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[Gene GeRue <genegerue AT ruralize.com>]

SOUTH DAKOTA HUNTING TRESPASS LAW IS UNCONSTITUTIONAL!

November 30, 2004 - For Immediate Release
Contact: William Perry Pendley

DENVER, CO. Two farming families in central South Dakota, who challenged 
the constitutionality of a state law that denies them the right to prevent 
hunters from trespassing on their property, today won the victory they 
sought. A South Dakota Circuit Court, in response to motions for summary 
judgment filed by the families and by State officials, called the law, "the 
very kind of thing that the Takings Clause[, which] 'stands as a shield 
against the arbitrary use of governmental power[,]' was meant to prevent," 
and ruled it "clearly and unmistakenly" unconstitutional because "it 
violates constitutional principles." In so ruling, the court adopted the 
arguments of Jeff and Tricia Messmer of Wessington Springs, in Jerauld 
County, and Robert and Judith Benson of Winner, in Tripp County.

"We are thrilled with this victory for South Dakota property owners both 
because the court applied the protections the U.S. and South Dakota 
Constitutions accord property owners, as they were intended, and because 
the court ignored the procedural ruse raised by South Dakota to prevent a 
ruling on this issue," said William Perry Pendley of Mountain States Legal 
Foundation, which represents the families. "We won the ruling we wanted: 
that South Dakota cannot allow hunters to shoot onto private property."

Until recently, South Dakota law allowed hunting and fishing along section 
lines or other highways if such rights-of-way are used for vehicular 
traffic; however, hunters were not allowed to fire over or onto 
privately-owned land without the landowners' permission. On March 22, 2003, 
that law was amended to permit hunters to fire at and kill small game that 
takes flight from a right-of-way. Under the new law, property owners are 
barred from preventing hunters from firing over or onto their land at small 
game that has traveled onto their land from the adjacent right of way.

The law affects a fundamental change in South Dakota law, which, for 
decades, barred hunting on private property without the owners' permission 
and recognized the right of owners to deny entry to all others. In 
addition, the U.S. Supreme Court recognized consistently that the firing of 
weapons over or onto private property is a physical invasion, which, in 
turn, is an unconstitutional taking, that is, the taking "for public use" 
of "private property" without "just compensation."

On October 22, 2003, the families filed their lawsuit. On January 5, 2004, 
they filed a motion for summary judgment; South Dakota filed a similar 
motion on February 27, 2004, to which the families replied on March 29, 
2004, to which State officials responded on April 28, 2004. Oral arguments 
took place on June 30, 2004.

Mountain States Legal Foundation is a nonprofit, public interest legal 
center dedicated to individual liberty, the right to own and use property, 
limited and ethical government, and the free enterprise system. Its offices 
are in suburban Denver, Colorado.

Copyright - Mountain States Legal Foundation 1999
2596 South Lewis Way
Lakewood, Colorado 80227
http://www.mountainstateslegal.org/press_releases.cfm?pressreleaseid=410