921 N.W.2d 894
N.D.2019Background
- On Feb 1, 2017, Bearrunner joined a large group of protesters who entered a privately owned pasture near the Dakota Access Pipeline; the pasture was separated from the adjacent highway by a barbed-wire fence.
- Law enforcement observed an open gate and a plowed access road into the pasture, entered, and told protesters they were on private property and had to leave.
- Protesters locked arms in a circle and refused to leave; officers used force to separate and arrest them.
- Bearrunner was charged with class A misdemeanor criminal trespass (N.D.C.C. § 12.1‑22‑03(2)(b)) and class A misdemeanor engaging in a riot (N.D.C.C. §§ 12.1‑25‑01, 12.1‑25‑03).
- After a bench trial, the district court convicted on both counts; Bearrunner appealed arguing (1) the fence could not be found to ‘‘manifestly’’ exclude intruders and (2) the conduct was not "tumultuous and violent."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the pasture was "so enclosed as manifestly to exclude intruders" for criminal trespass | The fence and surrounding facts (barbed wire fence, separation from highway, evidence of gate opened by protesters, removal of no‑trespass signs, camp structures) show obvious exclusion; conviction supported | The fence (barbed wire) with an open gate cannot as a matter of law be "so enclosed" to manifestly exclude intruders | Affirmed: factual question; substantial evidence supports finding the fence manifestly excluded intruders and trespass conviction affirmed |
| Whether an open gate as a matter of law defeats an enclosure finding | State: evidence suggested protesters may have opened gate; open gate does not automatically invite entry | Bearrunner: an open gate necessarily negates the required enclosure element as a matter of law | Rejected defendant's claim: open gate not dispositive; fact question for trial court |
| Whether barbed‑wire fencing conflicts with separate hunting trespass statutes to limit criminal trespass to lesser penalties | State: hunting statutes create separate offenses and do not carve out an exception to criminal trespass statute | Bearrunner: barbed‑wire pasture should be governed by hunting trespass scheme (lesser class) | Court: hunting statutes do not negate the criminal trespass statute; distinct offenses and penalties can both apply |
| Whether locking arms and passive resistance constituted "tumultuous and violent conduct" for riot | State: the protesters' locking arms and forceful refusal to leave produced a public disturbance requiring police to use force, qualifying as tumultuous and violent | Bearrunner: locking arms and passive resistance is non‑violent civil disobedience, insufficient for a riot conviction | Reversed riot conviction: conduct was passive resistance and not ‘‘violent’’ under ordinary meaning; insufficient evidence of riot |
Key Cases Cited
- Agri Indus., Inc. v. Franson, 915 N.W.2d 146 (N.D. 2018) (statutory interpretation is a question of law)
- Estate of Elken, 735 N.W.2d 842 (N.D. 2007) (primary purpose of statutory interpretation is to determine legislative intent)
- State v. Rufus, 868 N.W.2d 534 (N.D. 2015) (standard for reviewing sufficiency of evidence in criminal convictions)
- State v. Hartleib, 335 N.W.2d 795 (N.D. 1983) (same)
- State v. Steiger, 644 N.W.2d 187 (N.D. 2002) (appellate review not limited to trial court reasons; review entire record for substantial evidence)
- State v. Barth, 702 N.W.2d 1 (N.D. 2005) (definition of substantial evidence in criminal context)
- State v. Moos, 758 N.W.2d 674 (N.D. 2008) (limitations on multiple punishments and interaction of overlapping statutes)
- Gray v. North Dakota Game & Fish Dep’t, 706 N.W.2d 614 (N.D. 2005) (interaction of game/hunting statutes with other statutory schemes)