State ex rel. Jones v. Prettyman, 11017

• Decision Date: 10 April 1986
• Docket Number: No. 11017,11017
• Citation: 385 N.W.2d 489
• Parties: STATE of North Dakota ex rel. Kent JONES, Commissioner of the North Dakota Department of Agriculture, an agency of the State of North Dakota, Plaintiff and Appellee, v. Ray PRETTYMAN and LaVerne Prettyman, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 489

385 N.W.2d 489

STATE of North Dakota ex rel. Kent JONES, Commissioner of the North Dakota Department of Agriculture, an agency of the State of North Dakota Plaintiff and Appellee, v. Ray PRETTYMAN and LaVerne Prettyman, Defendants and Appellants.

Civ. No. 11017.

Supreme Court of North Dakota.

April 10, 1986.

Allen Hoberg, Asst. Atty. Gen., Bismarck, for plaintiff and appellee.

John E. Mack (argued), New London, Minn., and James P. Rausch, of Rausch & Rausch, Bismarck, for defendants and appellants.

VANDE WALLE, Justice.

Ray and Laverne Prettyman appealed from a district court order requiring them to remove any and all bees owned, leased, or managed by them in North Dakota, from the State by July 1, 1985, and allowing the North Dakota Department of Agriculture to confiscate and eradicate those bees if they were not removed by that date. We affirm.

The Prettymans are migratory beekeepers who transport their bees from North Dakota to Florida for the winter season and bring them back to North Dakota for the summer season. On September 21, 1984, the North Dakota Department of Agriculture issued a health certificate for the bees to the Prettymans, and they transported bees to Florida for the winter. As the Prettymans brought their bees into Florida, the Florida Department of Agriculture inspected them and found them to be infested with tracheal mite.

In May 1985, the Prettymans began to bring their bees in Florida back to North Dakota. The Florida Department of Agriculture informed the North Dakota Bee Inspector that Florida had not issued a health certificate to the Prettymans to move their bees and that a spring test of the Prettymans' bees for tracheal mite was positive. At that time, the Prettymans had applied for, but had not been issued, a 1985 North Dakota beekeeping license. Additionally, the Prettymans had not provided the North Dakota Bee Inspector with a health certificate or a valid entrance permit for the bees as required by Sections 4-12.2-04 and 4-12.2-20, N.D.C.C.

On May 29, 1985, the North Dakota Bee Inspector received a complaint that the Prettymans had brought bees into North Dakota. The report was confirmed and, pursuant to Sections 4-12.2-03 and 4-12.2-21, N.D.C.C., the Commissioner of Agriculture issued an emergency order dated May 29, 1985, ordering the Prettymans to immediately locate their bees at least two miles from any other bee location and thereafter to remove their bees from the State or permit the Department of Agriculture to confiscate and destroy the bees.

The Commissioner of Agriculture, on behalf of the State, brought an action in district court to restrain the Prettymans from violating the provisions of Chapter 4-12.2, N.D.C.C. The Commissioner's complaint, dated June 6, 1985, alleged that the Prettymans had brought bees into North Dakota without a valid health certificate or entrance permit as required by Section 4-12.2-20, N.D.C.C.; the Prettymans had not obtained a 1985 North Dakota beekeeping license as required by Section 4-12.2-04, N.D.C.C.; the Florida Department of Agriculture had informed the North Dakota Department of Agriculture that bees belonging to the Prettymans in Florida had been found to be infested with tracheal mite, a bee disease as defined in Section 4-12.2-01(9), N.D.C.C.; the Prettymans had not received a certificate from Florida indicating that their bees were disease-free; and the Prettymans had ignored the Commissioner's May 29, 1985, emergency order and continued to move bees within the State in violation of that order.

The Commissioner's complaint requested the district court to issue an order requiring the Prettymans to remove their bees from the State within five days of any court order; permitting the Department of Agriculture to confiscate and destroy the bees if the Prettymans had not removed them from the State within that time; and prohibiting the Prettymans from bringing any other bees into the State except with the approval of the North Dakota Bee Inspector and upon compliance with all North Dakota beekeeping laws.

Pursuant to an ex parte application supported by an affidavit of the North Dakota Bee Inspector which, in substance, restated the allegations of the complaint, the district court issued a temporary restraining order on June 7, 1985, requiring the Prettymans to secure approval from the North Dakota Bee Inspector before moving their bees already in the State or before moving any other bees into the State. The district court also ordered the Prettymans to show cause why the relief requested by the Department of Agriculture should not be granted.

At the conclusion of an evidentiary hearing on the order to show cause on June 17, 1985, the district court found that "a sufficient showing had been made to justify the exercise of the State's police power as sought by the State." The district court also found that the Prettymans had brought bees into the State without an appropriate permit and had moved and transported bees within the State without an appropriate health certificate. The district court granted the relief requested by the Department of Agriculture, and gave the Prettymans until July 1, 1985, to remove their bees from the State or the bees would be destroyed. A written order, dated June 24, 1985, incorporated the district court's ruling from the bench.

At the conclusion of the hearing on the order to show cause, the district court recognized that the Prettymans had requested an administrative hearing on the Commissioner's May 29, 1985, emergency order and stated that "if the Prettymans should prevail at the administrative hearing, then the order imposed by the court today shall be modified in order to conform with whatever relief may be granted at that administrative hearing." On July 1, 1985, the district court issued a stay of the removal and eradication provisions of its June 24, 1985, written order until three days after any order of the Commissioner entered as a result of the administrative hearing. ¹

On July 3, 1985, the Prettymans filed an answer and counterclaim to the Commissioner's June 6, 1985 complaint. The Prettymans' answer and counterclaim essentially denied that they had brought bees infested with honey-bee tracheal mite into North Dakota and alleged that the State's action would effectively destroy their beekeeping business without just compensation. The Prettymans sought an injunction to permit them to keep their bees in North Dakota and to prevent the State from destroying their bees. The Prettymans also sought damages. On July 8, 1985, the Prettymans filed a notice of appeal from the district court's June 24, 1985, order. ²

The basic issue presented by this appeal concerns the propriety of the district court's June 24, 1985, order requiring the Prettymans to remove their bees from North Dakota and permitting the State to destroy the bees if not removed.

This court has recognized that beekeeping is a commercial enterprise which, within constitutional limits, may be regulated by the Legislature to prevent injurious practices. State v. Knoefler, 279 N.W.2d 658 (N.D.1979). Chapter 4-12.2, N.D.C.C. gives the...