Wisconsin eliminating penalties for trespassing?

[kenotrainnut]

Two posts by UP today on Facebook regarding a provision in the just-passed Wisconsin state budget to eliminate penalties for people trespassing on railroad property. As there have been much bigger stories regarding the budget for the media to feast on, this has sailed under the radar. Does anyone know anything about this? I've been trying to figure out who benefits from this other than photographers wanting to take senior pictures. Given the generally business-friendly Republican government in the state, it seems strange they would make this move.

As it stands, King Walker can veto that provision with his line-item veto, so it may not become law.

[schlimm]

I'm no lawyer, but these statutes concern only some forms of trespass, especially buildings.  Omission of railroad lines does not mean trespassing there is now legal.  Facebook posts are often uninformed.

http://docs.legis.wisconsin.gov/statutes/statutes/943.pdf

[kenotrainnut]

I'm not sure that document is the statute passed this week. It's publish date is in May; the budget passed just in the last couple days. Here's a link to an op/ed to the Wisconsin State Journal by Union Pacific itself from today:

http://host.madison.com/news/opinion/mailbag/gov-scott-walker-should-veto-railroad-trespass-repeal--/article_1247a575-749e-5fc2-aea2-ebb5a9b3eb14.html

[schlimm]

kenotrainnut

I'm not sure that document is the statute passed this week. It's publish date is in May; the budget passed just in the last couple days. Here's a link to an op/ed to the Wisconsin State Journal by Union Pacific itself from today:

http://host.madison.com/news/opinion/mailbag/gov-scott-walker-should-veto-railroad-trespass-repeal--/article_1247a575-749e-5fc2-aea2-ebb5a9b3eb14.html

 

The link contents says:  

"Updated 2013−14 Wis. Stats. Published and certified under s. 35.18. July 7, 2015."

Read it yourself and/or check with a lawyer.

 

943.13  Trespass to land.

(1e) In this section:

(aL) "Carry" has the meaning given in s. 175.60 (1) (ag).

(ar) "Dwelling unit" means a structure or that part of a structure which is used or intended to be used as a home, residence or sleeping place by one person or by 2 or more persons maintaining a common household, to the exclusion of all others.

(az) "Implied consent" means conduct or words or both that imply that an owner or occupant of land has given consent to another person to enter the land.

(b) "Inholding" means a parcel of land that is private property and that is surrounded completely by land owned by the United States, by this state or by a local governmental unit or any combination of the United States, this state and a local governmental unit.

(bm) "Licensee" means a licensee, as defined in s. 175.60 (1) (d), or an out-of-state licensee, as defined in s. 175.60 (1) (g).

(c) "Local governmental unit" means a political subdivision of this state, a special purpose district in this state, an instrumentality or corporation of the political subdivision or special purpose district or a combination or subunit of any of the foregoing.

(cm) "Nonresidential building" includes a nursing home as defined in s. 50.01 (3), a community-based residential facility as defined in s. 50.01 (1g), a residential care apartment complex as defined in s. 50.01 (6d), an adult family home as defined in s. 50.01 (1), and a hospice as defined in s. 50.90 (1).

(cr) "Open land" means land that meets all of the following criteria:

1. The land is not occupied by a structure or improvement being used or occupied as a dwelling unit.

2. The land is not part of the curtilage, or is not lying in the immediate vicinity, of a structure or improvement being used or occupied as a dwelling unit.

3. The land is not occupied by a public building.

4. The land is not occupied by a place of employment.

(cv) "Out-of-state licensee" has the meaning given in s. 175.60 (1) (g).

(d) "Place of employment" has the meaning given in s. 101.01 (11).

(e) "Private property" means real property that is not owned by the United States, this state or a local governmental unit.

(h) "Special event" means an event that is open to the public, is for a duration of not more than 3 weeks, and either has designated entrances to and from the event that are locked when the event is closed or requires an admission.

 (1m) Whoever does any of the following is subject to a Class B forfeiture:

(a) Enters any enclosed, cultivated or undeveloped land of another, other than open land specified in par. (e) or (f), without the express or implied consent of the owner or occupant.

(am) Enters any land of another that is occupied by a structure used for agricultural purposes without the express or implied consent of the owner or occupant.

