JUDICIARY B COMMITTEE
The Judiciary B Committee was assigned six studies. Section 1 of Senate Bill No. 2187 directed a study of trusts for individuals with disabilities. Senate Concurrent Resolution No. 4032 directed a study of the feasibility and desirability of exempting funds set aside in a trust for a child's education when determining the child's eligibility for certain human service programs. House Concurrent Resolution No. 3005 directed a study of the fees and point demerits for traffic offenses. Senate Concurrent Resolution No. 4042 directed a study of the feasibility and desirability of a centralized process for administering noncriminal traffic violations. House Concurrent Resolution No. 3022 directed a study of the use of incentive programs in North Dakota as a way of keeping elk in the state and providing increased opportunities for landowners, hunters, and the general public. Section 1 of House Bill No. 1269 directed a study of issues relating to resident and nonresident hunting in this state. The committee also was assigned the responsibility to receive the report by the director of the Department of Transportation on the effectiveness of exempting a secured person for noneconomic loss by certain injured persons operating a motor vehicle as required by Section 1 of 1999 Senate Bill No. 2376.
Committee members were Representatives Lois Delmore (Chairman), Curtis E. Brekke, David Drovdal, G. Jane Gunter, Lyle Hanson, Dennis E. Johnson, William E. Kretschmar, Jon O. Nelson, Todd Porter, Dorvan Solberg, and Elwood Thorpe and Senators Dennis Bercier, Michael A. Every, Thomas Fischer, Ben Tollefson, John T. Traynor, and Tom Trenbeath.
The committee submitted this report to the Legislative Council at the biennial meeting of the Council in November 2002. The Council accepted the report for submission to the 58th Legislative Assembly.
TRUSTS FOR INDIVIDUALS ON GOVERNMENT ASSISTANCE STUDIES
Because the study of trusts for individuals with disabilities and the study of the feasibility and desirability of exempting funds set aside in a trust for a child's education when determining the child's eligibility for certain human service programs relate to trusts for individuals on government assistance, the committee considered these two studies together.
Background on Trusts for Individuals With Disabilities
Senate Bill No. 2187 directed a study of trusts for individuals with disabilities. The bill as introduced would have provided statutory authority for the creation of special needs and supplemental needs trusts. Before final passage, the House of Representatives replaced the substance of the bill with a study directive.
Legislative History
Engrossed Senate Bill No. 2187 contained the general rule for counting trust assets as assets for Medicaid eligibility purposes--a trust that provides for the lessening of trust benefits if the beneficiary applies for, is determined eligible for, or receives public assistance is unenforceable as against public policy unless the trust is a special needs or supplemental needs trust.
The bill would have defined a special needs trust and a supplemental needs trust. The bill defined a "special needs trust" as a trust allowed by federal law which allows an individual with a disability to have created a trust using that individual's assets for special needs while receiving medical assistance. The bill defined a "supplemental needs trust" as a trust created for the benefit of an individual with a disability by another that is not otherwise obligated to pay for the needs of that individual. Many trust practitioners use the terms "special needs trust" and "supplemental needs trust" interchangeably and duplicatively. No matter what term is used, the difference between the two trusts depends upon who funds the trust. As defined above, a "special needs trust" is self-funded and a "supplemental needs trust" is funded by a third party.
In addition the bill allowed a court to reform a trust to conform with state or federal law if necessary to accomplish the purpose of a supplemental needs trust or special needs trust. The legislative history reveals one of the reasons the substantive bill was turned into a study was that the clause relating to court reformation was contentious. The argument against the clause was that attorneys should draft a trust clearly, not allow courts to rewrite trusts. The general rule is that courts must follow the intent of the settlor. Allowing courts to change an instrument without evidence of the settlor's intent would be a violation of this rule.
Another reason the bill was amended to provide for a study was because the committee understood that special needs and supplemental needs trusts could be created under present law, and the problem was with the education of attorneys.
Special Needs Trust
Medicaid and supplemental security income trust rules provide an exception for special needs trusts. Those rules ordinarily invade trust principal and income without regard to the purpose for which a trust was established. A special needs trust is specifically allowed under federal law. Under 42 U.S.C. § 1396p(d)(4)(A), a special needs trust is:
The principal governmental health care programs are Medicaid and Medicare. Medicaid is a joint federal and state program that pays for medical care for individuals who cannot pay their own medical bills. An individual must have limited income and few assets to qualify for Medicaid. Medicaid rules are complicated and differ from state to state. Each state operates its own Medicaid program consistent with federal law. To be eligible for Medicaid, a person must meet income and asset eligibility guidelines. In North Dakota an adult individual cannot have over $3,000 and a married person cannot have over $6,000 in available assets under Medicaid eligibility rules. The children and family eligibility group for Medicaid does not have an asset test. On the other hand, Medicare is a health insurance program based solely upon status, mainly age or disability.
Under North Dakota Administrative Code (NDAC) Section 75-02-02.1-25, assets include all assets "actually available." "Actually available" means an applicant, recipient, or responsible relative having the power to dispose of an asset, having a legal interest in a liquidated sum and having the legal ability to make the sum available, or having the power to make or cause an asset to become available. A responsible relative is a spouse or a parent of a child. All assets of a responsible relative are deemed available to the applicant or recipient, even those assets that are not actually contributed to the applicant or recipient.
One purpose of a special needs trust is to assure disabled individuals have money to be available to provide opportunities not covered by governmental programs. Special needs trusts allow individuals to shelter funds from governmental assistance entities while maintaining eligibility for governmental assistance, including Medicaid and supplemental security income.
Another purpose of a special needs trust, besides sheltering financial resources, is to provide extra benefits that are secondary to public or governmental resources. The trustee of a special needs trust has full discretion to provide extra benefits above the primary support funded by governmental assistance from both income and corpus of the trust. Many items are not covered by governmental assistance. These items include education, recreation, transportation, dental work, some medical work, and a variety of luxury items.
Although a special needs trust is not an asset for determining eligibility for Medicaid, certain rules must be followed in creating the trust. A special needs trust may be funded solely with the assets of the disabled trust beneficiary. This could include the benefits under the terms of a settlement agreement or judgment, workers' compensation, inheritance, or life savings. However, the disabled trust beneficiary may not set up the trust for that beneficiary. Someone else must create the trust with the assets of the beneficiary. The creator may be a parent, grandparent, guardian, conservator, guardian ad litem, or court.
Although the disabled person has special needs trust funds available during that person's life to supplement publicly funded benefits, the trust beneficiary will be limited in that individual's choice of providers of medical services to those medical providers that are medical assistance-certified. The beneficiary cannot reimburse nonmedical assistance providers from the trust when similar care is available with a medical assistance provider. In addition, at the death of the beneficiary, the trustee must repay the state for medical assistance benefits paid on behalf of that person during that person's life.
In addition to special needs trusts for individuals, there are special needs trusts funded by pooled assets. A pooled asset special needs trusts consists of multiple trust accounts that are pooled for investment and administration purposes. A nonprofit association must perform these duties. The nonprofit association pools the funds of many beneficiaries but is required to keep separate accounts for each beneficiary. The benefit to the beneficiary over a regular special needs trust is the use of professional services that might otherwise be cost-prohibitive.
Supplemental Needs Trust
A supplemental needs trust is a trust created using funds other than those belonging to the disabled individual, the individual's spouse, or someone legally responsible for the support of the disabled individual. Usually a family member such as a parent or grandparent will want to provide for the needs of a disabled child or grandchild; however, the family member will not want to make the disabled individual ineligible to receive governmental assistance.
A number of North Dakota Supreme Court cases have dealt with the issue of supplemental needs trusts. These cases included Hecker v. Stark County Social Service Board, 527 N.W.2d 226 (N.D. 1994), Kryzsko v. Ramsey County Social Services, 600 N.W.2d 237 (N.D. 2000), Eckes v. Richland County Social Services, 621 N.W.2d 851 (N.D. 2001). The main issue in each case was whether the trust was a support trust or a discretionary trust. A support trust is a trust that provides that the trustee must pay income or principal as either is necessary for the education or support of a beneficiary. A discretionary trust is one that grants a trustee uncontrolled discretion over payments to the beneficiary. The trustee has the power to not make any distribution at all to the beneficiary, and the beneficiary cannot compel the trustee to make distributions under the terms of the trust instrument. If the trust is a support trust, it is an available asset for determining Medicaid eligibility. If the trust is discretionary, the trust is not an asset for determining Medicaid eligibility.
A properly drafted supplemental needs trust will not affect eligibility for programs with an asset test. These programs include Medicaid, supplemental security income, and temporary assistance to needy families (TANF). There are other programs for which there is no asset test. These programs include the food stamp program and the children's health insurance program. Although a properly drafted supplemental needs trust will not have an asset issue with any of these programs, there are still income eligibility issues for each of these programs that need to be properly addressed in the trust instrument.
Other States
Iowa, Minnesota, and New York have statutes much like Engrossed Senate Bill No. 2187 (2001). For example, Minnesota Statutes Section 501B.89 provides exceptions to the general rule that a trust that provides for the limitation of the interest of a beneficiary if the beneficiary applies for or receives public assistance is unenforceable against the public policy of the state of Minnesota. There are two exceptions in the Minnesota statute which are almost identical to the exceptions in Engrossed Senate Bill No. 2187. The Minnesota law was enacted in 1992.
Testimony and Committee Considerations
The committee heard testimony on and considered three possible solutions to removing impediments to the construction of trusts for individuals on government assistance. These solutions included the creation of a pooled trust, trust forms, and a bill draft.
The Department of Human Services is working with Guardian and Protective Services, Inc., to create a pooled special needs trust. The advantage to a pooled special needs trust over an individual special needs trust is that the pooled trust is managed by a professional trust manager. An individual special needs trust usually is managed by a relative because there is very little money involved with a supplemental or special needs trust, and it is not cost-effective to have a corporate trustee. The reason a pooled special needs trust can have low-cost professional management services is because of the economies of scale gained by the grouping of assets of individuals in the trust.
One of the reasons for the study was that attorneys were not aware of these trusts and, if they were, it was difficult to draft a trust that the Department of Human Services would find to be an asset. The Department of Human Services had made forms in electronic format for use by attorneys and the public to make trusts for individuals on government assistance. These forms would result in lower costs for legal services. The availability of the forms was advertised to attorneys, and copies were sent to lawyers and interested groups and persons.
The committee was informed by an attorney that the forms were difficult to assemble and were rigid in their application to individual circumstances.
The committee considered a bill draft similar to 2001 Engrossed Senate Bill No. 2187, except for one major change. The bill draft did not include the clause relating to reformation of a trust. Interested persons suggested a number of changes to the bill draft. Although there were numerous suggested changes, there were two main suggested changes that related to contingent beneficiaries and court reformation.
One change was to add language that stated upon the death of the beneficiary or termination of the trust, a contingent beneficiary does not disqualify a supplemental needs trust and that stated upon the death of the beneficiary or reimbursement of the Department of Human Services for medical assistance, a contingent beneficiary does not disqualify a special needs trust. Between two meetings of the committee, the Department of Human Services decided there should not be a contingent beneficiary for special needs trusts.
Another change was to add language giving courts authority to reform a trust to accomplish the purpose of a supplemental or special needs trust. The reformation could be done upon the determination that the grantor had in good faith attempted to qualify the trust, the reformation is necessary to accomplish the purpose of a supplemental or special needs trust, and the reformation would be in accordance with the grantor's intent.
There would be very few reformation of trusts already in existence. The reformation language would be primarily for trusts made in wills and trusts that are not funded until some future date. These trusts do not get attention until many years after the trust language is drafted. Although reformation is available as an equitable remedy, all legal remedies must be exhausted before a court allows an equitable remedy. Reformation would streamline the process by making reformation a legal remedy. Reformation is commonly done for charitable trusts and is allowed under the Internal Revenue Code.
The committee was informed a person of limited means would be unduly burdened if that person had to have a lawyer review the trust document or go to court every time there was a policy change. Reformation would allow these changes to be made when the trust is funded in the future.
Other suggested changes included:
- Replacing the terms "special needs trust" and "supplemental needs trust" with the terms "self-settled special needs trust" and "third-party special needs trust."
- Removing language that does not require submission of a trust to a state agency or court for interpretation or enforcement. The reason for the removal was that the language may mislead individuals to believe that they do not need to submit certain trusts for review when they apply for medical assistance or other public benefits.
- Changing the definition of supplemental needs trust which includes that the trust "does not make an individual with a disability ineligible for medical assistance while maintaining assets in that trust."
- Adding language that would have the bill draft apply to a supplemental needs trust regardless of when funded.
- Clarifying language that states the bill should do no harm against third-party special needs trusts.
- Making specific references to the federal code.
- Removing any reference to disability criteria purported to be created by the Department of Human Services because the term is defined by federal criteria.
- Removing language in the bill draft that states that third-party special needs trusts are defined as to "qualify" because the bill draft provides no method for "qualification."
The committee heard testimony from individuals with children with disabilities and attorneys in support of the concepts contained in the bill draft. One reason for the support of the bill draft was that it would aid individuals in estate planning.
The committee considered a revised bill draft incorporating most of the suggested changes. The main changes allowed a contingent beneficiary in a third-party special needs trust to not disqualify a disabled individual from public benefits and court reformation to accomplish the purpose of the trust.
Recommendation
The committee recommends Senate Bill No. 2047 to allow for the formation of self-settled special needs trusts and third-party special needs trusts.
Background on Effect of Educational Trusts for Children on Eligibility for Human Services Programs
Educational Trusts and Public Assistance
It is difficult to say how an educational trust might affect public assistance benefits without knowing more about the particular trust language. In the application process for food stamps and the children's health insurance program, trust assets are not included in determining eligibility; eligibility is based upon income. In considering eligibility for Medicaid, there is not an asset test for children and families under Medicaid. This makes issues moot relating to asset availability in an educational trust for a minor child Medicaid recipient or for a minor child whose parents are Medicaid recipients. The issues may arise in considering eligibility for TANF. Trust assets can be considered as available depending upon the language in the trust. If the trust is available for the support of the child while on TANF, all assets would be considered available in determining eligibility.
The TANF program is similar to Medicaid in that under NDAC Section 7-02-01.2-21, TANF requires all assets that are actually available to be considered when determining eligibility. Assets are actually available when at the disposal of a member of the TANF household. If a member of a TANF household has a legal interest in an asset and has the legal ability to make it available for support of that person or if a household member has the lawful power to make an asset available or cause the asset to be made available, the assets are considered available in considering eligibility for TANF. Under NDAC Section 75-02-01.2-22 the asset limitations for TANF are $5,000 for a household consisting of one person and $8,000 for a household consisting of two or more persons.
If an educational trust created by a person not in the household is properly drafted, there should not be a TANF eligibility issue. It appears that a grandparent may set up a trust for the benefit of a grandchild for educational purposes without the trust assets being available to reimburse money spent on TANF programs received by the grandchild's parents. The grandparents would need to draft the trust to prohibit access to funds in the trust while the child is in a TANF household. If the trust states that the trustee may not make distributions from trust income or principal except for postsecondary education expenses and provides that the child must be enrolled in a university, college, or vocational program while between the ages of 18 and 23 at the time of distribution, it appears the trust assets cannot be counted as available to the child for purposes of TANF.
