# Minnesota Lawsuit



## Dak (Feb 28, 2005)

North Dakota hunting rules illegal, Minnesota lawyer argues
Dale Wetzel, Associated Press

Outdoors

GRAND FORKS, N.D. - North Dakota cannot extend preferential duck hunting rights to resident landowners while denying the same benefits to property owners who live outside the state, a Minnesota assistant attorney general says.

Attempting to revive a Minnesota lawsuit against an assortment of North Dakota hunting laws, Ann Bildtsen tried Friday to persuade a three-judge panel of the 8th U.S. Circuit Court of Appeals that the regulations were unconstitutional discrimination against outsiders.

The laws were not motivated by conservation or other, more noble goals, but were selfishly meant to ensure "North Dakotans can save the best hunting of waterfowl for themselves," Bildtsen told the appeals court.

Dean Haas, a North Dakota assistant attorney general, said the state's regulations were legal and reasonable. "All states, including Minnesota, regulate hunting and fishing on differential terms," Haas said.

Appeals judges Myron Bright of Fargo, Lavenski Smith of Little Rock, Ark., and William Jay Riley of Omaha are considering the case. They heard arguments Friday in a courtroom at the University of North Dakota's law school, drawing a crowd of more than 150 students and onlookers.

The dispute is about North Dakota restrictions on out-of-state hunters that mainly affect duck and goose hunters, but also extend to pheasants and other types of game.

North Dakota gives resident waterfowl hunters a week's head start on the duck season, during which duck hunting by visitors is banned. The state charges visitors more for duck licenses and requires out-of-state hunters who own North Dakota land to buy a state license to hunt that land. Resident North Dakota landowners may hunt their property without buying a license.

Minnesota Attorney General Mike Hatch, U.S. Rep. Collin Peterson, D-Minn., and two Minnesota residents who own property in North Dakota challenged the laws in a federal lawsuit filed in Bismarck. U.S. District Judge Dan Hovland dismissed the case last June, and Minnesota appealed.

Bildtsen argued Friday that the restrictions clash with the U.S. Constitution's protection for doing business among states, which is called the commerce clause, and its assurance that privileges extended to a person in one state also apply in another.

She said a property owner has a "fundamental right" to hunt his or her land.

North Dakota's arguments rely on what Haas believes is each state's right to regulate hunting and fishing and to favor its own residents while doing so. Last year, Congress also approved a law saying it did not intend the commerce clause to apply to hunting and fishing regulation.

Nine states, including South Dakota and Montana, signed a brief supporting North Dakota's position. During Friday's arguments, Charles McGuigan, a South Dakota assistant attorney general, pointed out that Minnesota does not allow nonresidents to hunt moose.

"I can't go shoot a moose in Minnesota. I can't even apply for a license," McGuigan said.

He also argued that "the issue of property ownership does not tie in with the right to hunt on that property."

The judges appeared dubious about the argument that hunting one's land is a fundamental property right, but also skeptical of assertions that hunting, which is a multibillion-dollar industry, is not commerce. "Common sense says that it is," Riley said.

Riley asked Bildtsen if the state could ban all hunting on a property owner's land. When she replied yes, Riley asked, "How is it a fundamental right if the government can deprive you of it completely?"

McGuigan handled most of the judges' questions after Haas became speechless early in his own presentation. After making a few remarks, Haas was able to speak only a few words at a time, standing silent at the lectern for about 20 seconds at a time before sitting down. He appeared to be stricken by stage fright.

"I've had quite a case of insomnia," Haas said. "I really apologize."

Haas retreated to a private room afterward, and a reporter was prevented from speaking to him. Bright said the lapse would not affect the case.

"You really had a good brief," Bright told Haas, referring to his court filing in the case. "You shouldn't be concerned."


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## NDTerminator (Aug 20, 2003)

More legal silliness courtesy of our neighbors to the east. This is going nowhere; all it will do is cause more bad blood between Them and Us...