(b) Enters or remains on any land of another after having been notified by the owner or occupant not to enter or remain on the premises. This paragraph does not apply to a licensee or out-of-state licensee if the owner's or occupant's intent is to prevent the licensee or out-of-state licensee from carrying a firearm on the owner's or occupant's land.

(c)

1. While carrying a firearm, enters or remains at a residence that the actor does not own or occupy after the owner of the residence, if he or she has not leased it to another person, or the occupant of the residence has notified the actor not to enter or remain at the residence while carrying a firearm or with that type of firearm. In this subdivision, "residence," with respect to a single-family residence, includes the residence building and the parcel of land upon which the residence building is located, and "residence," with respect to a residence that is not a single-family residence, does not include any common area of the building in which the residence is located or any common areas of the rest of the parcel of land upon which the residence building is located.

1m. While carrying a firearm, enters or remains in a common area in a building, or on the grounds of a building, that is a residence that is not a single-family residence if the actor does not own the residence or does not occupy any part of the residence, if the owner of the residence has notified the actor not to enter or remain in the common area or on the grounds while carrying a firearm or with that type of firearm. This subdivision does not apply to a part of the grounds of the building if that part is used for parking and the firearm is in a vehicle driven or parked in that part.

2. While carrying a firearm, enters or remains in any part of a nonresidential building, grounds of a nonresidential building, or land that the actor does not own or occupy after the owner of the building, grounds, or land, if that part of the building, grounds, or land has not been leased to another person, or the occupant of that part of the building, grounds, or land has notified the actor not to enter or remain in that part of the building, grounds, or land while carrying a firearm or with that type of firearm. This subdivision does not apply to a part of a building, grounds, or land occupied by the state or by a local governmental unit, to a privately or publicly owned building on the grounds of a university or college, or to the grounds of or land owned or occupied by a university or college, or, if the firearm is in a vehicle driven or parked in the parking facility, to any part of a building, grounds, or land used as a parking facility.

3. While carrying a firearm, enters or remains at a special event if the organizers of the special event have notified the actor not to enter or remain at the special event while carrying a firearm or with that type of firearm. This subdivision does not apply, if the firearm is in a vehicle driven or parked in the parking facility, to any part of the special event grounds or building used as a parking facility.

4. While carrying a firearm, enters or remains in any part of a building that is owned, occupied, or controlled by the state or any local governmental unit, excluding any building or portion of a building under s. 175.60 (16) (a), if the state or local governmental unit has notified the actor not to enter or remain in the building while carrying a firearm or with that type of firearm. This subdivision does not apply to a person who leases residential or business premises in the building or, if the firearm is in a vehicle driven or parked in the parking facility, to any part of the building used as a parking facility.

5. While carrying a firearm, enters or remains in any privately or publicly owned building on the grounds of a university or college, if the university or college has notified the actor not to enter or remain in the building while carrying a firearm or with that type of firearm. This subdivision does not apply to a person who leases residential or business premises in the building or, if the firearm is in a vehicle driven or parked in the parking facility, to any part of the building used as a parking facility.

(e) Enters or remains on open land that is an inholding of another after having been notified by the owner or occupant not to enter or remain on the land.

(f) Enters undeveloped private land from an abutting parcel of land that is owned by the United States, this state or a local governmental unit, or remains on such land, after having been notified by the owner or occupant not to enter or remain on the land.

 (1s) In determining whether a person has implied consent to enter the land of another a trier of fact shall consider all of the circumstances existing at the time the person entered the land, including all of the following:

(a) Whether the owner or occupant acquiesced to previous entries by the person or by other persons under similar circumstances.

(b) The customary use, if any, of the land by other persons.

(c) Whether the owner or occupant represented to the public that the land may be entered for particular purposes.

(d) The general arrangement or design of any improvements or structures on the land.

 (2) 

(am) A person has received notice from the owner or occupant within the meaning of sub. (1m) (b), (e) or (f) if he or she has been notified personally, either orally or in writing, or if the land is posted. Land is considered to be posted under this paragraph under either of the following procedures:

1. If a sign at least 11 inches square is placed in at least 2 conspicuous places for every 40 acres to be protected. The sign must provide an appropriate notice and the name of the person giving the notice followed by the word "owner" if the person giving the notice is the holder of legal title to the land and by the word "occupant" if the person giving the notice is not the holder of legal title but is a lawful occupant of the land. Proof that appropriate signs as provided in this subdivision were erected or in existence upon the premises to be protected prior to the event complained of shall be prima facie proof that the premises to be protected were posted as provided in this subdivision.