Other Issues
The committee reviewed means other than trusts for funding the educational needs of a grandchild. For example, a grandparent may place money in a state-qualified tuition program. This state has a higher education-qualified state tuition program, also known as a Section 529 savings plan.
A Section 529 savings plan is a state-sponsored, tax-deferred savings plan designed specifically for individuals saving for college. Any United States citizen may open a Section 529 account for the benefit of any United States citizen who wants to pursue higher education. The owner of the account is in control of distributions from the account and may change the beneficiary of the account at any time. Account assets may be used to pay for qualified higher education expenses, such as tuition, room, board, books, fees, and supplies, at any accredited postsecondary school in the United States. The investment income on the account is tax-deferred for federal income tax purposes until the time of withdrawal for higher education expenses. Distributions are excluded from income to the extent used to pay for qualified higher education expenses. For any nonqualified withdrawals the account owner is responsible for regular income taxes and a 10 percent penalty.
As the result of the passage of Senate Bill No. 2414 (1999), the Bank of North Dakota developed the college SAVE program, a qualified state tuition program that meets the requirements of a Section 529 savings plan. The Bank of North Dakota has selected Morgan Stanley as the manager of the program and intends the program to be accessible to all United States citizens for use at any eligible education institution.
Conclusion
The committee does not make any recommendation with respect to educational trusts for children. The impetus for the study came from an attorney who was unsure how to plan for situations that involve grandparents saving for a grandchild whose parents may go on public assistance, but there does not appear to be any difficulty in planning for this situation. The committee was satisfied there are options for planning in this situation, especially with the newly created option of saving for a grandchild through a Section 529 account.
FEES AND POINT DEMERITS FOR TRAFFIC OFFENSES STUDY
Background
House Concurrent Resolution No. 3005 directed a study of the fees and point demerits for traffic offenses. The resolution stated that the present system for the disposition of traffic offenses was created in 1973 as the result of a Legislative Council study during the 1971-72 interim. Since 1973 there have been numerous changes to the fee and point demerit system. The legislative history of House Concurrent Resolution No. 3005 reveals the resolution resulted from a concern with the fees and points for driving in excess of the lawful speed limit and was broadened in scope to encompass any other area of concern for fees or point demerits for traffic offenses.
Points
The noncriminal point and fee system for traffic offenses has expanded greatly since 1973. Initially there was a list of 18 offenses for which demerit points were assigned for noncriminal offenses and six for criminal violations. Under North Dakota Century Code (NDCC) Section 39-06.1-10(3), the present point list assigns points to 35 noncriminal traffic offenses and 13 criminal offenses.
Under NDCC Section 39-06.1-10(1), if the number of points assigned to a violation are not more than two, the violation and the points may not be entered on the driving record but must be recorded separately. This separate record is not available to the public and thus is not reported to the operator's insurance company or anyone else. However, these points do apply for the purposes of license suspension. Under Section 39-06.1-10(2), an operator's license is suspended if an operator accumulates 12 or more points. Under Section 39-06-01.1, acts committed by a minor resulting in an accumulated point total in excess of five points will result in having that minor's license canceled by the Department of Transportation.
Fees
In 1973 offenses were divided between moving and nonmoving. The only fees were $30 for careless driving, $20 for a moving violation, and $10 for a nonmoving violation. Presently, the general rule is that moving and nonmoving violations are $20, with various exceptions. The following are tables of these exceptions--a table of fees in excess of $20 and a table of fees under $20. The following tables do not include basic speeding offenses nor motor carrier regulation violations. Criminal offenses and associated fines are included in the tables if there is a mandatory amount or a mandatory minimum amount listed in statute, and these offenses are denoted by an asterisk.
| FEES IN EXCESS OF $20 | |
| Fees | Violation (Type of Offense) |
| $40+ | Exceeding speed limit in school zone or construction zone (speed/style) |
| $50 | Failing to give immediate notice of reportable accident (accident)* |
| $50 | Open container (liquor) |
| $50 | Overtaking or passing stopped schoolbus (overtaking) |
| $50 | Improperly using schoolbus signs (overtaking) |
| $50 | Registered owner permitted overtaking or passing of schoolbus (overtaking) |
| $50 | Failing to yield to pedestrian at lighted traffic-controlled intersection (pedestrian) |
| $50 | Failing to yield right of way to pedestrian (pedestrian) |
| $50 | Failing to stop for automatic railroad crossing signal (railroad) |
| $50 | Failing to stop for railroad crossing marked with stop sign (railroad) |
| $50 | Failing to register snowmobile (snowmobile) |
| $50 | Failing to register all-terrain vehicles (ATV)* |
| $50 | Exhibition driving (speed/style) |
| $100 | Violating parking of mobility impaired through the use of illegal permit or plate (parking)* |
| $100 | Violating parking of mobility impaired (parking) |
| $100 | Drag racing (speed/style) |
| $100 | Racing (speed/style) |
| $150+ | Driving without liability insurance (insurance)* |
| $300+ | Driving without liability insurance for second time within 18 months (insurance)* |
| FEES OF LESS THAN $20 | |
| Fees | Violation |
| $5 | Clinging to a vehicle on a bicycle (bicycle) |
| $5 | Riding on the roadway when bicycle paths are provided (bicycle) |
| $5 | Not prominently displaying mobility-impaired certificate or license plate (parking) |
| $5 | Improperly parking vehicle on Capitol grounds when prohibited (parking) |
| $10 | Displaying improper color of clearance side marker, back up lamps, or reflectors (equipment) |
| $10 | Display of light that is not red from rear (equipment) |
| $10 | Operating an all-terrain vehicle while under 16 years of age (ATV)* |
Unlike point demerits, fees charged in cities or home rule cities may be different from fees in the North Dakota Century Code. Under NDCC Section 40-05-06, in a city a fee may be established which may not exceed the limits for equivalent categories of violations of state law. However, under Section 40-05.1-06, home rule cities can create their own fees for violations of city ordinances. One exception is the provision that no fee may be imposed by "a city or county operating under a home rule charter" for a violation of Section 39-21-41.2, which requires a child restraint system for each child under age 4 and a child restraint system or seatbelt for a child aged 4 to 17. Another exception is the fee for speeding in a school zone in all places in this state, including home rule cities.
Speeding
Beginning in 1979 there were a number of changes to the scale of fees and demerit points for speeding in 55-mile-an-hour zones and 65-mile-an-hour zones. Between 1991 and 2001, however, no changes were made to those scales. In 1997 a new scale of fees and demerit points for speeding in a 70-mile-an-hour zone was created. In addition, higher fees for speeding in a construction zone were created in 1997.
Three bills that relate to this study were introduced during the 2001 legislative session. One failed to pass, one passed and was vetoed, and one was enacted into law. As introduced, House Bill No. 1443, which failed to pass, would have altered the fees and point demerits for driving in excess of the lawful speed limit and would have increased the speed limit on interstate highways to 75 miles per hour.
Senate Bill No. 2012 would have established a 75-mile-an-hour speed limit on interstate highways. However, the Governor vetoed the increased speed limit stating there were not adequate adjustments to the fees and points assessed for higher speed limits on the interstates.
Senate Bill No. 2088 changed the fees and point demerits for driving in excess of the lawful speed limit. The bill created one scale of demerit points for speeding on any road in which the lawful speed limit is 70 miles per hour or less and one scale of demerit points for roads with a lawful speed limit in excess of 70 miles per hour. In practice there is only one "active" scale of demerit points because there is no road in this state on which the lawful speed limit is in excess of 70 miles per hour. The active scale of point demerits replaces three previous scales. The three previous scales were for speeding within city limits on a noncontrolled access highway, speeding on a highway on which the speed limit is higher than 55 miles per hour, and for speeding on any other highway.
The following table compares the demerit point scale for speeding in 1973 with the scale in 1997 and 2001. The year 1973 is used because it was the first year points were applied to traffic offenses. The year 1997 is used because that was the most recent legislative session before 2001 in which there was a change in the fees and demerit points for speeding.
| 1973 | 1997 | 2001 | ||||
| Miles Per Hour (MPH) Over Limit |
All Zones |
Within City Limits | 55 MPH and Lower Zones |
65 MPH and 70 MPH Zones |
Within City Limits, 55 MPH and Lower, 65 MPH and 70 MPH Zones |
70 MPH Plus Zones |
| 1-5 | 0 | |||||
| 6-10 | 1 | 1 | 0 | 1 | ||
| 11-15 | 2 | 4 | 1 | 2 | ||
| 16-20 | 3 | 3 | 7 | 3 | 5 | |
| 21-25 | 4 | 4 | 7 | 5 | 7 | |
| 26-30 | 6 | 6 | 10 | 9 | 10 | |
| 31-35 | 6 | 6 | 10 | 9 | 12 | |
| 36-45 | 8 | 8 | 12 | |||
| 36+ | 12 | 15 | ||||
| 46+ | 12 | 12 | 15 | |||
During the 2001 legislative session, House Bill No. 1443 attempted to and Senate Bill No. 2088 did change the fee schedule for driving in excess of the lawful speed limit. Senate Bill No. 2088 made some minor changes to the fees exceeding the speed limit in a zone in which the lawful limit exceeds 55 miles per hour, mainly by raising the fees for driving in excess of 35 miles per hour over the speed limit. The bill addressed the fees for driving in excess of the speed limit in a zone posted in excess of 70 miles per hour. The following is a table comparing the fee schedule in 1973 with the fee schedule in 1997 and in 2001:
| 1973 | 1997 | 2001 | ||||
| Miles Per Hour (MPH) Over Limit |
All Zones |
55 MPH and Lower Zones |
65 MPH and 70 MPH Zones |
55 MPH and Lower Zones |
65 MPH and 70 MPH Zones |
70 MPH Plus Zones |
| 1-5 | $20 | $5 | $11-$15 | $5 | $11-$15 | $20 |
| 6-10 | $20 | $6-$10 | $17-$25 | $6-$10 | $17-$25 | $40 |
| 11-15 | $20 | $11-$15 | $28-$40 | $11-$15 | $28-$40 | $60 |
| 16-20 | $40 | $17-$25 | $43-$55 | $17-$25 | $43-$55 | $80 |
| 21-25 | $40 | $28-$40 | $58-$70 | $28-$40 | $58-$70 | $100 |
| 26-30 | $40 | $43-$55 | $73-$85 | $43-$55 | $73-$100 | $125 |
| 31-35 | $40 | $58-$70 | $88-$100 | $58-$70 | $150 | |
| 36-45 | $40 | $73-$100 | $73-$100 | $125-$170 | ||
| 36+ | $40 | $105 + $5 | $155 + $5 | |||
| 46+ | $40 | $105 + $5 | $105 + $5 | $175 + $5 | ||
Other States
Other states use a variety of methods in enforcing traffic rules. Some use a criminal system and some use a combination criminal and noncriminal system similar to this state. Most states have a point system, but there is no uniformity on assessing points. Some states suspend licenses after a certain number of offenses. For example, Minnesota suspends a license when an individual has four traffic citations in one year. South Dakota has a point system but only for hazardous moving traffic violations such as driving while under the influence but not for speeding.
As for fees or fines, states with criminal systems have fine and bond schedules. However, as in Minnesota, these fines and bond schedules may change from county to county. Of the surrounding states, none have a fee system comparable to North Dakota.
Testimony and Committee Considerations
Crashes
The committee received information on motor vehicle crashes to determine whether there is any relationship between crashes and other factors, including location, time, day, sex of driver, related offenses, weather, first harmful event, and speeding. The committee focused on speeding.
Speeding citations are issued for two-tenths of 1 percent of all crashes; however, care required citations are issued for 25.7 percent of all crashes, and care required citations may include instances when individuals are speeding. There is more speeding on Friday afternoons, Sunday evenings, and Monday mornings than at other times. The Highway Patrol testified that speed is a factor in 47 percent of crashes. This percentage includes driving too fast for the conditions and exceeding the speed limit.
The top three harmful events involved in crashes include another motor vehicle at 52 percent, animals at 20 percent, and rollovers at 8 percent. Sixty-four percent of crashes in urban areas are on roads posted under 55 miles per hour. Forty-one percent of crashes in rural areas are in town on roadways posted under 55 miles per hour. The estimated economic cost of crashes in this state for the year 2000 was $320,998,000.
The committee received testimony on the dangers associated with higher speed limits. Rollovers increased from 1994 to 1997 from 7,280 to 11,460. If these numbers are corrected for miles driven, the rate of rollover deaths per 100 million vehicle miles traveled has increased from .297 to .479. The testimony attributed these increases to the popularity of pickups and sport utility vehicles with a high center of gravity and to higher speed limits. The percentage of people who died who were fully restrained has increased from 13 percent in 1988 to 26 percent in 1998. The reason the death rate for fully restrained individuals has doubled is attributed to an increase in severity of accidents. Rollovers are a severe accident. In addition, there is little support in the roofs of pickups and sport utility vehicles which makes it more likely that a tall person will be severely injured in a rollover.
Speed Limit Bill Drafts
The committee considered a bill draft that would have raised the speed limit on the interstate highways to 75 miles per hour and a bill draft to create one speed limit of 65 miles per hour for paved two-lane highways, to replace the speed limits of 65 miles per hour for day and 55 miles per hour for night. Committee members discussed whether consistent speed limits for day and night would be helpful to the drivers of this state.
The Highway Patrol testified that there are roads in this state where it would be appropriate to have a 65-mile-an-hour day and night speed limit; however, some roads should be 55 miles per hour at night.
The committee received testimony that an increase in the speed limit increases gas consumption and the state should not promote increased gas consumption considering the current state of affairs in the Middle East.
The Highway Patrol testified that there is a level of tolerance in the enforcement of speeding because of speedometer error and to be reasonable. It would be an endless task to give a citation for speeding 71 miles per hour in a 70-mile-an-hour zone; however, if the speed limit is raised to 75 miles per hour, this tolerance would be lessened.
The committee was informed it would cost $2 million to $2.5 million to increase the speed limit to 75 miles per hour on interstate highways. The cost would come from the change in signage and longer guardrails and other improvements. These improvements would be done as changes were being made otherwise to a particular section of the interstate highways.
Committee discussion in opposition to raising the speed limit from 70 to 75 miles per hour on the interstates indicated the speed is unsafe. People presently drive at least 75 miles per hour on the interstate and an increase to 75 miles per hour will result in a de facto speed limit of 80 miles per hour, which is even more unsafe. Another reason in opposition was that because of the controversial nature of the issue, the speed limit should be changed by an initiated measure rather than by the Legislative Assembly.
Committee discussion in support of raising the speed limit from 70 to 75 miles per hour indicated that because speed limits are a maximum and not a minimum, an individual may drive under the speed limit if that individual has safety concerns. The interstate system was designed for the cars built in the 1950s traveling at 80 miles per hour. Congress mandated a lower speed limit in the 1970s because of gas supply concerns.
