Understanding Indiana's Farm Trespass Bill

The past two years farm issues in the Indiana legislature have been dominated by so-called “ag-gag" bills. These bills sought to stop undercover videotaping and photographing, activities used by undercover groups to expose what they believe are abusive practices.  This year’s farm trespass bill takes a different approach, and as a result, it lacks the “gag” component that many found offensive in prior legislation.

Before I explain this year’s bill, let me give you a short lesson on what constitutes trespass in Indiana.  State statute has identified a number of ways in which a person can commit a criminal trespass.  One version of the statute states that person commits a trespass when they “knowingly or intentionally enters the real property of another person after having been denied entry by the other person or that person's agent.”  I.C. 35-43-2-1.5(a)(1).   A classic example of this occurs when someone climbs over a fence with a no trespassing sign onto someone’s property.  That would be a trespass.

Another version of trespass occurs when a person, “knowingly or intentionally refuses to leave the real property of another person after having been asked to leave by the other person or that person's agent.”  IC 35-43-2-1.5(a)(2).  This occurs when a property owner first allows someone onto their property, for example, a salesman, but then asks the person to leave and they refuse to do so.   At the moment the person is asked to leave and refuses, lawful conduct becomes criminal trespass.

There is another definition of trespass that applies to entering someone’s home.  This version states that it is a trespass if a person, not having a contractual interest a dwelling, “knowingly or intentionally enters the dwelling of another person without the person's consent.”  I.C. 35-43-2-1.5(a)(5).  Entering someone’s home without permission is trespassing—no questions asked or saying “get out” required.
Concern over unauthorized entry onto farms has led to Senate Bill 101 (SB101). This bill would make it a trespass to:

Knowingly or intentionally enter the property of an agricultural operation that is used for the production, processing, propagation, packaging, cultivation, harvesting, care, management, or storage of an animal, plant, or other agricultural product, including any pasturage or land used for timber management, without the consent of the owner of the agricultural operation or an authorized person.

Essentially, SB101 would afford farms the same protection afforded “dwellings” under the current law.  A farmer need not post “no trespassing” signs or tell a person to leave the farm in order for trespassing to occur.  If you have no business being on the farm, you are trespasser, and subject to the criminal penalties that follow.

From my vantage point, SB101 is a sign of a larger trend in agriculture.  Farmers are increasingly concerned with on-farm privacy.  With undercover employees, computers that track every seed planted, and drones flying overhead, who can blame them?