Advertise in Print | Subscriptions
Published August 09, 2010, 07:17 AM

Farmer challenges century-old fence law

BLANCHARD, N.D. — A Blanchard horse rancher’s fight over the arcane state law on fences has been rebuffed by every court he’s turned to, but La Verne Koenig’s beef about a century-old North Dakota law has some state lawmakers saying his complaint might have merit.

By: Dave Kolpack, The Associated Press , The Jamestown Sun

BLANCHARD, N.D. — A Blanchard horse rancher’s fight over the arcane state law on fences has been rebuffed by every court he’s turned to, but La Verne Koenig’s beef about a century-old North Dakota law has some state lawmakers saying his complaint might have merit.

A jury in May found the 59-year-old Koenig guilty of allowing livestock to run at large because authorities said he failed to maintain a legal fence on his spread near Blanchard in southeastern North Dakota. Koenig was ordered to pay $5,400 for injuries allegedly inflicted on a neighbor’s horse by one of Koenig’s horses.

Koenig has filed a laundry list of complaints about the case, including his claim that a creek and a ditch should have qualified as a legal fence — per a state law that has been on the books for more than 100 years.

“Look at the guy to the east here,” Koenig said outside his farmhouse recently, pointing across a Trail County road. “All he has is a road ditch. If that’s a legal fence, then why wouldn’t my road ditch be a legal fence?”

While Koenig appears to have little chance in the courts, some lawmakers believe there’s something wrong about a law on fences that was enacted when Theodore Roosevelt was president.

“There is a whole section on this and it’s all 100-year law,” said state Sen. Randy Christmann, R-Hazen, himself a rancher and fence mender. “It is so dated. It talks about standards for what’s an acceptable fence, and they’re nothing like how we build our fences nowadays.”

The law lists several fences considered to be legal, including a smooth wire fence with five wires, and a barbed wire fence with three wires. Other legal fences include a 4 1/2-foot structure of rails, timber, boards, stone walls or any combination, and all “brooks, rivers, ponds, creeks, ditches or hedges,” provided they are approved by county “fence viewers.”

“County commissioners are supposed to appoint fence monitors,” Christmann said. “Nobody does that.”

The statute also lists “any fence upon which the interested parties may agree” as a legal fence.

Koenig has appealed his case unsuccessfully to state court and then to the North Dakota Supreme Court.

The Supreme Court shot down all 11 points of Koenig’s appeal, including one that the fence law is unconstitutional because it’s vague and overly broad and allows for arbitrary enforcement.

He has since taken his case to federal court, where a judge threw out Koenig’s attempt to sue every county attorney in the state. Koenig’s motion to make it a class-action suit has been deferred until the governor and attorney general respond, but even Koenig calls it a “meaningless pursuit.”

Christmann and Bill Devlin, a former Republican representative from Finley, sponsored a resolution in 2005 to have the Legislative Council look into sections of the 1903 fence law, to “determine their relevancy in the 21st century.” It was never studied.

“I’m disappointed that it didn’t go anywhere,” Christmann said. “It’s just ripe for a big problem. I said then that if we can’t come up with a better section of law on fencing, then we should at least get rid of this one.”

Devlin did not return phone messages left by The Associated Press.

Attorney General Wayne Stenehjem said in Koenig’s appeal that he and the jurors in Koenig’s trial didn’t believe the law is confusing.

“The definition appears quite clear,” Stenehjem wrote in court documents. “A jury in Traill County heard all the testimony, was instructed on the law, and was able to reach a unanimous verdict based on this definition.”

Tom Trenbeath, deputy state attorney general, said Koenig’s allegation that the law is “vague and overbroad” is a common — and often unsuccessful — retort in constitutional arguments.

“Those are easily stretched to fit the situations that people find themselves in, but not so easily demonstrated to the satisfaction of a court,” Trenbeath said.

Even so, Trenbeath said he would understand if lawmakers decide to delve into the statute in the next session.

“I think it functioned well in the territorial days,” Trenbeath said. “There’s a common sense element, which I hate when people use that because I have yet to find any sense that’s common. It wouldn’t surprise me if something came to light to revise that some.”

Wade Moser, who stepped down in December 2008 after 26 years as the executive director of the North Dakota Stockmen’s Association, said most ranchers believe the law needs work. He said the most complaints his group received were either about cattle being out on a road — or fences.

As people have sold their land and new ranchers have moved in, some have assumed ownership of fences that are not theirs, Moser said.

“Most neighbors get along quite well but we had several questions about who owns the fence and who should keep it,” Moser said. “It probably needs to be hammered out in a little more detail.”

Tags: