[¶ 1.] MEIERHENRY, Justice and GILBERTSON, Chief Justice.
[¶ 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 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:
[¶ 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 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
[¶ 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 N.W.2d 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 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The 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 N.W.2d 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 S.D. 59, 108 N.W.2d 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,
79 S.D. at 65-66, 108 N.W.2d at 204 (citations omitted).
[¶ 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 S.D. 406, 412, 25 N.W.2d 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 challenged the constitutionality of SDCL 41-9-1.1(2) by proceeding against the State and its officials in this declaratory action.
[¶ 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 N.W.2d 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
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 N.W.2d 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 S.D. 642, 647, 214 N.W.2d 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, 214 N.W.2d 93. As we said in Kneip v. Herseth,
Id. at 648, 214 N.W.2d 93 (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 N.W.2d 593, 595 (S.D.1993) (quoting Gladstone, Realtors, et al. v. Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 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 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).
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 has the legal right to seek judicial redress for his grievance.'" Matter of Baby Boy K., 1996 SD 33, ¶ 14, 546 N.W.2d 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 U.S. at 561, 112 S.Ct. at 2136, 119 L.Ed.2d at 364 (citations omitted).
[¶ 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.
Lujan, 504 U.S. at 561, 112 S.Ct. at 2137, 119 L.Ed.2d 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 U.S. at 560-61, 112 S.Ct. at 2136, 119 L.Ed.2d 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 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 U.S. at 561-62, 112 S.Ct. at 2137, 119 L.Ed.2d 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, 112 S.Ct. at 2137, 119 L.Ed.2d at 365.
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 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: " § 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 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 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 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 U.S. at 560, 112 S.Ct. at 2136, 119 L.Ed.2d 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
[¶ 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.
[¶ 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 N.W.2d 460, 463 (citing Steinberg v. South Dakota Dept. of Military Affairs, 2000 SD 36, ¶ 6, 607 N.W.2d 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 N.W.2d 37, 43 (citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 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 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).
[¶ 40.] Challenges to the constitutionality of a statute face a significant and heavy burden. Meinders v. Weber, 2000 SD 2, ¶ 10, 604 N.W.2d 248, 254 (quoting Sedlacek v. South Dakota Teener Baseball Program, 437 N.W.2d 866. 868 (S.D.1989) (quoting Oien v. City of Sioux Falls, 393 N.W.2d 286, 289 (S.D.1986))). There is a strong presumption that a statute is constitutional. State v. Asmussen, 2003 SD 102, ¶ 2, 668 N.W.2d 725, 728 (citing State v. Allison, 2000 SD 21, ¶ 5, 607 N.W.2d 1, 2). "In order to prevail, a successful challenge must refute this presumption beyond a reasonable doubt." Id. (citing State v. McGill, 536 N.W.2d 89, 94 (S.D.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 N.W.2d 688, 689 (quoting Cary v. City of Rapid City, 1997 SD 18, ¶ 10, 559 N.W.2d 891, 893 (citing Simpson v. Tobin, 367 N.W.2d 757, 766 (S.D.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., 544 U.S. 528, ___, 125 S.Ct. 2074,
[¶ 42.] The issue of what constitutes a "public use" has been a subject of frequent litigation. Recently in Kelo v. City of New London, ___ U.S. ___, 125 S.Ct. 2655, 162 L.Ed.2d 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 S.D. 63, 144 N.W. 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 N.W. at 728. In that case, we did consider the alternate "public benefit" rule but opted for the "use by the public" rule. Id.
Id. at 78, 144 N.W. 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 N.W.2d 673, 674 (S.D.1976) (citing Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 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 S.D. 168, 175-176, 99 N.W.2d 439, 443 (1959); Frawley Ranches, Inc. v. Lasher, 270 N.W.2d 366, 369 (S.D. 1978).
[¶ 43.] Examination of this constitutional issue cannot be conducted in a historical
[¶ 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 regulation and criminal restrictions upon hunters to protect private landowners.
[¶ 45.] SDCL 41-9-1.1(2) provides in relevant part:
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.
[¶ 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 U.S. at 435, 102 S.Ct. at 3175-76. 73
[¶ 49.] Landowners cite to Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287 (1922) (Portsmouth II), as support for their proposition that shots fired over private property constitute a permanent 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 S.Ct. at 136, 67 L.Ed. 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."
[¶ 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 U.S. 530, 34 S.Ct. 159, 58 L.Ed. 351, and Portsmouth I, 250 U.S. 1, 39 S.Ct. 399, 63 L.Ed. 809, where the Supreme Court concluded the facts were insufficient to demonstrate a permanent physical occupation.
[¶ 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.