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## buckseye (Dec 8, 2003)

> North Dakota gives resident waterfowl hunters a week's head start on the duck season, during which duck hunting by visitors is banned. The state charges visitors more for duck licenses and requires out-of-state hunters who own North Dakota land to buy a state license to hunt that land. Resident North Dakota landowners may hunt their property without buying a license





> Resident North Dakota landowners may hunt their property without buying a license


Is this true?


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## Dak (Feb 28, 2005)

I agree...although it was interesting to note the "speechless" lawyer in the article.


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## Ron Gilmore (Jan 7, 2003)

Buckeye you can hunt upland game and waterfowl without state license, but you need to purchase a Fed Duck stamp for waterfowl. Big game license are issued in the form of a gratis tag, which I know you are aware of. Turkey the same way as deer.

You are restricted to your property period without a license as a Resident!


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## buckseye (Dec 8, 2003)

wow I never knew that, thanks Ron. Is it still considered hunting then if you don't need a hunting license? This is interesting sorry for the derail.


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## n_108_nd (Oct 13, 2004)

I was at the argument yesterday, and it is very intriguing. Although MN has several different arguments, the one they focused on at the oral argument was the unequal treatment of resident and nonresident landowners. 
I did not know you could hunt on your own property without a state license. If this is the case, I believe MN has an argument based solely on depriving nonresident landowners of a property right. When you buy property, and pay taxes on that property, you expect to be able to use it in the same fashion as your neighbor. One of the judges asked the attorney from MN if it would be a fifth amendment taking (like if the county wants to put a road though your property) to prevent a person from hunting on the land they own. My answer to that is -Hell Yes- If I were to ever buy property it would be primarily to hunt on that property. If the state prevents me from hunting on the property it would have very little value to me and they should be forced to compensate me for the loss of value. 
The other interesting aspect of this appeal is that the district court dismissed the complaint before any type of substantive argument was made. This is a complex issue that has not been truly explored before (big game and pheasants are completely different from waterfowl). Getting rid of the case before true arguments were made seems a little premature to me.


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## g/o (Jul 13, 2004)

Appeals judges Myron Bright of Fargo, North Dakota has one vote for sure.

McGuigan handled most of the judges' questions after Haas became speechless early in his own presentation. After making a few remarks, Haas was able to speak only a few words at a time, standing silent at the lectern for about 20 seconds at a time before sitting down. He appeared to be stricken by stage fright

You really had a good brief," Bright told Haas, referring to his court filing in the case. "You shouldn't be concerned."

http://theband.hiof.no/sounds/stage_fri ... rack09.ram an appropriate tune for one of North Dakota's finest :eyeroll:

A couple of things to take note:

The judges appeared dubious about the argument that hunting one's land is a fundamental property right, but also skeptical of assertions that hunting, which is a multibillion-dollar industry, is not commerce. "Common sense says that it is," Riley said.


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## R y a n (Apr 4, 2005)

g/o said:


> A couple of things to take note:
> 
> The judges appeared dubious about the argument that hunting one's land is a fundamental property right, but also skeptical of assertions that hunting, which is a multibillion-dollar industry, is not commerce. "Common sense says that it is," Riley said.


Another thing to note that will likely decide the case:

North Dakota's arguments rely on what Haas believes is each state's right to regulate hunting and fishing and to favor its own residents while doing so. Last year, Congress also approved a law saying it did not intend the commerce clause to apply to hunting and fishing regulation.

I'm surprised they didn't issue a summary judgement based on this law alone.

Ryan

.


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## Dick Monson (Aug 12, 2002)

> If the state prevents me from hunting on the property it would have very little value to me and they should be forced to compensate me for the loss of value.


Not being a lawyer, would the above arguement be sound? 
If I purchassed property for a confined feedlot, but the zoning regulations were changed later to prevent that use. Should I be compensated? If I bought propertry for a business and the enviromental laws were changed that now prevented the business should I be compensated? What if I bought stock investments that had special tax considerations and then the tax law was changed should I be compensated? How would that be different?
Not trying to be a smart a.., just thinking that when you buy property you are at risk of changing circumstances. ???


