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The only way landowners in North Dakota can keep people off their land under current law is to post it for no hunting or no trespassing. Photo taken April 2, 2019. (Jenny Schlecht/Agweek)

Changes to ND property access fail yet again; separate bill mandates land access study

BISMARCK, N.D. — The North Dakota House voted down a bill that would have made changes to the state's private property posting laws, making Senate Bill 2315 the latest bill addressing the state's unique trespassing laws to fail.

Julie Ellingson, executive director of the North Dakota Stockmen's Association, said ag groups are disappointed in the failure of the bill. The Stockmen's Association, which had taken the lead in this year's effort, will continue to work on the matter if so directed by its board, she said.

However, a study of land access and the potential use of a database for electronic posting passed in another bill, House Bill 1021, the budget bill for the information technology department.

North Dakota is the only state in the region in which land is considered open unless it is posted for no trespassing. Lawmakers have advocated for decades for changing the law.

SB 2315 passed both chambers of the Legislature in different forms and was sent to a conference committee. The bill that came out of the committee would have made all land considered posted for no trespassing except for the purpose of hunting. It also would have established a study to consider a possible future database of hunter access in place of the current physical posting. Commercial hunting guides would have had to get permission to guide hunts on private land.

The Senate passed the conference committee bill 29-17 on April 25. The House accepted the committee report by a narrow margin but turned the bill down on a 48-44 vote the next day after more than an hour of debate on the floor, killing the bill on the last day of the legislative session.

While bill supporters called the proposals a "step forward" for landowners and property rights, opponents in the House picked on details of the bill. Concerns about fishing access and private cemetery access were among the reasons legislators gave for voting against the bill, as were worries about people being prosecuted if they got lost, stepped off a section line onto private property or walked dogs that went onto private property.

Rep. Bill Tveit, R-Hazen, and Rep. Cindy Schreiber-Beck, R-Wahpeton, served on both the House Agriculture subcommittee that dealt with the bill and the conference committee. They repeatedly asked fellow lawmakers not to "get into the weeds" on the bill and focus on the landowner protections it would provide. Rep. Luke Simons, R-Dickinson, said the "in the weeds" comment was the perfect description for the bill: "All this bill says is, don't go into somebody else's weeds without permission," he said.

Also discussed on the House floor was how SB 2315 would have changed future prosecutions of trespassing of the kind that occurred in the protest of the Dakota Access Pipeline. Rep. Jim Schmidt, R-Huff, read a letter from the Morton County State's Attorney's Office that said of 245 charges of criminal trespass stemming from the protest, only 42 people were convicted. Many cases stemmed on no trespassing signs being removed, taking away prosecutors ability to prove people knew they couldn't be on private land.

"What we have now doesn't work," Schmidt said. "All they're asking for is the ability to convict, and I hope that we consider that when we vote on this bill."

While the bill had the support of several hunting and wildlife groups, many legislators expressed their concerns of how the proposed changes would affect hunting access. Rep. Ben Koppelman, R-West Fargo, was concerned about potential inconsistencies about whether hunters would be able to remain on private property to retrieve game if landowners asked them to leave.

Other concerns about the bill revolved around the potential pilot program that could have set up a database for hunting access. Questions on that portion of the bill included whether land would be automatically marked open or closed, what kind of color scheme would be used, whether it would take into account hunting units in more than one county and whether it would expire without legislative action.

The study mandated in HB 1021 mirrors the one that had been included in SB 2315, but Ellingson said the pilot program and land access study did not generate the controversy in discussions of HB 1021 that they did in debate of SB 2315. HB 1021 requires a committee made up of two agriculture landowners, two representatives of sportsmen organizations, five legislators as voting members, along with representatives of the North Dakota Association of Counties, the Agriculture Commissioner, the director of North Dakota Game and Fish, the chief information officer for the state and the North Dakota State's Attorney's Association as non-voting members.

Trespass bills have been introduced in past legislative sessions, and Rep. Dennis Johnson, R-Devils Lake, said failing SB 2315 will just mean another bill will be introduced in the 2021 session.

"Yeah, we can kill this thing, and two years from now we'll have a bill, and we'll sit on the 80th day having the same conversation like we've had for the last several years," he said.

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