Benson v. State

#23492-aff in pt & rev in pt-JKM & DG

2006 SD 8

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

ROBERT BENSON, JUDITH BENSON,

JEFF MESSMER, and TRICIA MESSMER, Plaintiffs and Appellees,

v.

STATE OF SOUTH DAKOTA,

M. MICHAEL ROUNDS, in his

official capacity as Governor

of the State of South Dakota;

LARRY LONG, in his official

capacity as Attorney General

of the State of South Dakota;

SOUTH DAKOTA DEPARTMENT

OF GAME, FISH & PARKS; and

JOHN COOPER, in his official

capacity as Secretary of the

South Dakota Department of

Game, Fish & Parks, Defendants and Appellants.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SIXTH JUDICIAL CIRCUIT

TRIPP COUNTY, SOUTH DAKOTA

* * * *

HONORABLE KATHLEEN F. TRANDAHL

Judge

* * * *

ARGUED ON AUGUST 31, 2005

OPINION FILED 01/24/06

* * * *

CHRISTOPHER D. DOHRER of

Richardson, Wyly, Wise,

Sauck & Hieb. LLP

Aberdeen, South Dakota

J. SCOTT DETAMORE

JOSEPH F. BECKER

WILLIAM PERRY PENDLEY

Mountain States Legal Foundation Attorneys for plaintiffs

Lakewood, Colorado and appellees.

LAWRENCE E. LONG

Attorney General

CRAIG M. EICHSTADT

ROBERT E. MAYER

Deputy Attorneys General Attorneys for defendants

Pierre, South Dakota and appellants.

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[¶1.] MEIERHENRY, Justice and GILBERTSON, Chief Justice

[¶2.] Justice Judith K. Meierhenry delivers the opinion of the Court

on Issue 1, which holds that the circuit court had jurisdiction to consider

this action.

[¶3.] Justice Judith K. Meierhenry delivers the opinion of the Court

on Issue 2, which holds that Landowners have standing to challenge the

statute at issue.

[¶4.] Chief Justice David Gilbertson delivers the opinion of the

Court on Issue 3, which holds that the challenged statute does not

constitute a compensable taking under the United States Constitution or

the South Dakota Constitution.

[¶5.] MEIERHENRY, Justice, writing for the Court on Issues

1 and 2.

[¶6.] Landowners, Robert and Judith Benson and Jeff and Patricia Messmer

(hereinafter Landowners), brought this action seeking declaratory and injunctive

relief against the State of South Dakota, a state agency, and certain state officials.

Landowners challenge the constitutionality of SDCL 41-9-1.1(2), which addresses

the shooting of small game from a public right-of-way. The circuit court found that

SDCL 41-9-1.1(2) constitutes a taking of private property without just compensation

in violation of the United States and South Dakota Constitutions. On appeal, the

State contests that decision. The State also asserts that the circuit court lacked

jurisdiction to grant a declaratory judgment and that Landowners lacked standing

to challenge SDCL 41-9-1.1(2). Through separate opinions, we hold that the circuit

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court had jurisdiction to grant a declaratory judgment and that Landowners had

standing, however we hold that SDCL 41-9-1.1(2) is not a taking within the

meaning of the Fifth Amendment of the United States Constitution and article VI,

section 13 of the South Dakota Constitution. Affirmed in part and reversed in part.

FACTUAL AND PROCEDURAL BACKGROUND

[¶7.] The Bensons reside on and operate a ranch in Tripp County, South

Dakota. The ranch operates primarily for agricultural purposes, which include the

raising of livestock and a variety of crops. The Messmers reside on and operate a

farm in Jerauld County, South Dakota. The Messmer farm is a cattle and grain

operation. Both the Bensons and the Messmers also operate private hunting lodges

and maintain private hunting preserves on their properties. The Benson ranch

includes a parcel cultivated exclusively for pheasant habitat.

[¶8.] South Dakota law requires hunters to obtain the permission of

property owners before hunting on private property. SDCL 41-9-1. The permission

requirement, however, does not apply to highways or other public rights-of-way

except for certain safety zones, that is, within six hundred sixty feet of an occupied

dwelling, a church, a schoolhouse, or livestock. SDCL 41-9-1.1. In 2003, the South

Dakota Legislature amended SDCL 41-9-1.1 by adding the following language:

For purposes of this section, hunting on highways or other

public rights-of-way includes:

(1) The shooting at or taking by legal methods of small

game, except mourning dove, that are located

within the boundaries of the highway or public

right-of-way;

(2) The shooting at or taking by legal methods of small

game, except mourning dove, that are in flight over

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private land if the small game has either originated

from or has taken flight from the highway or public

right-of-way or if the small game is in the process of

flying over the highway or public right-of-way.

If subdivision (2) of this section is declared by an advisory

opinion or adjudication of the South Dakota Supreme Court to

be a taking of private property requiring compensation,

subdivision (2) is void.

SDCL 41-9-1.1.

[¶9.] Landowners contend that subsection two results in a taking of their

property without just compensation in violation of article VI, section 13 of the South

Dakota Constitution and the Fifth Amendment of the United States Constitution.

They assert that SDCL 41-9-1.1(2) prevents them “from excluding members of the

public from shooting onto their ranch or farmland while hunting in the public

rights-of-way that border [their] properties.” Several miles of public rights-of-way

in the form of county and township roads bordering Landowners’ properties are

used by the public for road hunting. The roads that border the Bensons’ pheasant

preserve are particularly attractive to road hunters.

[¶10.] Landowners brought suit against the State of South Dakota and the

South Dakota Department of Game, Fish, and Parks (GFP), as well as Governor M.

Michael Rounds, Attorney General Larry Long, and GFP Secretary John Cooper in

their official capacities (collectively State). In addition to claiming that SDCL 41-9-

1.1(2) constitutes an unconstitutional taking, Landowners asserted that the state

officials violated 42 USC § 1983 by depriving them of their constitutional rights

under color of law. Landowners asked the circuit court to declare that SDCL 41-9-

1.1(2) results in an unconstitutional taking of private property without just

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compensation. Landowners also sought injunctive relief preventing the State’s

enforcement of SDCL 41-9-1.1(2).

[¶11.] Because the case presented no genuine issues of material fact,

Landowners and the State filed cross motions for summary judgment. The circuit

court granted summary judgment in favor of Landowners. On appeal, the State

raises the following issues:

ISSUES

1. Whether the circuit court had jurisdiction to grant a declaratory

judgment against the State or officials of the State acting in

their official capacities.

2. Whether Landowners lack standing to challenge criminal

prohibitions under which they are not threatened.

3. Whether the circuit court erred when it held that SDCL 41-9-

1.1(2) constitutes a taking of Landowners’ property within the

meaning of the Takings Clause of the Fifth Amendment of the

United States Constitution and article VI, section 13 of the

South Dakota Constitution.

DECISION

[¶12.] 1. Whether the circuit court had jurisdiction to grant a

declaratory judgment against the State or officials of the State

acting in their official capacities.

[¶13.] The State asserts that the circuit court lacked jurisdiction to hear

Landowners’ declaratory judgment action against the State. Whether the circuit

court had jurisdiction is a question of law to be reviewed de novo. Dakota Systems,

Inc. v. Viken, 2005 SD 27, ¶7, 694 NW2d 23, 27. The State first asserts that the

doctrine of sovereign immunity bars this suit. The State admits that under the Ex

parte Young doctrine, the Court may hear an action alleging that state officials are

acting unconstitutionally. See 209 US 123, 28 SCt 441, 52 LEd 714 (1908). The

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State, however, maintains that the state officials are taking no action and that they

are merely “refusing to implement a criminal prohibition that no longer exists.”

The State argues that sovereign immunity bars a declaratory judgment action

against the State or its officials. Further, even if such an action may be brought,

the State argues it does not present a justiciable controversy.

[¶14.] In light of settled precedent, we find no merit to the State’s argument.

We have recognized that the right to just compensation “is a right of the strongest

character” and is “a self-executing constitutional provision.” SDDS, Inc. v. State,

2002 SD 90, ¶22, 650 NW2d 1, 9. As such, “the remedy does not depend on

statutory facilitation.” Id. Therefore, common law actions may be brought against

the State and its officers even though no express consent has been given. See

Darnall v. State, 79 SD 59, 108 NW2d 201 (1961) (allowing an action under article

VI, section 13 of the South Dakota Constitution against the state, the governor, and

members of the state highway commission). As we stated in Darnall,

Where a state or an agency thereof acting in a sovereign

capacity takes or damages private property for public use

without exercising the power of eminent domain, it cannot evade

the constitutional provision which guarantees the right to

compensation but will be obligated to pay the same as if it had

proceeded under that power. The constitution should bind

officers and agents of the state and the state should not by

indirect action be permitted to violate it. It expects and

demands compliance by its citizens and they have the

correlative right to expect that from the state.

79 SD at 65-66, 108 NW2d at 204 (citations omitted).

[¶15.] Additionally, we recognized in SDDS, Inc., that “South Dakota’s

sovereign immunity is not a bar to [a] Fifth Amendment takings claim.” 2002 SD

90, ¶20, 650 NW2d at 8-9. “‘[T]he constitutional privilege of a state to assert its

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sovereign immunity in its own courts does not confer upon a state a concomitant

right to disregard the [United States] Constitution,’” and “‘[t]he states and their

officers are bound by obligations imposed by the Constitution.’” Id. (quoting Alden

v. Maine, 527 US 706, 754, 119 SCt 2240, 2266, 144 LEd2d 636 (1999)). We have

also recognized that a declaratory judgment action is a proper method of bringing a

constitutional question before the court. Dan Nelson, Auto., Inc. v. Viken, 2005 SD

109, ¶30, 706 NW2d 239, 251 (finding “rather novel” the notion that “states are

generally immune from suits for declaratory relief”); Dakota Systems, Inc., 2005 SD

27, ¶9, 694 NW2d at 28 (finding that sovereign immunity does not bar a declaratory

judgment action against a state official); see also Ex parte Young, 209 US 123, 28

SCt 441, 52 LEd 714; White Eagle Oil & Refining Co. v. Gunderson, 48 SD 608, 205

NW 614 (1925) (applying the Ex parte Young doctrine).

[¶16.] Finally, we reject the State’s claim that no justiciable controversy has

been presented. Under the Declaratory Judgments Act, any person whose rights

are affected by a statute may obtain a declaration of rights. SDCL 21-24-3. We

have said that in order for a court to have jurisdiction over a declaratory judgment

action, there must be “‘a justiciable controversy; that is to say, a controversy in

which a claim of right is asserted against one who has an interest in contesting it.’”

Danforth v. City of Yankton, 71 SD 406, 412, 25 NW2d 50, 53 (1946) (citation

omitted). Landowners, as property owners, have a claim of right to their property.

Thus, their allegation that the State’s actions result in an unconstitutional taking is

sufficient to present a justiciable controversy. Landowners have properly

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challenged the constitutionality of SDCL 41-9-1.1(2) by proceeding against the State

and its officials in this declaratory action.

[¶17.] GILBERTSON, Chief Justice, KONENKAMP, ZINTER, Justices,

and JOHNSON, Circuit Judge, concur.

[¶18.] 2. Whether Landowners lack standing to challenge criminal

prohibitions under which they are not threatened.

[¶19.] The State claims that Landowners lack standing to challenge the

constitutionality of SDCL 41-9-1.1(2). “The question of whether a party has

standing to maintain an action is a question of law reviewable by this Court de

novo.” Fritzmeier v. Krause Gentle Corp., 2003 SD 112, ¶10, 669 NW2d 699, 702.

According to the State, Landowners lack standing for three reasons. First,

Landowners have not been threatened with prosecution under SDCL 41-9-1.1(2),

and they “have no standing to challenge a failure to prosecute someone else.”

Second, Landowners “lack authority to demand that certain acts remain criminal

after the Legislature has repealed their prohibition.” Third, the circuit court “lacks

the authority to adopt a criminal prohibition where it has been repealed by the

[L]egislature.”

[¶20.] In response, Landowners argue that the State mischaracterizes their

claims. They “neither ‘challenge a criminal prohibition under which they are not

threatened’ nor ‘judicially assert that certain activity must be [made] criminal.’” We

agree with Landowners. Landowners do not assert that SDCL 41-9-1.1(2)

accomplishes a taking of their property by decriminalizing an act. In their

complaint, Landowners allege that:

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44. Section 41-9-1.1(2) denies [Landowners] the right to prevent

others from shooting onto their property. Section 41-9-1.1(2)

denies [Landowners] the right to exclude others from

recreating on their property, as well as the right to prevent

the projection and disposition of objects onto their property.

45. Section 41-9-1.1(2) denies [Landowners] valuable hunting

and fishing rights appurtenant to and separable from their

property as provided by [SDCL] 43-13-1.

46. Section 41-9-1.1(2) subjects [Landowners] and their families,

employees, and guests to fear and risk of serious bodily

injury or death and subjects [Landowners]’ homes,

structures, livestock, equipment, crops and land to injury

and/or damage.

47. Section 41-9-1.1(2) impairs [Landowners]’ full enjoyment

and use of their property.

Thus, Landowners consistently argue that the statute subjects them to intrusions of

their property. Landowners do not refer to “decriminalization,” nor do they demand

prosecution. Rather, the State asserts the decriminalization argument.

