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Posted on Fri, Jun. 25, 2004

Road hunting lawsuit scheduled for court hearing


Associated Press

PIERRE, S.D. - Circuit Judge Kathleen Trandahl of Winner will consider arguments on Wednesday in a legal challenge to a new state law that allows road hunters to shoot pheasants over private property.

The lawsuit was filed last October by farm and ranch couples Bob and Judith Benson of Winner and Jeff and Tricia Messmer of Wessington Springs. Benson is a former state legislator.

The couples allege that their property rights are violated by a hunting law that went on the books last year.

The law allows hunters to shoot birds that originate from the public right of way or cross it. However, hunters must first park vehicles as far to the right-hand side of roads as possible.

If shooting less than 50 yards from vehicles, all doors must be closed and engines must be shut off; if shooting more than 50 yards from vehicles, driver's side doors must be closed but engines need not be off.

The lawsuit claims interference with the use and enjoyment of landowners' property. It is a constitutional violation for government to allow public use of private property without compensation for landowners, the Bensons and Messmers argue.

Trandahl, who has been a judge since 1994, should declare the new law void without a trial, the plaintiffs contend. Deputy Attorney General Craig Eichstadt will argue that the lawsuit should be dismissed.

The judge said Friday that it is unlikely she will immediately rule from the bench, meaning that a written decision will be issued later.

The Messmers and Bensons say problems with careless and reckless hunters have increased since the new law was enacted. They say hunters are causing damage and also threaten the couples' safety by firing onto their property.

The 2003 Legislature passed the new road-hunting law in response to a 2002 state Supreme Court ruling that said it was illegal to shoot birds over private property without permission. Birds could be legally shot only within the right of way while road hunting, the justices said.

Worried that such a strict interpretation of the traditional road-hunting law would literally end the popular practice because of the impossibility of ensuring that buckshot does not cross fence lines near roads, lawmakers decided to rewrite the law.

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