Those who trespass against us
June 1, 2017
The Fifth Amendment of the U.S. Constitution secures our right to own private property. However, as many North Dakota residents have experienced the hard way, ownership does not guarantee control of who goes on your land.
Last session in the North Dakota Senate a bill that would fortify the rights of private property owners against trespassers failed. Current North Dakota law states it is landowners' responsibility to post clear and detailed "no trespassing" signs at every entrance to their private property from public roads or public land. The name of the person posting the land must appear on each sign in legible characters, signs must be readable from outside of the land, and posted not more than 880 yards apart or at each entrance or gate.
SB 2225 would have removed the posting requirement and funded a pilot program, starting with five counties, to create an electronic register. All posted land and all land available for hunting, as well as optional contact information of landowners, would be in a digital database.
The bill failed 17-28, and North Dakota remains "open until proven closed." And as many landowners can attest, signs have a way of simply disappearing.
Pete Hanebutt is the director of public policy for the North Dakota Farm Bureau. He said the concept of posting is unique to North Dakota. "The idea that if you don't see a posted sign you have the right to walk on someone's property is really different for this part of Midwest."
The debate on trespassers came to a head this past year in light of the DAPL protest. "Those protestors had no concern for the rule of law in all aspects," he said. "They shamelessly violated private property rights, stole cattle and horses, and trespassed at their own whims.
"Ranchers and farmers would put up signs and they would be torn down the next day. We were fed up. This issue has always been in our policy book, but it became a priority issue for us this year. You shouldn't have to see a sign to not trespass – anyone can make a case that they can't see a sign."
Hanebutt said the momentum led them to hope the legislation – which comes up every session – would pass this time.
"It had some pretty strong legs and power behind it, but the sportsmen's groups rallied quite a bit and took some liberties as to what the bill was saying, and projected it as: 'They are taking away your right to hunt.' Obviously enough senators were more scared of the hunters in their districts or they chose not to listen to the farmers."
The legislation was widely supported by the agriculture advocacy in the state. However, Hanebutt said there is actually a component of farmers, particularly in the eastern part of the state, who support open access unless posted. "The concept of allowing people to walk on your property without permission is a very ingrained custom here; even within a small contingency of the ag community," he said.
Ross Schroeder farms and ranches near New Salem, N.D., 35 miles west of Bismarck. His land and farmstead are located right alongside an interstate exit – and also on the Dakota Access Pipeline route, 50 miles away from the Standing Rock protest debacle.
"Some of the protestors from the main site were removed and found their way to our place. They were hiding on our land, running through our fields – they tied themselves to the [pipeline] machinery," Schroeder said. "The cops handled it great; we were able to get rid of them without a lot of spectacle, but the trespass law should have been stronger."
Schroeder mentioned a separate case, unrelated to the pipeline, where they saw someone walking around on their rented land. "We drove up and found some guys picking up [antler] sheds." When confronted, the trespassers countered the land wasn't posted, and that Schroder didn't know how to post for no trespassing correctly.
"It kind of upset me, being told I didn't know how to put up a sign," said Schroeder.
In another situation Schroeder said his brother came upon five trespassers who responded aggressively when asked to leave. "They got smart, acting like lawyers, so we called the game warden. But the problem was, if we had decided to press charges, the five of them would have gone to court – all in separate cases, and we would have had to appear at every single court case to prosecute.
"We ended up talking to them and they donated some money to our local sportsmen's group and we let them go."
The key argument against the bill was simply the restrictions on hunting it would create. In legislative testimony archived by MyNDNow.com, opponents noted the names on signs were the only way to connect to landowners to seek permission, and that a few "bad apples" shouldn't let the culture of hunting be disrupted for all.
Eric Lindstrom is the national manager of ag policy for Ducks Unlimited and testified against SB 2225. According to Becky Jones Mahlum, regional manager of communications at Ducks Unlimited, the organization "offered a middle-of-the-road approach, understanding the importance of private property rights and access for sportsmen."
She said Lindstrom's testimony supported looking for "ways to work together, not drive wedges, and build stronger alliances between our sportsmen and agricultural community."
In a statement to TSLN, Lindstrom stated: "Even though current law allows hunters to access unposted land, we strongly encourage all hunters to seek out landowner permission whether it's posted or unposted. Let's focus on providing more incentives and programs to our farmers and ranchers to conserve habitat, work to increase public access and sustain our state's wildlife populations and rich hunting traditions. Access is only good if we have healthy populations to hunt, quality places to hunt and strong relationships with private landowners."
The crux of the debate comes down, as in many states, to population distribution. In North Dakota the eastern side has all the votes, and the western side has the land and wildlife. Farmers and ranchers are outnumbered by those seeking a playground – whether they get along or not.
"It's about all the non-landowners wanting access," said Schroeder. "A lot of them have the attitude that they pay taxes, and farmers get 'free money from the government,' so it's their right to be on there."
Although disappointed, landowners aren't done campaigning.
"It comes back pretty regular. We thought this year with protestors we would get it passed. My legislator…works hard on it," said Schroeder.
The issue will resurface, with the same question from many: "Why is this even a discussion in the first place?"
"I can't walk in to the backyards or homes or businesses of the legislators who are vehemently opposed to this and camp or hike or do whatever I want. Yet, they are alleging farmers should be expected to allow that," said Hanebutt. "It's a shame they choose to throw out private property over a privilege – and hunting is a privilege, not a constitutional right."