[¶21.] The State cannot change the nature of the claim in order to oust a

court of jurisdiction. See Elliott v. Bd. of County Comm’rs, 2005 SD 92, ¶¶16-17,

703 NW2d 361, 368 (stating that “jurisdiction depends on the pleadings and the

prayer for relief” and “‘[t]he test for determining jurisdiction is ordinarily the nature

of the case, as made by the complaint, and the relief sought’”). Here, Landowners

seek relief in the form of a declaratory judgment to establish whether SDCL 41-9-

1.1(2) is a taking. This request comports with the purpose of the Declaratory

Judgments Act, which “is to ‘declare rights, status, and other legal relations.’”

Kneip v. Herseth, 87 SD 642, 647, 214 NW2d 93, 96 (1974) (citing SDCL 21-24-1).

Further, Landowners’ claim falls squarely within the philosophy of the Declaratory

Judgments Act. Id. at 647-48. As we said in Kneip v. Herseth,

The philosophy of the Declaratory Judgment Act establishes

that through it the courts seek to enable parties to

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authoritatively settle their rights in advance of any invasion

thereof. Within the bounds of the remedial act’s command of a

liberal construction and liberal administration is found its

ultimate goal of allowing “the courts (to be) more serviceable to

the people.” The achievement of peace through the avoidance of

predictable conflict permeates as the Act’s main function.

Id. at 648 (citations omitted).

[¶22.] Standing to bring an action depends on an allegation by the litigant

“‘that he personally has suffered some actual or threatened injury as a result of the

putatively illegal conduct of the defendant.’” Parsons v. South Dakota Lottery

Comm’n, 504 NW2d 593, 595 (SD 1993) (quoting Gladstone, Realtors, et al. v.

Bellwood, 441 US 91, 99, 99 SCt 1601, 1608, 60 LEd2d 66 (1979)). The United

States Supreme Court has stated that in order to establish standing, a litigant must

show: (1) an injury in fact suffered by the plaintiff, (2) a causal connection between

the plaintiff’s injury and the conduct of which the plaintiff complains, and (3) the

likelihood that the injury will be redressed by a favorable decision. Lujan v.

Defenders of Wildlife, 504 US 555, 560-61, 112 SCt 2130, 2136, 119 LEd2d 351

(1992).

[¶23.] In this case, Landowners allege that SDCL 41-9-1.1(2) allows the

invasion of their property. Such alleged invasion constitutes an actual or

threatened injury to Landowners’ legally protectible interest in their land. Further,

their claimed injury is fairly traceable to SDCL 41-9-1.1(2). Finally, a finding that

the alleged invasion is a governmental taking without compensation renders the

statutory provision void. See SDCL 41-9-1.1. Thus, under the principles set forth

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by both this Court and the United States Supreme Court, Landowners have

established standing to assert a claim that SDCL 41-9-1.1(2) constitutes a taking.1

[¶24.] GILBERTSON, Chief Justice, KONENKAMP, Justice, and

JOHNSON, Circuit Judge, concur.

[¶25.] ZINTER, Justice, concurs specially.

[¶26.] JOHNSON, Circuit Court Judge, sitting for SABERS, Justice,

disqualified.

ZINTER, Justice (concurring specially).

[¶27.] I concur in the Court’s opinion to the extent it suggests that

Landowners initially had standing because they alleged SDCL 41-9-1.1(2)

constituted a taking under the state and federal constitutions. I concur because,

when standing is at issue in the early stages of litigation, “the focus is on the party

seeking relief, not on the issues [presented, and] [w]e do not consider whether the

party filing the challenge ‘will ultimately be entitled to any relief but whether he

1. Despite the fact that both standing jurisprudence and the Declaratory

Judgments Act allow Landowners to challenge SDCL 41-9-1.1(2), the State

argues that under our decision in Reis v. Miller, Landowners lack standing to

challenge the “decriminalization” of an act. 1996 SD 75, 550 NW2d 78. The

State’s reliance on Reis is misplaced. In Reis, the issue presented was not an

unconstitutional taking of private property. Id. ¶¶7-9. Rather, the issue was

the extent of the easement included in public rights-of-way. Id. Further, in

Reis we declined to analyze the issue of standing as to an equal protection

claim. Id. ¶24. We did, however, recognize that the landowner had standing

to bring a declaratory judgment action, and we proceeded to review the case

on that basis. Id. ¶24.

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has the legal right to seek judicial redress for his grievance.’” Matter of Baby Boy

K., 1996 SD 33, ¶14, 546 NW2d 86, 90 (internal citations omitted).

[¶28.] However, I disagree with the Court’s opinion to the extent it suggests

that the causation element of standing was ultimately proven, i.e., that

Landowners’ “injury is fairly traceable to SDCL 41-9-1.1(2).” Supra ¶23. Although

Landowners may be presumed to have satisfied this causation element of standing

at the outset of the litigation, the United States Supreme Court has clearly

explained that Landowners also bore the burden of proving the causation element of

standing throughout all stages of the litigation. Lujan, 504 US at 561, 112 SCt at

2136, 119 LEd2d at 364 (citations omitted).2

[¶29.] Furthermore, Landowners bore the burden of proving the causation

requirement of standing “in the same way as any other matter on which the

plaintiff bears the burden of proof, i.e., with the manner and degree of evidence

required at the successive stages of the litigation.” Id. (citations omitted). Thus,

the manner and degree of proof necessary for Landowners to sustain their standing

burden changed from the outset when they alleged a takings claim to the final

disposition when they were required to prove that claim:

At the pleading stage, general factual allegations of injury

resulting from the defendant’s conduct may suffice, for on a

2. This Court has also recognized the causal connection element of standing.

“[S]tanding is satisfied if the litigant can show ‘that he personally has

suffered some actual or threatened injury as a result of the putatively illegal

conduct of the Defendant.’” Edgemont Sch. Dist. 23-1 v. South Dakota Dep’t

of Revenue, 1999 SD 48, ¶16, 593 NW2d 36, 40 (quoting Agar Sch. Dist. No.

58-1 v. McGee, 527 NW2d 282, 284 (SD 1995) (citing Parsons, 504 NW2d 593,

595 (quoting Gladstone, Realtors, 441 US at 99, 99 SCt at 1608, 60 LEd2d at

76))) (emphasis added).

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motion to dismiss we “presum[e] that general allegations

embrace those specific facts that are necessary to support the

claim.” National Wildlife Federation, supra, 497 US at 889, 110

SCt at 3189. In response to a summary judgment motion,

however, the plaintiff can no longer rest on such “mere

allegations,” but must “set forth” by affidavit or other evidence

“specific facts,” FedRule CivProc 56(e), which for purposes of the

summary judgment motion will be taken to be true. And at the

final stage, those facts (if controverted) must be “supported

adequately by the evidence adduced at trial.” Gladstone, supra,

441 US at 115, n31, 99 SCt at 1616, n31.

Lujan, 504 US at 561, 112 SCt at 2137, 119 LEd2d at 364-65. Therefore, the mere

fact that Landowners may be presumed to have standing to plead and litigate their

takings claim does not mean that they necessarily satisfied their burden of proving

standing on the merits.

[¶30.] In this case, the causal connection element of standing is also a

required element of Landowners’ takings claim. See supra ¶22 (citing Lujan, 504

US at 560-61, 112 SCt at 2136, 119 LEd2d at 364), and infra ¶¶57-74, 83 (analyzing

Landowners’ takings claim). Consequently, in order to maintain standing and

prove their takings claim on the merits, Landowners were required to prove

causation between the claimed injury (invasion of their property) and the conduct of

which they complain (legislation decriminalizing certain types of hunting on public

rights-of-way).

[¶31.] Landowners’ burden of proving this causal connection for standing is

especially high in this case because they are challenging a regulation (or more

properly, the non-regulation) of parties who are not before the Court, i.e., private

individuals who engage in hunting on public rights-of-way. Landowners’ burden is

especially high because, when an individual challenges the legality of government

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action or inaction, the extent of the burden of establishing the elements of standing

will depend on whether the plaintiff is the object of the action or inaction. Lujan,

504 US at 561-62, 112 SCt at 2137, 119 LEd2d at 365. If the plaintiff is the object

of the government’s action or inaction, “there is ordinarily little question that the

action or inaction has caused [the] injury, and that a judgment preventing or

requiring the action will redress it.” Id. However, if the “plaintiff’s asserted injury

arises from the government’s allegedly unlawful regulation (or lack of regulation) of

someone else, much more is needed.” Id. at 562.

In that circumstance, causation and redressability ordinarily

hinge on the response of the regulated (or regulable) third party

to the government action or inaction--and perhaps on the

response of others as well. The existence of one or more of the

essential elements of standing “depends on the unfettered

choices made by independent actors not before the courts and

whose exercise of broad and legitimate discretion the courts

cannot presume either to control or to predict,” . . . and it

becomes the burden of the plaintiff to adduce facts showing that

those choices have been or will be made in such manner as to

produce causation and permit redressability of injury.

Id. (internal citations omitted). Therefore, in cases like this where the statutes at

issue regulate the criminality of hunting by private individuals, rather than the

conduct of plaintiff Landowners, “standing is not precluded, but it is ordinarily

‘substantially more difficult’ to establish.” Id. (emphasis added) (citations omitted).

[¶32.] In this case, Landowners failed to meet this difficult standing burden

because, as the Court explains in Issue 3, the State’s passage of SDCL 41-9-1.1(2)

was not the legal cause of Landowners’ injury. See infra ¶¶57-74, 83. SDCL 41-9-

1.1(2) was not the legal cause of Landowners’ injury because the statute is nothing

more than the definitional part of a criminal regimen regulating hunting by private

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individuals. The criminal nature of the regulation is undeniable. SDCL 41-9-1

makes it a Class 2 misdemeanor to hunt “upon any private land not his own or in

his possession without permission from the owner or lessee of such land.” And,

SDCL 41-9-1.1(2), the statute Landowners challenge, simply defines the types of

hunting on the rights-of-way that are and are not subject to the criminal

proscription in SDCL 41-9-1. SDCL 41-9-1.1(2) provides in relevant part: Ҥ 41-9-1

[the criminal proscription] does not apply to ... [t]he shooting at or taking by legal

methods of small game ... that are in flight over private land if the small game has

either originated from or has taken flight from the highway or public right-of-way.”

[¶33.] The Court acknowledges the fact that this is a criminal statute but

contends that the State has “mischaracterize[d]” Landowners’ claim. Supra ¶20. I

agree that the State cannot mischaracterize the nature of Landowners’ claim to

defeat standing at the pleading stage. However, at the same time, Landowners

cannot ignore the legal effect of SDCL 41-9-1.1(2) in satisfying their burden of proof

regarding standing on the merits. The legal effect of this statute is that it defines

the type of conduct that subjects individual hunters to a criminal prosecution. But,

Landowners “lack[] a judicially cognizable interest in the prosecution or non-

prosecution of another.” Linda R. S. v. Richard D., 410 US 614, 619, 93 SCt 1146,

1149, 35 LEd2d 536 (1973). Because Landowners lack a judicially cognizable

interest in the prosecution or non-prosecution of the individual hunters,

Landowners cannot establish the causal connection necessary to maintain standing

in the merits stage of this litigation. Id. (concluding that “given the special status of

criminal prosecutions in our system,” a person has no standing to challenge the

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failure to prosecute another even though that person may suffer an injury due to

the failure to prosecute).

[¶34.] The Court recognizes the causal connection requirement of Lujan and

concludes that Landowners’ injury, the invasion of their property, is “fairly

traceable” to this statute. See supra ¶¶22-23. However, the Court errs in this

conclusion because it only cites a portion of the causation rule. The entire rule

provides: “there must be a causal connection between the injury and the conduct

complained of -- the injury has to be ‘fairly ... trace[able] to the challenged action of

the defendant, and not ... th[e] result [of] the independent action of some third party

not before the court.’” Lujan, 504 US at 560, 112 SCt at 2136, 119 LEd2d at 354

(emphasis added) (citation omitted). If the entire causation rule is acknowledged

and applied, it is evident that Landowners failed to prove standing. They failed to

prove standing because their injury is only caused when third party hunters, who

are not before the court, choose to shoot into Landowners’ airspace.

[¶35.] Because the third-party hunters are the legal cause of Landowners’

injury, Landowners have failed to meet their burden of proving standing on the

merits.3 Consequently, I decline to join that portion of the Court’s opinion broadly

stating that Landowners’ injury was “fairly traceable” to the statute decriminalizing

certain types of hunting in the rights-of-way.

3. Although I would address Landowners’ taking claim as a part of the standing

issue, I fully concur in the Court’s takings analysis in Issue 3.

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[¶36.] GILBERTSON, CHIEF JUSTICE, writing for the Court on Issue

3.

