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This was on the front page of the Minot paper today.It looks like "Common Law" will be the heart of their argument.


Is private property open to the public?
Lawsuit reignites debate over posted land

By: Jay Johnson
Editorial Staff Writer
Posted at

- Myron and Gene Miller and their families run a farm and ranch in Grant County. Gene lives on the farmstead where their parents raised them. Myron has a house a few yards away, across N.D. Highway 25. Their land is prime hunting land.

The Millers are in favor of a lawsuit that would turn the state's trespassing laws upside down.

Rep. Rodney Froelich, D-Selfridge, and his wife, Kathryn, are suing Gov. John Hoeven and Dean Hildebrand, director of the North Dakota Game and Fish Department, for their management roles in how trespassing law is currently interpreted. As of yet, no court date has been set for the case.

The Froelichs allege that the state has infringed on the rights of private landowners by promoting hunting through the use of private, but unposted land by hunters.

"What gives the state the right to tell people to go on my property just because I don't put up signs that say keep off?" asked Rodney Froelich.

Lawsuit is not anti-hunting

A citation in the Froelichs' complaint against Hoeven and Hildebrand quotes Craig Bihrle, Game and Fish communication supervisor: "In North Dakota, since it is legal to enter unposted land without permission, many hunters do just that."

Jim Weight, president of the United Sportsmen of North Dakota, says the Froelichs' suit is about more than landowner rights.

"It's clear that this is about hunting," said Weight.

"The people most upset with this case are hunters, but this is not anti-hunting," said Froelich. "This is about property rights, not hunting."

State Attorney General Wayne Stenehjem said while he has sympathy for what Froelich is saying, he is duty bound to defend the laws of the state.

Stenehjem questions whether Game and Fish is actively promoting the use of people's private property. "Game and Fish is merely pointing out state law," he said.

Stenehjem said state law is clear and they all point to a conclusion that hunting on private, unposted land is an acceptable practice.

"The state's wildlife belongs to the public. ... Management of wildlife is a public good. ... The need to manage wildlife supersedes the minimal effort required by landowners to post to keep people from hunting," said Stenehjem.

Froelich does not deny that huntable game belongs to the public.

"It's OK to pursue the game, but don't put the posting burden on landowners," said Froelich.

Carson area landowner Virgil Hertz runs cows on a 3,800-acre ranch. He firmly believes that land should be considered closed unless it is posted open.

"Hunting is no birthright. If it isn't worthwhile asking, it isn't worthwhile hunting," said Hertz.

Common law

Devils Lake attorney Douglas A. Goulding represents the Froelichs. Goulding says the common law rights of landowners to exclusive use of their land is being violated.

Casey Wells, another Carson area rancher, said the Froelichs' case is long overdue. He also said it's wrong to say the case is about hunting. Instead he wants people to think about the work and expense to landowners who are forced to post.

Wells said he has never turned down a hunter who asked to use his land. "But," he said, "this is our right."

While Goulding is representing the Froelichs, he has been hired to work the case by the Northern Plains Public Interest Law Firm, an organization set up under the auspices of the North Dakota Farm Bureau.

Eric Aasmundstad, president of the North Dakota Farm Bureau, said NPPILF is a non-profit organization formed to help landowners defend their property rights. The Froelich case is the first for the firm.

"There is no animosity toward Hoeven or the state. All we are doing is asking a question. We want the issue settled," Aasmunstad said.

The question of posting has been percolating in the state for sometime. Froelich said he has brought the issue to the state Legislature for six years with no luck. He said that to his local constituents this is a major issue.

"I hear all the time, 'What are you guys going to do about this?' I tell them we've tried," said Froelich.

However, Froelich says the overwhelming political muscle of eastern North Dakota lawmakers has made legislative success virtually impossible.

"They have all the votes," said Froelich.

Stenehjem says that using the courts to change public policy is the wrong approach. He said the Legislature is where policy is developed and that is where opponents of the current trespassing laws need to focus their attention.

