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Ruling limits road hunting
BY BEN SHOUSE
[email protected]
published: 12/13/2004
No shooting pheasants over private land, judge says
A circuit judge Dec. 1 struck down a 2003 law that expanded road hunting. The ruling will prohibit shooting pheasants from public roads if they fly over private property, a common hunting method in South Dakota.
The action cuts off another opportunity for free hunting in an era when many hunters say opportunities are disappearing quickly.
“I don’t think there is going to be much of a future of road hunting,” Chris Hesla, director of the South Dakota Wildlife Federation, said from Fort Pierre.
A lawyer for the plaintiffs called the judge’s ruling a victory for landowners.
“She hit it right on the head, that this new road hunting statute basically amounted to a taking sanctioned by the government, that landowners had nothing they could do to prevent hunters shooting onto their property,” said Chris Dohrer of Aberdeen.
Attorney General Larry Long was traveling and could not be reached. But Dohrer said he anticipated the state would appeal the ruling to the state Supreme Court.
Gov. Mike Rounds’ press secretary, Mark Johnston, said state officials will review Kathleen Trandahl’s decision in the next few days, but no official decision had been made Wednesday on whether to appeal.
Hunter Randy Joneson of Sioux Falls said the ruling would affect him directly.
“For me, you’re going to eliminate any hunting except on public land. It would just be over,” he said. Because of the lack of free hunting, he is not sure how long he will stick with the sport.
“My dog is 8 years old, and I’m going to take her out, and I’m going to hunt her until she’s done, and then I don’t think I’m going to get another dog,” he said. “It’s not worth it to me ... it’s not even fair to the dog.”
Hunting on private land requires an owner’s permission. For decades, since South Dakota pheasant hunting began in 1919, most hunters got permission to hunt free. But it has become more and more common for landowners to charge.
Commercial operations
That includes the plaintiffs in the case, Robert and Judith Benson of Winner and Jeff and Tricia Messmer of Wessington Springs, who run commercial hunting operations on their farms.
That has driven many hunters to road hunting, which is legal when pheasants are in the 66-foot-wide band that runs along public roads.
Until 2002, the state Game, Fish and Parks Department considered it illegal to shoot at a game bird as it flew from the right-of-way over private land. But some road hunters didn’t follow that interpretation exactly.
In 2002, the South Dakota Supreme Court defined limits on road hunting, ruling that existing law prevents road hunters from shooting birds that fly above private land.
Last year, the state Legislature tried to widen the band of easement by allowing hunters to shoot birds that flew from right-of-way over private land, and to retrieve the birds they shot.
Some hunters say profit was the main motivation for the suit against that law. But not all landowners who opposed the law did so for money.
“(The law) goes too far. It allows people to shoot out over your land. It’s a little more than a road hunting issue,” said White Lake farmer Jim Headley.
Circuit Judge Kathleen Trandahl of Winner wrote in her decision that the law was a “taking” of property, which is prohibited by the Fifth Amendment and the South Dakota Constitution.
“The Legislature went too far when it granted hunters the right to shoot onto private land. This is the very kind of thing that the taking clause was meant to prevent. The taking clause stands as a shield against the arbitrary use of governmental power,” she wrote.
Trandahl cited a 1979 U.S. Supreme Court case, in which Justice Antonin Scalia wrote that a taking exists “without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.”
She looked back at a 1922 case in which an island resort owner sued the U.S. government for firing harbor defense guns across its oceanfront, scaring the guests, and to a 1946 decision that said, “The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.”
Opportunities lost
Regardless of the strength of that case law, hunters say the ruling is unfortunate because it further erodes the state’s tradition of affordable pheasant hunting.
Hesla of the wildlife federation said: “In South Dakota, we’re kind of at a crossroads here where we’re going to have to decide how free and public hunting and private hunting are going to coexist. Because right now, the public is by far getting the short end of the stick.”
The 2003 law says the provision allowing road hunters to shoot birds that fly over private property will automatically be repealed if the state Supreme Court ever decides that landowners should be paid for loss of property rights.
Mike Held, administrative director of the South Dakota Farm Bureau, said the organization has always considered the 2003 law to be unconstitutional.
“That’s encouraging,” Held said of the circuit judge’s decision.
Reach Ben Shouse at 605-331-2318. The Associated Press contributed to this story.
ISSUE AT A GLANCE
* For years, it was considered illegal to shoot at a game bird as it flew over private land, although some road hunters did that. In 2002, the state Supreme Court ruled against shooting birds over private land. A year later, the state Legislature passed a law allowing the practice and retrieval of the birds. But a circuit judge struck down the law Dec. 1.