[¶37.] 3. Whether the circuit court erred when it held SDCL 41-9-1.1(2)

constitutes a taking of Landowners’ property within the meaning

of the Takings Clause of the Fifth Amendment of the United

States Constitution, and article VI, section 13 of the South

Dakota Constitution

[¶38.] Landowners brought this action seeking declaratory and injunctive

relief against the State, GFP and certain state officials. Landowners challenge the

constitutionality of SDCL 41-9-1.1(2), which decriminalizes the shooting of small

game birds that have taken flight from or fly over a public right-of-way. The circuit

court found SDCL 41-9-1.1(2) constitutes a taking without just compensation in

violation of the Fifth Amendment of the United States Constitution and article VI,

section 13 of the South Dakota Constitution. We reverse on Issue 3.

[¶39.] Statutory interpretation is an issue of law to be reviewed de novo.

Block v. Drake, 2004 SD 72, ¶8, 681 NW2d 460, 463 (citing Steinberg v. State Dept.

of Military Affairs, 2000 SD 36, ¶6, 607 NW2d 596, 599). An appeal asserting an

infringement of a constitutional right is also an issue of law to be reviewed under

the de novo standard of review. State v. Dillon, 2001 SD 97, ¶12, 632 NW2d 37, 43

(citing State v. Stanga, 2000 SD 129, ¶8, 617 NW2d 486, 488). Under the de novo

standard of review, we give no deference to the circuit court’s conclusions of law.

Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶4, 593 NW2d 414, 416 (citing City

of Colton v. Schwebach, 1997 SD 4, ¶8, 557 NW2d 769, 771).

[¶40.] Challenges to the constitutionality of a statute face a significant and

heavy burden. Meinders v. Weber, 2000 SD 2, ¶10, 604 NW2d 248, 254 (quoting

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Sedlacek v. South Dakota Teener Baseball Program, 437 NW2d 866, 868 (SD 1989)

(quoting Oien v. City of Sioux Falls, 393 NW2d 286, 289 (SD 1986))). There is a

strong presumption that a statute is constitutional. State v. Asmussen, 2003 SD

102, ¶2, 668 NW2d 725, 728 (citing State v. Allison, 2000 SD 21, ¶5, 607 NW2d 1,

2). “In order to prevail, a successful challenge must refute this presumption beyond

a reasonable doubt.” Id. (citing State v. McGill, 536 NW2d 89, 94 (SD 1995)). “If a

statute can be construed so as not to violate the constitution, that construction must

be adopted.” Wegleitner v. Sattler, 1998 SD 88, ¶4, 582 NW2d 688, 689 (quoting

Cary v. City of Rapid City, 1997 SD 18, ¶10, 559 NW2d 891, 893 (citing Simpson v.

Tobin, 367 NW2d 757, 766 (SD 1985))).

[¶41.] The Takings Clause of the Fifth Amendment provides in relevant part:

“nor shall private property be taken for public use, without just compensation.” US

Const. amend V. It is applicable to the states through the Due Process Clause of

the Fourteenth Amendment. Lingle v. Chevron USA, Inc., ___ US ___, ___, 125 SCt

2074, 2080, 161 LEd2d 876 (2005) (citing Chicago, B. & Q. R. Co. v. Chicago, 166 US

226, 17 SCt 581, 41 LEd 979 (1897)). Article VI, section 13 of the South Dakota

Constitution provides: “Private property shall not be taken for public use, or

damaged,4 without just compensation, which will be determined according to legal

procedure established by the Legislature and according to § 6 of this article.”

4. The Landowners’ claim is really about damage to real property, not an

outright permanent taking. Article VI, section 13 of the South Dakota

Constitution also provides compensation for damage to private property

which is not permissible under the law. Originally this “damage” provision

was not part of our proposed State Bill of Rights but rather the 1883

Constitutional Convention adopted the language of the Federal Constitution.

(continued . . .)

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[¶42.] The issue of what constitutes a “public use” has been a subject of

frequent litigation. Recently in Kelo v. City of New London, ___US___, 125 SCt

2655, 162 LEd2d 439 (2005), the United States Supreme Court concluded that a

taking from one private party that will ultimately go to another private party

complies with this standard as long as “it embraced … the broader and more

natural interpretation of public use as ‘public purpose.’” Id. at 2657. However, the

Court recognized that the states were free “to impose ‘public use’ requirements that

are stricter than the federal baseline.” Id. at 2668. South Dakota has consistently

done so. In its interpretation of article VI, section 13, this Court adopted the “use

by the public test.” Illinois Central R.R. Co. v. East Sioux Falls Quarry Co., 33 SD

63, 144 NW 724 (1913). This definition requires that there be a “use or right of use

on the part of the public or some limited portion of it[.]” Id. at 77, 144 NW at 728.

In that case, we did consider the alternate “public benefit” rule but opted for the

“use by the public” rule. Id.

The reasons which incline us to this view are, first, that it

accords with the primary and more commonly understood

meaning of the words; second, it accords with the general

practice in regard to taking private property for public use in

vogue when the phrase was first brought into use in the earlier

Constitutions; third, it is the only view which gives the words

__________________

(. . . continued)

See Constitution Convention of 1883, South Dakota Historical Collections, vol

XXI, 342 (State Historical Society, 1942). However, the 1885 Constitutional

Convention, after some debate, included the term “damage.” Constitutional

Debates of South Dakota, vol 1, at 292-299. This “damage” clause would

ultimately be adopted by the 1889 Constitutional Convention and become

part of our South Dakota Constitution. Constitutional Debates of South

Dakota, vol 2 at 133. See also Richards v. Washington Terminal Co., 233 US

546, 554, 34 SCt 654, 657, 58 LEd 1088 (1914).

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any force as a limitation or renders them capable of any definite

and practical application.

Id. at 78, 144 NW at 728. Thus, our state constitution provides its landowners more

protection against a taking of their property than the United States Constitution.

Cf. State v. Opperman, 247 NW2d 673, 674 (SD 1976) (citing Oregon v. Hass, 420

US 714, 95 SCt 1215, 43 LEd2d 570 (1975)) (holding that the South Dakota

Supreme Court has the power to interpret our state constitution as providing an

individual with greater protection than the Federal Constitution) (footnote omitted).

The “use by the public” standard continues to be the law of this jurisdiction. See

Great Northern Ry. Co. v. Chicago, St. P., M. & O. Ry. Co., 78 SD 168, 175-176, 99

NW2d 439, 443 (1959); Frawley Ranches, Inc. v. Lasher, 270 NW2d 366, 369 (SD

1978).

[¶43.] Examination of this constitutional issue cannot be conducted in a

historical vacuum. In a concurrence in Reis v. Miller, 1996 SD 75, ¶¶28-31, 550

NW2d at 84-85, (Gilbertson, J., concurring), a portion of the history of South Dakota

hunting laws was set forth:

Historically, there is no support for the contention of the

Plaintiffs that the Territorial Legislature in 1870, when

accepting the rights-of-way easement from the Federal

Government by enacting what is now SDCL 31-18-1, somehow

intended to limit or preclude hunting from these ribbons of real

estate. During the Territorial period, no limitations can be

found on hunting anywhere although I presume that a

landowner could maintain an action for trespass for entering on

his land without his permission. See Clark v. Bates, 1 Dakota

42, 46 NW 510 (1874), aff’d, 95 US 204, 24 LEd 471 (1877).

However, acts committed within the section line were not held to

be a trespass upon the adjoining landowner’s real property.

State v. Bonine, 41 SD 231, 170 NW 138 (1918). As to wild

game specifically, it was not until 1899 that the South Dakota

Legislature passed its first limitation on hunting anywhere in

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the State, by requiring the owners’ permission to hunt on

private land. See SDCL 41-9-1.

At common law, wild game was deemed to be the property of the

sovereign or state and not of the private real property owner.

State v. Pollock, 42 SD 360, 365, 175 NW 557, 558 (1919).

Therein we stated:

This power of the state is based largely on the

circumstance that the property right to the wild game

within its borders is vested in the people of the state in

their sovereign capacity; and as an exercise of its police

powers and to protect its property for the benefit of its

citizens, it is not only the right, but it is the duty of the

state to take such steps as shall preserve the game from

the greed of hunters.... The right to kill the game is a

boon or privilege granted either expressly or impliedly by

the sovereign authority and is not a right inhering in any

individual....

42 SD at 365-66, 175 NW at 559 (quoting 12 RCL 685). This

common law doctrine was reinforced in 1899 by the passage of

what is now SDCL 41-1-2, which provides in part, that “any

game bird, game animal, or game fish ... shall always and under

all circumstances be and remain the property of the state....”

Eighty-two years were to go by until the Legislature sought to

limit hunting within certain rights-of-way simply because of

that realty’s status by the amendment of SDCL 41-9-1.1 to that

effect. State v. Peters, 334 NW2d 217, 221 (SD 1983). Prior to

that time, the only applicable statutory hunting restrictions in

existence were those generally pertaining to hunting such as bag

limits or for the protections of farm buildings, fields and schools.

See SDC 1939, § 25.0427.

[¶44.] Although the law concerning hunting regulation upon private property

rather than public rights-of-way has been evolving since the commencement of

regulation in 1899, it is a fair summary that for the most part, it has been an

evolution from no regulation commencing at statehood in 1889 to that of increasing

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regulation and criminal restrictions upon hunters to protect private landowners.5

The challenged amendments to SDCL 41-9-1.1(2) are not consistent with that trend.

5. The original regulation of 1899 criminalized the act of taking game from

private lands if hunters “knowingly hunted on enclosed, occupied, or

cultivated lands of another without the consent of the owner or tenant[.]” Rev

SD Political Code § 3054 (1903) (codified as SDCL 41-9-1). The 1899 law was

amended to provide for posting of private lands. SL 1909, ch 240, § 25.

Under this law, a person could hunt almost anywhere unless the land was

posted “NO HUNTING” in the English language in conspicuous places. To

the extent that growing or standing grain fields were involved, permission

was required from the landowner. Id. In 1919 the law was amended so as to

provide that permission was required on all cultivated lands, not just grain

fields. SL 1919, ch 216, § 10511. The law was again amended in 1925 so as

to delete the requirement of cultivated lands. SL 1925, ch 175, § 10511.

Posting was required for all lands as of 1925. Id. In 1929, the Legislature

amended the statutes to require permission of the landowner if the land was

enclosed with a woven wire fence. SL 1929, ch 136, § 10511.

SDCL 41-9-1 and 41-9-1.1 trace their roots to 1947 when the Legislature

passed the following statute:

Farm land protected. No person shall enter upon any land not

his own or in his possession, which is fenced with woven wire, or

land upon which there is farm livestock, or land upon which

there is unharvested grain, or land which is within forty rods of

occupied farm buildings or schoolhouse without permission from

the owner or lessee of such nor shall any person enter upon any

land or lands not his own or in his possession with intent to take

or kill any bird or animal, after being notified by the owner or

lessee not to do so. Such notice may be given orally or by

posting written or printed notices to that effect in the English

language not more than eighty rods apart, in conspicuous places

around the land so protected. This section shall be printed on

all hunting licenses.

SL 1947, ch 112, § 1.

This subject matter has obviously continued to be one of great concern for the

Legislature as it has revisited this statute with amendments in 1949, 1951,

1953, 1955, 1964, 1967, 1968, 1972, 1973, 1981, 1988, 1992, 1996 and 2003.

See SL 1949, ch 94; SL 1951, ch 121; SL 1953, ch 107; SL 1955, ch 83; SL

1964, ch 79; SL 1967, ch 86; SL 1968, ch 100; SL 1972, ch 225; SL 1973, ch

269, § 1-2; SL 1974, ch 278; SL 1981, ch 299, § 1, § 4; SL 1988, ch 337; SL

(continued . . .)

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[¶45.] SDCL 41-9-1.1(2) provides in relevant part:

The shooting at or taking by legal methods of small game, except

mourning dove, that are in flight over private land if the small

game has either originated from or has taken flight from the

highway or public right-of-way or if the small game is in the

process of flying over the highway or public right-of-way.

If subdivision (2) of this section is declared by an advisory

opinion or adjudication of the South Dakota Supreme Court to

be a taking of private property requiring compensation,

subdivision (2) is void.

The object of SDCL 41-9-1.1(2) is to define what constitutes criminal versus non-

criminal conduct when hunting on rights-of-way section lines or highways. SDCL

41-9-1.1(2) does not seek to impose a limitation on the conduct of landowners or on

the use of their property. Therefore, we must analyze the facts as brought forth by

the Landowners in order to determine if the actions of the hunters who act in

compliance with SDCL 41-9-1.1(2) and the 2003 GFP Hunting Handbook result in a

taking within the meaning of the Fifth Amendment Takings Clause and article VI,

section 13 takings jurisprudence, as was concluded by the circuit court.6

__________________

(. . . continued)

1991, ch 337, § 62; SL 1992, ch 293, § 13; SL 1996, ch 252, § 1; SL 2003, ch

225, § 1.

6. Landowners go to great lengths to characterize their claims as something

other than an objection to the Legislature’s decriminalization of this one

aspect of “road hunting.” However, the true nature of their claim is revealed

by all parties’ agreement (including the circuit court’s decision) that SDCL

41-9-1.1(2) was enacted in response to State v. Rumpca, 2002 SD 124, 652

NW2d 795, a case upholding Rumpca’s criminal trespass conviction for

shooting from a right-of-way at a bird flying over private land. Despite the

true nature of Landowners’ claim, the merits of their takings claim must be

addressed. However, outside of that, Landowners’ arguments as to the

decriminalization cannot be addressed due to their lack of standing.

