by William Perry Pendley

February 1, 2005

Imagine: property owners notice that an armed hunter is trespassing on their property. They advise him that the land is private property, that he is in trespass, and that he should leave and hunt elsewhere. He readily agrees and quickly departs; however, after he has walked a few paces, he turns and begins shooting at the landowners with his high-powered rifle. When the shooting is over, six lay dead or dying and the hunter is on the run.

That was the horrific reality last fall near Hayward, Wisconsin, which shocked the nation, even in the wake of the deadly fighting during the liberation of Fallujah. Today, the Wisconsin men have been buried, the Minnesota hunter has been apprehended, and the trial for first degree murder has been scheduled. People wonder, however, could it happen again? Amazingly, last summer the South Dakota Attorney General took a position in court that might have ensured that it would reoccur! How could that be?

For decades, South Dakota law has allowed hunting along section lines or other roads if such rights-of-way are used for vehicular traffic; however, hunters were not allowed to fire over or onto privately-owned land without the landowner’s permission. That all changed on March 22, 2003, when the State Legislature amended state law to permit hunters to fire at and kill small game on private property if that game takes flight from a right-of-way. Thus, property owners may not prevent hunters from firing over or onto their land at such game.

The law effected a fundamental change in South Dakota law, which, since 1973, had barred hunting on private property without the owners’ permission and recognized the right of owners to deny entry to all others. Plus, the U.S. Supreme Court has held consistently that firing weapons over or onto private property is a physical invasion, which, in turn, is an unconstitutional taking, a taking “for public use” without “just compensation.”

Landowners who maintain private hunting grounds on their property sued, arguing that the new law is unconstitutional because it denies landowners the right to exclude others. South Dakota’s Attorney General replied that the State Legislature had merely decriminalized hunting on private land. Landowners, he argued, still had other remedies: explicitly, civil lawsuits against trespassing hunters and implicitly, self-help: telling hunters that they are trespassing, the very thing that got the landowners in Wisconsin killed!

Fortunately, the State Circuit Court rejected the Attorney General’s argument and the “conflict and confusion” that would occur if it were accepted: “Either the State Legislature has chosen to allow hunters to invade private property under color of law and thus free of interference by landowners or the State Legislature has told hunters that they may invade private property while hunting but at their own peril. The latter makes no sense.” Ruled the court, “the former is the law now in South Dakota.”

In so doing, the court asked, had South Dakota denied landowners “exclusive use and peaceful enjoyment of their property?” Noting that the right to exclude others is “one of the most essential sticks in the bundle of rights that are commonly characterized as property,” that the right to exclude extends to any physical invasion, “no matter how minute,” and that the firing of bullets over and onto private property is such an invasion, the court said “yes.”

The court recognized that, while the State Legislature may regulate road hunting in South Dakota, “it must do so within the framework of the Constitution.” In this case, the court held, “the Legislature went too far when it granted hunters the right to shoot onto private land. This is the very kind of thing that the Takings Clause[, which ‘stands as a shield against the arbitrary use of governmental power’] was meant to prevent.”

In striking South Dakota’s hunting law, the court may have done more than prevent an unconstitutional taking, it may have prevented bloodshed.

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