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By Joe Kafka
Associated Press Writer

PIERRE - Owners and operators of hunting services in central South Dakota have lost a lawsuit with the U.S. Fish and Wildlife Service over threats of prosecution for certain farming and management practices.

U.S. District Judge Richard Battey had earlier ruled against the hunting services, and the 8th U.S. Circuit Court of Appeals on Wednesday upheld that decision.

The lawsuit against the FWS was filed in 2003 by a handful of people who provide paid hunting of waterfowl in Hughes County, a popular goose-hunting area adjacent to the Missouri River.

Arguing that they had violated no federal regulations and that FWS should back off, the plaintiffs said their farming practices were normal but also were designed to maximize goose-hunting opportunities.

Filing the lawsuit were Alex and Annie Falk of Aberdeen, Big Bend Ranch Hunting Inc., Bob Nystrom, and Mohammed Hattum. The Falks own a Hughes County ranch and lease hunting rights on the ranch to Big Bend. Nystrom and Hattum are landowners who also have commercial goose-hunting operations.

The federal appeals court noted that commercial hunting results in substantial income for those operators. For example, the court said Big Bend Hunting Ranch normally gets $284,250 in annual gross revenues from hunting - in addition to $9,000 in membership fees from its waterfowl-hunting club.

The plaintiffs said their farming activities help ensure that the hunting operations are financially practical by also helping attract waterfowl.

The Fish and Wildlife Service threatened prosecution of the landowners unless they prohibited waterfowl hunting on ground where grain has been harvested after Dec. 1 each year.

The Falks and Hattum had left corn standing in their farm fields to attract waterfowl, but the threat of prosecution forced them to cease hunting or harvesting in those areas after Dec. 1.

The landowners argued in their lawsuit that harvesting corn after Dec. 1 each year is a normal farming practice in South Dakota.

The appeals court disagreed, relying on testimony from Robert Hall, an Extension Service agronomist and professor at South Dakota State University. Hall researched records from 1970-94 and determined that 95 percent to 100 percent of the corn harvest in South Dakota is typically done by Dec. 1.

Hunting over grain spread as bait has long been outlawed because birds will dive onto those fields and are easily shot.

The Migratory Bird Treaty Act, first passed in 1918, makes it unlawful to shoot waterfowl attracted by bait if a person knows or should know that an area is baited. Convictions can bring fines up to $15,000 and six months in prison.

The 8th Circuit also upheld a FWS determination that goose and duck hunting cannot be done in corn fields where winter wheat has been sown by aircraft because that is not a recommended farming practice.

The Falks also were advised by the appeals court that they cannot allow waterfowl shooting on their property after Dec. 1 if an adjacent landowner who competes for waterfowl hunters has harvested grain on his land after that date.

"Because harvesting corn after Dec. 1 is not normal harvesting, the neighbor's land was a baited area," the court wrote.

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