it doesn't matter much to LEOs whether you care or not. I think it's a good article if only so that hikers know what some unexpected consequences might be; they can look further into such things on their own for particular laws in particular jurisdictions.

I'm thinking here particularly on the section involving being naked -- those who claim to not care what the laws are might be taken aback to discover that their blase attitude might result in having to register as a sex offender, regardless of how ridiculous they might think the law. For those who do care, further research might show them that there are certain places where nudity is not considered a sexual crime. Which might be of some relief.

I think it's a good idea to know the law, particularly if you suspect that you might choose to break it. You might choose to carry alcohol on the AT in Maryland or on PA State Gamelands, for example, but if you know the law governing that activity, you might be less likely to flaunt your illegal behavior. And you'd be thus more likely to get away with it.

And for many hikers, this article is a good reminder that while you may be outside of the bounds of your normal life when hiking, there are still laws that cover what you're doing, even when you're in the woods.

Thanks, Weasel, for spending what must have been quite a bit of time and effort putting this together.

[The Weasel]

You're welcome, Jester. It's been fun doing it.

You ask (sort of) a good question: Are tents and cabins "public places." I assume that's for questions of whether they can be searched. Generally speaking, no they aren't; the 4th Amendment recognizes that people have a legitimate expecation of privacy even in temporary structures like a tent. So if you're away from your tent, and there's no one else around it, and a LEO suspects you have illegal parakeets in it, she has to go get a search warrant (not as easy as it sounds) to unzip and find the birdies. So yeah, it's "private".

BUT: If you're sitting outside your tent and the door is open, and a ranger looks at you, sees your eyes are wobling out of focus and there's a little glass pipe on your sleeping bag, well, folks, that's probably "in plain view." You lose. So the ranger tells you to drop and spread, and after locking you down, checks out the inside of the tent and finds several unregistered Glocks. You probably lose again; it's a protective search.

Moral of the story: Yeah, your tent is private. Keep the door zipped all time time, and if a LEO comes by and you don't want it inspected, stand well away from the tent. That will work. Sometimes.

TW

[max patch]

Moral of the story: Yeah, your tent is private. Keep the door zipped all time time, and if a LEO comes by and you don't want it inspected, stand well away from the tent. That will work. Sometimes.

TW

Moral of the story: Leave your illegal drugs and unregistered guns at home.

[sheepdog]

I will not say "I didn't know" I'll just say "I didn't care". Laws serve a purpose but to often times they are not combined with common sense. For example, If I want to take a bottle of champagne to summit Mt K to celebrate is that illegal? I don't care. It's not as if I'm going to throw a keg party in Baxter and smash bottles all over the place. And if local law enforcement is too obtuse to realize what a ridiculous waste of time it would be to arrest or attempt to cite me for such a horrible transgression so be it. I'll have a good laugh on the ride back to the station with Barney Fife. As long as one brings no harm to others and uses common sense in their daily lives I say good for them. Unfortunately the lawmakers and those that enforce the laws do not always use common sense. and therein lies the problem. Another example happened to me just the other day. I was buying a bottle of wine and got carded. I did not have my I.D. and was denied purchase. I'm 41 years old. A 60 something year old man in front of me said they card him every time. And he was talking to his friend at the time. The cashier! Even though they are friends he still has to show her his I.D. each time he wants to buy alcohol! I understand the law was made to prevent underage drinking. If someone is of questionable age card them. Makes perfect sense, but carding a man in his sixties who you've known for years? This is why I will say "I don't care" instead of "I didn't know".

Sound like the store got burned and the owner said "never again." The fines are big and he could lose his liquor license, can't blame a small business man for looking out for his bread and butter.

[etaine]

Thanks for putting together this article, it hits pretty well every legal topic that is worth thinking about when starting a multiday/week hike through several different states.

[etaine]

..........

[Rain Man]

I would love to read the article. However, when I'm in post #1 of this thread on the first/last page, and click on "Click here to read the entire article," all it does it takes me back to the last post, on the first/last page, which does nothing to get me to the article.

I've reported this problem before in other threads. I know of no way to get the article. I'm interested in the law about hunters hunting one the AT footpath itself. I thought there was a 200-yard safety buffer zone along the entire AT, from Georgia to Maine. Last week we met hunters who killed a deer standing on the footpath. Today the Mt. Rogers NRA Headquarters told me that was perfectly legal there and it was up to each jurisdiction and there was no uniform, over-riding law for the National Scenic Trail. I'm in my usual state,-- confused!

RainMan

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