North Dakota Property Owners Shouldn’t Have to Post Their Land to Control Access


Terry Erwin, of St. Louis, Mo. shoots down a rooster pheasant as he and his friends took part in a hunting trip at Firesteel Creek Hunting Lodge off HWY 281 on Tuesday morning near Plankinton. (Matt Gade/Republic)

There were hundreds of arrests made during the violent protests against the Dakota Access Pipeline a couple of years back, but I’m sure you readers noticed that the charges behind many of those arrests didn’t stick.

That’s because the bulk of those charges were related to trespassing, and North Dakota has some very antiquated trespass laws.

Under the status quo citizens are allowed to go on private land that doesn’t belong to them for purposes like hunting as long as they a) aren’t told verbally to leave or b) the land isn’t legally posted. In other words, the law grants the presumption of access to private property unless the property owner opts out.

This allowed the anti-pipeline protesters to trespass repeatedly, and flagrantly, with near impunity simply by ripping down signage prior to their protests. Law enforcement was left having to prove, in a chaotic situation, that the land in question had been properly posted prior to the alleged trespass.

A nearly impossible situation.

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]…those who own the land in North Dakota’s rural areas are outnumbered both in the general population and in the Legislature by those from urban areas.[/mks_pullquote]

Prompted by that less, during the 2017 session state Senator Don Schaible – a Republican who represents an area near where the protests occurred – introduced SB2225 which would have changed the presumption in the law. Instead of the property owner needing to opt out of granting access to his/her land, they’d get to opt in by specifically granting permission for that access.

Unfortunately that bill died a quick death early in the session on a 17-28 vote in the Senate.

Some, though, think the issue may get resurrected during the 2019 session. “Sportsmen’s groups are bracing for another trespass bill as the 2019 session of the North Dakota Legislature approaches,” my colleague Brad Dokken reports.

As of this morning I haven’t seen any legislation related to this issue filed on the legislative website, but it’s early. It could still be coming, and I hope it does.

While I can understand the concern of outdoors groups, who are afraid of diminished access to the land, the simple fact of the matter is that private land is private. If we are to respect property rights, we cannot have law which puts the onus on property owners to restrict access to their land.

Perhaps, instead of requiring that land owners post their property, we instead allow them to put up signs indicating that a given piece of land is open for hunting. I’m very interested in fostering comity between outdoors groups and land owners, but the status quo is breeding resentment between those two groups.

“The first meeting I thought went fairly well,” Dokken quotes ND Game and Fish Director Terry Steinwand as saying of efforts to find common ground on land access. “The second meeting pretty much degraded into—it wasn’t a shouting match, that’s absolutely not true—but it really got into the guts of the philosophical differences between the two, and it was getting no place in a hurry.”

The hunting and fishing groups may not like it, but this debate would probably get better if we start off by respecting who owns the land in the first place. They’ve felt marginalized in this debate, and why shouldn’t they? Not only is the status quo onerous for them, but those who own the land in North Dakota’s rural areas are outnumbered both in the general population and in the Legislature by those from urban areas.

Many of whom see the land not as private property but their play areas for hunting, snowmobiling, etc.