The Highway Patrol testified that the penalties for speeding are not consistent, and this inconsistency hinders citizens in determining the severity of the offense. In fact, law enforcement has to refer to reference material to tell somebody what the penalty is for speeding on a certain road at a certain speed. Changes in the fee and point system which are clear and consistent would provide a better deterrent. One suggestion was to make speed limit penalties apply to five mile an hour increments and not for each mile an hour. In addition, the penalty should be consistent for the amount over the speed limit for each limit. It was argued that if the speed limit were to increase, the penalties for speeding would have to be strict enough to make people obey the speed limit.
It was suggested that this state be like other states and inform drivers at the border of the speed limit penalties on signage. Another suggestion was that if the speed limit is increased, other safety factors should be adopted to maintain the same level of safety, e.g., primary seatbelt enforcement and a .08 per se alcohol level.
Committee discussion included support for increased penalties to ensure compliance with the speed limit. In addition, committee discussion included a desire for the support of law enforcement by including increased safety measures, including primary enforcement of seatbelt laws. There was opposition to primary seatbelt enforcement on the grounds that government should not mandate matters of personal choice.
Fees and Points Bill Drafts
The committee received information on the fees charged by other states and cities within this state to review the comparable fairness of state fees. The committee compared the fee and bond schedules for similar offenses in North Dakota, South Dakota, Wyoming, Montana, Bismarck, Fargo, Grand Forks, and Minot. Generally, North Dakota assesses $20, South Dakota assesses $50, Wyoming assesses $60, and Montana assesses $70 per traffic offense. Generally, Minot assesses $40, Bismarck assesses $40 or $50, Grand Forks assesses between $21 and $71 (in $10 increments), and Fargo assesses $60 per traffic offense. The committee compared the fees or fines for speeding in North Dakota, Montana, South Dakota, Wyoming, Fargo, Grand Forks, Bismarck, and Minot. The speed limit is 70 miles per hour on the interstates in North Dakota and is 75 miles per hour in Montana, South Dakota, and Wyoming. States ranked in order of increasing fines or fees start with North Dakota at the lowest, followed by Montana, South Dakota, and Wyoming. Cities ranked in the order of increasing fees or fines start with Minot at the lowest, followed by Bismarck, Grand Forks, and Fargo.
According to Fargo officials, the recent increase of fees for traffic offenses in Fargo has not helped in the promotion of safety. As a means of increasing safety, the city is investigating increasing enforcement by requiring law enforcement officers to issue one ticket per day.
The committee considered a bill draft to create a singular point and singular fee scale for driving in excess of the speed limit. The bill draft created a fee of $5 for each mile per hour over the limit. The bill draft increased the point violations in five-mile increments over the speed limit. A person must drive 6, 11, 16, 21, etc., miles an hour over the speed limit for the points to increase under present law. The bill draft made the change at the 5- or 10-mile-an-hour increment.
The bill draft was intended to make the fee and point system logical and simple. The intent was not to increase penalties but to create consistent penalties; however, the points could be higher for one particular speed zone.
Committee members discussed whether to leave the points as they are and change the fees. There was some concern with increased insurance rates if points are increased above the level that is reportable to insurance companies.
The committee divided the bill draft into two bill drafts. One bill draft would have created a singular point scale for driving in excess of the speed limit.
The committee received testimony on the effect of points on insurance rates. Insurance companies determine rates based on different underwriting criteria. Increasing points for speeding offenses will result in higher insurance rates if there are more offenses over two points. The committee was informed that the insurance industry would like a full abstract, instead of a limited abstract listing those offenses exceeding two points. Historically the Legislative Assembly has taken a contrary position because of a policy that certain offenses should not affect insurance rates.
The committee reviewed three examples of the effect of a speeding offense. The first example showed a $108 increase in premiums for a speeding ticket and a $141 increase for a driving while under the influence offense; the second example showed a $79 increase in premiums; and the third example showed a 5 percent increase for every point demerit over three.
Opponents of a simpler point system argued that the point system was made simpler in 2001. The bill draft would change by one-mile per hour the offenses that would be reported to the insurance industry, and this would raise insurance rates. It was argued that points are not a deterrent to speeding and that fees are a better deterrent to speeding.
The other bill draft made all fees for driving in excess of the speed limit $5 for each mile per hour over the limit. The $5 per mile over the limit fee is much less than what other states charge for speeding. Home rule cities make their own fees and they are generally more than $5 per mile over the limit. The $5 fee would increase revenues by approximately $1.5 million assuming the same type of offenses. If the $5 per mile per hour over the limit fee reduces speeding citations by 20 percent, there will be an increase of approximately $1 million. A fee of $2 for each mile per hour over the limit would be almost revenue-neutral.
Committee members discussed whether such a change should be revenue-neutral--$2 for each mile per hour over the limit. A few committee members opposed the scheme because of the desire to continue a base fee to which an additional fee per mile per hour over the limit would be added.
Recommendations
The committee recommends House Bill No. 1046 to remove the nighttime speed limit on paved two-lane highways resulting in a 65-mile-an-hour speed limit.
The committee recommends House Bill No. 1047 to establish a $5 fee for each mile per hour over the speed limit. The bill provides a uniform and simple system for determining speeding fines.
CENTRALIZED PROCESS FOR ADMINISTERING NONCRIMINAL TRAFFIC VIOLATIONS STUDY
Background
Senate Concurrent Resolution No. 4042 directed a study of the feasibility and desirability of a centralized process for administering noncriminal traffic violations. Noncriminal traffic citations are processed in the counties of this state before the traffic violation information is transmitted to the Department of Transportation. According to the study directive, current methods of processing result in redundancies in data entry, delays in transmitting the traffic violation information to the Department of Transportation, and substantial investments of time by county and city employees.
Criminal Versus Noncriminal
The study focused on state noncriminal traffic offenses. There are state criminal traffic offenses, e.g., driving while under the influence, for which the procedure differs from noncriminal offenses. For a state criminal traffic offense, the offender may request an immediate hearing, is formally arrested, or is required to sign a promise to appear. There are city criminal traffic offenses and city noncriminal traffic offenses. City criminal traffic offenses are handled much in the same manner as state criminal traffic offenses. City noncriminal traffic offenses are handled much in the same way as state noncriminal traffic offenses, except an offender must sign a promise to appear.
Context of a Noncriminal Traffic Offense
Under NDCC Section 39-07-07, if a person is halted for a traffic offense, the halting officer may take the person's name and address, take the license number of the person's motor vehicle, and if for a state noncriminal traffic violation, notify the person of the right to request a hearing when posting bond by mail. A person may not be taken into custody for a violation of a noncriminal traffic offense. The officer is required to provide the motorist an envelope for use in mailing the bond.
The first option for the person halted for a noncriminal traffic offense is to not attend a hearing. Under NDCC Section 39-06.1-02, a person cited with a noncriminal offense may pay the statutory fee or post bond. If the person pays the fee, the violation is admitted. If the person posts bond for a traffic violation under state law, the bond must be submitted within 14 days of the date of the citation, and the person must indicate whether a hearing is requested. If the person does not request a hearing within 14 days of the date of the citation, the bond is forfeited and the person admits the violation. If the person requests a hearing, the person may forfeit the bond by not appearing at the time designated. Within 10 days after a forfeiture of bond or payment of the statutory fee, the violation must be certified to the Department of Transportation.
The second option is for the person to attend a hearing. The person has two options at the hearing. The first option is to admit the offense and then explain the person's actions. The hearing official may waive, reduce, or suspend the statutory fee or bond under this option. However, the person will be assessed the points for the offense. The second option is for the person not to admit the offense and request a hearing on the issue of the commission of the violation charged under NDCC Section 39-06.1-03. At the time of the request for the hearing, the person charged must deposit an appearance bond equal to the statutory fee for the violation. If the official finds that the person has committed the traffic violation, the official notifies the Department of Transportation.
The person may appeal from the administrative hearing to the district court for a new trial. If the person is found to have committed the violation, the clerk of court reports that fact to the Department of Transportation. Under NDCC Section 39-06.1-04, a person who fails to choose one of the previous methods of addressing a traffic citation is deemed to have admitted to the commission of the violation.
Supreme Court Services Administration Committee Study
The movement for creating a centralized process for noncriminal traffic citations began in 1994 with the Judicial Services Subcommittee of the Court Services Administration Committee, a committee of the North Dakota Supreme Court. The problem the subcommittee addressed was that individuals issued a noncriminal traffic citation were given a hearing date on the uniform traffic citation. When the judge arrived at the hearing, it was common for the individual cited to not appear. To relieve the burden from judges, the subcommittee considered a suggestion for a centralized process for noncriminal traffic citation matters. The subcommittee discussed centralizing the citation and hearing process.
The subcommittee prepared a bill draft and sent it to the Court Services Administration Committee for consideration. The idea suggested by the bill draft was that a single set of envelopes would be provided to the sheriffs and Highway Patrol officers which would direct the person cited to submit the bond to a central office in Bismarck. The Department of Transportation opposed the proposal because adequate funding was not available for additional staff and facilities. However, the bill draft addressed two issues--the scheduling of judges around appearance dates set on a citation and the redundancy of several different entities typing in the same information on citations. Only the latter was opposed by the department because of lack of funding. In 1995 the Supreme Court introduced the proposal as a bill to address the problem of scheduling hearings for which the person to which a citation was issued does not appear. The bill was enacted in 1995.
North Dakota Criminal Justice Information Sharing Plan
One new development from 1994 is that on March 1, 2001, a report entitled North Dakota Criminal Justice Information Sharing Plan was released. One of the short-term objectives of the plan is to reduce delays in the processing of traffic citations. The plan states:
The current manual process creates situations where courts receive the payment for the citation prior to receipt of the citation. The courts are unable to answer questions from citizens about a particular citation until the citation is received at their location, often several days after the citation was written.
Because citations are processed in the county where issued, state patrol and other law enforcement officers must be cognizant of county boundaries and file paperwork to the correct location. Citizens can be confused about whom to contact with questions about citations. Because over 95 percent of offenders pay the citation without contesting it, they expect the transaction to be fast and easy.
As a result of this project, better customer service will be provided to citizens by more efficient processing of traffic citations. As an additional benefit, criminal justice agencies will spend less time on bureaucratic paper work and more time maintaining legal protections and safety.
The plan addresses the project description for reducing delays in the reporting of traffic citation information. The plan lists three phases in the implementation of the improved citation system. The first phase involves collecting citation information at the point of origin, the officer's car, or as soon thereafter as possible. The second phase is to explore the possibility of implementing the citation system on a statewide basis for local law enforcement agencies. The plan states:
The third phase is to evaluate the processing of citations from the standpoint of the courts and [the Department of Transportation] to streamline the process. Currently the courts manually enter the citation disposition information from each of the 29 counties on [the Unified Court Information System] into the system and process payment receipts. For the other counties, the information is not entered. Hearings are scheduled if requested. This happens for less than five percent of citations. Dispositions of the citations are sent electronically to [the Department of Transportation] to match against the driving record of the offender. Options will be explored to electronically transmit the citations from local law enforcement so the courts do not have to reenter the citations. A pilot project using Highway Patrol information will be considered to demonstrate feasibility.
In addition, a central processing location for citations will be explored. This would allow better customer service by eliminating the need to determine the county where the citation was processed and possibly allowing online payment of the citation. Since over 95 percent of the citations are paid without further involvement, information could be passed on to [the Department of Transportation] in a more timely manner. For citations requiring a hearing, information would be transmitted to the courts for further processing. A feasibility analysis will be completed to identify legislative changes necessary, as well as staffing and funding issues. . . .
The plan discussed the promotion by the office of the court administrator of the use of a common system to manage information. The unified court information system is used in most counties and in four municipalities. Electronic interfaces from the unified court information system exist for citation reports to the Department of Transportation.
Report on Administrative Traffic Citation Processing
On December 22, 1999, the office of State Court Administrator released a report entitled Report on Administrative Traffic Case Citation Processing. The report was a study of the amount of time court personnel spent processing administrative traffic case convictions. The report stated:
Historically, clerks of district court have been responsible for the processing and management of administrative traffic cases issued on our state's roads and highways. In 1998 over 56,886 administrative traffic case convictions were processed by clerks of district court. While only 1-3% of these cases involve motorists who request a hearing, all of the citations must be processed and fines receipted prior to sending the disposition information to the Department of Transportation Driver's License Division for entry on the driver's record. While these categories of cases require very little judicial attention, they require substantial clerical time for the data entry and processing of the cases.
It was estimated 70 to 80 percent of all motorists pay the administrative fee, based on the original citation. If payment is not received within 14 days, a notice is sent to the motorist indicating the motorist has 10 days to pay. Based on the second notice, about 80 percent of the remaining offending motorists do send in payment to the clerk's office. If payment is not made in that time period, the Department of Transportation is notified and the process is initiated to suspend the motorist's driver's license.
If the motorist requests a hearing, the motorist is required to return the citation with the amount of the ticket as the amount of bond for the hearing. A notice of the hearing is mailed to the motorist and to the state's attorney's office. Following the hearing, the clerk takes the appropriate action dismissing or assessing the fine.
Funding
The state receives the funds from traffic citations either for deposit in the general fund or state school fund. Under Article IX, Section 2, of the Constitution of North Dakota and NDCC Section 29-27-02.1, statutory fees, fines, forfeitures, and pecuniary penalties are paid to the state school fund. Bail bond or bail for a criminal violation is credited to the state general fund. If the traffic offense charge is one of the noncriminal offenses for which a statutory fee is paid, that statutory fee is deposited in the state school fund. If a bond is posted and forfeited, then it is a forfeiture that is deposited with the state school fund.
For a criminal traffic offense, the fine paid for the offense is deposited in the state school fund. If as part of that criminal offense a bail bond is posted and is declared forfeited by a court, that bail bond amount is payable to the state general fund. Before 1995 the forfeited bond (that now goes to the state general fund) was deposited in the general fund of the county whose officers originally instituted the action.
As a general rule, a noncriminal traffic offense committed within city limits is a violation of a city ordinance, and the fee for the violation goes to the city. However, cities report the violation for demerit point purposes to the Department of Transportation. Home rule cities may set fees for violation; however, counties, including home rule counties, may not set fees. The fees for counties are set by state law.
Before April 1, 2001, all clerks of court were operated and funded by each county. For the 2001-03 biennium 11 county clerks of court are operated and funded by the state--Cass, Grand Forks, Ramsey, Walsh, Ward, Williams, Burleigh, Morton, Richland, Stutsman, and Stark. Four county clerks of court are operated and funded by the county--Oliver, Sheridan, Sioux, and Billings. The remaining 38 county clerks of court are operated by the county and are funded in part by the state on a contract basis for the amount of "state" work done by each office.
The Report on Administrative Traffic Citation Processing stated it is difficult to project the workload for clerks processing administrative traffic citations due to the wide variation in estimated times reported by the clerks in the study. However, a substantial amount of time is devoted to the processing of administrative traffic citations by clerks statewide. According to the Supreme Court administrator's office, traffic citations use 7.04 full-time equivalent (FTE) clerk employees statewide--4.48 of those clerks are in the 11 state-operated and state-funded counties, .07 of those clerks were in the county-operated and funded counties, and 2.49 clerks are in the 38 county-operated and state-funded counties.