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## n_108_nd (Oct 13, 2004)

I am a bit removed from the constitutional law and property law courses that cover the issue of takings and I don't care about it enough to look it up. That being said, it is my recollection that your feed-lot example would be a valid argument (and one that has successfully been raised on several occasions). The environmental law argument probably wouldn't fly because it is not applicable to just your land. The tax free investment question is very interesting and I have no clue how that works (but with Roth IRA's and a growing deficit, I am sure it will come up).

Overall, I think it would be a taking to prevent me from hunting on my property, but allowing my neighbor to hunt on his.

As for the "law" passed by congress last year. This came up at the argument yesterday, and it became clear that this was not a law. It was a rider on an appropriations bill. The argument MN made was that riders on appropriations bills only last for the fiscal year. The other question is if congress can actually give away powers granted by the Constitution. In my view, that is especially questionable in a case involving waterfowl (which is a federally managed species that crosses state lines).

The summary judgment question is not applicable here because the district court dismissed the case before the point when summary judgment would be appropriate.


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## buckseye (Dec 8, 2003)

> I did not know you could hunt on your own property without a state license. If this is the case, I believe MN has an argument based solely on depriving nonresident landowners of a property right.


That is why I was asking is it still hunting without a license, because otherwise it is landowner rights it leans toward. That's a whole different world.


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## Bob Kellam (Apr 8, 2004)

Here is the explanation of the Issue from the NDCC

http://www.legis.nd.gov/cencode/t201c03.pdf

*20.1-03-04. When licenses to hunt, fish, or trap not required of residents. Subject to the provisions of this title:*

1. Any resident, or any member of the resident's family residing customarily with the resident, may hunt small game, fish, or trap during the open season without a license upon land owned or leased by the resident.

*My Comment*



> *Is waterfowl considered "Small Game"? ND has seperate licenses for small game and waterfowl?*


2. Residents or nonresidents under the age of sixteen years may fish without a fishing license.

3. Residents may fish at a private fish hatchery without a resident fishing license.

4. Developmental center at westwood park, Grafton patients, North Dakota youth correctional center students, school for the deaf students, North Dakota vision services - school for the blind students, state hospital patients, community health and retardation service unit patients under direct therapeutic care, and residents of facilities licensed by the state department of health and the department of human services may fish without a resident fishing license. Patients of these institutions must be identified. The department shall issue authority to each institution.

5. Residents may fish without a resident fishing license on free fishing days. The date of these free fishing days may be set by proclamation by the governor.

6. Residents under age sixteen may take fur-bearers without a fur-bearer license.

7. Residents under age sixteen may take small game or waterfowl without a small game license.

8. Residents who are enrolled as students or serving as certified instructors during official aquatics education program events of the game and fish department may be granted free fishing privileges by discretion of the director.

Bob


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## f.o.s. lover (Sep 27, 2004)

South Dakota waterfowl hunters would be in for a severe change in their fall hunting in MN wins in court. I thought someone was joking when they told me that SD only issues 4,000 non resident liscenses, plus an additional 2,000 non-resident landowner permits. ND has about 20-25,000 non-residents come in the fall. SD non res pressure is 1/5 of North Dakota's, their waterfowling must be amazing. Why is North Dakota taking all the heat for this with such a disparity in liscense numbers?


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## Straycat (Mar 21, 2005)

Most people may not know or remember the reason why South Dakota limited the number of non resident waterfowl licenses. During the late 1930's and 1940's wealthy people from around the country were buying up large tracts of choice land and lakes for private hunting preserves. Among the people that were buying land were Clark Gable and Babe Ruth.

Sound familiar to our present situation here in North Dakota?

South Dakota passed a law which eliminated non resident waterfowling for many years. It was only until I believe 1975 that non resident waterfowlers were even allowed to legally hunt in SD. I think 4,000 licenses are generous.

Being a former SD resident, I firmly believe they are continuing to do the right thing. My family owns land in SD. I would love to skip across the border to hunt when I want when things freeze up here, however I have to wait to be selected just like everone else and I respect that. We seem to forget what we are protecting here. It's the resource...

