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
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."