GRAND FORKS, N.D. - If landowners want to hunt on their own land, is it their fundamental, constitutional right to do so?
That was a main question here Friday when the U.S. Court of Appeals for the 8th Circuit listened to arguments over a North Dakota law that restricts when and where non-residents can hunt in the state.
Four judges from the appeals court traveled to the University of North Dakota School of Law to hear oral arguments in the hunting lawsuit and two unrelated cases from South Dakota. About 200 people, most of them law students, filled the room to watch.
Minnesota Attorney General Mike Hatch and U.S. Rep. Collin Peterson, who represents Minnesota's 7th District, brought the lawsuit against North Dakota in 2004, saying the hunting restrictions it created in 2003 for non-residents were unconstitutional.
U.S. District Judge Dan Hovland of Bismarck, N.D., dismissed the lawsuit in June, agreeing with North Dakota's argument that hunting is a recreation, not a protected economic activity. That ruling led to this appeal before the 8th Circuit.
ADVERTISEMENT
At oral arguments Friday, the counsel from Minnesota, Assistant Attorney General Ann Bildtsen, said the North Dakota law is purely discriminatory for no good reason other than to save the best waterfowl for state residents. Her side has argued that Minnesotans who own or lease land in North Dakota should be able to hunt on that land with the same freedoms afforded North Dakota residents. Instead the non-resident landowners face several restrictions, including a one-week late start during the pheasant and waterfowl hunting seasons.
The judges soon began asking Bildtsen to show how hunting on one's own land is a fundamental right for that property owner.
"Can a state restrict all residents from hunting on their land," asked Judge William Jay Riley.
"As long as they treat them the same, yes," Bildtsen answered.
"Then how is it a right?" Riley countered.
Bildtsen said states can restrict hunting, but they must have a good reason to do it, and she said North Dakota has none.
The judges turned to the other side of the argument after Bildtsen finished. They asked the attorneys for North Dakota why hunting shouldn't be considered a form of interstate commerce and therefore protected against state restrictions on non-residents.
Charles McGuigan, an assistant attorney general for South Dakota, one of nine states that filed a brief to support North Dakota, argued that the interstate travel of hunters is commerce, but the act of hunting itself is not.
ADVERTISEMENT
McGuigan said many states, including Minnesota, treat non-resident hunters differently for a good reason.
"You have a legitimate conservation issue," he said.
North Dakota also contends that its restrictions are supported by a 2005 congressional bill that reaffirmed the authority of states to set their own hunting and fishing rules.
Bildtsen argued that the provision was only a rider attached to a spending bill. The language did not go through the full legislative process and should be "very strongly presumed" not to be permanent, she said.
The appeals court will rule on the case later. Most decisions are reached in about three months, said Judge Kermit Bye.
Dave Forster is a staff reporter for The Forum of Fargo/Moorhead.