Landowners have no standing because the United States Supreme Court has

(continued . . .)

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[¶46.] The purpose of the Takings Clause under the Fifth Amendment is not

to prohibit all governmental takings or interference with private property, but

rather to require compensation be paid by the government “in the event of

otherwise proper interference amounting to a taking.” Lingle, ___ US at ___, 125

SCt at 2080, 161 LEd2d 876 (quoting First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 US 304, 315, 107 SCt 2378, 2386, 96 LEd2d

250 (1987)). A plaintiff seeking redress against the government under a regulatory

takings claim must proceed under one of four theories: plaintiff must allege either

1) a per se regulatory physical taking under Loretto v. Teleprompter Manhattan

CATV Corp., 458 US 419, 102 SCt 3164, 73 LEd2d 868 (1982), “where government

requires an owner to suffer a permanent physical invasion of her property”; 2) a per

se total regulatory taking under Lucas v. South Carolina Coastal Council, 505 US

1003, 112 SCt 2886, 120 LEd2d 798 (1992), that deprives an owner of “all

economically beneficial uses of the property”; 3) a regulatory taking under Penn

Central Tranps. Co. v. City of New York, 438 US 104, 98 SCt 2646, 57 LEd2d 631

(1978), when a temporary or partial taking is alleged; or 4) a land-use exaction

__________________

(. . . continued)

made it unequivocally clear that even though a person may suffer injury from

a lack of prosecution, given the “special status of criminal prosecutions in our

system,” that person has no standing to challenge the failure to prosecute any

particular criminal offense. Linda R.S., 410 US at 619, 93 SCt at 1149, 35

LEd2d 536. That is because “in American jurisprudence at least, a private

citizen lacks a judicially cognizable interest in the prosecution or

nonprosecution of another.” Id. See also Leeke v. Timmerman, 454 US 83,

85-87, 102 SCt 69, 70-71, 70 LEd2d 65 (1982) (citing Linda R.S., 410 US at

619, 93 SCt at 1149, 35 LEd2d 536) (prison inmates lacked standing to

challenge actions of correctional facility officials who influenced prosecutor to

(continued . . .)

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violating the standards as set forth in Nollan v. California Coastal Comm’n., 483

US 825, 107 SCt 3141, 97 LEd2d 677 (1987), and Dolan v. City of Tigard, 512 US

374, 114 SCt 2309, 129 LEd2d 304 (1994). Lingle, ___ US at ___, 125 SCt at 2081-

82, 2086-87, 161 LEd2d 876.

[¶47.] Landowners argue a per se regulatory physical taking was effectuated

by the passage of SDCL 41-9-1.1(2), as the conduct permitted under the statute and

as described by the 2003 GFP Hunting Handbook has resulted in a permanent

physical invasion of their property. In the alternative, Landowners argue that if

this Court finds no per se regulatory physical taking, there was a partial or

temporary regulatory taking under Penn Central that unreasonably interfered with

their distinct investment-backed expectations and background principles of South

Dakota property law. The State contends that neither a per se regulatory physical

taking nor a Penn Central regulatory taking has occurred, but rather the conduct in

question has merely been decriminalized. Landowners do not argue a per se total

regulatory taking under Lucas. Nor is the land-use exaction theory under Nollan

and Dolan applicable to the instant case.

A. Per Se Regulatory Physical Taking

[¶48.] A permanent physical occupation or an appropriation by the

government of private property is the most serious form of invasion into an owner’s

property interests, and constitutes a per se regulatory physical taking. Loretto, 458

__________________

(. . . continued)

oppose issuance of arrest warrant for correctional officers accused of

unnecessarily beating inmates).

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US at 435, 102 SCt at 3175-76, 73 LEd2d 868. A per se physical occupation occurs

when the placement of a “fixed structure on land or real property” is effected by the

government or by a third party under the government’s direction. Id. at 436-37, 102

SCt at 3176-77, 73 LEd2d 868.7 A per se physical occupation may also occur when

the airspace over land is invaded in such a manner as to prohibit the use of land for

any purpose, thereby resulting in a complete loss to the landowner. United States

v. Causby, 328 US 256, 261, 66 SCt 1062, 1065, 90 LEd2d 1206 (1946) (holding

airplane flights passing over land “by reason of frequency and altitude of the

flights” can constitute a permanent physical occupation and a compensable taking

within the meaning of the Fifth Amendment). However, there is a “constitutional

distinction between a permanent physical occupation and a temporary physical

invasion.” Loretto, 458 US at 434, 102 SCt at 3175, 73 LEd2d 868. The first effects

a compensable taking within the meaning of the Fifth Amendment, but the second

does not. Id. A physical occupation that is less than permanent, and amounts to no

more than a temporary physical invasion does not constitute a classic per se

regulatory physical taking within the meaning of Loretto. Id. (citing PruneYard

Shopping Center v. Robins, 447 US 74, 100 SCt 2035, 64 LEd2d 741 (1980)).

[¶49.] Landowners cite to Portsmouth Harbor Land & Hotel Co. v. United

States, 260 US 327, 43 SCt 135, 67 LEd 287 (1922) (Portsmouth II), as support for

their proposition that shots fired over private property constitute a permanent

7. The permanent physical occupation in Loretto consisted of the “direct

physical attachment of plates, boxes, wires, bolts, and screws to the building,

completely occupying space immediately above and upon the roof and along

the building’s exterior wall.” 458 US at 438, 102 SCt at 3177, 73 LEd2d 868.

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physical occupation and therefore a compensable taking. However, in that case the

United States Supreme Court was called upon to determine if the facts as pleaded

by the plaintiff were sufficient to withstand a demurrer, in present day terms a

motion for judgment on the pleadings for failure to state a claim. Id. at 328, 43 SCt

at 136, 67 LEd 287.

[¶50.] The facts as pleaded by the plaintiff in Portsmouth II and its

companion cases included the mounting of a large battery of cannons “with the

intention of firing them over the claimant’s land and without the intent or ability to

fire them except over that land.”8 Id. at 329, 43 SCt at 136-37, 67 LEd 287. In

addition, the government had erected a fire control station that the Court noted

could be evidence of intent to continue firing the cannons at will across claimant’s

land. Id. The issue hinged, according to the Court’s rationale, on whether the firing

of the cannons had the result of depriving the owner of the profitable use of the

land. Id. at 329, 43 SCt at 136, 67 LEd 287. The Supreme Court held that there

were sufficient facts alleged by the claimant to reverse the lower court’s holding on

the demurrer. Id. at 330, 43 SCt at 137, 67 LEd 287. The Court noted, “[i]n our

opinion the specific facts set forth would warrant a finding that a servitude has

8. The United States government had planned to construct a twelve-gun heavy

artillery or battery on the land in 1873. Peabody v. United States, 231 US

530, 536, 34 SCt 159, 159-60, 58 LEd 351 (1913). However, the battery

eventually consisted of three ten-inch cannons and two three-inch rapid fire

guns by the time Peabody was heard in 1913. Id. See also Portsmouth

Harbor Land & Hotel Co. v. United States, 250 US 1, 39 SCt 399, 63 LEd 809

(1919) (Portsmouth I). By the time Portsmouth II was filed, the old cannons

had been dismantled and the government had erected heavy cannons at the

(continued . . .)

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been imposed.” Id. While dicta, the Court’s comment was based on the specific

facts of the case, including the fact that “the public has been frightened off the

premises by the imminence of the” cannons thereby eliminating the value of the

property as a summer resort, its main value to the owner.9 Id. at 328, 43 SCt at

136, 67 LEd 287. However, the Supreme Court did not hold that such facts

amounted to a taking, stating instead that the facts might support a finding of a

taking, but that the issue was a question for the lower court to decide at trial. Id. at

330, 43 SCt at 137, 67 LEd 287.

[¶51.] In the instant case, there is no allegation that the firing of shot from a

shotgun by hunters is threatened at any and all times, as the cannons fired by the

government were in Portsmouth II. Nor have Landowners alleged a total

deprivation of all potential profits due to the actions of the hunters who act in

compliance with SDCL 41-9-1.1(2). The facts in the instant case are more

analogous to the facts in Peabody, 231 US 530, 34 SCt 159, 58 LEd 351, and

Portsmouth I, 250 US 1, 39 SCt 399, 63 LEd 809, where the Supreme Court

__________________

(. . . continued)

fort as part of the nation’s World War I coastal defense system. Portsmouth

II, 260 US at 335-36, 43 SCt at 139, 67 LEd 287 (Brandeis, J., dissenting).

9. The Court found that the hotel on the property had previously been

profitable, but was conducted at a loss in 1903 and 1904 after the installation

of the cannons. Peabody, 231 US at 538, 34 SCt at 160, 58 LEd 351. “[S]ince

1904, it had been closed and the cottages had been rented only in part and at

reduced rates.” Id.

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concluded the facts were insufficient to demonstrate a permanent physical

occupation.10

[¶52.] In the instant case, the hunters who engage in the conduct described in

SDCL 41-9-1.1(2) may do so without risking prosecution for a criminal offense, but

only during the small game bird hunting season. Only those who meet the

requirements of the appropriate license, and have purchased one, come within the

scope of this provision. Hunting regulations further limit the hours of shooting

activity. Moreover, the shooting is only decriminalized if a bird of the types

specified in the statute takes flight from or over the right-of-way and the hunter is

located within the right-of-way.11 Given the number of limiting factors that must

10. Landowners’ reliance on Citizens for a Safe Grant v. Lone Oak Sportmen’s

Club, Inc., 624 NW2d 796 (MinnApp 2001), and State v. Wilkinson, 724 So2d

614 (FlaDistCtApp 1998), is also misplaced. Landowners cite these cases as

support for the proposition that shots fired over private property, while

intermittent, constitute trespass or invasion of the Landowners’ property

interest and that such an invasion constitutes a taking within the meaning of

Loretto. However, in Citizens for a Safe Grant, the court held that shots fired

over plaintiffs’ private property constituted “unlawful entry” by the defendant

such that the circuit court did not err when it found the defendant committed

the tort of civil trespass. 624 NW2d at 805. In Wilkinson, the appellate court

upheld a criminal conviction for third-degree felony trespass as defined by

statute. 724 So2d at 615. The defendant in that case fired a rifle over

private property in an effort to illegally shoot and kill a deer, an offense

defined by statute as third-degree criminal trespass. Id. Neither case stands

for the proposition that intermittent shooting over private property is of such

a magnitude and frequency as to work a taking within the meaning of

Loretto.

11. SDCL 41-9-1.1(2) pertains only to small game, and specifically to small game

that is able to take flight. SDCL 41-1-1(24) defines small game as:

“Small game,” anatidae, commonly known as swans, geese, brants,

merganser, and river and sea ducks; the rallidae, commonly known as rails,

coots, and gallinule; the limicolae, referring specifically to shore birds, plover,

(continued . . .)

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be present in order for the act of shooting to meet the safe harbor conditions

precluding criminal prosecution as provided in SDCL 41-9-1.1(2), the activity as

described can occur on an intermittent basis only during the hunting season, and

not at all during the other months of the year. Landowners themselves have

indicated in their affidavits that the activity does not occur constantly throughout

the hunting season. The conduct is therefore temporary in nature during the

hunting season, or in the alternative, it is a criminal act outside the protection of

the statute.

[¶53.] Next, Landowners attempt to characterize the shot left laying on their

land as further evidence of a permanent occupation. However, the shot pellets that

remain on the ground are not fixed structures placed on the land by the hunters or

by the State, and therefore do not work a per se regulatory physical taking. See

Loretto, 458 US at 430, 102 SCt at 3173, 73 LEd2d 868 (noting fixed physical

structures such as “telegraph and telephone lines, rails, and underground pipes or

__________________

(. . . continued)

snipe, and woodcock; the gruidae, commonly known as sandhill crane; the

columbidae, commonly known as the mourning dove; the gallinae, commonly

known as grouse, prairie chickens, pheasants, partridges, and quail but does

not include wild turkeys; cottontail rabbit; and fox, grey and red squirrel. The

term includes facsimiles of small game used for law enforcement purposes[.]

SDCL 41-9-1.1(2) seems to apply to pheasants, grouse, partridge, quail and

various waterfowl, but excludes mourning dove.

http://www.sdgfp.info/Wildlife/hunting/Index.htm (last visited January 23,

2006). According to GFP, the hunting season for these small game birds runs

for specified periods of time beginning the third Saturday in September until

the fourth week of January, depending on the type of bird and for some types

of birds depending on zone location.

http://www.sdgfp.info/Wildlife/hunting/Info/SGSeasons.htm (last visited

January 23, 2006).

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wires are takings even if they occupy only relatively insubstantial amounts of space

and do not seriously interfere with the landowner’s use of the rest of his land”). Nor

do Landowners establish the shot that may remain prohibits the use of their land

for any purpose so as to work a complete loss of its value. Lacking more than

intermittent and temporary invasions, or the placement of a fixed structure upon

the land by the State, or a complete loss of value of the property to Landowners,

there is no legal basis to support a conclusion of law that the State’s act in passing

SDCL 41-9-1.1(2) or the hunters’ actions of firing shot worked a per se regulatory

physical taking within the meaning of the Fifth Amendment of the United States

Constitution and article VI, section 13 of the South Dakota Constitution.

