North Dakota Legislature weighs balancing hunting, landowner rights
BISMARCK, N.D. -- North Dakota stands alone in the region for its wide-open laws concerning who can go onto private property. Outdoors groups credit the law, which considers all private property open for anyone to enter unless otherwise posted, w...
BISMARCK, N.D. - North Dakota stands alone in the region for its wide-open laws concerning who can go onto private property. Outdoors groups credit the law, which considers all private property open for anyone to enter unless otherwise posted, with keeping the state's hunting traditions vibrant.
But the positive note for hunters has long been a problem for many landowners, particularly farmers and ranchers who want to control who enters their land.
For years, the North Dakota Legislature has considered bills to change the state's posting laws, but with little to show for it. Lawmakers think that trend will stop this year with Senate Bill 2315, the latest attempt at revising the law.
"I think there is a real concern to get something solid done. People have suggested we continue to study this. Well, we can only study this so long. I think we need to have some action," said Rep. Cindy Schreiber-Beck, R-Wahpeton. "For our landowners in North Dakota, I think they do deserve ... a period at the end of the sentence here, so they know exactly where they stand and what they can look forward to."
To make the matter more palatable to hunters, agriculture groups and lawmakers have been careful to focus not on keeping hunters off the land, but on enhancing their own property rights.
"These are not only our homes but our places of business, and that just seems like it's a very basic, reasonable request that we should have the ability to say 'yes' or 'no' and to know who is there," said Julie Ellingson, executive vice president of the North Dakota Stockmen's Association.
Jeff Mertz, president of the North Dakota Grain Growers Association, said the situation can be compared to entering property in the city.
"How would you like it if I walked into your garage?" he asked.
Schreiber-Beck chairs a subcommittee of the House Agriculture Committee that is working on revising SB 2315. The bill was still in a state of flux last week as lawmakers tried to improve the situation for landowners while finding workable solutions for maintaining hunting access.
"I don't think anyone that sits on this committee or anyone in this chamber has anything against hunters," Schreiber-Beck said. "But we really want to protect the landowners' rights as well."
Legislators were considering possible amendments to put the bill in a form to present to the House Agriculture Committee and then to the full House. The bill, as it stood last week, would set up a database and mobile app where landowners could indicate whether their land was open to hunting. Such a system would mean that landowners no longer would have to physically put up "no hunting" or "no trespassing" signs to keep people off their land. They would, however, still have the choice of putting up physical signs. The bill also would establish an advisory committee, likely to consist of representatives from agriculture groups, outdoors groups, the Legislature and state agencies.
Concerns remained about how to fund the database and who would serve on the advisory committee as of early last week.
It's not just hunting
Landowners for decades have wanted to have more say over who enters their land for hunting and for other purposes. But the experiences of the 2016 protests over the Dakota Access Pipeline highlighted the simmering issue in a way nothing else had.
During the 2016 protests, law enforcement officials grappled with how to keep people off private land even if land hadn't been properly posted for no trespassing. At an earlier hearing, Morton County Sheriff Kyle Kirchmeier testified about the challenges of enforcing trespass laws. If someone tore down a sign, there was no way to prove that a trespasser knew the land was posted, he said. That meant many cases were thrown out of court.
Some versions of SB 2315 have made clear distinctions between people entering land for hunting and people entering land for other reasons. While land would be open unless posted for hunting and fishing, it would be considered closed for other purposes. Ellingson said that distinction would have helped during the protests.
"You want to know who's on your land and why they're there," Mertz said. "It's not even a hunting issue; it's private property rights."
For at least one North Dakota hunter, seeing what went on during the pipeline protests was an eye-opener to the issue of private property rights. Galen Becker of Bismarck told the House Agriculture subcommittee on April 1 that when his car was surrounded by protesters in downtown Bismarck, he realized what landowners who couldn't keep people off their land must have been going through.
"To me, the safety of the people of the state and those who enforce the laws of the state is much more important than my wanting to have the land open," he said.
As amendments were considered last week, the subcommittee also sought to avoid unintended consequences, including trespass issues that occur in cities. One amendment presented April 1 would have scratched much of the state's criminal trespass statute. Rep. Pat Heinert, R-Bismarck, questioned whether what was left would allow law enforcement to make arrests at stores or other public places when employees requested someone be "trespassed." The trespass laws were refined by the 2017 Legislature, and Heinert, the former sheriff of Burleigh County, raised concerns over whether throwing that work out would be prudent.
Finding a balance
Hunters and anglers spent $974.4 million in North Dakota during the 2017-18 hunting and fishing seasons, according to a report from the Department of Agribusiness and Applied Economics at North Dakota State University. Much of the money was spent in rural areas.
With that kind of economic impact, the North Dakota Legislature has been hesitant to change the hunting landscape in the state.
Schreiber-Beck acknowledged that finding a balance to keep everyone happy on SB 2315 would not be easy. For instance, the bill under consideration now would keep the onus on landowners to indicate whether they want their land open, making it a "softer version" of what many landowners would like to see, Ellingson said.
During the House Agriculture subcommittee meeting on April 1, Sen. Robert Erbele, R-Lehr, said at least eight surrounding states consider all land as "posted" no trespassing. North Dakota, then, is the only state in the region in which people can enter land without first asking the property owner. For hunters, that's been a positive thing, providing more land to hunt in a state with a small amount of publicly owned hunting ground.
Schreiber-Beck said that while neighboring states with stricter private property laws still enjoy ample hunting and fishing, residents in those states have long been used to those laws, making them a difficult comparison for North Dakota.
Schreiber-Beck expected that the House Agriculture Committee would come up with a bill by the end of last week that could be presented to the House, and she was confident that the bill would be amenable to a majority of the House.
The House, coming up against late-session deadlines, will be expected to take up the bill this week, Schreiber-Beck said. If it passes the House, a conference committee of House and Senate members will still have to work on a final bill that can make enough people happy to pass both chambers.
That means lawmakers are still open to hearing from their constituents about what they'd like to see in a final bill.
"There still is time for input when it goes to conference," Schreiber-Beck said.