South Dakota Supreme Court: Citizens are on their own

William Perry Pendley
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Posted: Feb 27, 2006 6:05 PM

On November 8, 2005, a Wisconsin judge sentenced Chai Vang to six consecutive life sentences in prison without parole for the first degree intentional murder of six deer hunters and to 55 years in prison on three counts of attempted first-degree intentional homicide. The sentencing came nearly a year after the November 2004, encounter between eight friends and a stranger who had occupied their deer stand on private woodland near Deer Lake in northern Wisconsin. The stranger, told to leave because he was on private land, seemed to comply but turned and opened fire. As the friends, only one of whom carried a rifle, fled in terror, the stranger gave chase, murdering each in turn.

South Dakota Supreme Court justices may have missed news of the sentencing as they drafted their opinions regarding, among other matters, a constitutional challenge by two farming families to the State Legislature’s 2003 amendment to South Dakota’s hunting laws. Nonetheless, they had to be aware of the tragic case, which made horrifying national news the previous November. Moreover, the families, fearful that they might be subjected to a similar assault should they seek to exclude hunters from their property, had mentioned the Wisconsin matter in their brief to the Court. Oral arguments occurred before the Supreme Court on August 31, 2005; ten days later, the Wisconsin murder trial began.

For decades, South Dakota allowed hunting along section lines or other roads if the rights-of-way were used for vehicular traffic; however, hunters were not allowed to fire over or onto privately owned land without the landowner’s permission. In fact, since 1973, South Dakota barred hunting on private property without the owners’ permission recognizing owners’ right to exclude hunters. Plus, the U.S. Supreme Court held that firing weapons over or onto private property is a physical invasion and hence an unconstitutional “taking” “for public use” without “just compensation.” That South Dakota law protected property rights was clear in 2002 when South Dakota’s Supreme Court upheld the conviction of a hunter who shot game over private property from a public right-of-way road ditch.

After that ruling, South Dakota’s Legislature changed the hunting law to provide that lawful “hunting on highways or other public rights-of-way” includes shooting at game in flight over private land if the game took flight from or flew over the right-of-way. Hunters were advised of this new provision in a Hunting Manual and landowners were reminded of state law that criminalized interference with lawful hunting.

The families, who maintain private hunting on their property, sued, arguing the law unconstitutionally denies them the right to bar hunters from shooting over or onto their property. South Dakota’s Attorney General argued the law only decriminalized hunting on private land: landowners may still exclude hunters—explicitly, with civil lawsuits; implicitly, by telling them they are trespassing!

In November 2004, a South Dakota Circuit Court rejected the “conflict and confusion” that view would cause; because the statute unconstitutionally took property, it had gone “too far.” In January 2006, South Dakota’s Supreme Court reversed that decision, embracing instead the Attorney General’s post hoc contrivance. Thus, to avoid ruling that the statute allowed hunters to trespass on private property, caused an unconstitutional taking, and must be stricken, the Court held the Legislature had not done what it explicitly intended to do.

It is no longer criminal in South Dakota for hunters to shoot over and onto private property; however, it is not lawful: it remains a trespass and a tort. Wealthy landowners may hire guards and lawyers to sue hunters for trespassing on their land. Others may, pursuant to state law, use “sufficient” “force or violence” “to prevent[] or attempt[] to prevent…any trespass.” South Dakota politicians may have saved an unconstitutional statute and the hunting revenue they covet, but South Dakotans will pay in the lawlessness that may result. If the Wisconsin tragedy is any indication, some may pay with their lives.