For the 2003-05 biennium Billings County is the only clerk of court operated and funded by a county. Oliver, Sheridan, and Sioux Counties became county-operated and state-funded counties. Several counties eligible for state-funded clerks of court opted for contracts with the state. These counties are Barnes, Benson, Bottineau, Dickey, McHenry, McKenzie, McLean, Mercer, Mountrail, Pembina, Ransom, Rolette, Sargent, Traill, and Wells. These counties were eligible because a state court study showed a need for at least one FTE employee to fulfill clerk of court functions. All clerks of court offices must adhere to standards set by the Supreme Court.
Testimony and Committee Considerations
The committee reviewed the present process and the proposed process for traffic offense administration. The committee heard testimony in support of a centralized process from the Department of Transportation, the Supreme Court, the Information Technology Department, and the Highway Patrol. Opposition to a centralized process came from certain clerks of court.
Those in favor of the centralized process contended that the courts are doing data processing for the Department of Transportation and it would be more efficient for the Department of Transportation to do the data entry and send the paperwork on the 5 percent of the drivers who request a hearing back to the courts. Under the present system, Highway Patrol officers must carry multiple envelopes to provide to individuals issued citations depending upon the county in which the citation is issued. The centralized process would require one envelope.
The centralized process would take advantage of technology. The centralized process may allow individuals issued a citation to investigate the status of the citation on the Internet. In the future there may be payment by credit card. If the administration technology were combined with the Highway Patrol's mobile data terminals that electronically issue citations, it would further eliminate data reentry by having the citation entered into the system once at the point of issuance. Seventy out of 128 Highway Patrol cars are equipped with automated traffic citation issuing equipment and 5 more cars should be equipped before 2003.
The committee was informed that the use of technology would allow for the facilities used for the administration of traffic offenses to be located anywhere in the state. The Department of Transportation expected to contract out the data entry functions of a centralized system.
In the 11 counties that are state-funded, the time savings would be used for other functions so no immediate cost-savings would be realized by the state. In the counties that are contract-funded, the money previously included for traffic offense administration would be removed from future contracts. This reduction would result in the savings of approximately 3.5 full-time employees in contract counties. These full-time employees cost approximately $9,104 per month. The most any county would lose is approximately $1,000 per month.
The savings of $9,104 per month would offset the cost of the centralized process. The centralized process would take approximately four full-time employees for the startup and two full-time employees after the process was established. Two full-time state employees could be funded by the $9,104 per month savings from contract counties. There would be a one-time cost of $162,500 from general fund money and an ongoing annual cost of $129,600 in general fund money for the centralized process. The reason it requires fewer employees at the state level than at the county level is because the centralized process would create efficiencies in data entry.
The committee received testimony from two clerks of court in favor of a centralized process for traffic offense administration. Both of these clerks were from state-funded counties. The committee received testimony in opposition to a centralized process for traffic offense administration from clerks in contract counties.
The committee considered a bill draft that would have centralized the traffic offense administration process.
The committee received testimony in favor of the bill draft. Federal legislation may require clerks of court to notify the Department of Transportation within 10 days of the issuance of a citation to an individual with a commercial driver's license. The bill draft would speed up the process. In general the centralized process would provide accurate motor vehicle information in a faster manner.
The committee received testimony in opposition to the bill draft. At the annual clerks' of court conference, two clerks were in favor of the centralized process, three had no opinion, and 36 wanted to keep the system the same. It was suggested that the information sharing process would be shortened if the Department of Transportation had access to the court system's computers. Clerks contended that they could accommodate any time requirements imposed by federal law with the proper education and information.
The committee received testimony on the impact of the bill draft in contract clerk of court counties. Some clerks of court have a deputy and a portion of the deputy's time is used for traffic offense administration. If these duties were removed, it was argued, there would be a reason for that position to be removed by the board of county commissioners, which would remove an employment opportunity in rural North Dakota. The opinion was expressed that local entities are known for providing personal and friendly service and there may not be a benefit to gaining efficiency by sacrificing service. It was argued that when the child support system was centralized, it did not provide as good of service as it did when it was operated by each county.
Concern also was expressed that the centralized process would be located in Bismarck even though the committee received testimony that the data entry would be outsourced outside Bismarck. Historically most centralized processes are located in Bismarck.
Conclusion
The committee makes no recommendation with respect to centralization of the traffic offense administration process.
REPORT ON EFFECTIVENESS OF EXEMPTING A SECURED PERSON FROM NONECONOMIC LOSS BY CERTAIN INJURED PERSONS OPERATING A MOTOR VEHICLE
In 1999 the Legislative Assembly enacted NDCC Section 26.1-41-20, which states:
In any action against a secured person to recover damages because of accidental bodily injury arising out of the ownership or operation of a secured motor vehicle in this state, the secured person may not be assessed damages for noneconomic loss for a serious injury in favor of a party who has at least two convictions under section 39-08-20 and who was operating a motor vehicle owned by that party at the time of injury without a valid policy of liability insurance in order to respond to damages for liability arising out of the ownership, maintenance, or use of that motor vehicle.
This section expires on August 1, 2003. Section 2 of 1999 Senate Bill No. 2376 required the director of the Department of Transportation to report in 2002 to an interim committee designated by the Legislative Council regarding the effectiveness of NDCC Section 26.1-41-20 in decreasing the incidents of driving without liability insurance. The Legislative Council assigned this responsibility to the committee.
The prime sponsor of the bill enacting NDCC Section 26.1-41-20 testified the bill was introduced to encourage motorists to obtain liability insurance and, hence, reduce the uninsured motorist rates applied to insured motorists. Michigan and California have similar laws.
The Department of Transportation reported on the effectiveness of NDCC Section 26.1-41-20 in reducing insurance rates and reducing the number of uninsured motorists. The committee was informed that the "no pay/no play" law has not had a significant effect on insurance rates. Although the number of uninsured drivers has been decreasing since 1999, the cause is unknown. The reduction could be caused by changes in the law or the economy. The worse the times are economically, the more people drive without insurance. Committee discussion indicated that although Section 26.1-41-20 expires on August 1, 2003, individual members would personally monitor the law during the 2003 legislative session.
RETENTION OF IN-STATE ELK STUDY
Background
House Concurrent Resolution No. 3022 directed a study of the use of incentive programs in North Dakota as a way of keeping elk in the state and providing increased opportunities for landowners, hunters, and the general public. The study stated that elk have been exported from Theodore Roosevelt National Park in this state because of overpopulation, while there is a high demand to hunt elk in this state. This study suggested relocating elk on public land or providing incentive programs to landowners in exchange for more elk on private land.
Wild elk are concentrated in the northeast corner of the state and the southwest portion of the state in the area surrounding Theodore Roosevelt National Park. However, elk may move great distances in search of territory and may be found in any part of this state. In addition, under NDCC Chapter 36-25, there may be farmed elk in the state. A farmed elk is a member of the elk family confined in a manmade enclosure designed to prevent escape and raised for fiber, meat, or animal byproducts; or raised for breeding, exhibition, or harvest. The study focused on the wild elk in the southwest portion of the state.
The recent history of elk in this state begins with elk migrating into the Pembina area in the early 1970s. In the late 1970s elk escaped from a herd owned by the Three Affiliated Tribes in New Town. The hunting of elk in the Pembina area of the state began in 1982. The first hunting of elk in the Badlands began in 1984. In March 1985, 47 elk were brought into this state by the National Park Service and located in the South Unit of Theodore Roosevelt National Park. By September 1989 a total of 176 elk were counted in the park. The mean annual growth rate of 31 percent from 1985 was one of the highest reported of all time, anywhere.
In January and February of 1993, a total of 220 elk were removed from the park. The majority of these elk were given to various Indian tribes. The Indian tribes sold many of these elk back to private elk farms in this state.
In March 1999 the Game and Fish Department counted a total of 410 elk in the Theodore Roosevelt National Park, and seven bull elk were counted outside the park. In January 2000 over 200 elk were removed from the Theodore Roosevelt National Park. The majority of these elk were shipped to the Kentucky Game and Fish Department for the reintroduction of elk into that state.
Under the original memorandum of understanding with the Theodore Roosevelt National Park, the Game and Fish Department has the first opportunity to obtain surplus elk from the park. The department has not exercised this option because of the lack of acceptable sites for reintroduction outside the current elk range. In 1993 and 2000 the National Park Service gave the elk directly to the Indian tribes and the Kentucky Game and Fish Department.
Hunting of Elk in This State
Although elk hunting in the southwest portion of the state began in 1984 with hunting in Dunn and McKenzie Counties, effective hunting around the Theodore Roosevelt National Park did not begin until 1997.
In 1991 Billings County was opened to elk hunting, and in 1996 Golden Valley was opened to elk hunting. However, before 1997 only two elk had been harvested legally in Billings and Golden Valley Counties, partly due to the lack of elk outside the park during the regular hunting season from October through November.
There were two major changes in 1997. The first change was the adoption of 1997 House Bill No. 1202, which created special elk depredation management licenses to be issued to landowners in designated areas around Theodore Roosevelt National Park upon the payment of a fee required for a resident big game license. The provisions of law governing the number of licenses issued for each unit for hunting elk do not apply to special elk depredation management licenses. A person who receives this license is eligible to apply for a license to hunt in future years and is eligible to participate in the Rocky Mountain Elk Foundation raffle.
Another major change in 1997 was that the entire format for the elk season was changed for the area surrounding Theodore Roosevelt National Park, which includes Billings and Golden Valley Counties. A late August season was offered with 47 permits--17 special elk depredation management licenses and 30 general public permits. Hunters harvested 37 bull elk in the area.
The history of hunting elk around Theodore Roosevelt National Park from 1997 to the present may be summarized as there are more units, more seasons, and generally more elk harvested. Between 1991 and 1996 only two elk were harvested around the park. In 1999 hunters harvested 44 elk. In 2000, however, hunters harvested 35 elk. The number of general public permits has increased from 30 permits in 1997 and 1998 to 52 permits in 1999 and 2000. In 2001, 62 general public permits were issued. Seasons have been moved to August when elk are outside the park with two seasons in unit E4 and one season in unit E3. In addition, for the 2001 hunting season the length of the season was expanded for preferential and special elk depredation management licenses to include the period of May 14 through July 24.
Hunting in Theodore Roosevelt National Park
One solution to handle the problem of surplus elk in Theodore Roosevelt National Park would be to have limited access hunting in the park. Various officials of the National Park Service have been approached with this solution. On a local and national level, however, the National Park Service will not support hunting in the park and congressional action is required.
Hunting of elk is allowed in the Grand Teton National Park. Under United States Code Title 16, Section 673c, the Wyoming Game and Fish Commission and the National Park Service must create a program to ensure the permanent conservation of elk within the Grand Teton National Park. The program must include controlled reduction of elk in the park by hunters licensed in the state of Wyoming.
The reason hunting was included in the legislation is because of the history of controversy and struggle in creating the Grand Teton National Park. In Wyoming there was a concentrated effort to stop the creation of the park. In North Dakota there was support for Theodore Roosevelt National Park--in 1921 the North Dakota Legislative Assembly requested this state's Congressional Delegation to assist in creating the park.
State Incentive Programs
Hunting is an important management tool for controlling elk populations and depredation. When offered the opportunity to hunt on private land, many hunters will pay for the privilege. During the 1999-2000 interim, the Legislative Council's interim Agriculture Committee received testimony on different forms of compensation for deer depredation. The committee also received testimony on game farms, fee hunting, and the sale of gratis tags as means by which landowners could profit through hunting.
Ranching for wildlife is a managed program in eight states based on cooperative agreements between landowners and state wildlife agencies. California, Colorado, Utah, and New Mexico have comprehensive programs. Oklahoma, Washington, Nevada, and Oregon have fledgling programs. The ranching for wildlife program encourages landowners to invest time, money, and resources to increase wildlife and hunting opportunities on their properties. In return, the state modifies hunting regulations so landowners can benefit from fee hunting. Ranching for wildlife gives landowners incentives to earn a profit from hunting through longer seasons, transferable game tags, and ranch-specific harvests. These programs are controversial, however, because they involve fee hunting.
Idaho has a different kind of program that mirrors circumstances in North Dakota. The program in that state was created in 1999 and was built on a system much like gratis tags in North Dakota. In Idaho these tags are called landowner appreciation tags and are transferable. They are issued contingent on the landowner providing reasonable public access to hunting. The number of landowner appreciation tags issued to a landowner is based on acreage and is limited to two.
Testimony and Committee Considerations
Problem - Too Many Elk in and Around Theodore Roosevelt National Park
The committee received testimony that the National Park Service's current management policy has resulted in too many elk outside the Theodore Roosevelt National Park. In the first week of March ranchers take an elk count of the E2 hunting unit, which includes Dunn and McKenzie Counties, for a period of two days. In 2002 there were 200 to 350 elk in that unit.
The committee received testimony on the reason why elk escape from the park. Surrounding ranchers say elk escape because of the inadequate fence surrounding the park. The original agreement with the park to have elk in the park required the park to make a good-faith effort to keep the elk in the park. The park is fenced with a seven-foot-high woven wire fence. The problems with the fence is that elk mostly go under the fence, not over the fence, to get out of the park. This mainly happens at washouts that occur on a regular basis in the Badlands.
The superintendent of the park testified that when elk were brought to the park, it was recognized that the elk would escape even though it would be attempted to fence them in the park. Elk can jump a 10-foot fence from standing still and a 14-foot fence with a run at the fence. There are three people hired for the fence crew and other staff work on fences as situations arise. The fence-building crew focuses on the north unit and keeping bison in the park. The elk that escape from the park can be identified because elk in the park are tagged in their ear and have a microchip embedded in their neck for identification with a laser scanner.
Committee members noted that Sully's Hill Game Preserve is fenced and there has been no incident of an elk escaping from the preserve. It was argued that a better fence, e.g., a fence used by elk farmers, may keep elk inside the park.
Present Solution - Ship Out of State
The committee received testimony on the present solution for managing the elk population within the park--shipping the elk out of state. The National Park Service manages the elk by taking elk out of the park when the elk reach a certain number. This is the same method used to manage bison and horses in the park. The major problem with this solution is that the demand for elk may diminish and the Park Service does not have an alternate plan if no one would take the elk.
The committee heard testimony in favor of shipping elk out of state rather than keeping the elk in this state for hunting purposes. The last shipment of elk out of the state reduced much of the depredation problem, and the next roundup will be in January 2003. It was argued that the elk in this state came from other states, and this state should return the favor and provide elk to other states. It was also stated that this state may need diversity in breeding and the sharing of elk with other states should not be eliminated.
The committee heard testimony in opposition to the periodic exporting of wild elk from the western part of the state. The committee received a petition with signatures in excess of 4,300 citizens in opposition to shipping elk out of state. One of the reasons for the opposition to shipping of elk out of this state is because it is physically difficult for the elk. During the first elk roundup, 46 elk died or had to be killed. Twenty-four of these elk were killed as a result of the capturing process and 22 tested positive for disease. During the 2000 roundup, however, there was no quarantine and only two animals died.
Present Solution - Hunt Outside Park
The committee received testimony on the present solution for managing the elk population outside the park by hunting. Once elk get out of the park, the elk are no longer the National Park Service's responsibility. The Game and Fish Department becomes responsible for managing the elk through hunting. In particular, the problem of elk outside the park is dealt with through flexible landowner licenses and an early hunting season.
