Grunter
01-26-2006, 08:48 AM
Landowners still could sue if damage found
BEN SHOUSE
bshouse@argusleader.com
January 25, 2006, 2:55 am
Road hunting is not a crime in South Dakota, the state Supreme Court ruled Tuesday.
In upholding the constitutionality of a state law passed in 2003, the decision allows hunters to shoot pheasants flying from public roads over private land without being arrested, provided the hunter follows safety rules.
Two landowner families sued the state in 2003 about a law that allows the practice, calling it an illegal "taking" of their property by the state. A lower court agreed with them in December 2004.
On Tuesday, the Supreme Court reversed that in a 4-1 ruling, a decision that means the state is not responsible for trespassing by hunters.
But landowners still might sue hunters who fire over or enter their property and cause damage, Attorney General Larry Long said. That's probably not a practical remedy for most landowners, Long added, and a lawyer for the landowners said it makes the situation worse.
"What I think they did is left it a mess," said Scott Detamore, a Lakewood, Colo., lawyer with the Mountain States Legal Foundation, which advocates for property rights. "I would suggest that this is a quandary that the Legislature never intended."
The Legislature passed the law in 2003 in response to a 2002 Supreme Court decision that prohibited shooting birds over private land.
Landowners Robert and Judith Benson of Winner and Jeff and Tricia Messmer of Wessington Springs, who run commercial hunting operations on their farms, sued in October 2003. A circuit court judge ruled the law unconstitutional in December 2004.
Road hunting was legal this past season because the state appealed that ruling. But hunters worried that they would lose a chance to hunt for free, especially with landowners increasingly charging them to walk the fields in pheasant season.
Chris Hesla of the South Dakota Wildlife Foundation heard the decision and said, "That's a great day in South Dakota."
He said a survey of the foundation's more than 4,000 members shows that a majority have road- hunted recently. Estimates in 2003 put the total number of road hunters in the state at somewhere around 12,000.
"I think this is a very good sign that some sort of free public hunting is going to stay around for a long time in South Dakota," Hesla said.
But Detamore sees the possibility of more conflict since the average landowner does not have the money to bring a civil lawsuit against trespassing road hunters.
"But he does have a gun, and he does have the right to go on his property and say, 'Leave the bird alone,' and that could lead to armed conflict," Detamore said. "I'm not advocating it; I think it's a terrible result."
He said there appears to be little grounds for appeal to the U.S. Supreme Court, though his clients have ruled out nothing.
Justice John Konenkamp, in a concurring opinion on the case, spelled out the imperfect resolution between the rights of owners and hunters.
"Saying that landowners still maintain their civil remedies and that they may protect themselves against trespass by suing road hunters cannot mollify the State's part in consenting to road hunting on private property," Konenkamp wrote.
"Despite these concerns, however, the Legislature is entitled to balance the benefits and burdens here without being responsible for a taking under eminent domain. The huge benefit the State obtains through tourism and recreational hunting outweighs any transient and marginal interference to landed interests caused by road hunters."
BEN SHOUSE
bshouse@argusleader.com
January 25, 2006, 2:55 am
Road hunting is not a crime in South Dakota, the state Supreme Court ruled Tuesday.
In upholding the constitutionality of a state law passed in 2003, the decision allows hunters to shoot pheasants flying from public roads over private land without being arrested, provided the hunter follows safety rules.
Two landowner families sued the state in 2003 about a law that allows the practice, calling it an illegal "taking" of their property by the state. A lower court agreed with them in December 2004.
On Tuesday, the Supreme Court reversed that in a 4-1 ruling, a decision that means the state is not responsible for trespassing by hunters.
But landowners still might sue hunters who fire over or enter their property and cause damage, Attorney General Larry Long said. That's probably not a practical remedy for most landowners, Long added, and a lawyer for the landowners said it makes the situation worse.
"What I think they did is left it a mess," said Scott Detamore, a Lakewood, Colo., lawyer with the Mountain States Legal Foundation, which advocates for property rights. "I would suggest that this is a quandary that the Legislature never intended."
The Legislature passed the law in 2003 in response to a 2002 Supreme Court decision that prohibited shooting birds over private land.
Landowners Robert and Judith Benson of Winner and Jeff and Tricia Messmer of Wessington Springs, who run commercial hunting operations on their farms, sued in October 2003. A circuit court judge ruled the law unconstitutional in December 2004.
Road hunting was legal this past season because the state appealed that ruling. But hunters worried that they would lose a chance to hunt for free, especially with landowners increasingly charging them to walk the fields in pheasant season.
Chris Hesla of the South Dakota Wildlife Foundation heard the decision and said, "That's a great day in South Dakota."
He said a survey of the foundation's more than 4,000 members shows that a majority have road- hunted recently. Estimates in 2003 put the total number of road hunters in the state at somewhere around 12,000.
"I think this is a very good sign that some sort of free public hunting is going to stay around for a long time in South Dakota," Hesla said.
But Detamore sees the possibility of more conflict since the average landowner does not have the money to bring a civil lawsuit against trespassing road hunters.
"But he does have a gun, and he does have the right to go on his property and say, 'Leave the bird alone,' and that could lead to armed conflict," Detamore said. "I'm not advocating it; I think it's a terrible result."
He said there appears to be little grounds for appeal to the U.S. Supreme Court, though his clients have ruled out nothing.
Justice John Konenkamp, in a concurring opinion on the case, spelled out the imperfect resolution between the rights of owners and hunters.
"Saying that landowners still maintain their civil remedies and that they may protect themselves against trespass by suing road hunters cannot mollify the State's part in consenting to road hunting on private property," Konenkamp wrote.
"Despite these concerns, however, the Legislature is entitled to balance the benefits and burdens here without being responsible for a taking under eminent domain. The huge benefit the State obtains through tourism and recreational hunting outweighs any transient and marginal interference to landed interests caused by road hunters."