B. Penn Central Regulatory Taking

[¶54.] The acts of the hunters result in temporary and intermitted physical

invasions rather than a permanent occupation. Therefore, we must analyze the

takings claim under the Penn Central regulatory analysis. See Lingle, ___ US at___,

125 SCt at 2081-82, 161 LEd2d 876.

[¶55.] Under the United States Supreme Court’s holding in Penn Central,

three principal factors must be analyzed in order to determine whether a regulation

goes so far as to effect a taking within the meaning of the Fifth Amendment. Id. at

___, 125 SCt at 2081-82, 161 LEd2d 876. First, “the character of the governmental

action” must be evaluated, keeping in mind that a

“taking” may more readily be found when the interference with

property can be characterized as a physical invasion by

government, see e.g., United States v. Causby, 328 US 256, 66

SCt 1062, 90 LEd 1206 (1946), than when interference arises

from some public program adjusting the benefits and burdens of

economic life to promote the common good.

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Penn Central, 438 US at 124, 98 SCt at 2659, 57 LEd2d 631. Next, “the economic

impact of the regulation on the claimant” must be examined. Lingle, ___ US at ___,

125 SCt at 2081-82, 161 LEd2d 876. Finally, the extent to which the regulation has

interfered with “distinct investment-backed expectations” must be analyzed. Id.

When examining the economic impact and interference with distinct investment-

backed expectations, we must do so by examining the alleged interferences with

rights in the property as whole. Penn Central, 438 US at 130-31, 98 SCt at 2662, 57

LEd2d 631.

[¶56.] Not every destruction or injury to private property by governmental

regulation will be a taking within the meaning of the Fifth Amendment. Omnia

Commercial Co. v. United States, 261 US 502, 508-510, 43 SCt 437, 438, 67 LEd 773

(1923). “The general rule at least is that while property may be regulated to a

certain extent, if regulation goes too far it will be recognized as a taking.”

Pennsylvania Coal Co. v. Mahon, 260 US 393, 415, 43 SCt 158, 159, 67 LEd 322

(1922). The difficulty lies in determining when damage to private property

constitutes a compensable “taking,” such that justice requires that the burden

imposed on the private property owners by the regulation be spread among

taxpayers through the payment of compensation.

1. Character of the Governmental Action

[¶57.] The character and nature of the state’s action is critical in determining

whether a taking has occurred. Keystone Bituminous Coal Ass’n. v. DeBenedictis,

480 US 470, 488, 107 SCt 1232, 1243, 94 LEd2d 472 (1987); (citing Mahon, 260 US

393, 43 SCt 158, 67 LEd 322). A distinction exists between the character of the

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government’s actions in situations involving a permanent physical occupation of

property and a more temporary invasion or government action outside the owner’s

property that causes consequential damages within. Loretto, 458 US at 428, 102

SCt at 3172, 73 LEd2d 868.

[¶58.] When a regulatory taking is alleged, the examination of the character

of the government action includes a determination of whether that action resulted

in direct, as opposed to an indirect or consequential, harm to the property. Hansen

v. United States, 65 FedCl 76, 106 (FedCl 2005) (citing Ridge Line, Inc. v. United

States, 346 F3d 1346, 1355 (FedCir 2003) (citing Portsmouth II, 260 US 327, 43 SCt

135, 67 LEd 287)). The causation requirement in Portsmouth II, is often referred to

as the “natural, probable consequence test.” Id. (citing Ridge Line, 346 F3d at

1355). The test requires proof that the government action is the cause-in-fact of the

harm for a taking to be cognizable. Id. (citing Ridge Line, 346 F3d at 1355).

[¶59.] This cause-in-fact concept was examined in Griggs v. County of

Allegheny, where homeowners were made physically ill and their home rendered

uninhabitable by the noise and vibrations caused by the landings and takeoffs of

airplanes at the Allegheny County airport. 369 US at 84, 87, 82 SCt at 531, 533, 7

LEd2d 585. The airport flight path caused airplanes to travel within thirty to 300

feet over the residence on takeoffs, and between fifty-three and 153 feet during

landings. Id. The county had constructed the airport in compliance with all

regulations of the Civil Aeronautics Administration (CAA) that specified the length

of airstrips and the clearance required for landings and takeoffs. Id. at 85, 82 SCt

at 531, 7 LEd2d 585. The county argued that if a taking had occurred it was

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effected by the federal government through the CAA’s regulations, as the airport

was in compliance with those regulations. Id. at 89, 82 SCt at 533-34, 7 LEd2d 585.

The Court held that the county could not shift the responsibility for the taking to

the CAA, as the county had selected the site for the airport and had secured the

required properties for the physical construction of runways. Id. The Court

concluded that it was the actions of the county and not the regulations of the CAA

that had worked the taking of an air easement over the homeowners’ property. Id.

The Court noted:

The Federal Government takes nothing; it is the local authority

which decides to build an airport vel non, and where it is to be

located. We see no difference between its responsibility for the

air easements necessary for operation of the airport and its

responsibility for the land on which the runways were built.

Id. (emphasis added).

[¶60.] Similarly, in Harms v. City of Sibley, 702 NW2d 91 (Iowa 2005), the

Iowa Supreme Court was called upon to determine if the City of Sibley’s rezoning

ordinance had worked a taking of private property within the meaning of the Fifth

Amendment. In that case, the city rezoned property across the street from the

Harms’ home from “light industrial” to “heavy industrial” at the request of Joe’s

Ready Mix. Id. at 93. The operation of the cement plant then created intense noise,

dust and traffic problems, as well as caused lights to be shone into the Harms’ home

at all hours of the night. Id. at 95. The undisputed facts of the case included that

the president and major shareholder of Joe’s Ready Mix oversaw all operations of

the plant, including selecting the site and how and when the plant would be built

and operated. Id. at 101. The court cited Griggs, 369 US 84, 82 SCt 531, 7 LEd2d

585, and N. Transp. Co. of Ohio v. City of Chicago, 99 US 635, 642, 25 LEd 336

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(1878), for what it termed the consequential damages rule. Id. at 100. The rule is

the same as the “natural, probable consequence test,” which provides that “in the

exercise of governmental powers, and not directly encroaching upon private

property, though their consequences may impair its use, are universally held not to

be a taking within the meaning of the constitutional provision.” Harms, 702 NW2d

at 100 (quoting N. Transp. Co. of Ohio, 99 US at 642, 25 LEd 336). The court noted

that Griggs employed the same “natural, probable consequence test” used in N.

Transp. Co. of Ohio, which requires that the government action be the cause-in-fact

of the damage “as opposed to an indirect or consequential, appropriation or seizure

of property.” Id. (quoting N. Transp. Co of Ohio, 99 US 642, 25 LEd 336) (citing

Barbian v. Panagis, 694 F2d 476, 485-87 (7thCir 1982); Hansen, 65 FedCl at 102-

06)). The court held that the actions of Joe’s Ready Mix resulted in the damage to

the homeowners’ property rights by creating a nuisance, and therefore there was no

taking by the City of Sibley when it rezoned the property in question. Id. at 101.

Instead, the homeowners were permitted to recover damages in nuisance from Joe’s

Ready Mix. Id.

[¶61.] While we have never had occasion to consider the “natural, probable

consequence test” in the context of a regulatory takings claim, we are persuaded

that the cause-in-fact of the harm must be examined when analyzing the nature or

character of the government action that is alleged to have worked a taking. See

Hansen, 65 FedCl at 102-06 (discussing the concept of consequential harm in tort

law and its application in takings claims). In doing so, we must identify the specific

harm to property incurred by Landowners, and whether the actions that caused the

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harm were those of the State or some other entity or person not under the direct

authority or control of the State.

[¶62.] The damage complained of by Landowners is the intrusion of shot onto

their land and over the airspace above their land, as directed by hunters who shoot

game birds that have taken flight from the rights-of-way. Landowners argue that

the actions of the hunters have been caused by the enactment of SDCL 41-9-

1.1(2).12 The specific conduct complained of by Landowners in their affidavit

includes the following:

12. SDCL 41-9-1.1, which defines the parameters of criminal trespass while road

hunting, provides:

Except for controlled access facilities as defined in § 31-8-1, interstate

highways, unimproved section lines not commonly used as public

rights-of-way, and highways within parks or recreation areas or within

or adjoining public shooting areas or game refuges posted for

restriction of an applicable use as hereinafter set forth by the

Department of Game, Fish and Parks, § 41-9-1 does not apply to

fishing, trapping, or hunting on highways or other public rights-of-way

within this state that meet the requirements of § 41-9-1.3. For

purposes of this section, hunting on highways or other public rights-of-

way includes:

(1) The shooting at or taking by legal methods of small

game, except mourning dove, that are located within the boundaries of

the highway or public right-of-way;

(2) The shooting at or taking by legal methods of small

game, except mourning dove, that are in flight over private land if the

small game has either originated from or has taken flight from the

highway or public right-of-way or if the small game is in the process of

flying over the highway or public right-of-way.

If subdivision (2) of this section is declared by an advisory opinion or

adjudication of the South Dakota Supreme Court to be a taking of

private property requiring compensation, subdivision (2) is void.

(continued . . .)

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17. We observed numerous hunters shooting onto our

property from [public highways] throughout the four to

five weeks [following the opening of hunting season].

18. This season, after the change in road hunting law

implementing SDCL 41-9-1.1(2), the behavior of those

hunting from the roads has been bolder and more

aggressive.

19. We observed some hunters shooting at pheasants on or

above our property that had not taken flight from or

crossed the road.

20. We observed hunters shooting within the 660-foot safety

zone provided by SDCL 41-9-1.1, including within 660 feet

of our home, buildings, and cattle.

21. We observed hunters trespassing on our land and, when

confronted, they ordered us off of our own property.

[¶63.] The “damage” to Landowners’ property, that is the intrusion of shot

onto their lands and shot left on their lands, is caused by the actions of hunters.

However, the statute does not specifically encourage or mandate that road hunting

be conducted in a manner that causes shots to be fired onto Landowners’ property.

The hunters at all times retain control over when, where and how they will fire at

__________________

(. . . continued)

No person, except the adjoining landowner or any person receiving

written permission from the adjoining landowner, may use such

highways or rights-of-way for the purposes of hunting defined in this

title within a six hundred sixty-foot safety zone surrounding an

occupied dwelling, a church, schoolhouse, or livestock. Neither the

person discharging a firearm at small game nor the small game being

shot at may be within the safety zone. No person, except the adjoining

landowner or any person receiving written permission from the

adjoining landowner, may use such highways or rights-of-way for the

purpose of trapping within six hundred sixty feet of an occupied

dwelling, church, or schoolhouse. A violation of this section is a Class

2 misdemeanor. If any person is convicted of knowingly discharging a

firearm within six hundred sixty feet of any occupied dwelling, church,

or schoolhouse for which such distance has been clearly and accurately

marked and posted, the court shall, in addition to any other penalty,

revoke the person’s hunting privileges for a period of one year from the

date of conviction.

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game birds flying over the right-of-way. Any damage caused to private property by

the actions of hunters cannot be attributed to the State. The State does not place

the hunter in the right-of-way or pull the trigger. Instead, any damage to property

is attributable only to the acts of the hunters themselves as was the case for Joe’s

Ready Mix in Harms v. City of Sibley. The holding in Griggs supports this

proposition as it is the hunters, like the county of Alleghany, that took action in

compliance with all pertinent regulations yet was the direct cause of any harm to

Landowners’ property. Thus, any harm complained of by Landowners was not

legally caused by the legislative enactment, but rather by the particular conduct of

the hunters.13

13. The circuit court, however, accepted the Landowners’ argument that the

enactment of SDCL 41-9-1.1(2) was not merely a decriminalization of the act

of firing onto private property while road hunting, but rather, based on the

2003 Hunting Handbook of the South Dakota GFP, constituted a

compensable taking. In doing so, the circuit court was both legally and

factually incorrect.

The 2003 Hunting Handbook is simply a guide to hunters published by GFP.

It does not purport to enact law as it notes in its opening page, “The Hunting

Handbook is a synopsis of South Dakota Codified Laws and Game and Fish

and Parks rules.” State of South Dakota, Hunting Handbook 5 (2003). What

actually constitutes the law in this state is set forth in SDCL 1-1-23, which

provides:

The will of the sovereign power is expressed:

(1) By the Constitution of the United States;

(2) By treaties made under the authority of the United States;

(3) By statutes enacted by the Congress of the United States;

(4) By the Constitution of this state;

(5) By statutes enacted by the Legislature;

(6) By statutes enacted by vote of the voters;

(7) By the ordinances of authorized subordinate bodies;

(continued . . .)

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[¶64.] Furthermore, while SDCL 41-9-1.1(2) decriminalizes the shooting at

small game birds originating from or taking flight over a right-of-way, when read in

conjunction with SDCL 41-9-8 and 41-9-9, landowners retain all civil remedies

against hunters that physically enter and shoot over their land.14 SDCL 41-9-1.1(2)

__________________

(. . . continued)

(8) Rules of practice and procedure prescribed by courts or adopted by

departments, commissions, boards, officers of the state, or its

subdivisions pursuant to authority so to do.