Goulding says the Froelichs are not looking for money, but for the state to agree that private landowners do not have to post their land to keep people off their land without first securing permission from the landowner.

Closed unless posted?

Rodney Froelich says the way to correct what he sees as a problem is for land to be considered closed unless it is posted as open to the public. Froelich acknowledges that most of the people using farmer and rancher owned land are hunters.

According to Goulding, the Froelichs are not seeking to specifically overturn the state's trespassing laws, also commonly known as posting laws, but to force the state to acknowledge that common or civil law, in addition to criminal law, should be available for landowners to control who uses their land.

Currently, the state's trespassing laws appear in two places in the state's legal code, both define trespassing as a criminal act.

Goulding says that when the state uses criminal law as the definition for trespassing, it forces landowners to have to post their land to keep people off.

"The basis of our claim is that under common law the landowner has the exclusive right to use his or her property," says Goulding. "But we aren't seeking to make it a crime. Our position is that defining trespass as criminal doesn't supersede common law rights of property that grant landowners the exclusive right to use as they wish."

If Goulding prevails with Froelich's argument, it would mean landowners would no longer have to post their land to keep people, hunters, off their property without permission.

While Stenehjem's duty is to defend the state's laws, state Assistant Attorney General Paul Germolus will be arguing the state's case. He says common law doesn't apply in North Dakota. Common law, says Germolus, is simply a teaching tool that helps would-be lawyers learn general principles of law.

"Common law is really just a mix of old court decisions, historical cases and generally held rules, but it is not the law of any jurisdiction," said Germolus.

Inside the case

Germolus said the state's case will be built around three specific laws. First, he cites general provisions in Title 1, Chapter 01, Section 06 which says common law does not apply where the state's Century Code specifically applies. Germolus then moves to the state's robbery, breaking and entering offenses.

Title 12, Chapter 22 and Subsection 3 of Section 3 of the North Dakota Century code says that a person is guilty of trespassing only if land is posted. The infraction is considered a class B misdemeanor. Germolus said the argument will then shift to hunting rules.

In the state's game, fish, predators and boating section, Title 20.1, Chapter 22, Section 18 says hunting on posted land without permission is illegal. The penalty is considered a class B misdemeanor.

The point, according to Germolus, is that common law doesn't apply in this situation. Next, trespassing is defined as having occurred only when land is posted. Finally, landowners do have some way of enforcing their wishes if they choose to post land because hunting on posted land is illegal.

Not so fast, says Goulding. He points to a 1993 Supreme Court ruling in Hector v. Metro Center Inc. where Goulding believes the court defined trespass as a common law matter. This reference is paragraph nine in the Froelich's complaint.

"Nine defines the right that my client says exists and that the state says is superseded by criminal law," says Goulding.

The criminal trespassing statues are not being challenged by the Froelichs' lawsuit, said Goulding. He believes these laws can exist along with a common law definition of trespass. The common law definition would make it possible for the landowner to avoid having to post land to keep trespassers off, said Goulding. However, should the landowner want even more protection from trespassers, posting would provide some criminal penalties to trespassing laws.

"We want a landowner to be able to call their lawyer or their sheriff," said Goulding.

Should they win, the Froelichs are asking for two changes, said Goulding. First, they want a declaration that it is unlawful to hunt on unposted private land without permission.

Second, said Goulding, the Froelichs would be asking for the state to publicize that entering land to hunting without permission is trespassing and illegal.

Mike Donahue, legislative lobbyist for the United Sportsmen of North Dakota and North Dakota Wildlife Federation Inc., said he does understand why posting bothers some landowners. However, he believes individual rights only go so far.

"Landowners also have a responsibility to the community by promoting good practices," said Donahue.

Good practices, said Donahue, is a willingness to help the state manage game that moves across the landowners' property.

"Posting is also a good practice because it lets hunters identify who owns the land, so they can, in fact, ask permission," he said.

