Court strikes down road hunting
 
 
 
December 2, 2004
 
By Kevin Woster, Journal Staff Writer
 
kevin.woster@rapidcityjournal.com or 605-394-8413
 
The Rapid City Journal
 
P.O. Box 450
 
Rapid City, SD 57709
 
605-394-8427
 
Fax: 605-394-8463
 
http://www.rapidcityjournal.com
 
To submit a Letter to the Editor: letters@rapidcityjournal.com (200-word limit) 
 

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."

 
Copyright 2004, The Rapid City Journal.
 
http://www.rapidcityjournal.com/articles/2004/12/02/news/local/news02.txt
 
http://www.rapidcityjournal.com/articles/2004/12/01/pmedition/news/news01.txt
 
Additional researched information:
 
Robert and Judith Benson
Winner, South Dakota 
605-557-3450
Fax: 605-557-3452
usabar@gwtc.net
http://www.usabarranch.com  
 
Jeff and Tricia Messmer
Wessington Springs, South Dakota
605-539-9016
 
Judge Kathleen Trandahl
P.O. Box 311
Winner, South Dakota
605-842-3856
 
Roger A.Pries
812 N Monroe Ave.
Pierre, SD 57501
605-224-5360
 
Now for the Tony Dean reader rants (all typos and the use of "all caps" have been left firmly in place to help better understand the mind set of his readers...):
 
Doesn't like court ruling
 
December 3, 2004
 
I have to say that we are up against the wall. It just goes to show you money talks. I just have one question for the almighty pheasant farmer. How do they figure that they own the airspace abover their land, They own the land yes nothing else. I guess why stop here, they should write Congress to allow them to charge our airlines to fly over their land. They own it right, it is the same principle. But hey who am I to say anything! Someday there will be no road Hunting and them whining pheasant Famers will be happy. Mark from TRENT http://www.tonydean.com/issues2.html?sectionid=5709
 
Another:
 
Court deals blow to average hunter
 
December 2, 2004
 
TONY:

READ ARGUS LEADER FRONT PAGE TODAY. ROAD HUNTING ISSUE DECIDED BY JUDGE FROM WINNER. HER DECISION IS IT NOT LEGAL TO SHOOT A PHEASANTS OVER PRIVATE LAND. HERE WE GO AGAIN. HOW MANY TIMES PRIVATE HUNTING CLUBS GOING TO RUN THIS SITUATION AGAINST JOHN Q. HUNTERS WHO OWN THE PHEASANTS IN SOUTH DAKOTA.
MAYBE ITS TIME WE HAVE LAW AGAINST PRIVATE HUNTING ENTERPRISES HUNTING PUBLIC LAND WITH THEIR CLIENTS. MAYBE GAME ,FISH OUGHT TO CHARGE THEM SO MUCH PER GUN AND PUT THAT MONEY TOWARDS MORE PUBLIC LAND FOR AVERAGE HUNTER THAT DOES NOT HAVE THICK BILLFOLD. LJ
http://www.tonydean.com/issues2.html?sectionid=5703
 
Yet another:
 
Judge's decision harms Joe Average
 
December 2, 2004
 
WOW!!! As if I didn't have enough trouble finding some place to hunt now. I think that every car that hits a deer that ran out on the road from private property should be able to sue that landowner. Chris Hesla, director of S.D. wildlife federation, sounds as though he has no fight left in him on this issue and should be replaced with someone that will keep fighting for the public. Yankton and Clay counties have about 200 acres of crp for about 40 thousand residence. It would cost me over $600 dollars for me and my two children to hunt one afternoon in my own state, and my own county, for a canned hunting trip. S.D. will no longer be producing honest sportsman unless they are born with a silver spoon in there mouth. Maybe it is time that we should stop subsidizing landowners with our tax dollars. Brian
(and Tony Dean's answer):

Brian:

I'll admit that it's pretty frustrating to many South Dakota hunters. I've talked with many landowners who do not share the view of those who brought the suit.

But remember this about Chris Hesla. No one has worked harder to make sure the average guy gets a break. Chris is a member of the West River Task Force and hears from the greedy folks all the time. He battles them in the legislature on a regular basis. I don't always agree with Chris, but I certainly have great respect for him and remain convinced that no one has done a better job in dealing with these issues than he has.

If more sportsmen paid attention to what's happening, and rang their legislators door bell with frequent emails and letters, it'd make Chris's job a lot easier.

TD
 
http://www.tonydean.com/issues2.html?sectionid=5704
 
Note: Please keep in mind that if you contact Tony Dean with a viewpoint different from his own, you will make "the dean's list", and it is a vapid one, indeed.
 
"A government big enough to give you everything you want is big enough to take everything you have."