SDCL 1-1-23 does not include such “synopses” or handbooks.

Factually the handbook section on “Hunting on Public Road Rights-of-Way”

nowhere mentions that a hunter has the full legal right to fire over private

property. State of South Dakota, Hunting Handbook 26 (2003). In fact at

page forty, the handbook informs the landowner “How to Prosecute a

Trespasser.” Id. at 40. The phrase relied upon by the circuit court, “[t]o be

lawfully taken from a public road right-of-way, the hunter must be within the

right-of-way boundaries when shooting, and the game must originate from or

be flying over the road right-of-way” is found in the section dealing with

“Unarmed Retrieval” not “Road Hunting.” Id. at 33. However, Landowners

have not challenged the status of unarmed retrieval of birds shot over the

right-of-way, which is the subject of that particular sentence.

Neither has the Legislature seen fit to delegate sole regulatory authority over

section line highways to GFP. The construction, repair and maintenance of

these roads are the responsibility of the board of township supervisors.

SDCL 31-13-1. Relocation or vacation of a section-line highway is granted to

the county commissioners or the board of supervisors of an organized

township under appropriate circumstances. SDCL 31-18-3.

14. In its amici brief, the South Dakota Wildlife Federation sets forth what it

believed to be a catalogue of those civil remedies. It stated:

Here, the Plaintiffs retain their right to bring an action in

Ejectment, SDCL 21-3-6, the traditional method for redeeming

property interests against interlopers. This action may be for

damages as well as for recovery of title. Where force is used, a

plaintiff in Ejectment may recover treble damages. SDCL 15-3-

1. The common law action of Private Nuisance is available to

protect Plaintiffs in their use and enjoyment of property. SDCL

(continued . . .)

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describes the manner in which game may be taken without violating the criminal

law of the State of South Dakota and incurring prosecution for a Class 2

Misdemeanor. The enactment of SDCL 41-9-1.1(2) decriminalizes the conduct for

which the defendant was convicted in Rumpca, 2002 SD 124, 652 NW2d 795. It

does not, however, eliminate any civil remedies available to landowners when a

hunter engages in conduct that amounts to a civil trespass.

[¶65.] This type of legislative action is not unprecedented. We have in many

instances recognized that the Legislature has the statutory authority to

decriminalize an act while retaining civil liability upon the person who commits the

act. The writing of an insufficient funds check in South Dakota can lead to criminal

prosecution under SDCL 22-41-1 and civil liability under SDCL 22-2-1.

Yet, since 1973, the Legislature has seen fit to preclude criminal liability of the

perpetrator in numerous instances: i.e., post-dated checks under SDCL 22-41-2.2,

failure of victim to serve notice of dishonor upon writer of insufficient funds check

per SDCL 22-41-3.1, and failure to prosecute within six months of notice of check’s

dishonor as required by SDCL 22-41-3.4. However, should the victim fail to comply

__________________

(. . . continued)

21-10-1, -3. Plaintiffs also retain the right to protect their

property through Trespass both as a civil tort, and as a

misdemeanor, SDCL 22-35-6. Injunction is available in

appropriate cases. SDCL 21-8-1. In other words, all classical

common law and statutory remedies for assertion of rights in

private property remain intact. That being so, the essential

element of all takings jurisprudence is lacking in this case - an

action by government which deprives landowners of title.

Amicus Curiae South Dakota Wildlife Federation’s Br. 3.

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with these analogous requirements that preclude a criminal prosecution, he or she

still retains full civil remedies under SDCL 22-2-1.

[¶66.] Another example is marital relations. South Dakota at one time made

adultery a crime. See SDCL 22-22-17 and -18 (repealed by SL 1976, ch 158, § 22-8).

These statutes were repealed in 1976. Yet, since 1877 we have also recognized a

civil cause of action for alienation of affections. SDCL 20-9-7. In Veeder v. Kennedy,

1999 SD 23, 589 NW2d 610, we upheld the continued civil cause of action as its

statutory basis was still in force despite the fact the criminal liability had long since

been repealed.

[¶67.] The Legislature has also done the reverse. In the passage of SDCL 35-

4-78, it made the sale of an alcoholic beverage to a person under the age of twenty-

one a crime yet also stated there would be no civil liability against the seller for the

same act. In Wegleitner, 1998 SD 88, 582 NW2d 688, we upheld this statutory

distinction from dual constitutional attacks under the separation of powers and the

open courts provision in article VI, section 20 of the South Dakota Constitution.

[¶68.] Here, SDCL 41-9-9 goes one step further in making sure it is

understood that landowners retain their civil remedies by declaring:

Any person who is engaged, legally or illegally, in hunting is

liable for any injury or death to any person or damages to

property caused by the hunter’s negligent actions. The injured

person or the owner of the property that has been damaged may

recover civil damages. Nothing herein shall abrogate any other

provision of law.

(emphasis added).

[¶69.] The Legislature has also retained criminal statutes that are relevant

to this case. Bensons state that they have experienced shot hitting their home and

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nearby tin shed. Messmers have observed hunters shooting around their home,

buildings and cattle. Hunters who engage in such criminal conduct are not

protected by SDCL 41-9-1.1(2). Such acts are still a violation of the criminal law

under another portion of SDCL 41-9-1.1 that provides in relevant part:

No person, except the adjoining landowner or any person

receiving written permission from the adjoining landowner, may

use such highways or rights-of-way for the purposes of hunting

defined in this title within a six hundred sixty-foot safety zone

surrounding an occupied dwelling, a church, schoolhouse or

livestock.... A violation of this section is a Class 2 misdemeanor.

[¶70.] Next, we have been invited by the Landowners to focus on the

perceived “purpose and effect” of SDCL 41-9-1.1(2). Landowners attempt to

persuade this Court to focus on the actions of hunters and the records of legislative

debates to show that the true purpose and intent of SDCL 41-9-1.1(2) is an

expansion of the right-of-way easement created on section lines and public

highways to include an easement for hunting on private lands.

[¶71.] As we have noted on many occasions:

The purpose of statutory construction is to discover the true

intention of the law which is to be ascertained primarily from

the language expressed in the statute. The intent of a statute is

determined from what the legislature said, rather than what the

courts think it should have said, and the court must confine

itself to the language used. Words and phrases in a statute

must be given their plain meaning and effect. When the

language in a statute is clear, certain and unambiguous, there is

no reason for construction, and the Court’s only function is to

declare the meaning of the statute as clearly expressed. Since

statutes must be construed according to their intent, the intent

must be determined from the statute as a whole, as well as

enactments relating to the same subject. But, in construing

statutes together it is presumed that the legislature did not

intend an absurd or unreasonable result. When the question is

which of two enactments the legislature intended to apply to a

particular situation, terms of a statute relating to a particular

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subject will prevail over the general terms of another statute.

Moss v. Guttormson, 1996 SD 76, ¶10, 551 NW2d 14, 17 (citing

U.S. West Communications, Inc. v. Public Util. Comm’n, 505

NW2d 115, 122-23 (SD1993)) (citations omitted).

Martinmaas v. Engelmann, 2000 SD 85, ¶49, 612 NW2d 600, 611.

[¶72.] In the instant case, we may not resort to these external resources to

interpret the statute, as the words of SDCL 41-9-1.1(2) are “clear, certain and

unambiguous.” Again, we are reminded that legislative intent is determined from

what the Legislature said, not what we think it said or others think it said.

Martinmaas, 2000 SD 85 ¶49, 612 NW2d at 611.15 To do otherwise is to engage in a

form of judicial legislating, a power that is not granted to us under the constitution

and circumvents the role of the Legislature where that power rests. This we cannot

and will not do.

[¶73.] Despite the lack of ambiguity within SDCL 41-9-1.1(2), Landowners

next point to a theoretical situation that might result when landowners attempt to

press civil charges against a hunter who fires onto their property at a game bird

that has taken flight from the right-of-way. Landowners hypothesize that the

hunter will be able to use SDCL 41-9-1.1(2) as a defense against a claim of civil

15. Landowners cite two statements made during the floor debate of SDCL 41-9-

1.1(2) for the proposition that it was intended to go beyond decriminalization

and was in reality intended to strip landowners of any remedy for firing at

game flying over their land. We have consistently held that statements of

individual legislators are not persuasive to establish the intent of the

Legislature for a particular statute. Cummings v. Mickelson, 495 NW2d 493,

499 n7 (SD 1993) (citing State ex rel. Cooperative Wool Growers v. Bushfield,

69 SD 172, 176, 8 NW2d 1, 3 (1943)). There are 105 legislators and there

may be 105 different individual reasons they vote for or against a bill.

Rather, our rule of construction is that the Legislature said what it meant

(continued . . .)

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trespass, as the conduct has been “legalized” by the statute. However, as noted

above, the fact that an act is not a crime does not immunize it from civil liability. If

this were so, an individual sued for alienation of affection under SDCL 20-9-7 could

simply plead as a defense that adultery is no longer a criminal offense in South

Dakota. While the statement that adultery is not a crime under South Dakota law

is true, it does not preclude a spouse from suing a third party for alienation of

affection. See Veeder, 1999 SD 23, 589 NW2d 610. The criminality of adultery is

not determinative of the civil remedy when the rights of personal relation are

infringed upon by the “enticement of a husband from his wife or of a parent from a

child.” See SDCL 20-9-7.

[¶74.] Similarly, the elements of the tort of civil trespass remain unaffected

by SDCL 41-9-1.1(2), and require only that:

One who intentionally and without a consensual or other

privilege

(a) enters land in possession of another or any part thereof or

causes a thing or third person so to do, or

(b) remains thereon is liable as a trespasser to the other

irrespective of whether harm is thereby caused to any of

his legally protected interests.

Rumpca, 2002 SD 124, ¶10 n2, 652 NW2d at 798 (citing Restatement (Second) of

Torts § 158). The language used to decriminalize the formerly proscribed conduct

does not serve to create civil consent, a civil privilege, or a civil defense for game

bird hunters during hunting season, or any other time of the year.

__________________

(. . . continued)

and meant what it said from the text of the statute. In re Famous Brands,

Inc., 347 NW2d 882, 885 (SD 1984).

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2. & 3. Economic Impact of Regulation on Claimants and Interference

with Distinct Investment Backed Expectations

[¶75.] Under the second and third factors in Penn Central, Landowners

advance only two specific complaints with regard to the adverse economic impact

and interference with distinct investment-backed expectations they have incurred

as a result of the passage of SDCL 41-9-1.1(2). According to the complaint,

Landowners allege that “SDCL 41-9-1.1(2) denies them valuable hunting and

fishing rights appurtenant to and separable from their property as provided by”

SDCL 43-13-1 and 43-13-2.16 Messmers support the claim of adverse economic

impact by stating: “Because road hunting, as recently redefined by SDCL 41-9-

1.1(2), now includes the shooting of pheasants on or above our land, members of the

public shoot onto our property at the expense of the quality of our private hunting

business and the income we derive from that business.”

[¶76.] However, it is critical to note, that per the provisions of SDCL 41-1-2,

No person shall at any time or in any manner acquire any

property in, or subject to his dominion or control, any game bird,

game animal, or game fish, or any part thereof, but they shall

always and under all circumstances be and remain the property

of the state, except as provided by § 41-1-3.

16. SDCL 43-13-1 provides in relevant part:

The following land burdens, or servitudes upon land, may be granted and

held, though not attached to land:

(1) The right to pasture, and of fishing and taking game[.]

SDCL 43-13-2 provides in relevant part:

The following land burdens or servitudes upon land may be attached to other

land as incidents or appurtenances, and are called easements:

(3) The right of taking game[.]

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Thus, the only manner in which a person may obtain personal property rights in a

wild game bird, animal or fish, is by the lawful taking of the game in compliance

with all pertinent hunting and fishing laws. SDCL 41-1-2. Landowners have no

property rights in the game that takes refuge, or otherwise locates on their

property, until such time as the landowners take the game in compliance with all

pertinent hunting regulations. Reis, 1996 SD 75, ¶29, 550 NW2d at 84 (Gilbertson,

J., concurring).

[¶77.] The United States Supreme Court has recognized “that government

may execute laws or programs that adversely affect recognized economic values.”

Penn Central, 438 US at 124, 98 SCt at 2659, 57 LEd2d 631. A challenged

government action that causes economic harm will not support a takings claim

when the action does not interfere with “interests that were sufficiently bound up

with the reasonable expectations of the claimant to constitute ‘property’ for Fifth

Amendment purposes.” Id. (citing United States v. Willow River Power Co., 324 US

499, 65 SCt 761, 89 LEd 1101 (1945) (“interest in high-water level of river for runoff

for tailwaters to maintain power head is not property”); United States v. Chandler-

Dunbar Water Power Co., 229 US 53, 33 SCt 667, 57 LEd 1063 (1913) (“no property

interest can exist in navigable waters”)) (citations omitted).

[¶78.] Landowners argue that SDCL 41-9-1.1(2) interferes with their right to

grant servitudes and easements for hunting under SDCL 43-13-1. Landowners

seem to suggest that the State should be held liable for any decrease in the value of

such servitudes that accrues due to a decrease in the number of publicly owned

game birds that happen to be located upon Landowners’ property.