More hunting licenses may not be a solution, however, because elk retreat into the Theodore Roosevelt National Park when they receive hunting pressure outside the park. If there are too many permits, the success ratio decreases because elk are driven to a place in which it is difficult to hunt. The National Park Service is attempting to purchase the Elkhorn Ranch on the Little Missouri. This property is intended to be designated as a national preserve. Hunting is permitted on national preserves. The 5,000 plus acres of the ranch would become available for hunting consistent with Game and Fish Department regulations.
Possible Solutions in Park
One suggestion for addressing the elk population is to create incentives for the hunting of elk within the Theodore Roosevelt National Park rather than outside the park. This would require congressional action, which may take a long time and is not likely to happen. Many national groups, including animal rights groups and maybe the National Park Service, would be against the change. The Game and Fish Department, however, is in support of allowing hunting in the Theodore Roosevelt National Park.
The committee was informed that gun hunting may cause the elk to disperse outside the park, thereby exacerbating the problem. It was suggested that hunting in the park be limited to bow hunters.
The committee considered a resolution draft to urge Congress to allow guided hunts within the Theodore Roosevelt National Park. Committee discussion included that hunting within the park would be the best solution for excess elk in the park.
The committee received testimony in opposition to the resolution draft. The committee was informed that the park is only five to six miles wide and 10 miles long and the park is too small to have elk hunting. In addition, hunting would have an impact on other wildlife in the park and would affect tourism.
Possible Solutions Outside Park
The committee received testimony on possible solutions to managing the elk population outside the park. These solutions included transferring the excess elk to elk farms and moving elk to public land outside the park.
Committee discussion included consideration of using the excess elk in the park for elk farms within this state because that is preferable to shipping them out of state and would be economic development.
The committee received testimony in support of the placement of elk outside the park, so there would be more opportunities to hunt elk. The committee was informed that a reasonable number of elk should be located on public land outside the park, so there would be more elk-hunting opportunities. At present, the demand for elk tags is high. There were approximately 12,000 applications and 195 tags issued last year.
The committee was informed that landowners would be compensated for depredation by incentive programs and by hunters who are willing to pay thousands of dollars to hunt wild elk. Elk hunting could be provided for through a mutually beneficial solution like the coverlocks program in which the landowner and the hunter benefit.
The committee received testimony in opposition to the placement of elk outside the park on public land, in particular, on the national grasslands. The committee received a resolution from the Slope County Board of County Commissioners and the North Dakota Stockmen's Association, testimony from grazing associations, and petitions in opposition to the release of any elk into the federal, state, or private lands in the state. Placing elk outside the park on public land would be detrimental to ranchers because the public land is intermixed with private land. It would be difficult to keep elk on public land. Most public land is in the Badlands where elk do not live.
The committee was informed that elk are very destructive of oat fields, fences, and hay bales, will affect the profitability of agriculture, will compete with cattle for grass, and may transmit diseases to domestic livestock.
The committee received testimony that placing elk outside the park would place a burden on ranchers. The committee was informed that ranchers must spend a significant amount of time dealing with hunters during the elk season. Ranchers indicated they would not want elk released even if there were incentive programs, the elk were fenced onto public land, and depredation costs were paid. Testimony from ranchers repeated that the elk are a problem created by the Park Service and the Park Service should solve the problem.
The committee was informed that the migratory nature of elk would add to the depredation problems. Elk do not stay where they are placed. Some elk will stay upon relocation, but dispersion will begin immediately. Elk can cover many miles in a day and could return to their original habitat in a very short time. Two elk moved over 640 miles in one month and returned to the Theodore Roosevelt National Park. The Game and Fish Department does not support hauling elk to places around the state and releasing them.
The committee received testimony on diseases carried by wild elk which is an impediment to placing elk outside the park. There were 190 infectious agents and ectoparasites in elk identified; however, 174 of these are considered to be low-risk relative to potential health hazards in regard to the relocation of elk. High-risk infectious diseases and ectoparasites are chronic-wasting disease, brucellosis, tuberculosis, and dermacenter andersoni, ixodes pacificus, and psoroptes sp.
The committee received testimony on chronic-wasting disease. Elk had to be destroyed in Colorado and this required the purchase of an incinerator. It is unknown how chronic-wasting disease spreads, and it is unknown if it can move from wild elk to domestic livestock. There is no vaccination for chronic-wasting disease.
The committee was informed North Dakota does not have chronic-wasting disease in the elk herd in the Theodore Roosevelt National Park. The elk in and around the park are not confined enough for chronic-wasting disease to be a major problem. Disease spreading from elk to cattle is a concern. However, whitetail and mule deer carry chronic-wasting disease in this state and travel throughout the state without the disease passing to domesticated livestock.
Solution to Problems With Elk Placed Outside of Park
The committee received testimony on prevention of depredation as a solution to depredation caused by elk placed outside the park. There is a food plot program in the northeast portion of the state created in cooperation with local wildlife clubs and the Rocky Mountain Elk Foundation in which 80 acres are planted with forage for the elk to help alleviate depredation problems. The same program is being developed in the Bottineau area. The development of food plots is based upon requests, and there have not been any requests for food plots in the west.
The committee received testimony on incentive programs as a solution to the depredation caused by the placement of elk outside the park. The committee was informed that an incentive program based on other state programs and one that is flexible enough to be custom-tailored to individual landowners would be mutually beneficial to landowners, hunters, and the Game and Fish Department. Of the programs the committee reviewed, the committee was told that if this state adopted Montana's block grant program, which pays landowners based on hunter days, the program should apply to all species. The Montana plan for elk works in Montana because there are hundreds of thousands of acres of contiguous marginal land that may be used for elk habitat. The same situation does not apply to this state. The committee was informed of support for Utah's incentive plan, but it was unknown whether that program could be adapted to this state.
The committee was informed it would be cost-prohibitive for ranchers to build fences that would guarantee the exclusion of elk. Elk fence costs approximately $1.50 per foot. However, ranchers use the deerproof hay yard program, and it works against elk in the protection of winter feed supplies.
The committee was informed the Game and Fish Department does provide post and wires through the deerproof hay yard program and other assistance but does not pay for damage. The department assists landowners with approximately $26,000 a year for elk depredation. A program that would provide for payments for damage caused by elk depredation would be difficult to administer. If program payments for depredation are based on a scientific method, program development will require a long time even though the demand for compensation is immediate.
The committee considered a resolution draft urging Congress to pay for depredation caused by elk that escape from the Theodore Roosevelt National Park. Committee discussion included that ranchers do not really want compensation for depredation but instead would like the elk to be removed from the park. Discussion included a story of an individual who had struck a moose with a car and was severely injured. It was argued that if the moose were an elk brought by the National Park Service into this state, the injured person should be able to recover from the Park Service for the damages caused by the elk. An amendment was suggested to include funding for personal injury and property damage caused by elk.
Committee discussion in opposition to the amendment included that the amendment could jeopardize the effectiveness of the resolution draft. It was argued that although the federal government should pay for the damage caused by the elk, the amendment adds an additional concept, thereby lessening importance of depredation funding.
Recommendation
The committee recommends Senate Concurrent Resolution No. 4002 to urge Congress to fund the cost of depredation, personal injury damage, and property damage caused by elk escaping from the Theodore Roosevelt National Park.
RESIDENT AND NONRESIDENT HUNTING ISSUES STUDY
Background
House Bill No. 1269 required a study of issues to resident and nonresident hunting in this state. The bill required a study of:
- The number of licenses issued to residents and nonresidents.
- The fees for licenses issued to residents and nonresidents.
- The time periods for which licenses are valid.
- Whether zones should be established.
- Effects of resident and nonresident hunters on landowners.
- Effects of resident and nonresident hunters on guides and outfitters.
- The economic impact of nonresident hunters.
- Resident and nonresident hunting in bordering states.
The study mandated by House Bill No. 1269 is a result of the controversies surrounding nonresident hunting as addressed in House Bill Nos. 1269 and 1468, as introduced. House Bill No. 1269 would have eliminated the one 7-day waterfowl hunting period for nonresidents and established six zones with the maximum number of licenses specified for each zone. House Bill No. 1468 would have eliminated the requirement that nonresident waterfowl hunters also possess a nonresident small game hunting license and established a 14-day period or two 7-day periods for nonresident small game hunting. The bill also would have increased various nonresident hunting and fishing fees. Because the impetus for this study came from House Bill Nos. 1269 and 1468, the study focused primarily on waterfowl hunting.
History of Nonresident Waterfowl Hunting Season
There have been many attempts to change the special waterfowl hunting season for nonresidents since the season's creation in 1975. Before 1975 there was not a special waterfowl hunting season for nonresidents. For example, under NDCC Section 20.1-01-02, in 1973 waterfowl were considered game birds along with pheasants, grouse, ducks, and other birds. Under Section 20.1-03-12, in 1973 state law required a nonresident to obtain a small game license to hunt waterfowl. A small game license allowed the hunting of game birds and cost $35. In addition, under Section 20.1-03-02, in 1973 a general game license cost 50 cents.
In 1975 under Senate Bill No. 2379, the Legislative Assembly created a special nonresident waterfowl hunting license. The waterfowl license was required in addition to a small game license. The waterfowl license entitled a nonresident to hunt waterfowl during any period of 10 consecutive days and in specified waterfowl hunting zones. The Governor was required to create waterfowl hunting zones and was allowed to specify the number of licenses that could be issued in each zone. In 1975 the Governor created nine zones. A nonresident was allowed to purchase only one waterfowl hunting license per year. The cost of the additional license was $5.
In 1979 the Legislative Assembly passed House Bill No. 1326. As introduced, the bill removed the special time limitation (the 10-day period) on nonresidents and made discretionary the creation of hunting zones. As passed, this bill allowed a nonresident to hunt for any one period of 10 consecutive days or any two periods of five consecutive days each and allowed the two 5-day hunting periods to be in different zones. From 1979 to 1984 the Governor proclaimed eight zones. The legislative history suggests the intent of the bill was to increase nonresident hunting by allowing flexibility in the periods of time in which a nonresident could hunt, which in turn would increase tourism in this state. The flight of migrant waterfowl is not predictable, and allowing two weekends gives the hunter a better chance to be in the area when the waterfowl are present.
In 1981 the Legislative Assembly passed House Bill No. 1395, which increased the duration of time allowed for nonresident waterfowl hunting from 10 consecutive days to 14 consecutive days and from any two periods of five consecutive days to seven consecutive days. The main division in 1981 was between individuals who did not want nonresidents leasing large tracts of land, thereby preventing residents from hunting, and individuals in the hospitality and service industries who wanted nonresident hunters to come to their communities and spend money on services. In short, the conflict was between in-state goose hunters and local merchants and service providers.
One reason for the increase in the duration of the nonresident license was there had been a decrease in nonresident's leasing land for hunting purposes. One reason for the decrease was the Internal Revenue Service became less tolerant of the practice of leasing hunting land for entertainment purposes as a business deduction.
In 1995 the Legislative Assembly passed Senate Bill No. 2143, which excepted nonresident youth under age 16 from being required to purchase a nonresident waterfowl hunting license if there is a reciprocal agreement with the youth's state or province.
In 1999 the Legislative Assembly enacted Senate Bill No. 2089, which allowed a nonresident to purchase a spring white goose license instead of any other license, including a nonresident waterfowl hunting license. The Legislative Assembly also passed House Bill No. 1459, which added an option that allowed a nonresident waterfowl hunter to purchase a license that is valid for seven consecutive days and is valid statewide. Otherwise, provisions relating to the duration, zones, and license remained the same as they were under the 1981 legislation. However, since 1996 the number of zones proclaimed by the Governor had been lowered to three, and one of those zones was included with the other two zones when a license was purchased for those other two zones. One notable change in the arguments for and against nonresident hunters concerning the bill was that the legislative history did not reveal any opposition to the bill in the committees.
Under present law a nonresident waterfowl hunter must have a nonresident fishing, hunting, and fur-bearers certificate that costs $2, a federal migratory bird stamp that costs $15, and a nonresident waterfowl license that costs $93. The license is good for both waterfowl and upland game. A nonresident has three options for fall waterfowl licenses:
- A 14-day license restricted to zones.
- A license for two 7-day periods restricted to zones; however, a separate zone may be chosen for each seven-day period.
- A seven-day statewide license with no zone restrictions.
There is no limit on the number of nonresident hunters per zone.
House Bill Nos. 1269 and 1468
The issues addressed in House Bill Nos. 1269 and 1468 were some of the main issues directed by this study. The following is a discussion of those issues, which relate to resident and nonresident goose and pheasant hunters.
During the 2001 legislative session House Bill No. 1269 addressed the issue of the increased number of nonresidents hunting waterfowl in this state. Under NDCC Section 20.1-03-07.1 the Governor specifies waterfowl hunting zones for nonresident waterfowl hunters and the number of licenses issued in each zone. House Bill No. 1269 would have made six statutory zones and placed caps on the number of licenses issued in each zone. It appears the purpose of the bill was to lessen hunting pressure by nonresident hunters, thereby allowing more hunting opportunities for resident hunters.
As introduced, House Bill No. 1468 decoupled nonresident waterfowl licenses from small game licenses. Small game includes upland game. The main upland game species hunted by out-of-state hunters is pheasant. The bill also would have raised the fees for nonresident small game licenses and waterfowl licenses. This bill mainly affected the nonresident hunter who wanted to hunt both small game and waterfowl. The bill limited nonresident small game hunting to a period of 14 consecutive days or two periods of seven consecutive days each. Under present law, there is not any time limitation for nonresident pheasant hunters beyond those limits for resident hunters.
Again, the main controversy was between small town businesses that want nonresident hunters to come pheasant hunting and resident hunters who want less competition from nonresident hunters to hunt pheasants. To decrease competition, the bill placed time limitations on nonresident hunters.
Numbers of Hunters and Game
The issues addressed in House Bill No. 1269 appeared to arise because of intense hunting pressure in and around Jamestown, a major flyway for geese. When the nonresident goose hunting season began, the issue addressed was hunters in the Devils Lake area. The flyway and the nonresident hunters have moved to the west in the last 25 years. In 1999 ranked by days hunted by county, Stutsman County is ranked third after McLean and Ward Counties for ducks, and ranked fourth after McLean, Ward, and Burleigh Counties for goose hunting. In 1999 Ramsey County is ranked sixth in ducks and geese.
There has been increased competition from nonresident hunters for areas to hunt waterfowl. There has been a steady increase in the number of nonresident waterfowl hunters since 1990. In 1990 there were approximately 5,500 nonresident waterfowl hunters. In 1993 there were approximately 9,500 nonresident waterfowl hunters. In 1996 there were approximately 13,750 nonresident waterfowl hunters. In 1999 there were approximately 22,000 nonresident waterfowl hunters. In 2001 there were approximately 30,000 nonresident waterfowl hunters. While the number of nonresident waterfowl hunters has increased, the number of resident waterfowl hunters has stayed relatively stable. In the early 1990s there were approximately 30,000 resident waterfowl hunters. In the mid- and late-1990s this number increased to approximately 39,000 resident waterfowl hunters. For perspective, however, in 1975 there were approximately 67,500 resident waterfowl hunters.
