Laws are put in place to protect us. It is that simple. They ensure our rights as citizens are upheld and abuses by those around us are kept in check. Lawbreakers are typically punished for their actions and held accountable. But what happens when the lawbreakers are our own government?
Sovereign immunity allows the government to be held to a different set of standards. While the laws apply to all of us, sometimes governments, including the State of Idaho, claim they are above the law and not subject to the same legal action as everyone else. It allows governments to dictate which laws it can break.
Right now, the Idaho attorney general is attempting a broad expansion of the government’s power by asserting sovereign immunity for its actions as a landowner. We should all be worried.
In this particular case, Idaho is claiming it shouldn’t be required to pay for half of a fence installed to separate state endowment land from private ranching land in eastern Idaho. Idaho Code 35-103 provides the time-honored rule that adjacent property owners are required to split the cost of a fence or each construct half of the fence if one of them feels a fence is needed.
But now, the State of Idaho is claiming this rule should not apply to them.
This position is especially surprising because the Idaho Department of Lands has used this same rule in other cases to force private citizens to pay for fences neighboring its endowment lands.
If you think that seems hypocritical, you are not alone. An Idaho district court judge felt the same way. In his memorandum denying the Attorney General’s request to apply sovereign immunity, Judge Joel Tingey wrote, “How can the State be a ‘person’ so as to have standing to invoke the statute, yet not be a ‘person’ subject to the statute?”
As citizens of this state, we should all be alarmed and concerned when our government wants to cherry pick which laws it should follow.
The State of Idaho is taking this position in the court system, and the Attorney General’s office is using your taxpayer dollars to fund this attempt to expand state power. This flies in the face of the commitment to limit government that many of our politicians campaigned on.
The issue may be fences today but if the state continues to go down this path, what is next?
As property owners, the State of Idaho should be subject to the same rules as other property owners. While sovereign immunity may be needed to protect governmental decision making in some instances, it certainly does not need to be expanded to exempt the government from building fences.
The fencing case is set to go to trial this fall. The Attorney General and his lawyers continue to assert their claims that the rules do not apply to them.
This case sets an important precedent for our state’s future, granting the state more power and giving citizens little recourse to do anything about it.
While we already know fences make the best neighbors, we may soon find out if the state makes the worst.