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Hunting decision appealed
By Kevin Woster, Journal Staff Writer

PIERRE - South Dakota Attorney General Larry Long said Friday that he was appealing a ruling by a circuit court judge in Winner that would tighten restrictions on road hunting.

The ruling released in early December by Circuit Judge Kathleen Trandahl would strike down a law passed by the 2003 state Legislature affirming the right of road hunters to shoot pheasants and other birds flying over adjacent private land.

That has been a common practice for generations in South Dakota, but Trandahl ruled that it constituted an unconstitutional taking of private land without just compensation. Under her ruling, road hunters could fire only at birds on or flying above road right-of-ways where hunting was allowed.

Long wouldn't address specifics Friday of the state's challenge to that ruling, but he said that road hunting was an unusually prominent issue that demanded the highest legal attention.

"First of all, road hunting is such a visible issue in South Dakota that we believe the South Dakota Supreme Court needs to give ultimate resolution to the issue," Long said. "The second thing is, the statutory framework under which the statute was passed contemplates a Supreme Court resolution. For both of those reasons, I think this is a case that has to go up."

The lawsuit leading to Trandahl's ruling began in October 2003, when Robert and Judith Benson of Clearfield and Jeff and Tricia Messmer of Wessington Springs took the issue to court. Both couples run commercial hunting operations.

The issue had come to the 2003 Legislature after a 2002 Supreme Court ruling, criticized by many sportsmen's groups, that said the existing state law did now allow road hunters to fire at birds flying over private land. In response to that ruling, the 2003 Legislature approved a law clarifying that road hunters would have that right. Many farmers and ranchers criticized that law, which Trandahl's ruling would strike down.

Trandahl's decision would limit road hunters to shooting at birds that were on or flying above the road right-of-way. But Long said the state's appeal automatically triggered a stay that blocks the ruling from taking effect until the Supreme Court rules.

And the 2003 law itself contained a provision saying it should remain in effect if challenged until the Supreme Court could make a decision.

It could take several months before the legal briefs from both sides are submitted in the case, Long said. Then, the high court would decide whether the case deserved oral arguments before the justices, he said.

If the Supreme Court doesn't rule before the fall hunting season, the 2003 law allowing road hunters to fire at birds over private ground would remain in effect.

Contact Kevin Woster at 394-8413 or

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