[¶ 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 U.S. at 430, 102 S.Ct. at 3173, 73 L.Ed.2d 868 (noting fixed physical structures such as "telegraph and telephone lines, rails, and underground pipes or 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, 544 U.S. at ___ _ ___, 125 S.Ct. at 2081-82, 161 L.Ed.2d 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 S.Ct. at 2081-82, 161 L.Ed.2d 876. First, "the character of the governmental action" must be evaluated, keeping in mind that a
Penn Central, 438 U.S. at 124, 98 S.Ct. at 2659, 57 L.Ed.2d 631. Next, "the economic impact of the regulation on the claimant" must be examined. Lingle, 544 U.S. at ___, 125 S.Ct. at 2081-82, 161 L.Ed.2d 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 U.S. at 130-31, 98 S.Ct. at 2662, 57 L.Ed.2d 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 U.S. 502, 508-510, 43 S.Ct. 437, 438, 67 L.Ed. 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 U.S. 393, 415, 43 S.Ct. 158, 159, 67 L.Ed. 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 U.S. 470, 488, 107 S.Ct. 1232, 1243, 94 L.Ed.2d 472 (1987); (citing Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322). A distinction exists between the character of the 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 U.S. at 428, 102 S.Ct. at 3172, 73 L.Ed.2d 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 Fed.Cl. 76, 106 (FedCl 2005) (citing Ridge Line, Inc. v. United States, 346 F.3d 1346, 1355 (Fed.Cir.2003) (citing Portsmouth II, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287)). The causation requirement in Portsmouth II, is often referred to as the "natural, probable consequence test." Id. (citing Ridge Line, 346 F.3d 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 F.3d 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 U.S. at 84, 87, 82 S.Ct. at 531, 533, 7 L.Ed.2d 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
Id. (emphasis added).
[¶ 60.] Similarly, in Harms v. City of Sibley, 702 N.W.2d 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 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585, and N. Transp. Co. of Ohio v. City of Chicago, 99 U.S. 635, 642, 25 L.Ed. 336 (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 N.W.2d at 100 (quoting N. Transp. Co. of Ohio, 99 U.S. at 642, 25 L.Ed. 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 U.S. at 642, 25 L.Ed. 336) (citing Barbian v. Panagis, 694 F.2d 476, 485-87 (7thCir.1982); Hansen, 65 Fed.Cl. 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 Fed.Cl. at 102-06 (discussing
[¶ 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).
[¶ 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 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.
[¶ 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
[¶ 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 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 N.W.2d 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 N.W.2d 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
[¶ 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 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:
[¶ 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:
Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 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,
[¶ 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 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 N.W.2d 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:
Rumpca, 2002 SD 124, ¶ 10 n. 2, 652 N.W.2d 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.
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
[¶ 76.] However, it is critical to note, that per the provisions of SDCL 41-1-2,
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 N.W.2d 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 U.S. at 124, 98 S.Ct. at 2659, 57 L.Ed.2d 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 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 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 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 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.
[¶ 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
[¶ 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.
[¶ 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 U.S. at 130-32, 98 S.Ct. at 2662-63, 57 L.Ed.2d 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 S.Ct. at 2662-63, 57 L.Ed.2d 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 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.
[¶ 84.] An examination of the history of our hunting statutes in Reis, 1996 SD 75, ¶¶ 28-31, 550 N.W.2d at 84-85, (Gilbertson, J., concurring), shows that for a great part of our history there were no, or only
[¶ 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 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 U.S. at 124, 98 S.Ct. at 2659, 57 L.Ed.2d 631 (quoting Mahon, 260 U.S. at 413, 43 S.Ct. at 159, 67 L.Ed. 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).
Wegleitner, 1998 SD 88, ¶ 11 n. 3, 582 N.W.2d at 692.
[¶ 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 N.W.2d 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 S.D. at 77, 144 N.W. at 728 (quoting Hairston v. Danville & WR Co., 208 U.S. 598,
[¶ 89.] "While the wisdom of the current statutes may be justly debatable, there is nothing contained in [the constitution] to topple them." Wegleitner, 1998 SD 88, ¶ 35, 582 N.W.2d at 699. For the above reasons we reverse the holding of the circuit court on Issue 3.
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 U.S. 104, 123, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 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 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
[¶ 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.
[¶ 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 U.S. at 124-25, 98 S.Ct. at 2659, 57 L.Ed.2d 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 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 U.S. at 136-37, 98 S.Ct. at 2665-66, 57 L.Ed.2d 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.
[¶ 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 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:
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
[¶ 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 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:
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 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 N.W.2d 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
[¶ 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, 544 U.S. at ___, 125 S.Ct. at 2082, 2087, 161 L.Ed.2d 876; Causby, 328 U.S. at 264-65, 66 S.Ct. at 1067-68, 90 L.Ed. 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 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), and Loretto, 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868. See Lingle, 544 U.S. at ___, 125 S.Ct. at 2082, 2087, 161 L.Ed.2d 876.
[¶ 111.] In Kaiser Aetna, the United States Supreme Court recognized that government cannot compel public access to private property without just compensation. Id. at 179-80, 100 S.Ct. at 393, 62 L.Ed.2d 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 S.Ct. at 393, 62 L.Ed.2d 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 U.S. at 435, 102 S.Ct. at 3176, 73 L.Ed.2d 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 n. 9, 102 S.Ct. at 3174 n. 9, 73 L.Ed.2d 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,
Ridge Line, Inc., 346 F.3d 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 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 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 U.S. at 435, 102 S.Ct. at 3176, 73 L.Ed.2d 868.
[¶ 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 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631, does not apply. See Lingle, 544 U.S. at ___, ___, 125 S.Ct. at 2082, 2087, 161 L.Ed.2d 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 U.S. at 180, 100 S.Ct. at 393, 62 L.Ed.2d 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, 544 U.S. at ___, 125 S.Ct. at 2082, 161 L.Ed.2d at 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:
[¶ 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 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.
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 1991, ch 337, § 62; SL 1992, ch 293, § 13; SL 1996, ch 252, § 1; SL 2003, ch 225, § 1.
Amicus Curiae South Dakota Wildlife Federation's Br. 3.