The Power County Prosecutor recently received a telephone call from Barry Williams wherein Mr. Williams asked Randy Kline if Kline had read the case of Easley v. Lee 111 Idaho 115 (1986).

I, Randy Kline, assured Mr. Williams that I had read that case several times and well understood the ruling of court.

The central issue of the case was whether the county commissioners could delete the requirement of the 1963 version of Herd District Law requiring that the herd district be enclosed by a lawful fence.

The court specifically held that the statutory requirement (of a perimeter fence) could not be removed by a modification (or deviation) from the state herd district law, by the county commissioners in creating the herd district. Easley 111 Idaho at 118.

However as per the earlier memorandum the requirement of being “enclosed by lawful fences” was not added until the 1963 amendment.

The 1963 Amendment contains the language:

“Provided, any herd district heretofore established shall retain its identity, geographic definition, and remain in full force and effect, until vacated or modified hereafteras provided by Section 25-2404, Idaho Code, as amended.”

It should be particularly noted that the statute did not require a retro-active application of the law to require existing herd districts to be fenced.  Indeed the language at page 117 of Easley states:

Herd districts are a legislative exception to the “fence out” rule.  A majority of the landowners of more than 50% of the land within a proposed district may petition county commissioners for the creation of a herd district.

I.C. §25-2403.

It is held that a herd district provides an alternative to landowners who wish to protect their land from damage caused by roaming stock but do not wish, or cannot afford, to fence their land.  Maguire v. Yanke, supra.  Once a herd district is created, the rule of fencing out which requires landowners to keep out another’s livestock by construction of a fence no longer applies.  Rather, an owner of stock who allows animals to run at large in a herd district is guilty of a misdemeanor.  I.C. §25-2407.  Additional civil liability is imposed for damage caused by trespasses of such animals without regard to the condition of the landowner’s fence.  I.C. (§25-2408)

It should be noted that towns and villages are not required to have a perimeter fence, yet liability to the cattle owner attaches if the cattle enter the town or village.  The same argument could be made for cattle entering a “historic herd district” that was unfenced but existed prior to 1963. Mr. Williams insisted on a definitive statement of the liability and responsibility of a cattle owner if his cattle roam into the unfenced area of the Arbon Herd District.  I represented that there are no reported Idaho cases that specifically address that issue, therefore it is difficult, if not impossible to give an “iron-clad” statement regarding those issues.  However, the cases that do exist seem to suggest that the quoted statement at page 117 of Easley is the law.

Further clarity would likely require the case of cattle roaming into the Arbon Herd District be litigated.  Conversely, the land owners and cattle owners could work together and set a perimeter fence where necessary and appropriate, thereby keeping the roaming cattle out of the established herd district.

Having reviewed the Deputy Attorney General’s advisory letter of May 31, 2012, and having heard comments from Arbon residents on June 25, 2012, perhaps some additional clarification may be in order.

It could be argued in court that any cattle that enter the herd district created prior to 1963 would be subject to the herd district rule of “fencing in.”  That remains an open question for the Arbon Herd District.

The statutory language enacted after 1963 provides little authority to address that issue, or the issues of fences and liability.

Regarding the issue of taxation, I do not agree with the letter of the Attorney General deputy as written.  The assertion that there is a mandatory and discretionary tax provided in I.C. §25-2402(b) is incomplete.

The Attorney General’s opinion letter states:

The herd district law contains both mandatory and discretionary county taxing authority.  As to the mandatory authority, the herd district law provides that “[n]notwithstanding any provision of law to the contrary, a county shall have the authority to and shall levy an annual property tax not to exceed six hundredths percent (.06%) of market value for assessment purposes on taxable real property within the district….” I.C. §25-2402(6).¹  Counties also have discretionary taxing authority:  “Notwithstanding any provision of law to the contrary, a county shall have the authority to levy an annual property tax of not to exceed two hundredths percent (.02%) of market value for assessment purposes on taxable real property within the county….” I.C. §25-2401(2).

The Attorney General’s letter implies that all herd districts must be taxed.  I submit that is not a correct statement of the law.

The language in the Attorney General’s letter is incomplete:  After the word “district…” the omitted language is significant “… for the costs of constructing and maintaining the legal fencing and  cattle guards required by the creation or modification of such a herd district.”

Arbon is neither creating nor modifying the herd district.  Therefore the “mandatory tax” language is not applicable.

Additionally, the last sentence of I.C. §25-0401(1), is significant (also omitted from the Attorney General’s letter).  “The provisions of this chapter (Herd District Law) shall not apply to any herd district or herd ordinance in full force and effect prior to January 1, 1090, but shall apply to any modification thereof.”

Both sets of omitted language are significant.  However, inclusion of the omitted language does provide clarity that there is no mandatory tax to be collected regarding the Arbon Herd District.

I sincerely hope this answers all identified questions and issues regarding the Arbon Herd District.

If anyone has other questions, please do not hesitate to contact me.

Sincerely,