As f.o.s. lover stated, there would be a big change everywhere. An ultimate decline in the resource, quality of the hunt and the the loss of waterfowlers for the future.

If the ruling favors Minnesota, I see dangerous presidence to state's rights.


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## Straycat (Mar 21, 2005)

Also....

If the Minnesota lawsuit decision is overturned. South Dakota, Wyoming and Montana, you're next boys for baseless lawsuits.

Keep the wind at your back.


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## f.o.s. lover (Sep 27, 2004)

Straycat aren't the bag limits supposed to protect the resource, unlike laws populations are evaluated every summer and limits are set. I do however agree completely that ND should do something about all the non-residents buying farmland, however without limiting hunting, the reason they are buying it, that is almost impossible.  Non-residents buying farmland doesnt just limit that availability for residents to hunt it hurts the ag economy in the long run. It takes the equity that farmers could build by gradually making payments on that land, and takes that money out of our state forever. This is a huge issue


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## Straycat (Mar 21, 2005)

Very true and well stated. However 4,000 x daily bag limit vs. 25,000 x daily bag limit is what I'm concerned about.

Long term access, commercialization and hunting pressure also need to be considered.

I hope we don't continue down this path any further.


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## BurnZ (Mar 23, 2006)

Here's my 2 cents

At the beggining of the article MN was complaining about higher prices for non-resident Licences. That's how it is any state I have looked at hunting, throw that complaint out. And as far as the 1 week head start for the locals. So what! It's the late season hunting that is the funnest. The only thing that I don't agree with is that if a non-resident owns land in ND he has to pay an additional fee to hunt it. They pay taxes just the the residents, and already pay more for a non-resident license, why should they have to pay even more to hunt there own land. As far as limiting the amount of non-resident hunters, I am kind of in between. I have been hunting non-resident in SD for years now, every year I have to enter a drawing to get my licence. But have yet to be turned down. Mabey if I don't get it I would feel different. But even if I didn't get it, there are plenty of places to hunt in MN. The only reason we go to SD is because we used to live there and still have some friends out there, and they also have great pheasant hunting. So we hunt both pheasant and waterfowl in the same trip.


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## f.o.s. lover (Sep 27, 2004)

Well Burnz I think that answer to that question really depends on your viewpoint. You said you were a Minnesotan who hunts and used to live in SD. The fact that many people are leaving ND is a problem, simply put our state is dying in most areas. One of the only recreational activities North Dakota has to offer is hunting, theoretically this would then provide some leverage to keep people in the state, it also would reward those who do live here. Also you stated that who cares about the week that residents get before non-residents are allowed to come, for ND this has been the single best thing that has happened to our hunting for North Dakotans themselves. Success for both waterfowl and pheasants is phenomenal in this week. I do not personally know a single person who did not harvest their limit of ducks both days of that weekend.


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## BurnZ (Mar 23, 2006)

I wasn't saying "So what" as in insult to you, I think that it's fine to give the locals an extra week at the begginning of the season (i personally would rather be out in november when it starts to freeze over). I was saying "So what" the non-residents, you guys live there, you should get some better hunting. All i was getting at was It's B.S. to charge someone to hunt there own land, if they pay taxes and already pay more for a non-resident licence.


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## f.o.s. lover (Sep 27, 2004)

Why is that B.S., the revenue from that land would be kept in state if that landowner lived in the state and kept all income from that land in that state. If enough people were to buy land in ND, it would make many farmers renters, and make it impossible to earn anything over a lifetime, as I stated earlier, this issue is so much more than hunting.


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## BurnZ (Mar 23, 2006)

My bad, i missread one part of it yesterday.

"The state charges visitors more for duck licenses and requires out-of-state hunters who own North Dakota land to buy a state license to hunt that land. Resident North Dakota landowners may hunt their property without buying a license."

I interpritted it as the owner has to buy a different liscence to hunt his land and also has to buy a non-res. licence. After reading it more carefully it says the just have to buy a non-res. licence. So there are no complaintes here. THROW OUT THE LAW SUITE.


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