‘Dunn county land owners don’t like unauthorized people on their land’

Pat Merriman

By Pat Merriman

Dunn County State’s Attorney

You may find this hard to believe but Dunn County land owners do not like unauthorized people poking around on their land.Recall my admonition to the animal rights’ crew from Dickinson/Mandan back in January. But, at breakfast last Thursday, the Breakfast Posse had a debate about “criminal trespass”, hunters, cops, etc. and, frankly, I misspoke on one critical bit of information. So, I did a THOROUGH examination of the Century Code and case law and, again, don’t kill the messenger but, the popular misconception of what constitutes criminal trespass in North Dakota may be rampant. And, at the outset, if adjacent landowners (or their descendants) have a pre-existing agreement (whether in writing or by tacit action), the doctrines of implied easement, easement by necessity, ancient boundaries, border fences, acquiescence, laches, encroachment, adverse possession, etc. all qualify as “claim of right”, absolute defenses and will keep local law enforcement (including my office) out of the fight until the parties first settle the matter in civil court. What I want to talk about is plain old, garden variety “criminal” trespass on pastureland with NO prior relationship between the landowner/possessor and the interloper.

So, OK, here’s the deal. Remember, we are NOT talking about a home, building or highly secured area here. They have their own special rules. Instead, we are talking about a citizen’s open land, albeit, perhaps, fenced, upon which some interloper is standing or sitting and they did not get the landowner’s permission first. So, they are guilty of criminal trespass, right? Not so fast–not necessarily. Rather, that individual must “know” that he/she is not licensed or privileged to enter or remain on your land. 12.1-22-03, NDCC. For purposes of this statute, the term “privilege” means the freedom or authority to act and to use the property and “licensed” means a consensual entry so sayeth the North Dakota Supreme Court in State v. Bernstein, 697 NW.2d 371, 374 (ND 2005). Not really helpful? Well, the court went on to explain that the interloper need only have “a firm belief unaccompanied by substantial doubt” in regards to his/her license or privilege to be on the land and, District Courts (cops and States Attorneys too) are to apply a subjective test in regards to the suspect’s ACTUAL knowledge not just what the landowner suspects. Therefore, if the “trespasser” actually believed that he/she was rightfully on the land, it is not criminal trespass in North Dakota because of a defense that is often called “claim of right”. So, merely entering and standing/squatting on open land (fenced or unfenced) is not trespass. Who knew, right?

So, how does one remove the “substantial doubt” (claim of right) defense of a potential trespasser? The Century Code provides the answer again. First, if the “duly authorized” person (owner or person lawfully entitled to possession of the land) actually communicates to the interloper that they are unwelcome, the trespasser has to leave the premises immediately. That is called “actual” notice. If they don’t pack it up and leave, their claim to “rightfully” be there evaporates and, they are guilty of criminal trespass. Second, if the land is posted “no trespassing, the landowner has provided “constructive” notice to the intruder. 12.1-22-03(3), NDCC. The sign (notice) must be posted in “in a manner reasonably likely to come to the attention of intruders” AND must read as follows: “No Trespassing. John Doe [the name of the person posting the sign]”. That’s it. If the property is posted in a manner reasonably likely to inform a trespasser to stay out, the interloper has constructive notice that they are not to trespass and, if they enter/ remain, they are guilty of criminal trespass from the moment they set foot on the land.

There are also specific Century Code provisions regarding hunting and posting land upon which you do not want hunters “hunting”. I guess the owner tolerates people wandering around on his/her land (trespassing) but, they just don’t want them toting guns and trying to take game. Anyway, 20.1-01-17, NDCC, says that “no hunting” means that the following rules apply: Only the owner, tenant or an individual authorized by the owner of land may post the land; signs must be placed alongside either the public highway adjacent to the land or on the land itself; the notice must read that “hunting is not permitted” on the land; the name of the person posting the land must appear on each sign in legible characters; and the signs must be readable from the outside of the land and must be placed conspicuously not more than eight hundred eighty yards [804.68 meters] apart. If the land is “entirely enclosed by a fence or other enclosure, posting of signs at or on all gates through the fence or enclosure constitutes a posting of all the enclosed land.”

However, this section clearly also states that general criminal trespass posting is not affected by this “no hunting” provision, except that, “Any person may enter upon legally posted land to recover game shot or killed on land where the person had a lawful right to hunt.” 20.1-01-19, NDCC. Unfortunately, that is not the end of the story because some residents believe that they can order law enforcement personnel, including game wardens, to leave their land and that is absolutely NOT true–”This section [criminal trespass] does not apply to a peace officer in the course of discharging the peace officer’s official duties” 12.1-22-03(5), NDCC. A “peace officer” is someone who is “a public servant authorized by law or by government agency or branch to enforce the law and to conduct or engage in investigations or prosecutions of violations of the law.” 12-63-01(3) and 62.1-01-01(7), NDCC. That definition specifically includes game wardens because they are tasked with enforcing violations of 20.1-01-01, NDCC, just like traditional peace officers–sheriff, deputies, local police, Attorney General and States Attorneys. 20.1-01-04, NDCC.

And, this issue has already been addressed by the North Dakota Supreme Court, just a few years back, in State v. Mittleider, 809 N.W.2d 303, 306-07 (ND 2011) which held, first, that hunting violations are “strict liability” offenses, i.e., even where the government fails to adequately sign or provide notice that you are on restricted land, you are still guilty if you violate the game & fish laws. Second, “No trespassing signs can NOT thwart a peace officer’s entry onto private land to conduct an investigation. Third, this includes Game Wardens who can also enter, without permission and without a search warrant, to initially investigate a violation of Game & Fish laws. Reasonable suspicion NOT probable cause. Sorry, again, don’t lynch the messenger!

In summary, the Supreme Court held that, cops and game wardens “discharging their official duties are exempt from North Dakota’s criminal trespass statute”. “Additionally, simply because an intrusion is a trespass at common law does not make the intrusion a search for constitutional purposes…We decline to adopt the… broad argument that, on rural property in North Dakota, an individual’s expectation of privacy ‘envelopes much of the land’. We hold the ‘no trespassing’ signs posted around the [defendant’s] farmstead did not create a reasonable expectation of privacy in the entrance of the farmstead.” I think that sums it up pretty concisely. So, at the end of the day, criminal trespass is a lot more than it is cracked up to be I guess.

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