While Weight said the Froelichs' lawsuit is about hunting, he is unsure whether there is more to it.

"If it's about economic development, I don't know how many non-resident hunters will come to pay to hunt if they can't find out who owns the land," said Weight.

"This is about out-of-state hunting too," said Myron Miller.

He said out-of-state hunters are coming into Grant County and buying land at prices beyond what production agriculture can support.

Gene Miller agrees.

"When the price of land goes up, the valuations of the surrounding land still used for agriculture goes up and it's more than what the land itself can support," he said.

Hildebrand was unavailable for comment, but Paul Schadewald, chief of administration services for Game and Fish, referred all questions to Stenehjem.

Hoeven said while he was named in the suit, he really has little to do with its outcome.
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668 Posts
From July 25, 2003 FARM AND RANCH GUIDE

NDSA (North Dakota Stockmen's Association) has joined the lawsuit challenging North Dakota's land-posting laws.

The NDSA Board of Directors voted at its recent meeing to contribute $5,000 to the suit to reclaim landowners' lost property rights and declare the laws unconstitutional.

The NDSA Board does not view this suit as a strike against hunters or hunters' privileges, Directors view it as a vote for property rights, since the current posting laws are burdensome financially and timewise.

Landowners realize the importance of a good hunt as recreation and as a wildlife management tool. Landowners are not seeking to prohibit hunting; they just want a better handle on who is on their property without having to post every parcel.

And that should not impact sportsmen, NDSA Executive Vice President Wade Moser said, since responsible hunters have testified for years that they request permission for access even if the land is not posted.

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19 Posts
Yes, I too try very hard to ask even if it's not posted, but the landowners I've talked to do NOT want this...they do not want to be harrassed at all hours of the day and night when a flock of ducks or geese are using their land to feed on! They have even said that it's just not feasable. When a lot of the land around them is leased by other farmers and ranchers, different ones every year sometimes. The land you want to hunt on is by Bottineau and the owner or leaser lives west of Kenmare sometimes!! Which you finally find out a month after the geese have left the state.

And I am very upset with Farm Bureau for sponsoring this law suit, when it's my membership money that's being used and I was never asked if they could use it for that purpose!!

The only way I could see it working is if every landowner or leaser would put up a poster with his name and phone number on it.
As as for getting county ownership plat books...I hunt all over the state, I could never afford to buy all those,every year and then hope they are all correct.

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676 Posts
I believe that the land owner suit about posting of land, if successful, will have many unintended consequences. First, based on the response of non resident friends and family members that come here each fall to hunt, it is very likely that the numbers of non resident hunters will decline since they have even less time to search and contact land owners to obtain permission and all have voiced their opposition to the suit. Second, if the posting law is overturned, what will the courts say about the current limited immunity of land owners of unposted land to lawsuits? I expect that the number of lawsuits against land owners will rise on posted land. Third, how many resources are available to enforce no trespassing laws and what does local law enforcement think about the added burden? Fourth, if I want to coyote hunt on property in February, how do I contact a landowner in Arizona? Fifth, the original intent of the current tresspassing laws was to deal with non resident land owners. Sixth with an aging farm population, that is spending more time as snowbirds, it is likely that it will become harder and harder to contact landowners to obtain permission (the largest non resident winter population of Arizona is from North Dakota). Seventh, at least in my area, the landowners do NOT want the law changed. Finally, the claim is that it is not an anti hunting lawsuit. If so, how come the representative in question has consistently voted against almost all pro hunting legislation proposed over the last three legislative sessions. If actions speak louder than words, the individuals bringing the suit have already spoken about their anti hunting views.

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676 Posts
Just an update on the persons instituting the lawsuit (Froelich). According to the legislative scorecard recently posted on this website, Mr. Froelich scored lowest of every North Dakota legislator in the recent session for his votes on sportsmen's issues. His record and actions speak for itself.
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