Thomas J. Harbinson, Scott County Attorney, Susan McNellis, Assistant County Attorney, 206 Courthouse, 428 South Holmes Street, Shakopee, MN 55379 (for Respondent)

Freeman Algot Wicklund, 9077 161st Street West, Lakeville, MN 55044 (pro se Appellant)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.

Appellant challenges (1) the constitutionality of Minn. Stat. § 97A.037 (1994), prohibiting harassment of hunters, (2) the jurisdiction of Scott County to enforce the Hennepin Regional Park District trespass ordinance, and (3) the Hennepin Regional Park District trespass ordinance, on the ground that it is discriminatory. Because: (1) Minn. Stat. § 97A.037, except for the provision relating to an intent to dissuade, is constitutional both facially and as applied to appellant, (2) Scott County has jurisdiction to enforce the Hennepin Regional Park District trespass ordinance, and (3) the Hennepin Regional Park District trespass ordinance does not invalidly discriminate against nonhunters, we affirm.

Appellant Freeman Algot Wicklund was among a group of individuals who went to the park during the bow hunt to protest the bow hunt and to try to persuade hunters to change their minds about killing deer. Upon arrival, the group proceeded into the woods and engaged a hunter in conversation. After the conversation, several group members left, but appellant remained. Upon receiving a complaint, an officer with the Scott County Sheriff's Department and a DNR conservation officer went into the woods to look for the remaining group members. The officers found six individuals sitting or standing on a log under a hunter's deer stand. When the officer explained that the group had to leave, appellant refused. Appellant was subsequently handcuffed and removed from the woods.

Appellant was charged with aiding and abetting harassment of a hunter in violation of Minn. Stat. § 97A.037, subd. 1 (1994); with aiding and abetting disturbing wild animals in violation of Minn. Stat. § 97A.037, subd. 2 (1994); with aiding and abetting harassment trespass in violation of Minn. Stat. § 97A.037, subd. 3 (1994); and with trespassing on closed park lands in violation of a Hennepin Regional Park District (Park District) ordinance.

Appellant was found guilty of all charges. On appeal, he argues that his conviction should be reversed because the hunter harassment act is a content-based restriction of his free speech and is vague and overbroad, because Scott County lacks jurisdiction to enforce the Park District trespass ordinance, and because the Park District ordinance discriminates against nonhunters.

Appellant argues that Minn. Stat. § 97A.037 (1994) is a content-based restriction on free expression; an unconstitutional time, place, and manner restriction on free speech; unconstitutionally vague or overbroad and unconstitutional as applied to the free expression exercised by appellant.

"In evaluating challenges to the constitutionality of statutes, this court recognizes that the interpretation of statutes is a question of law." In re Blilie, 494 N.W.2d 877, 881 (Minn. 1993). Accordingly, this court "is not bound by the lower court's decision." Id. (quoting Sherek v. Independent Sch. Dist. No. 699, 449 N.W.2d 434, 436 (Minn. 1990)).

State v. Miner, 556 N.W.2d 578 (Minn. App. 1996) is dispositive of the constitutional issues appellant raises. The facts and the individuals involved in Miner are identical with those here. We note that Miner held unconstitutional the provision of Minn. Stat. § 97A.037 (1994) relating to an intent to dissuade. Id. at 583. The court determined, however, that the unconstitutional provision was severable, stating that:

[T]o the extent that Minn. Stat. § 97A.037 applies to a person whose only intent is to dissuade the taking of a wild animal or enjoyment of the out-of-doors, the statute is impermissibly content-based.

* * * *

Although Minn. Stat. § 97A.037 cannot be applied when a person acts only with an intent to dissuade, it remains complete and capable of being executed when a person, acting with intent to prevent or disrupt the taking of a wild animal or enjoyment of the out-of-doors, disturbs or interferes with another person who is lawfully taking a wild animal or preparing to take a wild animal.

Id. The court also determined that the statute is not (1) an invalid time, place, and manner restriction on the freedom of expression guaranteed by the First Amendment; (2) unconstitutionally overbroad or vague; or (3) unconstitutional as applied to the appellants. Id. at 584-86.

Because the evidence presented at trial established that appellant, acting with intent, disturbed others who were taking, or preparing to take, a wild animal and because Miner is otherwise indistinguishable, appellant's arguments regarding the constitutionality of Minn. Stat. § 97A.037 must fail.

2. Jurisdiction

Appellant argues that because he was charged with trespass under a Park District ordinance, and because Murphy-Hanrehan Park is located in Scott County, there was no authority to arrest him for trespass and the charge should be thrown out. We disagree.

As a threshold matter, appellant is precluded from raising this argument on appeal because he did not raise it before the trial court. Even in criminal cases, arguments made for the first time on appeal will not be considered. State v. Packard, 366 N.W.2d 721, 726 (Minn. App. 1985), review denied (Minn. July 17, 1985). Further, appellant did not support his argument. An assignment of error based on a mere assertion and not supported by any argument or authorities in appellant's brief is waived. Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519, 187 N.W.2d 133, 135 (1971).

Even if we consider appellant's argument on its merits, it fails. The Park District is a separate agency from Hennepin County. It was created pursuant to Minn. Stat. § 383B.68 and has the authority to enact and enforce ordinances to govern and regulate a park under its control per Minn. Stat. §§ 398.09(g), 398.12, 398.13. There is a joint powers agreement between Scott County and the Park District. Without argument or evidence indicating that charging appellant with trespass pursuant to the Park District ordinance was beyond the scope of the joint powers agreement, there is no basis for dismissing the charge, and even if appellant's arrest was beyond the scope of the county's agreement with the Park District, the appropriate remedy for an improper arrest is suppression of evidence, not a dismissal of the charges. See State v. Kline, 351 N.W.2d 388, 390 (Minn. App. 1984) (citing United States v. Crews, 445 U.S. 463, 471-72, 100 S. Ct. 1244, 1249-50 (1980); Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963)).

3. Discrimination

Finally, appellant argues the Park District ordinance is invalid because it discriminates against nonhunters. Again, appellant is precluded from raising this argument on appeal because he did not raise it before the trial court. Arguments made for the first time on appeal will not be considered. Packard, 366 N.W.2d at 726.

Again, however, even if the argument were considered on its merits, it fails. An ordinance is presumed constitutional; the burden of proving an ordinance is unreasonable or that the requisite public interest is not involved, and consequently that the ordinance does not come within the police power, rests on the party attacking its validity. City of St. Paul v. Dalsin, 245 Minn. 325, 329, 71 N.W.2d 855, 858 (1955). To prove an ordinance is unreasonable, a complaining party must show that it "has no substantial relationship to the public health, safety, morals, or general welfare." State v. Hyland, 431 N.W.2d 868, 872 (Minn. App. 1988). "If the reasonableness of an ordinance is debatable, the courts will not interfere with the legislative discretion." Id. (quotation omitted). Appellant must therefore prove that it is not even debatable that the challenged ordinance has no substantial relationship to the public health, safety, or general welfare.

Here, appellant argues that it would be in the public interest to prohibit an annual archery deer hunt to control the deer population, rather than close the park to the general public. Arguably, there are substantial relationships between (1) allowing the hunt and controlling deer population and (2) restricting access to the park during deer hunts and the safety of the hunters and the general public. Therefore, appellant has not met his burden.

Affirmed.