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[¶79.] SDCL 41-9-1.1(2) does not limit the right of Landowners to grant such

easements and servitudes. While SDCL 41-9-1.1(2) may affect the quantity of game

that may be available within the State and particularly on public rights-of-way, the

State has the undisputed right to regulate its wildlife as it is property of the State

until lawfully taken by a hunter. See SDCL 41-1-2 and -3. The State is the

custodian of wildlife, and allocates state resources to GFPs’ efforts to manage game

birds that are deemed of public value. SDCL 41-3-1. The State does not guarantee

the quantity and quality of game birds. Nor does it guarantee that those who hunt

will actually take sufficient game to satisfy their pecuniary needs or their daily

hunting limit. The State cannot be forced by the courts to manage its wildlife in a

manner that guarantees sufficient game to maintain, augment or decrease the

value of Landowners’ servitudes or easements. A decrease in value of these

servitudes and easements due to a decrease in the publicly owned game bird

population in a particular locale is our free market system at work. The State is not

a guarantor of property values.

[¶80.] In their complaint, Landowners Messmers state they own and operate

a private hunting lodge and maintain private hunting grounds on their property.

Messmers note they have devoted sixty-five acres of the 3,000 acres of land they

farm exclusively to food plots and habitat for pheasants. Messmers also claim that

the only income derived from these sixty-five acres of land comes from their private

hunting business. Messmers acknowledge that many of their neighbors farm their

land differently and do not devote land exclusively for pheasant habitat.

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[¶81.] When examining the economic impact of the contested regulation and

its alleged interference with distinct investment-backed expectations, the court

must determine how and to what extent the acts in question have adversely

impacted the economic value of the land. Penn Central, 438 US at 130-32, 98 SCt at

2662-63, 57 LEd2d 631. In doing so, the land is viewed as one complete parcel

rather than dividing the “single parcel into discrete segments and attempt[ing] to

determine whether rights in a particular segment have been entirely abrogated.”

Id. at 130-31, 98 SCt at 2662-63, 57 LEd2d 631. Viewed from this perspective,

Landowners retain the full value of the land whether it is devoted to pheasant

habitat or conventional farming.

[¶82.] The enactment of SDCL 41-9-1.1(2) does not prohibit Landowners from

devoting any portion of their land to pheasant habitat or other income producing

venture. But as noted above, the State is not a guarantor of the game bird

population in a particular locale. Therefore, a takings claim that relies on a

decrease in profitability of a privately owned business due to the taking of publicly

owned birds by road hunters must fail under this portion of the balancing analysis.

[¶83.] Finally, even if Landowners were able to establish economic losses or a

bona fide injury to distinct investment-backed expectations, a taking by the State

would still not have occurred. It is the actions of the hunters that would be the

cause of losses, as it is the intrusion of shot onto Landowners’ property and shot left

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on their lands, and not the legislative enactment of SDCL 41-9-1.1(2), that is the

legal cause of any injury incurred by Landowners. See supra ¶¶61-63.17

Conclusion

[¶84.] An examination of the history of our hunting statutes in Reis, 1996 SD

75, ¶¶28-31, 550 NW2d at 84-85, (Gilbertson, J., concurring), shows that for a great

part of our history there were no, or only limited, criminal restrictions upon

hunting. If the passage of SDCL 41-9-1.1(2) constitutes a compensable taking, then

the same legal situation existed from 1889 and for many years thereafter. During

those decades there were no criminal penalties for firing at a pheasant that was

flying over private land. Yet, one can search all the Constitutional Debates and our

case law prior thereto and after 1889 and there is no hint or suggestion a taking

was the state of the law. “[T]he Constitution was written and adopted in the light

of the conditions and well known laws as they then existed....” Wegleitner, 1998 SD

88, ¶31, 582 NW2d at 698 (citations omitted). Although the hunting statutes have

been repeatedly revised and amended since 1899, the relevant portion of article VI,

section 13 of our state constitution remains the same as it did when enacted in

1889.

[¶85.] Moreover, if these Landowners can successfully advance a takings

claim here, any citizen or group thereof who can establish a monetary loss will be

17. Landowners’ complaint does not allege a direct violation of the Privileges and

Immunities Clause. However, any claim by Landowners that the State has

deprived them of “rights, privileges or immunities secured by the

Constitution and laws and [defendants] are liable therefore under 42 USC

1983,” is a part of their central claim of an uncompensated taking. Because

we hold no taking exists, all such subsidiary claims also fail.

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looking to the public treasury for compensation should the Legislature deem the

cause of action not to be appropriate for criminal sanctions, let alone remove one.

Such a rationale was rejected in Wegleitner. “Government hardly could go on if to

some extent values incident to property could not be diminished without paying for

every such change in the general law.” Penn Central, 438 US at 124, 98 SCt at

2659, 57 LEd2d 631 (quoting Mahon, 260 US at 413, 43 SCt at 159, 67 LEd at 322).

[¶86.] Reduced to its core, Landowners’ argument is that the State faces two

options: it must for the first time in its history be compelled by the constitution to

declare an act to be in violation of a criminal law or in the alternative pay

Landowners for its refusal to do so. Landowners cite no case law to support this

argument and we have been unable to find any court which has so held. This

argument improperly attempts to shift the resolution of the issue from the

legislative arena to that of this Court. While the Legislature certainly enjoys the

legal authority to once again make this type of activity criminal in nature, there is

nothing in our Constitution to compel it. To hold otherwise would be to rule that

compensable takings have been ongoing since 1889, except for that short period of

time when the Legislature chose to criminalize the conduct as described in SDCL

41-9-1.1(2).

Although many members of the Constitutional convention were

to become Legislators in the new State of South Dakota, the

early State Legislatures felt no constitutional compulsion to

strike down or even modify [the unlimited right to hunt]. Green

[v. Siegel, Barnett, & Schutz], 1996 SD 146, ¶18, 557 NW2d

[396,] 402.

Wegleitner, 1998 SD 88, ¶11 n3, 582 NW2d at 692.

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[¶87.] Furthermore, any civil remedies that existed prior to the passage of

SDCL 41-9-1.1(2) remain intact. In fact, Landowners cite to no legislative roll-back

of any civil causes of action that have existed for the protection of their property

rights. At all times immediately prior to, and after this Court’s holding in Rumpca,

2002 SD 124, 652 NW2d 795, and the legislative reaction to it by the amendment of

SDCL 41-9-1.1(2), landowners’ civil remedies against hunters remained the same.

[¶88.] Were we to affirm the circuit court and conclude a compensable taking

has occurred here, the question would then arise as to what property rights the

State has acquired by its inverse condemnation and compensation payments to the

Landowners, for this “is ultimately a judicial question.” See Illinois Central R.R.

Co., 33 SD at 77, 144 NW at 728 (quoting Hairston v. Danville & WR Co., 208 US

598, 28 SCt 331, 52 LEd 637 (1908)). Although SDCL 41-9-1.1(2) is explicitly

restrictive, the constitution that mandates the compensation requirement for a

taking also guarantees “public use” in exchange. Under the “use by the public”

doctrine as set forth in Illinois Central, we would have to decide whether the public

now has purchased and enjoys the right to enter and hunt in the affected realty, not

just shoot over it. See also Frawley Ranches, 270 NW2d at 369. “The right-of-way

is public if everyone who desires may lawfully use the right-of-way.” Id. at 369.

This is a theoretical question which need not be answered, as we hold there is no

compensable taking to begin with under the facts of this case.

[¶89.] “While the wisdom of the current statutes may be justly debatable,

there is nothing contained in [the constitution] to topple them.” Wegleitner, 1998

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SD 88, ¶35, 582 NW2d at 699. For the above reasons we reverse the holding of the

circuit court on Issue 3.

[¶90.] ZINTER, Justice, and JOHNSON, Circuit Judge, concur.

[¶91.] KONENKAMP, Justice, concurs in result.

[¶92.] MEIERHENRY, Justice, dissents.

KONENKAMP, Justice (concurring in result).

[¶93.] Although I agree that there has been no actual taking of private

property here, this case approaches the limits of regulatory encroachment. In

amending its rules on road hunting, the Legislature struck a difficult balance

between the interests of hunters and landowners, a balance that falls within

constitutional limits. Indeed, as the United States Supreme Court recognized, these

questions have “proved to be a problem of considerable difficulty.” Penn Central,

438 US 104, 123, 98 SCt 2646, 2659, 57 LEd2d 631. Here, the difficulty has been

overcome by a careful balancing of equities. If hunters obey all existing laws

governing road hunting, then the interference to landowners from shooting over

private property at wild game in flight from or across a public road will be minimal.

[¶94.] Nonetheless, to say that there is no taking here because the State is

only “decriminalizing” a certain hunting provision is to ignore the State’s

comprehensive regulatory system controlling every aspect of hunting. By making

an exception to the general prohibition in SDCL 41-9-1 against hunting on private

property without owner consent, the Legislature has itself effectively granted

consent to hunters to shoot over private property as if it were in the public domain.

No other conclusion can be gained from a plain reading of the statute. It provides in

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relevant part that lawful “hunting on highways or other public rights-of-way

includes . . . (2) [t]he shooting at or taking by legal methods of small game, except

mourning dove, that are in flight over private land if the small game has either

originated from or has taken flight from the highway or public right-of-way or if the

small game is in the process of flying over the highway or public right-of-way.”

SDCL 41-9-1.1(2) (emphasis added).

[¶95.] A contrary conclusion reached by the Court that the statute does not

encourage shooting over private property is simply incorrect. Legislative consent

now legitimizes the shooting at certain small game that are in flight a short

distance within private property boundaries. The fact that hunters must be

licensed by the State and be hunting during the lawful season set by the State

before they can shoot over private property only fortifies this conclusion. 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.

[¶96.] 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 who are otherwise obeying all state hunting laws.18 As the

18. An illustration of how little loss the Landowners can show here is evident in

the examples of hunter violations they assert to support their claim. Many of

the examples they offer, like firing near homes or livestock, shooting at birds

(continued . . .)

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United States Supreme Court, wrote, “‘Government hardly could go on if to some

extent values incident to property could not be diminished without paying for every

such change in the general law,’ . . . and this Court has accordingly recognized, in a

wide variety of contexts, that government may execute laws or programs that

adversely affect recognized economic values. ” Penn Central, 438 US at 124, 98 SCt

at 2659, 57 LEd2d 631 (quoting Mahon, 260 US at 413, 43 SCt at 159, 67 LEd 322).

[¶97.] I cannot agree with the Landowners’ argument that they have suffered

a permanent taking of their property to the extent of 900 feet on the other side of

their fence lines. Compensating landowners for a permanent taking of their

property is untenable because the State has not permanently occupied any property

by its change in hunting laws. At worst, the interference here is episodic and

seasonal. The thought of sending a state compensation check to a landowner each

time some bird shot crosses a property line seems excessive. Any property damage

that might be caused in general by shooting at birds in flight is speculative. The

land suffers no diminution in value, and it retains all its legitimate economic

productivity. Penn Central, 438 US at 124-25, 98 SCt at 2659, 57 LEd2d 631.

[¶98.] Nonetheless, what is worrisome about the Court’s decision today is its

rationale. It reasons that private property can be opened to public use through the

expedient of “decriminalizing” the very laws that protect private property. This

ignores an essential function of our constitutional form of government. James

__________________

(. . . continued)

that are not in flight from or across a road, and trespassing while armed,

remain criminal violations of existing law.

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Madison, the author of the private property clause in the Fifth Amendment, wrote,

“A Government is instituted to protect property of every sort. . . . This being the

end of government, that alone is a just government, which impartially secures to

every man, whatever is his own.” Ralph Ketcham, James Madison: A Biography,

330 (Univ of Virginia Press 1990).

[¶99.] We need not imagine too vigorously in order to capture the flaw in the

Court’s logic. What other offenses might be “decriminalized” to promote public use

of private land? This “decriminalization” rationale is unnecessary to reach the

conclusion that there is no taking of property here under our state and federal

constitutions. We should go no further than to decide, under the Supreme Court’s

well-established balancing of interests test, that shooting over private property at

wild game in flight from or across a public road is a minimal intrusion and therefore

is not compensable. Penn Central, 438 US at 136-37, 98 SCt at 2665-66, 57 LEd2d

631.

[¶100.] Finally, for those who might hold greater designs on private property

for public recreational uses, they would do well not to be emboldened by today’s

ruling. The Court’s rationale is questionable and not likely to withstand keener

constitutional scrutiny in future cases.

[¶101.] Accordingly, I concur only in the result on Issue 3.

MEIERHENRY, Justice, dissenting on Issue 3.

[¶102.] I respectfully dissent from the majority’s conclusion that SDCL 41-9-

1.1(2) is not a taking for which just compensation is due. I agree with the circuit

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court’s determination that this statutory provision results in a physical invasion of

Landowners’ properties. As the circuit court recognized, the “right to exclude others

is one of the most essential sticks in the bundle of rights that are commonly

characterized as property.”

[¶103.] My fundamental disagreement with the majority centers on the

interpretation of the statute. I would conclude that the Legislature intended to

extend the road hunting easement to include shooting at birds over private land.

The extension of the easement took away Landowners’ legal right to exclude road

hunters from shooting over and entering certain portions of their property. Under

this interpretation, the statute is a taking without just compensation.