2. If markings at least one foot long, including in a contrasting color the phrase "private land" and the name of the owner, are made in at least 2 conspicuous places for every 40 acres to be protected.

(bm)

1. In this paragraph, "sign" means a sign that states a restriction imposed under subd. 2. that is at least 5 inches by 7 inches.

2.

a. For the purposes of sub. (1m) (c) 1m., an owner of a residence that is not a single-family residence has notified an individual not to enter or remain in a part of that building, or on the grounds of that building, while carrying a firearm or with a particular type of firearm if the owner has posted a sign that is located in a prominent place near all of the entrances to the part of the building to which the restriction applies or near all probable access points to the grounds to which the restriction applies and any individual entering the building or the grounds can be reasonably expected to see the sign.

am. For the purposes of sub. (1m) (c) 2., 4., and 5., an owner or occupant of a part of a nonresidential building, the state or a local governmental unit, or a university or a college has notified an individual not to enter or remain in a part of the building while carrying a firearm or with a particular type of firearm if the owner, occupant, state, local governmental unit, university, or college has posted a sign that is located in a prominent place near all of the entrances to the part of the building to which the restriction applies and any individual entering the building can be reasonably expected to see the sign.

b. For the purposes of sub. (1m) (c) 2., an owner or occupant of the grounds of a nonresidential building or of land has notified an individual not to enter or remain on the grounds or land while carrying a firearm or with a particular type of firearm if the owner or occupant has posted a sign that is located in a prominent place near all probable access points to the grounds or land to which the restriction applies and any individual entering the grounds or land can be reasonably expected to see the sign.

c. For the purposes of sub. (1m) (c) 3., the organizers of the special event have notified an individual not to enter or remain at the special event while carrying a firearm or with a particular type of firearm if the organizers have posted a sign that is located in a prominent place near all of the entrances to the special event and any individual attending the special event can be reasonably expected to see the sign.

 (3) Whoever erects on the land of another signs which are the same as or similar to those described in sub. (2) (am) without obtaining the express consent of the lawful occupant of or holder of legal title to such land is subject to a Class C forfeiture.

 (3m) An owner or occupant may give express consent to enter or remain on the land for a specified purpose or subject to specified conditions and it is a violation of sub. (1m) (a) or (am) for a person who received that consent to enter or remain on the land for another purpose or contrary to the specified conditions.

 (4) Nothing in this section shall prohibit a representative of a labor union from conferring with any employee provided such conference is conducted in the living quarters of the employee and with the consent of the employee occupants.

 (4m) 

(am) This section does not apply to any of the following:

1. A person entering the land, other than the residence or other buildings or the curtilage of the residence or other buildings, of another for the purpose of removing a wild animal as authorized under s. 29.885 (2), (3) or (4).

2. A hunter entering land that is required to be open for hunting under s. 29.885 (4m) or 29.889 (7m).

3. A person entering or remaining on any exposed shore area of a stream as authorized under s. 30.134.

4. An assessor and an assessor's staff entering the land, other than a building, agricultural land or pasture, or a livestock confinement area, of another if all of the following apply:

a. The assessor or the assessor's staff enters the land in order to make an assessment on behalf of the state or a political subdivision.

b. The assessor or assessor's staff enters the land on a weekday during daylight hours, or at another time as agreed upon with the land owner.

c. The assessor or assessor's staff spends no more than one hour on the land.

d. The assessor or assessor's staff does not open doors, enter through open doors, or look into windows of structures on the land.

e. The assessor or the assessor's staff leaves in a prominent place on the principal building on the land, or on the land if there is not a principal building, a notice informing the owner or occupant that the assessor or the assessor's staff entered the land and giving information on how to contact the assessor.

f. The assessor or the assessor's staff has not personally received a notice from the owner or occupant, either orally or in writing, not to enter or remain on the premises.

