A circuit judge in the heart of
pheasant country has fired a round of legal buckshot at a
law passed by the 2003 state Legislature giving hunters the right
to shoot from public roads at game birds flying over private land.
Circuit Judge Kathleen Trandahl of Winner ruled that the law, supported
by sportsmen's groups across the state, is an unconstitutional
violation of private property rights -- in essence, taking
without just compensation.
But Trandahl's decision, which is almost certain to be appealed to the South Dakota Supreme Court by state Attorney General Larry Long, won't affect road hunting practices immediately.
A provision of the 2003 law mandates that
the statute remain in effect until the South Dakota Supreme Court
rules or advises otherwise.
"For right now, we're going to continue to enforce the law that's
on the books," Mark Johnston, press secretary for Governor Mike
Rounds, said Wednesday.
With certain exceptions, state law now allows hunters on most
public roads and rights-of-way to shoot at pheasants and other game
birds flying over adjacent private land without permission from the
landowner.
That had been common -- in
practice, if not clarified in law -- for generations
in South Dakota, where road hunting is an especially popular method
for shooting pheasants and geese.
Hunters may now enter private land, on foot and unarmed, to
retrieve birds legally shot from the right-of-way.
It is against the law to shoot big game on or from a road.
A dispute over the road-hunting issue led to a 2002 state
Supreme Court decision that said existing law did not allow road
hunters to fire at birds flying over private land.
That meant road hunters could
legally shoot birds only within the right-of-way.
And it is why the state Legislature considered the issue in 2003, and explicitly
codified that the practice of firing at game birds over private land
was legal.
Rounds signed the bill, and road-hunting
opponents predicted it would be contested.
That challenge came in October 2003, when Robert and Judith Benson of
Clearfield and Jeff and Tricia Messmer of Wessington Springs, took the
issue to court.
The Bensons and the Messmers run
commercial hunting operations on their properties.
Pierre hunter Roger Pries, a former executive director of the South
Dakota Wildlife Federation, said the road-hunting issue probably
wouldn't have ended up in court if landowners hadn't gone
into wide-scale commercial hunting.
Before that, road hunters had gotten
along with most farmers and ranchers, Pries said.
Now, in the Winner area and other pheasant-hunting hot spots, it is
difficult to find a place to hunt on private land without
paying fees that many South Dakotans can't afford, Pries said.
"Until the commercialization came along, there weren't any
big problems. The commercialization really messed things up,"
Pries said. "The birds still belong to the people, but if
we can't hunt them from the right-of-ways, you can scratch off
whole counties as places to hunt."
Pries predicted that if Trandahl's decision stood, the ongoing
decline in the number of resident pheasant hunters would continue.
Jeff Messmer said Pries was oversimplifying a complex issue.
"For me, it's not just the commercialization, it's about
our rights," Messmer said.
It is also a safety issue for rural landowners who are
threatened by hunters shooting too near livestock -- and even
farm homes -- he said.
"You wouldn't believe it out here. People come all the
way from Minnesota to road hunt," he said. "We've
got people shooting out of their vehicles right behind our house."
Existing law prohibits road hunters from shooting from their
vehicles or within 660 feet of livestock and occupied buildings.
Republican state Rep. Ed McLaughlin of Rapid City voted for the 2003
law and believes it will be upheld in an appeal to the state Supreme
Court.
He said lawmakers included the provision
about leaving the law in place until the Supreme Court could act -- to
prevent a confusing change during the hunting season.
"That would have put everybody -- sportsmen and landowners --
at odds," he said.
The pheasant season runs through January 2 in most of the state.
It closed October 24 in Butte, Meade and
Lawrence counties, and in Pennington County west of the Cheyenne
River.
Even though he voted for the 2003 bill, McLaughlin said he could
understand why landowners might not like it.
"I can see both sides of it, but I represent Rapid City, and we
certainly have far more people who are hunters than we do people who
are running preserves," McLaughlin said.
"Perhaps if I were down in
the Winner area, I'd feel differently."