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Mike Nowatzki, Forum News Service, Published January 03 2014

Audubon Society challenges ND corporate farming law over 1988 Stutsman County land purchase

BISMARCK – An attorney for the National Audubon Society urged the North Dakota Supreme Court on Friday to strike down the state’s corporate farming law as unconstitutional and to allow the nonprofit conservation group to keep a tract of land it bought in Stutsman County 25 years ago.

Attorney General Wayne Stenehjem claims the Audubon Society illegally bought the 263-acre parcel in 1988 in violation of the state law that restricts corporations from owning agricultural land, with some exceptions.

At the time, 111 acres were used for haying and growing small grains and the other 152 acres were mostly grazed by cattle. The land sits alongside additional Audubon Society-owned land that encompasses the Edward M. Brigham III Alkali Sanctuary for birds and other wildlife.

The attorney general’s office claims it first learned about the land purchase in 2005 as the result of an audit. The county recorder’s office was supposed to notify the attorney general’s office anytime farmland was conveyed to a corporation, but affidavits taken in the case suggest that didn’t happen.

The state initiated an enforcement action in 2009, asking the district court to force the Audubon Society to give up the land.

Southeast Judicial District Judge John Greenwood upheld the corporate farming law’s constitutionality and found that the statute of limitations defense raised by the Audubon Society didn’t apply. However, he ruled the Audubon Society could raise the defense of “laches” – an excessive delay in pursuing a legal right or claim in a way that prejudices the opposing party – and dismissed the state’s action.

Assistant Attorney General Matthew Sagsveen argued that laches shouldn’t apply to the state and that the Audubon Society “has no threatened or actual injury” from having to divest the land. He also noted that the Audubon Society wasn’t registered with the secretary of state to do business in North Dakota until 1989, after it had bought the land.

Fargo attorney Sarah Andrews Herman, representing the Audubon Society, said the nonprofit corporation has invested in the land over the years, building hiking trails and redeveloping wetlands to provide bird habitat. Some of the land is still leased for haying.

“Is the delay or lapse a problem for us? Of course it is,” she said.

Herman argued that the corporate farming law violates the equal protection and commerce clauses of the U.S. Constitution because it gives preferential treatment to North Dakota corporations. The law states a nonprofit may acquire farmland to conserve natural areas and habitats, but it must have been incorporated in North Dakota or issued a certificate to do business in the state before Jan. 1, 1985.

“I believe the whole chapter (of corporate farming law) is unconstitutional because of this discrimination,” she said.

The Supreme Court took the case under advisement and will issue its opinion at a later date.

The Audubon Society also is challenging the law’s constitutionality in federal court. U.S. District Judge Ralph Erickson said in 2010 that he would delay a ruling until the land sale dispute is settled in state court.

Reach Nowatzki at (701) 255-5607 or by email at mnowatzki@forumcomm.com.