(bm) Subsection (1m) (c) 2. and 4. does not apply to a law enforcement officer employed in this state by a public agency to whom s. 941.23 (1) (g) 2. to 5. and (2) (b) 1. to 3. applies, to a qualified out-of-state law enforcement officer, as defined in s. 941.23 (1) (g), to whom s. 941.23 (2) (b) 1. to 3. applies, or to a former officer, as defined in s. 941.23 (1) (c), to whom s.941.23 (2) (c) 1. to 7. applies if the law enforcement officer, the qualified out-of-state law enforcement officer, or the former officer is in or on the grounds of a school, as defined in s.948.61 (1) (b).

 (5) Any authorized occupant of employer-provided housing shall have the right to decide who may enter, confer and visit with the occupant in the housing area the occupant occupies.

History: 1971 c. 317; 1977 c. 173, 295; 1979 c. 32; 1983 a. 418; 1987 a. 27; 1989 a. 31; 1993 a. 342, 486; 1995 a. 45, 451; 1997 a. 248; 1999 a. 9; 2003 a. 33; 2009 a. 68; 2011 a. 35; 2013 a. 162; 2013 a. 165 s. 114; 2013 a. 166 ss.76, 77; 2015 a. 23.

The arrest of abortion protesters trespassing at a clinic did not violate their free speech rights. State v. Horn, 139 Wis. 2d 473, 407 N.W.2d 854 (1987).

Administrative code provisions requiring hunters to make reasonable efforts to retrieve game birds killed or injured do not exempt a person from criminal prosecution under sub. (1) (b) [now sub. (1m) (b)] for trespassing upon posted lands to retrieve birds shot from outside the posted area. 64 Atty. Gen. 204.

[Wizlish]

schlimm, I've read over the sections you quoted, and for the life of me I can't find the unanticipated consequences that would decriminalize railroad trespass.  Most of what I see appears to concern hunters (or at least people with a reason to carry firearms) ... can you point out the specific area(s) that apply to commercial real estate or more particularly railroad property?

I'd think by now that even in a state with populist history (note the comment to the "UP" news story just cited) there should be explicit sections of legislation that clearly define trespassing on active railroad property, and perhaps provide enhanced enforcement, without giving the appearance that the legislature was acting as a 'tool' of those evil robber barons who ride the backs of the honored citizens, etc...

I did, on the other hand, see this (not fully cited, but you can go back and use the original quote to determine that):

(3m)  An owner or occupant may give express consent to enter or remain on the land for a specified purpose or subject to specified conditions and it is a violation of sub. (1m) (a) or (am) for a person who received that consent to enter or remain on the land for another purpose or contrary to the specified conditions.

I think this would be model language for how a railroad might be enabled to grant access to people involved with a fantrip, or other fan activity, while retaining the right to eject them for unsafe behavior or leave open the idea that they could be on railroad property at other times.

[schlimm]

I think this paragraph would apply to rail RoW.  It needn't specify railroad to be trespassing.  Perhaps the UP VP needs to check with legal before writing such a silly letter.

(1m) Whoever does any of the following is subject to a Class B forfeiture:

(a) Enters any enclosed, cultivated or undeveloped land of another, other than open land specified in par. (e) or (f), without the express or implied consent of the owner or occupant.

e) "Private property" means real property that is not owned by the United States, this state or a local governmental unit.

[mudchicken]

(1) Kinda helps if you have the proper statute

(2) Does any of this go back to the nut-case railroad commissioner several years back that got his sorry butt hauled off for being arrogant & stoopid on W&S (now Watco)?

(3) Nothing linked so far lays out what Uncle Pete or anyone else is directly concerned about. Plus Wisconsin cannot void the federal FRA and OSHA rules that can be applied. So far in this thread, the linkage is not clear.

192.32  Trespassing on railroad.

192.32(1)(1) No person, other than a licensee, authorized newspaper reporter or person connected with or employed upon the railroad, may walk, loiter or be upon or along the track of any railroad. The provisions of this subsection shall not be construed to do any of the following:

192.32(1)(a)(a) To interfere with the lawful use of a public highway by any person.

192.32(1)(b)(b) To prevent any person from driving across any railroad from one part of that person's land to another part thereof.