The following table depicts the number of licenses issued for or number of waterfowl hunters and limitations on waterfowl hunters in 2000:
NUMBER OF LICENSES OR HUNTERS AND LIMITATIONS |
||||
| Resident Waterfowl | Nonresident Waterfowl | Special Zones for Nonresidents | License Caps for Nonresidents | |
| North Dakota | 35,992 | 25,165 | Yes | No |
| South Dakota | 42,034 | 5,624 | Yes | Yes |
| Minnesota | 136,000 |
Ducks - 2,505
Geese - 1,225 |
No | No |
| Nebraska | 23,073 | 2,800 | No | No |
Between 1990 and 1999 the average seasonal goose bag by residents went from around 3.9 geese in the early 1990s to 4.5 geese in the late 1990s. The average seasonal goose bag for nonresidents went from about 3.9 geese in 1990 to a high of 4.57 geese in 1993 and dropped to 2.3 geese in 1999. In short, the daily success rate of residents seems to be fairly stable, as does the number of resident waterfowl hunters. However, as nonresident numbers increase, there appears to be a decrease in the success of nonresident hunters. It is unknown whether this is a measure of the ability of hunters or the availability of geese.
While residents and nonresidents have been successful in duck hunting, duck numbers have increased. The number of broods per square mile has increased fairly steadily from approximately one brood in 1992 to 6.23 broods in 2001. This includes an 8 percent increase from 2000. The May breeding duck index was up 14 percent from 2001, 129 percent above the 1948 to 2000 average and the second highest on record. Indices for all species of duck were above the long-term average, and the mallard index was the highest on record. The increase in duck numbers is not unexpected considering this is the ninth summer of exceptional water conditions across the state, conservation reserve acreage remains high, and dry conditions continue throughout much of the Canadian prairie. In addition, the fall flight of ducks in 2001, which includes adults plus young representing North Dakota's contribution to the total fall duck flight, was expected to be the highest on record. It was expected to increase 30 percent from the fall flight of 2000, which was the second highest on record.
Zone, Number, and Time Limitations
If there is certainty in receiving a license to hunt waterfowl in a certain area by nonresident hunters, nonresident hunters are able to lease hunting rights or land in the area to be guaranteed a place to hunt. At minimum it provides more time for a nonresident to plan a hunt and make arrangements to have a place to hunt. This increases the nonresident hunting pressure.
There are three ways in which hunting pressure can be reduced--geographically, numerically, and temporally. The major way to limit hunting pressure geographically is through the creation of zones. At minimum this prevents hunters in one zone from traveling to another zone upon the migration of waterfowl through this state. The major way to limit hunting pressure numerically is through reducing the number of hunters. Another kind of numerical limitation is to limit the number of birds allowed to be harvested; however, this is used more for game management than hunter management. If geographical limitations are combined with numerical limitations on hunters, zones may be tailored to provide the appropriate amount of hunting pressure caused by nonresident hunters which is tolerated by resident hunters.
Until the 2002 waterfowl season there were not any numerical limitations on nonresident hunters. If the Governor or the Legislative Assembly created a maximum number of licenses to be issued in certain zones, it would create administrative issues. To count the licenses sold, there would need to be a centralized system of license administration. This could be done on a first-come, first-served basis or a lottery system. However, this would interfere with local sales of hunting licenses. If local sales points could be included within the centralized system, the issue of local sales would be addressed; however, it would require a real-time administration system connected to each sales point. In 2002 the Governor limited the number of nonresident waterfowl licenses to 30,000. The licenses were available only through the Game and Fish Department. Licenses could be purchased in person, on the Internet, or by telephone. The boundaries of the three waterfowl hunting zones were the same as in past years. However, Zone 3 was no longer a "free" zone. Hunters must choose one of the three zones and stay in the zone specified on their license for that time period. Nonresident hunters with 14-day licenses may hunt for seven days in one zone and seven in another. As in the past a nonresident may choose the seven-day statewide license.
The major way to lessen hunting pressure temporally is to limit the time hunters may hunt. The variable of time may be entered into a zone to allow times in which resident hunters are preferred over nonresident hunters. As for nonresident waterfowl hunters, they generally do not hunt longer than a week. In 1999 approximately 85 percent of nonresident waterfowl hunters hunted seven or fewer days. Approximately 61 percent hunted five or fewer days.
One issue raised in the testimony was whether to disallow nonresidents from hunting in the first seven days of the fall waterfowl season. However, prohibiting nonresident hunters for this period of time may not provide an opportunity for resident hunters, as waterfowl hunting is dependent upon the timing of the migration, which is dependent on the weather. There are no guarantees with the weather. Recently most ducks and geese are harvested in the first few weeks of the season. In 1998 and 1999 about 95 percent of ducks harvested were taken in the first 30 days of the season. In 1998, 78 percent of the geese harvested and in 1999, 73 percent of the geese harvested were taken in the first 30 days of the season.
In the past the Legislative Assembly has passed resolutions asking the federal government for an earlier duck hunting season. The waterfowl season of 2002 will begin one week earlier for all waterfowl hunting. This one week will be open only to residents. Minnesota chose not to accept the earlier opener and if nonresidents would have been able to come here for that first week, this state may have had unusually high numbers of nonresident hunters.
Economic Impact
Limitations on nonresident hunters not only affect nonresident and resident hunters but also affect small town businesses, including guides and outfitters. Generally, small town businesses are against limitations on nonresident waterfowl hunters. There was copious testimony on House Bill No. 1269 received from small town owners of restaurants, hotels, merchandise stores, and similar businesses stating the importance to the livelihood and survival of those businesses from nonresident hunters.
In Characteristics, Expenditures, and Economic Impact of Resident and Nonresident Hunters and Anglers in North Dakota, 1996-1997, Season and Trends by Tina D. Lewis, Jay A. Leitch, and Aaron J. Meyer, it was shown that in the 1996-97 hunting season, a resident small game hunter hunted approximately eight days and spent approximately $1,250. Small game includes waterfowl and upland game. A nonresident small game hunter spent an average of six days hunting and expended an average of $705 per season. The direct resident small game hunter expenditures in 1996-97 were $113,006,000. The direct nonresident small game hunter expenditures in 1996-97 were $13,887,000.
Small game hunters have a substantial impact on the rural economy. Urban resident waterfowl hunters make 45 percent of their expenditures in rural areas. At $494 per hunter, this results in $10,827,000 spent in rural areas. For upland game, urban resident hunters make 42 percent of their expenditures in rural areas. At $637 per hunter, this results in $17,995,000 spent in rural areas. This results in urban resident hunters spending $28,822,000 in rural areas. Nonresident hunters make 78 percent of their expenditures in rural areas. At $536 per hunter, this results in $10,566,000 spent in rural areas. Although nonresidents do not spend as much as residents as individuals or a group, the money spent is new money in the state's economy.
A summary of the economic impact of nonresident hunters in North Dakota for the year 2001 prepared by the Department of Agribusiness and Applied Economics, North Dakota State University:
. . .[I]ndicates that the 23,209 nonresident hunters resulted in a total economic contribution of more than $62,000,000 to North Dakota's economy in 2000. Guided hunters accounted for almost $30,000,000 of this total.
The increased level of economic activity resulted in about 890 new jobs being generated in the state economy, in addition to the persons directly employed in guided hunting activities. Guided hunting alone accounted for about 375 new secondary jobs.
The increased economic activity also resulted in added state tax revenues totaling more than $1.5 million.
Guides and Outfitters
Generally, testimony from guides and outfitters is against limitations on nonresident hunters. Guides and outfitters have invested money and leveraged property to provide food, lodging, and hunting services, mainly used by nonresident hunters. To market these packages, guides and outfitters require some certainty that a client will receive a license to hunt and have the opportunity to hunt in an area in which the guides and outfitters are located. One way in which guides and outfitters guarantee land will be available to hunt on is by leasing historically prime areas for waterfowl hunting for hunting rights.
The leasing of land by guides and outfitters limits the geographic area in which resident hunters may hunt without paying for access. It also requires long-term planning for resident hunters who wish to use guide and outfitter services. This long-term planning and expense may not provide as good an opportunity as waiting for waterfowl to arrive and then securing a location to hunt because the availability of waterfowl is dependent upon the weather. If a hunter is to plan to hunt for a certain period of time with a guide or outfitter on certain property owned or leased by the outfitter, there may be no waterfowl on that land at that time.
Under NDCC Section 20.1-01-02(14), a guide or outfitter is "any resident who holds oneself out to the public as a guide or outfitter, and who provides, for compensation, transportation, equipment, arrangement of lodging, or that person's own or another's personal services for the primary purpose of assisting a person or persons to locate or catch fish or to locate, pursue, or hunt small game, big game, or fur-bearers." This section prohibits nonresidents from acting as guides or outfitters in this state. An individual may be a hunting guide or outfitter, a fishing guide or outfitter, or both.
Besides the hunting and fishing categories, there are two kinds of guides and outfitters--certified and regular. A certified guide or outfitter must first qualify as a regular guide or outfitter and pay a license fee. Under NDCC Section 20.1-03-37 an individual may not be a regular guide or outfitter unless that individual is licensed. Under Section 20.1-03-12(34), (35), and (36) the annual license fee for a hunting guide or fishing guide is $100, and the fee for both is $150. A regular guide or outfitter may not hunt on land owned by or private land enrolled with the Game and Fish Department for the purpose of hunting, provide services to a person who has not obtained the appropriate license, or willfully and substantially misrepresent that individual's facilities, prices, equipment, services, or hunting or fishing opportunities. Private land enrolled by the Game and Fish Department includes the private land open to sportsmen (PLOTS) program and coverlocks program. There are approximately 160,000 acres of PLOTS land and 5,500 acres of coverlocks land open to hunting in this state.
A certified guide or outfitter is subject to additional requirements. A certified guide or outfitter is required to have proof of general liability insurance in the amount of at least $100,000 per individual and $300,000 per incident, to be certified in adult cardiopulmonary resuscitation, and to be certified in standard first aid or its equivalent. A certified guide or outfitter does have an additional privilege. Under NDCC Section 20.1-03-11.2 the Governor is required to make one-half of the antlered whitetail deer licenses and permits allocated to nonresidents, up to a maximum of 100 licenses, available to certified guides or outfitters. This section limits the number of whitetail deer licenses that a certified guide or outfitter may purchase to five per year. This section requires the guide or outfitter to pay the fee for the whitetail deer license. A certified guide or outfitter may provide to nonresidents, for compensation, big game guiding and outfitting services and one whitetail deer license per nonresident to hunt whitetail deer. Under Section 20.1-03-12(42) the fee for a whitetail deer license sold to a certified guide or outfitter and provided by them to a nonresident is $250.
North Dakota Century Code Section 20.1-02-05, which enumerates the powers of the Game and Fish Department director, provides in subsection 17 that the director may adopt rules for the licensing of guides or outfitters and may require records and reports as the director determines necessary. In addition the director may revoke or refuse to renew the license of any person who violates the rules or fails to provide the records and reports.
Under this rulemaking authority, the director, under North Dakota Administrative Code (NDAC) Section 30-04-03-01, has made being a guide or outfitter without a license a noncriminal offense with a $250 fee. In addition, under NDAC Section 30-04-03-06, an individual licensed as a guide or outfitter must be "well versed in the hunting laws of North Dakota and in federal laws pertaining to hunting in North Dakota," and it is the guide's or outfitter's responsibility to ascertain that each client is familiar with these laws. The rules also provide for consumer protection provisions that require the guide or outfitter to provide a list of charges before contracting for services; a receipt with the guide's or outfitter's signature, address, and license number; and a written contract listing the services and accommodations, the fee, and the time period of the contract. In addition, under NDAC Section 30-04-03-09, guides and outfitters are required to keep current records of all transactions for three years which are subject to inspection by the Game and Fish Department or any law enforcement officer.
Under NDAC Section 30-04-03-10 the director of the Game and Fish Department is to revoke or refuse to renew the license of a guide or outfitter who is convicted of violating any game or fish law in this state, is convicted of violating any federal law pertaining to hunting, fishing, or trapping, fails to comply with any rules relating to operating as a guide or outfitter, or engages in conduct detrimental to the image and professional integrity of the guiding and outfitting industry. According to a representative from the Game and Fish Department, this section is used and is effective against an individual guide but does not directly affect that particular guiding business.
Another prohibition on areas where guides and outfitters may hunt is in NDAC Section 30-04-02-09. Under this section an individual may not engage in a commercial enterprise on a state wildlife management area unless authorized by the Game and Fish Department. According to a representative from the Game and Fish Department, guides are authorized if they comply with federal permit requirements.
In 1996 the Game and Fish Department adopted rules to govern the activities and licensing of hunting and fishing guides and outfitters to become effective on January 1, 1997. Among other things these rules would have required proof of liability coverage, certification in adult cardiopulmonary resuscitation, and certification in standard first aid for all guides or outfitters. During review of the rules by the Legislative Council's interim Administrative Rules Committee, committee members observed that several issues covered in the rules had been the subject of proposed legislation that failed in 1995. The committee approved a motion to void the rules because the rules were the topic of failed legislation, created policy that should be the subject of legislation for consideration by the Legislative Assembly, and appeared to be a fence-building effort by the Guides and Outfitters Association. Representatives from the Game and Fish Department countered that the department was advised by individual legislators during the 1995 legislative session that these issues should be addressed through administrative rules and that the department tried to accommodate that suggestion in working on these rules. Representatives from the department agreed to further amend the rules to eliminate the previously listed requirements in the rules that were controversial. Upon agreement with the department on the additional amendments, the committee withdrew its motion to void the rules.
The number of hunting guide and outfitter licenses has increased fourfold since 1990. In December 2001 there were 332 licensed hunting guides. There were 82 licensees in 1990, 141 in 1995, and 270 in 2000. The only reduction in the number of hunting guides and outfitters was in 1997. In 1996 there were 164 licensees and a similar number--171--in 1998. However, in 1997 there were 122 licensees, a drop of approximately 25 percent in one year.
After the agreement with the Administrative Rules Committee, the Game and Fish Department adopted rules that created the requirement that a guide or outfitter is required to furnish each client a written contract and removed the requirement that records of all guide or outfitter transactions be filed in the Game and Fish Department office in Bismarck each year.
Landowners
There are impacts on others besides nonresident hunters if zones are created. The creation of zones creates a problem for nonresident landowners with land in different zones and with resident landowners who lease land or provide fee hunting to nonresidents with land in different zones. Zones limit the full use of the land by landowners.
During the 1999-2000 interim the Legislative Council's interim Agriculture Committee studied depredation caused by wildlife and damage caused by hunters. The committee received testimony from landowners. Historically, the major concern of landowners has been depredation caused by waterfowl and damage caused by hunters. More recently landowners have been concerned with gaining a secondary income through hunting. Sometimes this secondary income is needed to cover the cost of depredation. The legislative history for House Bill No. 1269 did not reveal any landowner opponents against nonresident hunters over resident hunters.
License Fees
Another way to limit competition is by increasing the cost to nonresident hunters. However, the legislative history reflected that the increase in House Bill No. 1468 was not enough to stop most nonresident hunters. The other reason for increasing the fees was to make them equal with surrounding states.
