BISMARCK, N.D. — The North Dakota Senate has passed two bills related to updating the state's trespassing laws.

The Senate on Monday, Jan. 18, passed Senate Bill 2144 and Senate Bill 2036 45-2 and unanimously defeated two similar bills, Senate Bills 2037 and 2038.

The state's trespassing law, which considers all private property open for entry unless posted for no trespassing, has been a contentious issue in past legislative sessions, often pitting landowners against hunters. But the bills so far in the 2021 session have generated little opposition. Sen. Robert Erbele, R-Lehr, has been one of the main drivers behind finding common ground on the issue and on the Senate floor credited the work of citizen members of an interim committee that took the issue on.

Sen. Robert Erbele, R-Lehr, presented four bills related to North Dakota's trespassing laws to the Senate Energy and Natural Resources committee on Jan. 14, 2021, in Bismarck, N.D. (Screenshot of North Dakota Legislature committee)
Sen. Robert Erbele, R-Lehr, presented four bills related to North Dakota's trespassing laws to the Senate Energy and Natural Resources committee on Jan. 14, 2021, in Bismarck, N.D. (Screenshot of North Dakota Legislature committee)
Without that work, he said, legislators would have "700 emails" on the matter to read. As it is, both agriculture and landowner groups and outdoors groups have spoken in favor of the bills.

The issue of revising North Dakota’s trespassing laws on private land was among the most divisive of the 2019 legislative session. While the main bill addressing trespassing in the 2019 session failed, the budget bill for the Information Technology department contained an item calling for a study of land access and the potential use of a database for electronic posting. SB 2144 builds off the work done in that study.

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SB 2144 would establish a statewide electronic posting system, eliminating the need for landowners to physically post land for no hunting, a time-consuming and costly exercise for some landowners.

The bill also provides a definition of a fence and provides that a fence is a highly secure premise, which can lead to enhanced charges for criminal trespass. However, licensed hunters and fishers still are allowed to enter unposted fenced land. That section of the bill came about as a result of a case of someone who was alleged to have trespassed on fenced land during the Dakota Access Pipeline protests. That case, State of North Dakota vs. Julian Bearrunner, raised the question of whether a barbed wire fence was enough to satisfy an enclosure requirement boosting a criminal trespass case from a Class B misdemeanor to a Class A misdemeanor. The Supreme Court upheld Bearrunner's conviction for Class A misdemeanor. SB 2144 would clarify that entering through a fence that would hold livestock without permission would qualify as Class A misdemeanor trespassing.

SB 2036 would continue the interim study that began following the 2019 legislative session. In a hearing last week, Erbele said it was important to continue studying land access and private property issues and the use of electronic posting to ensure a new system would work properly.

SB 2144 and 2036 now will go to the North Dakota House.