192.32(1)(d)(d) To interfere with the use of the right-of-way or track by any person in connection with, either directly or indirectly, the shipping, loading or unloading of freight, seeking employment, the investigation or securing of evidence with respect to any accident or wreck or in conducting or transacting any other business for or with the railroad.

192.32(1)(e)(e) To interfere with the entry of any employee during or on account of labor disputes by employees.

192.32(2)(2) Each railroad corporation shall post notices containing substantially the provisions and penalties of this section, in one or more conspicuous places in or about each railroad station.

192.32 History History: 1993 a. 482, 490; 1997 a. 254; 2001 a. 38; 2005 a. 179.

192.321 192.321  Getting on and off cars. Any person who shall get upon, attempt to get upon, cling to, jump or step from any railroad car or train while the same is in motion shall forfeit not less than $100 nor more than $200, provided that this section shall not apply to the employees of any railroad company.

192.321 History History: 2005 a. 179.

[wanswheel]

Excerpt from La Crosse Tribune, May 4

http://lacrossetribune.com/news/local/strict-enforcement-of-trespass-law-by-bnsf-could-put-wisconsin/article_4c799ab9-34ad-5ef2-b65f-4901142e4fc5.html

GENOA, Wis. — Charles Burch was heading to his favorite ice fishing spot, a Mississippi River backwater south of Genoa, when he ran into a railroad detective.

The 74-year-old angler said the cop asked where he was headed.  

“Obviously I’m going fishing,” Burch said, retelling the story.

The railroad cop told him if he went across the tracks he’d get a trespassing ticket.

There was no other way to reach the water, so Burch turned around and hasn’t been back to that spot since. Nevermind that he’d been fishing that slough for 40 years.

His experience is an increasingly common one, especially along Wisconsin’s western border, where more than 214 miles of BNSF track separates most of the state from the Mississippi River.

 

Excerpt from Wisconsin Radio Network, July 10

http://www.wrn.com/2015/07/railroad-officials-call-for-wisconsin-budget-veto/

Wisconsin railroad officials want Governor Scott Walker to veto a last-minute addition to the state budget.

The measure, approved as a part of the Joint Finance Committee’s final omnibus motion without discussion, repeals the state’s railroad trespassing law. The law allows police to issue citations to people who trespass on or along railroad tracks and corridors, primarily to prevent someone from being hit by a train.

State Railroad Commissioner Jeff Plale says the provision started as an effort to address concerns about people trying to access fishing areas along the Mississippi River, but somehow transformed into a full repeal in the budget writing process. Plale says the fishing access issue is something they can fix without having to repeal an important law that protects public safety, either by putting in safe crossings or working with local officials. As written, he says “it opens up railroad trespass carte blanche throughout the state. I think it’s just wrong-headed.”

[mudchicken]

The current railroad commish has his head on straight. (thanx wanswheel)

Please note that the complaint is regarding local (not only railroad) police trying to save some of the finer local citizenry from their own stupidity. This surveyor hates doing accident surveys, the fewer the better.

[mudchicken]

Governor Walker line item vetoed the thing this morning. Good/ prudent move IMHO.

 

[Wizlish]

wanswheel

Excerpt from La Crosse Tribune, May 4 http://lacrossetribune.com/news/local/strict-enforcement-of-trespass-law-by-bnsf-could-put-wisconsin/article_4c799ab9-34ad-5ef2-b65f-4901142e4fc5.html

The thing I find hard to understand, in light of the legislative language quoted earlier, is: why would so many people in Wisconsin go fishing with firearms?  Wouldn't dynamite be more sporting?

[wanswheel]

Same day’s news, July 13. Interesting coincidence.

“I'm in. I'm running for president because Americans deserve a leader who will fight and win for them.” - Scott Walker

"I am vetoing this section because I am concerned that allowing people to walk across railroad tracks outside of a designated crossing impairs public safety.” – Scott Walker

[erikem]

wanswheel

"I am vetoing this section because I am concerned that allowing people to walk across railroad tracks outside of a designated crossing impairs public safety.” – Scott Walker

 

Accurate and to the point.

[Ulrich]

No jurisdiction can eliminate the biggest penalties for trespassing: injury and death.