One solution that was discussed in the testimony--to make fees equal besides raising this state's fees--was reciprocity and having nonresidents pay what residents of this state would pay in that nonresident's state. This idea was considered administratively burdensome.
A concern with increased fees was what the Game and Fish Department would do with the fees. The Game and Fish Department has $18 million to $20 million in reserve. One area in which it was suggested extra income could be spent by the department was increased habitat and access programs, including the PLOTS program. According to the department if additional revenue were generated through increases in license fees, habitat and access programs would be the focus for expenditures of those funds. This would take money from nonresidents and use it for more access to hunting for residents. During the 1999-2000 biennium the department spent in excess of $1.2 million for habitat and access programs on private lands. Proposed budgets for habitat and access programs for the 2001-03 biennium are in excess of $2.5 million.
Testimony and Discussion
Introduction
The committee received testimony that the resident hunters were becoming dissatisfied with their hunting experiences. The main reason for the dissatisfaction was that nonresident hunters and guides and outfitters were competing for access through purchase of land or leasing of hunting rights or by competing for the hunters' use of land. These complaints mainly came from waterfowl hunters and mainly from duck hunters.
Resident hunters suggested a number of solutions. As to the regulation of nonresident waterfowl hunters, the main request was for a limitation on the number or nonresident waterfowl hunters. As to the regulation of guides and outfitters, the main request was for increased qualifications, including a separate license for guides and a separate license for outfitters, limitations on the number of outfitters, and limitations on the number of acres guides can control. The regulation of nonresidents and guides and outfitters was suggested as a means of increasing access for resident hunters by placing restrictions on the main competitors with residents for access. Resident hunters also suggested enhanced access programs that would compete with guides and outfitters and nonresidents for access.
In particular, resident hunters suggested the following limitations on nonresident hunters:
- A reasonable cap on the number of out-of-state duck, geese, and upland game hunters.
- Four or more zones in this state for out-of-state waterfowl hunters and a cap on the number of licenses for each zone.
- A lottery by the Game and Fish Department for successful applicants for each zone.
To soften these limitations, resident hunters suggested the following:
- A preference for hunting licenses for individuals who were born in this state and who now live elsewhere.
- Allocate 20 percent of the nonresident hunting licenses to licensed guides.
The difficulty with any solution that would be acceptable to the resident hunters is that it may have a negative impact on economic development created by nonresident hunters. The hospitality industry, guides and outfitters, and landowners argued against limitations on nonresidents because of the negative economic impact these limitations would have on rural North Dakota businesses. To these groups, the issue of resident versus nonresident hunters is the issue of an inconvenience to resident hunters versus the livelihood of farmers and small town businesses. The committee was informed that limitations on nonresidents are not needed because there is plenty of game. The committee was informed that to manage game correctly, limitations should be based on biological reasons as determined by the Game and Fish Department.
The committee was informed that the solution for resident hunters who have problems getting access to land is to ask for landowner permission before the season or use public hunting areas. It was argued that if resident hunters do not want to pay a fee for access to land they can use public land.
The committee received testimony on the causes for the reduction in resident waterfowl hunters. The committee was informed there has been a major decline in resident hunters from the 1970s. It was argued that the decline was a result of the drought and that many people have moved out of the rural areas. Committee discussion included that resident hunters are not hunting ducks because of preference.
Committee discussion included that in total numbers there are fewer hunters and more birds than 20 years ago. It was argued that until it is shown that resident hunters are being prevented from hunting by nonresident hunters, the new money coming into the state from nonresident hunters should not be jeopardized.
The committee was informed by resident hunters that access to hunting is more important than economic development because of the social value of hunting. The reason to limit nonresident hunters is to preserve the heritage of hunting much like the heritage of family farmers is preserved by anticorporate farming laws. It was argued that the social value of people living in this state and hunting is similar to people in this state living on family farms, so corporate hunting in this state should be controlled as is corporate farming. It was argued that if this state loses its quality hunting for residents, it will be populated by a few large-scale farmers, a couple of implement dealers, some outfitters, and senior citizens.
The committee was informed that resident hunters provide economic development and that they provide better economic development than nonresident hunters. The reason some people stay in this state is hunting. It was argued that the best kind of economic development is people moving to or staying in this state. A decrease in the number of nonresident hunters will result in an increase in resident hunters, so the money for economic development will still be in the rural areas.
The committee was informed that nonresident hunting provides little new growth. The economic benefit of nonresident hunters to small town businesses is short term, and these businesses must rely on the residents the rest of the year.In addition, nonresident hunters bring their own food, gas, car, travel trailers, and other supplies and are not buying as much as in the past from the rural merchants.
The committee was informed that not one dollar of tax money from the hospitality industry goes to game management; therefore, the hospitality industry should not have a voice in game management.
Caps on Nonresident Hunters
The committee received testimony against numerical limitations on nonresident hunters. It was stated that placing limits on nonresident hunters will not help the resident hunters find more access. It was argued South Dakota has limitations on nonresident hunters; however, access and hunting is much better in North Dakota. Opinions were expressed that Minnesota has hardly any nonresident hunters, and it is difficult to get access and most limits on land access in this state come from within this state. The committee was told landowners save land for friends and family, and access in this state for deer hunting is as difficult or more difficult to get as waterfowl access, and there are hardly any nonresident deer hunters.
The committee was informed that caps are not needed because rural North Dakota cannot handle the capacity of many more out-of-state hunters because there are limited services, and nonresident hunters will not come if rural North Dakota cannot provide services.
The committee received testimony that landowners are opposed to a cap placed on nonresident hunters. The opinion was expressed that caps on the number of nonresident hunters are an end run on property rights. It was argued that if the state capped the number of urban businesses so that rural businesses could survive, it would be absurd, so limiting nonresident hunters is also absurd. Demand for property for hunting purposes increases the value of the land and positively affects landowners. The committee was informed there will be a backlash in some areas, and everything will be posted if there is a limit placed on nonresident hunters.
The committee was informed by resident hunters that although there is some concern of a backlash by landowners against hunters, it will not be major. It was argued the east/west division in this state is media-driven, and if there is a backlash, both resident and nonresident hunters will lose access.
The committee was informed that caps should be used for conservation purposes and not for people management. The opinion was expressed that it is contradictory to have the duck season expanded one week earlier because there are so many ducks, while there is talk of placing a cap on the number of hunters. It was argued that the number of waterfowl hunters should reach the level of hunters for the time period between 1975 and 1979 for resident and nonresident hunters before imposing a cap. In addition, if there is a cap on waterfowl hunters, it was argued the cap should be for resident and nonresident hunters. Committee discussion included concern with the imposition of caps, especially considering the unbelievably high number of ducks.
The committee received testimony in favor of caps. The committee received testimony on a survey by the North Dakota Sportsmen's Alliance on attitudes of North Dakota resident hunters. The survey showed that approximately 66 percent of North Dakota hunters favor a cap on nonresident waterfowl hunters. The committee was informed that resident sportsmen have reached their tolerance limit for nonresident hunters.
The committee was informed that the cap on the number of nonresident waterfowl hunters should be set at current levels or at a level close to current levels. One suggestion was to cap nonresident hunters at a percent of the resident waterfowl hunters during the previous hunting season. Other suggestions ranged from 8,000 to 25,000. The committee considered a seasonal cap of 15,000 nonresident waterfowl hunters.
Committee discussion included that nonresident hunters come to this state because they have harvested all the ducks in their own state. It was also argued that this state cannot handle all the duck hunters if they all come at once to one place in this state. It was argued that there are too many nonresident hunters in certain areas of this state.
The committee was informed by the Game and Fish Department that it is difficult to develop a long-term plan for limiting nonresident hunters because of serious differences in philosophy. This was indicated by the deadlock as to what to do with nonresident hunters for this season with the Game and Fish Advisory Board.
The committee received testimony on three concepts for limiting nonresident waterfowl hunters--hunter pressure, fixed caps, and wetland habitat condition. The hunting pressure concept had the most interest by groups at the Game and Fish Advisory Board meetings. The hunting pressure concept uses historic averages to set the number of hunters that are allowed to hunt. The concept includes the idea that nonresidents are more intense hunters than residents based on daily bag limits. The concept assumes fewer hunters are tolerated in dry conditions. The concept does not count all wetlands but just the semipermanent and permanent wetlands. The small wetlands that are affected by short-term weather conditions are not included in the concept. The use of licenses by residents is considered under the concept. If there are low numbers of resident waterfowl hunters, there would be higher numbers of nonresident hunters allowed to get a license under the hunter pressure concept. Once the concept is in place it can work year after year. Under the original hunter pressure concept the limit on nonresident hunters would have been 22,500 for this year.
The committee considered a bill draft that required the Governor to place a limit on nonresident hunters based upon the total hunting pressure.
The committee received testimony in favor of the hunting pressure concept. The committee was informed that the hunting pressure concept has the support of most hunting groups even though it provides for a higher cap than is wanted by most groups because the concept first deals with the resource and the water and places North Dakota residents above nonresidents. It was argued that the concept uses science and not politics to set the cap.
The committee received testimony against the hunter pressure concept. The committee was informed the concept does not look at conservation more than it looks at people management. The committee was informed that guiding for waterfowl takes place on fields as well as wetlands. It was argued that there are a lot more areas to hunt than are being considered under the hunting pressure concept. The committee was informed the hunter pressure concept does not take into account when numbers of hunters spike during the season, for example, during parent-teacher conferences.
Committee discussion included that a reduction from 30,000 to 22,500 nonresident hunters would result in the loss of fees and federal funds to the Game and Fish Department in the amount of approximately $2.5 million. This money could be used for access. It was argued that limiting the number of nonresident hunters will hurt the Game and Fish Department.
Committee discussion included that the bill draft may need changes, for example, a lottery or providing an allotment to guides and outfitters, which can be added during the legislative session.
The committee was informed of a plan that would divide October into four weeks, and 7,500 nonresident hunters would be allowed to hunt per week. The plan would reduce the concentration of nonresident hunters by 50 percent in the first two weeks and while keeping 30,000 nonresident waterfowl hunters in this state. This idea would produce less pressure in the best hunting times. November could be used as an incentive to get nonresidents back into the state to hunt in quieter times.
The committee considered a number of weekly or time period-based caps ranging from 5,000 to 10,000 nonresident hunters per period. Because caps are involved, the licenses must be issued by the Game and Fish Department on a first come, first served basis or through a lottery. To soften the effect of the caps on guides and outfitters, the committee considered combining the caps with 10 percent of licenses reserved for guides and outfitters.
The committee received testimony in support of time period-based caps. The committee was informed that the time period-based caps allow growth while managing hunters.
The committee received testimony against the time period-based caps and lotteries from the North Dakota Professional Guides and Outfitters Association. A guide or outfitter cannot guarantee a tag if the tag is issued through a lottery. Because most people hunt in groups and need the whole group to get a license before they will come hunting, it was argued that a lottery will have a negative impact on guides and outfitters and this state.
Committee discussion included that guides and outfitters can still have clients who get tags through the lottery system--the other 90 percent. The 10 percent is reserved for guides and outfitters and the 10 percent could be saved for hunters who plan late.
Committee discussion included that a lottery system is meant to be done far enough in advance to provide hunting parties with enough time to plan. It was envisioned the lottery system to be like the deer lottery, which allows party applications. The 10 percent of licenses for guides and outfitters could be used by guides and outfitters to give a license to a person in a group who was otherwise denied through the lottery.
The committee considered a bill draft based on the time period-based plan. The bill draft had no hunting zones and three blocks--two 10-day periods with a limit of 10,000 nonresident hunters for each 10-day period followed by a block of the remainder of the season with unlimited nonresident hunters. The licenses would be issued on a first-come, first-served basis from the Game and Fish Department.
The committee received testimony in opposition to the bill draft because of preference for the hunting pressure concept.
The committee received testimony in support of the bill draft. It was argued that a bill draft with fixed caps provided protection for high-density periods, whereas under the hunter pressure concept there could be 22,500 hunters at one time, at one place. It was argued that a fixed cap bill draft allows for rural development by creating an attraction for late season hunting when there has historically been a low density of nonresident hunters.
It was argued that landowners will be happier with this bill draft than with the hunter pressure concept. Landowners are upset over this issue and are posting their land. This bill draft buffers that idea because it allows unlimited licenses after the 20th day. It was argued that the bill draft provides for a compromise and is incentive-laden, not punitive like the hunter pressure concept.
Committee discussion included that the hunting pressure concept may work well for resident ducks but does not work well for migratory ducks and geese. The migratory birds are the major part of the season.
The committee considered that the first 10-day period this season would have two full weekends and the second 10-day period would only have one weekend under the bill draft. Comments suggested that at some time a change should be made to take this inequity into account.
Committee discussion included that the committee needs to look at every option and this is a valid option. Nonresident hunters bring in major tax revenue to the state, in addition to economic development.
Committee discussion included opposition to the bill draft. It was argued that the committee had considered a bill draft similar to this one, but that bill draft was removed from further consideration in favor of the hunting pressure concept bill draft. It also was argued that fees should be higher under the bill draft because the bill draft allows for some hunting for an unlimited amount of time.
Committee members supported the idea of forwarding more than one concept to the Legislative Council.
Preference in Cap
The committee received testimony on providing a preference in the cap for nonresident hunters who were born in this state. It was argued that a preference would be difficult to administer.
The committee considered a bill draft that would have created a special private property license for nonresident waterfowl hunters. The bill draft would have created a season-long license for nonresidents to hunt solely on private property owned or leased by a person who actively farms or ranches on that property. The special licenses would be in addition to the caps placed on regular licenses. An individual could get a regular and a special license. An individual with a special license could hunt throughout the season without any limitation on the number of days.
Committee discussion included opposition to the bill draft but not the intent of the bill draft. It was argued that a leasing arrangement by a nonresident might allow for that nonresident to receive a special license under the bill draft. This would increase the purchasing and leasing of land by nonresidents in this state.
Committee discussion included support for changes to ensure that the nonresident and the active farmer or rancher who owns the land on which the nonresident hunts were not the same person.
The committee considered a bill draft that would have created a special private property nonresident waterfowl resident license. The bill draft would have removed leased property and included the qualification of residency. In addition, the bill draft would have required the applicant to be related by the third degree of consanguinity or have been a resident of this state for one continuous year. The changes closed opportunities that would encourage guides and outfitters and others to purchase land to use this license to hunt, thereby superseding present hunting licenses.
The committee received testimony in opposition to the bill draft. The committee was informed the bill draft would prevent landowners from doing whatever they want to do with their land. The committee was informed the restrictions on land have increased greatly in the past 20 years and that landowners do not want any more restrictions.
Committee discussion included that the bill draft merely provides another option for nonresident hunters. Regular licenses are still available for people to use on land they buy or lease for hunting purposes. Committee discussion also included, however, that the committee did not want to limit what landowners could do with their land.
Access to Private Land
There are 45 million acres of private land in this state. There are approximately 4.5 million acres of state and federally owned land in this state, and of that amount 2.5 million acres are open to hunting.
