Hunting and Posting on Private Land in America

By Sigmon, Mark R. | Duke Law Journal, November 2004 | Go to article overview

Hunting and Posting on Private Land in America


Sigmon, Mark R., Duke Law Journal


INTRODUCTION

Rod Froelich, owner of seventy-five hundred acres in Sioux County, North Dakota, was tired of having hunters enter his land to hunt without his permission. Froelich had not posted "no hunting" signs on his land, which under the common reading of the state's posting statute meant that hunters were not obligated to seek his permission to hunt. (1) As a member of the North Dakota House of Representatives, he sponsored legislation that would have required hunters to get permission from landowners before hunting on private land. (2) When the legislation failed, Froelich, with the support of the North Dakota Stockmen's Association (3) and the North Dakota Farm Bureau, (4) sued the governor and the director of the Game and Fish Department of North Dakota, seeking a declaratory judgment that hunters must have landowner permission before hunting on private land. (5) In moving for summary judgment, Froelich argued that the posting statute, which provided for a criminal penalty if a hunter entered posted land, did not abrogate his common law right to exclude and his civil trespass remedy to enforce that right on unposted land. (6) He further argued that if the statute was interpreted to effect such an abrogation--which was the common reading--it would amount to an unconstitutional taking. (7) In reply, the defendants simply relied on the existence and history of the posting statute to support their position that the public could hunt on unposted land without permission, free from any civil or criminal sanction. (8) They further stated in a newspaper article that, "The assumption that unposted land is open for hunting has been the case for decades, if not since statehood." (9) The court deemed Froelich's complaint a request for an improper advisory opinion and granted summary judgment for the defendants, declining to reach the merits of the case. (10)

The year before Froelich filed his suit, an Arizona landowner mounted a similar protest before an Arizona House of Representatives committee, (11) lobbying in support of a bill to repeal Arizona's recently enacted posting statute. (12) Although agreeing that the statute clearly abrogated a landowner's civil trespass remedy against people hunting on unposted land, she argued that it unfairly undermined private property rights. (13) In hearings before the committee, she stated that proper posting under the statute was difficult if not impossible, that some hunters knock down "no hunting" posts, that hunters were often dangerous, and that, in the end, the state's posting law was simply inimical to private property rights. (14) Three other landowners testified similarly. (15) Members of the Arizona Game and Fish Commission, the Arizona Wildlife Federation, and the National Rifle Association argued in response that the posting law was a reasonable "compromise" between the rights of hunters and landowners. (16) After a lively debate, the bill failed. (17)

These two conflicts revolve around state posting statutes--statutes that require private landowners desiring to exclude hunters from their land to post "no hunting" signs. As an initial matter, as this Note later shows, Froelich's argument that the statutes are only criminal and therefore do not affect landowners' civil remedies is unavailing--the posting statutes actually make hunting on unposted land perfectly "legal." In this way, the statutes sacrifice the rights of landowners for the sake of hunting, a sacrifice that seems increasingly unreasonable as society changes. For this reason, states or municipalities should eliminate or significantly change these statutes. Part I of this Note analyzes the history behind the statutes, from medieval English hunting laws to the rise of American statutes designed to ensure that everyone, not just the rich and landed, could hunt. Part II catalogues the current statutes, discussing the variations among them and how secondary sources characterize the balance of rights between hunters and landowners. …

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