Picture: 123RF/ZYCH
Picture: 123RF/ZYCH

Washington — A decades-long debate over hunting, private property and trespass may be nearing an end in North Dakota, one of the few places in the US where fenced land is open to outsiders unless signs declare otherwise.

Legislators are closing in on a compromise that, if passed, would tweak the laws governing the flat, wind-swept prairie lands of the state, one of the country’s largest agricultural producers, as early as mid-April.

North Dakota’s “open access” property laws have been particularly supported by hunters and fishermen, but efforts also have been made by landowner and agricultural groups to overturn them for at least 30 years.

For Emmery Mehlhoff, the debate has simmered throughout her life. She and her husband now raise grain and cattle on lands they own and rent. The law has meant $1,000 a year to purchase new metal signs barring entry, plus the time it takes to put them up.

“I’ve always been aware of this as a big issue,” said Mehlhoff, who is also a public policy liaison with the North Dakota Farm Bureau. The couple oversee thousands of acres and some of their fields are nearly 100km apart.

Mehlhoff noted her family frequently allows hunters to access their properties when someone asks permission, but said she and others in the area have had problems with joy-riders and dumping by others. Last year, they had to clean up 80 dead carp that someone had left in pastureland they lease, and friends have had signs ripped down by people who subsequently said they did not know the property was posted.

Now lawmakers are nearing a solution that has been years in the making: allowing landowners to use a state-run website to electronically post whether land is open or closed.

Supporters on both sides say the approach would be hard-won if it becomes law — and that the novel use of electronic posting could inspire other states with large tracts of private land.

“In North Dakota, all private lands are considered open to hunting unless physically posted. There’s been a long-standing policy to change that, and that’s been defeated,” said Republican state senator Robert Erbele, who spearheaded the new effort.

“But with today’s technology, we’ve come up with another method,” he said. “It’ll be significant in that we finally have a collaborative solution.”

Public access, private rights

The seeds of this friction can be found in the state’s constitution, noted Dana Michael Harsell, an associate professor of political science and public administration at the University of North Dakota.

“In the very first section of the declaration of rights, you have property rights and hunting. Your right to pursue property is featured prominently, then you go to the next sentence and it talks about hunting,” he said, noting these are “two very deeply ingrained values” for residents.

Part of the issue is that, unlike states with large proportions of public land, North Dakota has an unusually large amount of private land, said Brian Hosek, with administrative services for North Dakota Game and Fish, a state bureau. That means a significant chunk of an important public resource — wildlife — is found on private land, while some public land is accessible only through private property.

“It’s something to juggle for natural resource-type organisations, to find the means to promote both — private property rights and how the public can access public wildlife,” said Hosek.

More than 90% of North Dakota is privately owned, according to John Bradley, executive director of the North Dakota Wildlife Federation, the state’s oldest conservation group and a long-standing voice for hunters and fishermen. “So a lot of the critters we care about, and a lot of the non-game critters, rely on private property. Hunters in the state really are struggling with access.”

North Dakota has some of the best hunting and fishing in the country, Bradley said, creating a multi-billion-dollar industry for the state.

Still, farmers and landowners say that stricter laws around private property have not ruined hunting elsewhere.

“We have 49 other states where you don’t have the presumption you can trespass,” said Peter F Hanebutt, public policy director for the North Dakota Farm Bureau. The bureau has a long-standing policy that land should be considered posted regardless of whether a physical sign is visible, in line with policies outside North Dakota — and Hanebutt notes the issue extends beyond hunters and fishermen.

“If you were a rock hound or looking for dinosaur bones” in other states, he said, “you have the presumption that if you can’t find a no trespassing sign or posted sign, you can’t walk around on the land without permission.”

In North Dakota, public support for that stance was bolstered in recent years following protests against the Dakota Access oil pipeline, Hanebutt said, when beginning in 2016 demonstrators used some lands along the planned route.

Boosting communication

Most US states used to have policies whereby land was considered open unless otherwise designated, said Hosek, with North Dakota Game and Fish. But while others changed those laws over the past four decades, North Dakota did not.

That could now change, under a strategy in which the Farm Bureau and the Wildlife Federation have been key voices.

Hosek oversaw a pilot project in 2020 that developed the new electronic posting platform, allowing landowners in three counties to test it out. The new bills would essentially expand those projects across the state for a two-year test period, while also creating a legal difference between hunters and other potential trespassers.

“This is something we haven’t seen anywhere else in the country, using technology to post your land, but so far it seems like a good strategy,” Hosek said.

The experience has started to repair relations between hunters and landowners, he said, part of a legislative forum that may now continue.

That makes sense to Mehlhoff, for whom the promise of the new electronic system is its ability to bolster communications with those who want to use her land. “We just want communication. I’m excited for anything that can improve the relationship.”

Thomson Reuters Foundation

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