The Game and Fish Department owns approximately 78,000 acres and leases about 100,000 acres. The department has been trying to increase access in recent years. There was a 12.2 percent increase in the last biennium's budget and most of this money went for access through the private lands initiative. The department intends to double the acres in the PLOTS program in the next three years and triple the acres in the program over eight years. The money for this increase will come from the reserve fund. The new money for access will not go into the coverlocks program.
The problem with buying access is there is only so much good hunting land that is available to be acquired for hunting access. The main lack of access is in certain areas popular with hunters.
The committee received testimony in support of an access program administered by the Game and Fish Department. The committee was informed that there should be an access stamp with a fee of $25 to $50. Money from the access stamp would go into a land access fund to purchase access. Contracts for access could be negotiated on an individual basis and renewed annually. Access could be controlled as per contract for each parcel of land. One option would be for the land to be divided into smaller parcels that would be available on a draw basis, prorated between residents and nonresidents. The parcels could be allocated on a weekly basis to the winner of the draw for that week. The winner of each weekly draw could bring as many friends as that person wants as long as the winner is present.
The committee received testimony in support of more funding for public access. Support came from resident and nonresident hunters and guides and outfitters. The access program would provide income to landowners and would reduce the inconvenience on landowners from having a constant procession of people asking for access. An access program would provide an option to landowners other than to lease land to a guide or nonresident.
The committee received testimony on fee hunting. The committee received testimony from resident hunters who said they were not able to afford access because of fee hunting. Some resident hunters cannot afford to pay what is being charged to nonresidents to fee hunt. It is common for landowners to charge $200 per gun, and it is difficult to receive permission to hunt without paying a fee.
The committee was informed there does not seem to be evidence of a problem with obtaining access from landowners. A 1996 survey by the Game and Fish Department showed that 83.6 percent of landowners give permission when asked to hunt.
Committee discussion included that although some committee members did not like fee hunting, the members believed it is the right of the landowner to charge for hunting.
The committee received testimony against the leasing and buying of property for hunting purposes. The committee was informed that one of the major limitations on access was the leasing of property by out-of-state hunters and guides and outfitters. However, a study in the early 1990s found less than 1 percent of the land in this state was leased for hunting purposes at that time. It was argued that a more accurate survey would be difficult to complete and the results should be suspect because of the animosity surrounding access issues. The committee was informed the trend to buy and lease land for hunting purposes is increasing for residents and nonresidents.
The committee received testimony on the extent of land leasing and purchasing. The committee surveyed certain county recorders, but the survey did not provide significant information to make any generalizations.
Committee discussion included that if land is bought solely for hunting purposes, then it may be used only the first week or two of the season by the owner for hunting and be closed to everyone the rest of the season. This impedes the management of the resource by the Game and Fish Department. It was argued that purchase of land for hunting purposes can result in moving people out of the rural areas and is not good for North Dakota.
The committee received testimony on taxing land used for hunting purposes at a higher rate than agricultural land. It was argued that nonresidents who purchase land for recreational purposes should pay a recreation tax instead of an agricultural property tax. There is precedent in other states in which recreational property is taxed at a higher rate. However, it was argued that basing taxes on the purpose for which the land was purchased would be difficult to administer.
Guides and Outfitters
The committee was informed the greatest problem threatening resident hunters is the proliferation of licensed guides because guides are the main limitation on access. It was argued that it is too easy to be a guide, and resident hunters made the following suggestions:
- Cap the number of guide licenses.
- Increase the annual guide license fee.
- Require guides to have insurance and know first aid and cardiopulmonary resuscitation.
- Prohibit guides from carrying weapons.
- Prohibit guiding on public land of any kind.
- Require a complete recordkeeping.
- Raise the penalty for guiding without a license to a three-year suspension of hunting privileges.
- Test guides on game laws.
- Limit guides in the amount of land guides may lease.
- Impose sales taxes on guide services.
The committee was informed there needs to be limits on the number of acres guides and outfitters control. Research over the Internet resulted in finding four or five guides who had approximately 140,000 acres advertised for hunting. It was argued that a reasonable limit would be 6,000 to 7,000 acres or about 10 square miles. However, if the number of acres a guide can lease is limited, guides will move to a day pay system based on the days hunted and number of people hunting. It was argued that a limitation on the number of acres a guide and outfitter can control would not be a workable solution.
The committee was informed there should be aggressive enforcement of present laws and an increase in the number of game wardens. There have been a number of cases this year for the prosecution of guides and outfitters for game and fish violations. The Game and Fish Department has stepped up its activities with covert operations to enforce game and fish laws, and there are more violations than were expected by the department.
The committee was informed that guide and outfitting services should be subject to sales taxes because guides are selling a public resource as a product. Presently, guiding is not a taxable service under North Dakota law, although guides pay income taxes and collect sales taxes on lodging.
The committee considered a bill draft to require general liability insurance, cardiopulmonary resuscitation, and standard first aid for all guides.
Cardiopulmonary resuscitation and first aid require two 4-hour classes. It was argued that guides and outfitters take clients to remote areas and cardiopulmonary resuscitation and first aid should be required of guides and outfitters.
Committee discussion included arguments against the bill draft and against more government involvement in business. It was argued that the law does not require liability insurance for other businesses and should not require liability insurance for guides. Committee discussion included that a more comprehensive approach is needed for the regulation of guides and outfitters. The committee makes no recommendation on requiring guides to carry general liability insurance and be certified in cardiopulmonary resuscitation and standard first aid.
Testing of Guides and Outfitters
The committee considered a bill draft to require the Game and Fish Department to create and administer a written examination to test the proficiency of hunting guides and outfitters in state and federal laws on the hunting of wild game. Presently the department does nothing to check the familiarity of guides with the law. The director has rulemaking authority to require testing; however, because previous rules have been voided the department will not adjust rules on testing without specific legislative authority.
The committee was informed the administration of a test on game and fish laws could be done easily by the department; however, administration would be more difficult if there were an educational component. In addition it would be an administratively difficult matter to develop rules for when individuals fail the test. The department envisions the test being administered at certain times and places.
The committee received testimony in favor of the bill draft. The North Dakota Professional Guide and Outfitter Association supported of the bill draft. The association represents approximately one-third of guides and outfitters. Approximately 75 percent of the association's members are ranchers and farmers.
Records of Guides and Outfitters
The committee considered a bill draft that required guides and outfitters to provide an annual report of the names and addresses of that guide's or outfitter's clients for the preceding year to the Game and Fish Department. Presently, records are kept by guides and outfitters and inspected by game wardens. The records are checked regularly at the guide's or outfitter's place of business, and if the records are used in an enforcement action, they are confidential. Although the records are regularly checked, clients are not randomly contacted. Clients are contacted based upon a complaint and complaints are forwarded to the Attorney General's Consumer Protection Division. At one time rules required that the records be submitted to the department; however, this requirement was removed because of concerns that private information was being released as public records.
The committee received testimony in opposition to the bill draft. Guides and outfitters opposed the bill draft because it required them to turn over private information. The client list is a valuable part of a guide and outfitter's business.
The committee considered a second draft that required that the records be confidential and not public records subject to the open records law. The second draft required the director to disclose the names and addresses to a state or federal tax agency for tax enforcement purposes upon the request of the agency.
The committee was informed the North Dakota Professional Guide and Outfitter Association has no major problem with the annual report if it is kept private.
There was testimony in opposition to the bill draft. The committee was informed there was a concern with the uses of the list, and the records requirement would make it more difficult to start and maintain a small business. Committee discussion included that other businesses are not required to file information relating to customers, and it would not be fair to require this of guides and outfitters.
Committee discussion included support for the bill draft. The discussion included that the reason for the bill draft was to easily allow a cross-check so that there would be less income tax evasion for guides and outfitters paid with cash. It was argued that the bill draft protected guides and outfitters because the director presently could request the information and it would not be confidential.
Committee discussion included if the concern is that cash income is not being reported, then it is the Tax Commissioner's duty to investigate, not the Game and Fish Department's. The Tax Commissioner can receive the information now, and it is protected by law.
Committee discussion included the suggestion of removing the language relating to tax enforcement purposes. Committee discussion included separating the idea of requiring the information to be sent and the idea of keeping the information private.
The committee considered a third draft that required the director to keep proprietary information collected from guides and outfitters confidential except for aggregated information used for statistical purposes. The bill draft did not include tax enforcement language.
The committee was informed there is very little statistical information relating to guides and outfitters, particularly, relating to the number of days hunted and the amount paid. Days hunted, how many clients, how long they stayed in the state, and what part of the state they hunted in would provide useful information to the department. The department could ask for this information presently; however, the department would have to go to each guide and outfitter and then survey the clients.
Committee discussion included that the important concept of the bill draft is to allow the Game and Fish Department to collect information on the guide and outfitter industry. Without the information, it was expressed that all the information received is based on emotion or anecdote.
Committee discussion included that the information the department finds useful could be gained by surveys of hunters. A survey of hunters, however, would not get to the root of the questions that are needed to be asked. It was argued that there needs to be a survey of the guide and outfitter operations and the information obtained should be confidential.
Licensing of Guides and Outfitters
The committee reviewed information on the guide and outfitter laws of Alaska, Colorado, Idaho, Montana, New Mexico, Oregon, South Dakota, and Wyoming. Some states regulate outfitters differently than guides, some states require a guide to work for an outfitter that is a business entity, and some states regulate guides and outfitters through a state agency and others through a self-governing board.
The committee had received information on some states that have mountainous country and dangerous game. It was argued that comparing those states' regulation of guides and outfitters to the regulation in this state is like comparing apples to oranges. The committee was informed that in states in which the majority of guided hunts are for waterfowl, there is little or no regulation.
The committee received testimony on regulating guides and outfitters separately. The committee was told that guides and outfitters should be licensed separately because a person could have an outfitting business and have employee guides violate game and fish laws and still stay in business in this state. The terms "guide" and "outfitter" have the same legal definition in this state.
The dichotomy between guides and outfitters began in mountain states. Other states treat an outfitter as a business and a guide as an individual who works for that business. In other states, outfitters are regulated like liquor stores, and guides are treated like employees. In the same way as the liquor store is punished for certain violations by employees, outfitters could be punished for violations by guides.
The North Dakota Professional Guide and Outfitter Association supports separate regulation of guides and outfitters, higher fees, a cap on outfitters, random drug testing, and a requirement that outfitters be residents of this state. The association indicated that a license cap of 300 outfitters may be appropriate. An outfitter could have as many employee guides as is desired by the outfitter. If the number of guides and outfitters is capped, current guides and outfitters should be "grandfathered in" so that no one is put out of business. The association proposed that any increase in guide license fees should go to habitat programs. This would allow guides and outfitters to give something back to the resource they use.
The committee was informed that guides should not have to be residents of this state. Requiring guides to be residents of this state denies employment to nonresidents and prevents individuals with expertise from working in this state.
Board of Guide and Outfitters Bill Draft
The committee considered a bill draft that would have provided for licensing by a board of guides and outfitters. The bill draft provided for different licenses for hunting guides, hunting outfitters, and fishing outfitters. The bill draft retained present law and established a board. The bill draft placed a number of conditions on guides and outfitters, including drug testing.
The committee received testimony in support of the bill draft. The committee was informed the association preferred appointment of members by the association to avoid political considerations.
A large penalty for being a guide or outfitter without a license was suggested. It was argued that removing the license from a guide or outfitter for a violation is a more severe punishment than a Class B misdemeanor.
The 300 hunting outfitter limit in the bill draft was suggested because of public pressure, but this number still allows more than enough hunting outfitters.
Committee discussion included concern over the establishment of the board to govern guides and outfitters.
Regulation of Guides and Outfitters by Department Bill Draft
The committee considered a bill draft that provided for the licensing of guides and outfitters by the Game and Fish Department. The bill draft increased the license for a hunting outfitter to $200 if the outfitter would employ one to three guides that year, $500 if the outfitter would employ 4 to 10 guides that year, and $750 if the outfitter would employ more than 10 guides that year. A landowner was excepted from the fee, but the exception would not apply to leased land. The license would not be transferable. A guide and outfitter would have to be a resident. A person would have to hold a hunting guide license for five years to be eligible to apply for a hunting outfitter license. Present hunting guides were grandfathered in as outfitters regardless of experience. The Game and Fish Department director could not issue a license to a person who has had any state or federal game or fish violations in the last three years. Applicants were subject to a background search. The number of hunting outfitters would have been limited to no more than there were in the preceding year, but no more than 332. Hunting-related violations would result in mandatory revocation of a license. An outfitter was made liable for the violation of a guide, and a guide was made liable for the violations of a client. A person who lost a license would be prevented from transferring the license to a strawman by a prohibition on the use of the violator's name, place of business, or telephone number for three years from a violation except on permission from the director. The bill draft was otherwise similar to the original bill draft on regulation by a board.
The committee was informed the language in the bill draft which provided for mandatory revocation for a guide or outfitter who has provided services for a person who has not obtained the appropriate license for the species sought by that person was intended to be an antipoaching law and not to include a person who accidentally shot a doe with a buck license. Although the department has rulemaking authority over the licensing and could clarify this issue through rulemaking, it was suggested that any clarification should be made legislatively.
The committee received testimony in support of the bill draft and for changes in the bill draft from hunters and the association. The committee was informed the definition for outfitter includes motel operators and sporting goods stores, and if that was not the intent, the definition should be narrowed. It was argued that losing a license or not being able to get a license for any state or federal game and fish violation was too severe and that loss of a license should be limited to a criminal violation. The committee was informed the cap on hunting outfitters by limiting the member to the preceding year's numbers could reduce the number of outfitters to a very low number through retirements. It was argued that there should be a fixed cap of 300 outfitters. The committee was informed that a 300 outfitters cap would provide great opportunity for growth, because there currently are probably 50 to 100 outfitters. It also was argued, however, that the cap of 300 outfitters is too high, and the limit on the number of hunting outfitters should be between 100 and 110.
The committee was informed the Game and Fish Department private habitat and access improvement fund does not include funds for public boat ramps. Committee discussion included a preference that the money collected from fishing outfitter licenses go to lake access.
The committee received testimony in opposition to the bill draft. It was argued that because the bill draft placed caps on hunting outfitters, it limits what individuals can do with their property. Committee discussion included that there is no other industry that is limited as to the number in that industry besides alcohol establishments. Committee discussion included some opposition to the bill draft because states situated in similar situations to this state, e.g., South Dakota, do not have any regulation of guides and outfitters. In addition, guides and outfitters provide a valuable service and employ people in rural areas.
The bill draft was amended to require a criminal conviction for a loss of license, to not have fishing outfitter license fees go into the private habitat and access improvement fund, and to set the cap for outfitters at 200.
Recommendations
The committee recommends Senate Bill No. 2048 to set a limit on nonresident hunters based on total hunting pressure. The committee also recommends Senate Bill No. 2049 to provide for two consecutive 10-day blocks with a limit of 10,000 nonresident waterfowl hunters per block.
The committee recommends House Bill No. 1048 to require guides and outfitters to be tested on state and federal laws on the hunting of wild game.
The committee recommends House Bill No. 1049 to require the director of the Game and Fish Department to keep proprietary information collected from guides and outfitters confidential.
The committee recommends House Bill No. 1050 to provide for comprehensive licensing of guides and outfitters by the department.