[¶104.] Under the majority’s interpretation, the Legislature’s only intent was

to decriminalize shooting at birds over private land. According to the majority, the

Legislature left intact all of a property owner’s legal rights to exclude others from

entering or shooting over the land. This interpretation gives the amendment little

if any meaning in regard to road hunting. It just means that criminal sanctions will

not be imposed by GFP. It also means that the property owners have the absolute

right to deny any entry upon their land. Consequently, the property owner may

have actually gained an advantage. The culprits now are the road hunters who

invade the land without permission. Conceivably the holding of the majority would

also apply to the unarmed retrieval statute. The unarmed retrieval statute

provides:

Unarmed retrieval of lawfully taken small game from either

private land or land controlled by the Department of Game, Fish

and Parks or other public lands, is not a crime or petty offense, if

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the retrieval of the small game does not involve the use of a

motor vehicle.

SDCL 41-9-8 (emphasis added). Since property owners retain all rights to exclude

others from their land, they would also have the right to deny unarmed retrieval of

birds legally shot from the roadway because, like SDCL 41-9-1.1(2), the unarmed

retrieval statute “decriminalizes,” rather than authorizes, retrieval.

[¶105.] There is no doubt that the days of private property owners giving

strangers permission to hunt without charge have all but disappeared. Property

owners, instead, have transformed hunting into an industry that serves to

supplement their farm income. They have turned their farmland into commercial

hunting preserves. Investment in hunting preserves involves land and crop

management specifically designed to complement game preservation and hunting

rather than crop yield. Hunting preserve owners must obtain a state permit, pay

an annual license fee, and abide by GFP regulations. SDCL 41-10-2; SDCL 41-10-4;

see generally SDCL ch. 41-10. In addition, preserve owners must purchase and

release large numbers of domestically raised birds to augment the native hatch.

ARSD 41:09:01:02 (requiring preserves to release and maintain at least 600 male

pheasants). The resulting abundance of birds in and around the preserves naturally

attracts road hunters. Today’s opinion, however, appears to diminish the range of

road hunting since the road hunters have no right to shoot over private property or

gain entry without the property owners’ authorization.

[¶106.] Thus, unauthorized road hunters could face civil liability. The

majority leaves open all civil remedies to the property owners’ creativity and

devices. Is this what the Legislature really intended by the amendment? Did the

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Legislature envision property owners clearly posting their land with warnings that

any and all trespass is prohibited and that violators would be civilly liable? Was

the expectation that hunters who shoot birds over private land could find

themselves liable for damages, perhaps at least in amounts similar to or more than

what they would have paid had they been paying guests? If so, GFP needs to

update its hunting manual to alert road hunters of their potential civil liability

whenever they breach private land and airspace by gunshot or physical entry.

[¶107.] I cannot agree that this is what the Legislature intended. It is more

likely that the Legislature intended to expand the definition of road hunting to

include shooting over “private land.” The intent can be determined from the plain

and ordinary meaning of the language of the statute. The precise statutory

language defines “hunting on highways or other public rights-of-way” as including:

(1) The shooting at or taking by legal methods of small game,

except mourning dove, that are located within the

boundaries of the highway or public right-of-way;

(2) The shooting at or taking by legal methods of small game,

except mourning dove, that are in flight over private land

if the small game has either originated from or has taken

flight from the highway or public right-of-way or if the

small game is in the process of flying over the highway or

public right-of-way.

SDCL 41-9-1.1 (emphasis added). The statute authorizes members of the public

who are hunting on public highways or rights-of-way to fire at birds that either fly

up in rights-of-way or merely fly over rights-of-way, but continue in flight over

private land. Thus, the meaning is clear.

[¶108.] But if there is some ambiguity, the circumstances surrounding the

2003 amendment of SDCL 41-9-1.1 support this interpretation. First, the change in

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the definition of “hunting on public rights-of-way” was intended to abrogate our

decision in State v. Rumpca so as to allow the public to shoot birds over private

property. See 2002 SD 124, 652 NW2d 795. Dissatisfied with the limits on road

hunting enunciated in Rumpca, hunters and the organizations representing them

turned to the Legislature with demands for more available public hunting. The

State can—and does—establish publicly owned parcels of land on which its citizens

may hunt. In comparison with other states, however, South Dakota maintains very

little public hunting land. See Vincent Michael Roche, Road Hunting Shot Down:

Reflecting on the South Dakota Supreme Court’s Decision in State v. Rumpca, 7

Great Plains Nat. Resources J. 31, 37 (2003). Instead of purchasing more public

land to address the demand, the Legislature expanded the public easement to reach

beyond the roadway, over the property line, and onto the individual property

owner’s land.

[¶109.] Although we have not traditionally relied on legislative floor debates in

determining legislative intent, it is interesting to note that nowhere in the debates

was the subject of decriminalization mentioned. See Debates Concerning HB 1163,

2003 Legislative Session, available at http://legis.state.sd.us/sessions/2003/

1163.htm (last visited January 23, 2006). Further, if the Legislature intended to

merely affirm the private property owners’ right to exclude road hunters altogether,

why did the Legislature provide for automatic repeal if the statute was found to be a

taking? The automatic repeal provides: “If [SDCL 41-9-1.1(2)] is declared by an

advisory opinion or adjudication of the South Dakota Supreme Court to be a taking

of private property requiring compensation, subdivision (2) is void.” SDCL 41-9-1.1.

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Based on the plain language as well as the background of the statute, I would

conclude that the underlying intent of the statute was to expand the definition of

road hunting to include shooting at birds that fly from the roadway onto private

land, and that the State effectively enlarged the hunting easement to include the

depth of shot over private property. The effect of the amendment takes away the

property owners’ right to exclude road hunters from invading their property and the

airspace above it. Because of the amendment, the extent of the hunting easement is

now the distance gunshot can travel from the roadway easement onto the land.

[¶110.] With this interpretation, the question then becomes whether the

State’s action of extending the hunting easement amounts to an unconstitutional

taking without compensation. The first inquiry under a takings analysis is whether

the action is a per se physical taking, that is, a permanent physical occupation or

intrusion of property and the airspace above it. Lingle, ___ US at ___, 125 SCt at

2082, 2087, 161 LEd2d 876; Causby, 328 US at 264-65, 66 SCt at 1067-68, 90 LEd

1206 (recognizing that a property owner owns the airspace above the land and

because continuous invasions of airspace “affect the use of the surface of the land

itself,” such invasions of airspace “are in the same category as invasions of the

surface” and may also be a taking). The controlling principles governing such a per

se physical taking were established by Kaiser Aetna v. United States, 444 US 164,

100 SCt 383, 62 LEd2d 332 (1979), and Loretto, 458 US 419, 102 SCt 3164, 73

LEd2d 868. See Lingle, ___ US at ___, 125 SCt at 2082, 2087, 161 LEd2d 876.

[¶111.] In Kaiser Aetna, the United States Supreme Court recognized that

government cannot compel public access to private property without just

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compensation. Id. at 179-80, 100 SCt at 393, 62 LEd2d 332 (holding that

government imposition of a navigational servitude on a marina created and

rendered navigable at private expense required compensation). In doing so, the

Court recognized that “the ‘right to exclude,’ so universally held to be a fundamental

element of the property right,” is an interest which “the Government cannot take

without compensation.” Id. at 179-80, 100 SCt at 393, 62 LEd2d 332. The Court

again acknowledged that principle in Loretto when it defined “[p]roperty rights in a

physical thing . . . as the rights ‘to possess, use and dispose of it.’” 458 US at 435,

102 SCt at 3176, 73 LEd2d 868 (citation omitted). The Court further recognized

that “[t]he power to exclude has traditionally been considered one of the most

treasured strands in an owner’s bundle of property rights.” Id. In addition, “[a]

permanent physical occupation authorized by state law is a taking without regard

to whether the State, or instead a party authorized by the State, is the occupant.”

Id. at 432 n9, 102 SCt at 3174 n9, 73 LEd2d 868.

[¶112.]. Likewise, a physical invasion of property may be a taking even if the

government’s dominion over private property is only partial or temporary in nature.

As the Court of Appeals for the Federal Circuit has explained,

[A] permanent occupation need not exclude the property owner

to be compensable as a taking. See, e.g., Loretto v. Teleprompter

Manhattan CATV Corp., 458 US 419, 436-38, 102 SCt 3164, 73

LEd2d 868 (1982) (holding that a compulsory installation of

cables on apartment buildings pursuant to a state statute

constituted a taking). Nor must the occupation be continuous.

Thus, for purposes of takings analysis, “a ‘permanent physical

occupation’ has occurred . . . where individuals are given a

permanent and continuous right to pass to and fro, so that the

real property may continuously be traversed, even though no

particular individual is permitted to station himself

permanently upon the premises.” Nollan v. Cal. Coastal

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Comm’n, 483 US 825, 831-32, 107 SCt 3141, 97 LEd2d 677

(1987).

Ridge Line, Inc., 346 F3d at 1352 (considering a claim that the federal government

took a flowage easement by increasing runoff on the plaintiff’s property and finding

that circuit court erred in requiring proof that the plaintiff’s property was

effectually destroyed or that it suffered a permanent and exclusive government

occupation which destroyed its right to possession); see also United States v.

Dickinson, 331 US 745, 67 SCt 1382, 91 LEd 1789 (1947) (affirming a lower court’s

finding that the federal government took an easement by inverse condemnation

when its dam caused intermittent flooding).

[¶113.] In this case, SDCL 41-9-1.1(2) allows the State to exercise dominion

and control over Landowners’ property. Under that dominion, the State gives

hunters a permanent and continuous right to invade Landowners’ property during

hunting season. Just as intermittent flooding may be a taking, so may the seasonal

appropriation of Landowners’ property by the State in a manner which completely

deprives them of their right to exclude. The effect of SDCL 41-9-1.1(2) is to require

Landowners, year after year, to submit the use of their land to the State, which

appropriates the benefit of the property to the public under terms the State

establishes. Because of the statutory provision, Landowners are permanently

deprived of a fundamental property right—the right to exclude. An after-the-fact

civil suit cannot suffice where the State’s action “does not simply take a single

‘strand’ from the ‘bundle’ of property rights: it chops through the bundle, taking a

slice of every strand.” Loretto, 458 US at 435, 102 SCt at 3176, 73 LEd2d 868.

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[¶114.] Because SDCL 41-9-1.1(2) constitutes a per se physical taking, the

regulatory takings analysis under the factors set forth in Penn Central

Transportation Co., 438 US 104, 98 SCt 2646, 57 LEd2d 631, does not apply. See

Lingle, ___ US at ___, 125 SCt at 2082, 2087, 161 LEd2d at 888, 894. Here, the

State is not “exercising its regulatory power in a manner that will cause an

insubstantial devaluation of [Landowners]’ property.” Kaiser Aetna, 444 US at 180,

100 SCt at 393, 62 LEd2d 332. Rather, SDCL 41-9-1.1(2) imposes a servitude,

which “in this context will result in an actual physical invasion of the privately

owned [land].” Id. As recently reiterated by the United States Supreme Court, a

permanent physical invasion, however minor the economic cost, constitutes a per se

taking because it “eviscerates the owner’s right to exclude others from entering and

using her property—perhaps the most fundamental of all property interests.”

Lingle, ___ US at ___, 125 SCt at 2082, 161 LEd2d 888. The amendment to SDCL

41-9-1.1 subjects property owners to continual invasions of their airspace and their

property abutting public rights-of-way during hunting season, and it deprives them

of a fundamental property interest: the right to exclude. The intrusion suffered by

Landowners may be minimal, but that fact bears only on the appropriate amount of

damages, a question of fact. Loretto, 458 US at 438, 102 SCt at 3177, 73 LEd2d 868

(“Once the fact of occupation is shown . . . a court should consider the extent of the

occupation as one relevant factor in determining the compensation due.”).

[¶115.] The straightforward legislative scheme involves expanding the

definition of road hunting to include shooting a bird over private property from a

public right-of-way easement. The Legislature explicitly expanded the easement to

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include private property. When it did so, it demanded that Landowners subject a

portion of their property for use by the public and took away their right to exclude.

Such is constitutionally prohibited without compensation. Therefore, I would affirm

the circuit court’s holding that SDCL 41-9-1.1(2) is an unconstitutional taking of

private property without just compensation and thus void, as directed by the

legislation.

[¶116.] Affirmed in part and reversed in part.

[¶117.] GILBERTSON, Chief Justice, KONENKAMP and ZINTER, Justices,

and JOHNSON, Circuit Court Judge, concur on Issue 1.

[¶118.] GILBERTSON, Chief Justice, KONENKAMP, Justice and JOHNSON,

Circuit Court Judge, concur on Issue 2.

[¶119.] ZINTER, Justice, concurs specially on Issue 2.

[¶120.] ZINTER, Justice, and JOHNSON, Circuit Court Judge, concur on

Issue 3.

[¶121.] KONENKAMP, Justice, concurs in result on Issue 3.

[¶122.] MEIERHENRY, Justice, dissents on Issue 3.

[¶123.] JOHNSON, Circuit Court Judge, sitting for SABERS, Justice,

disqualified.

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