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Friday, January 15, 2010

Open Fields? HB 1067 Requires Landowner Permission for Conservation Officers to Do Their Job

Representative Mike Verchio from Hill City has lobbed a handful of bills and resolutions onto the South Dakota state legislature's agenda. Among them, House Bill 1067 seeks to restrict conservation officers' access to private land. Verchio's bill would require the game warden to get landowner or lessee permission to enter private land. The bill does make reasonable suspicion and hot-pursuit exceptions, but it creates a barrier to compliance checks, where the conservation officer approaches hunters and fishers to check licenses and limits.

South Dakota Game Fish & Parks offers this defense of compliance checks:

Since the earliest days of statehood, conservation officers have carried out their enforcement responsibilities through the use of compliance checks here in South Dakota. These informal contacts with hunters and anglers in the field provide the public with assurance that laws and regulations established by the South Dakota Legislature and Game, Fish and Parks Commission are being followed. By Game, Fish and Parks Policy, conservation officers are allowed to go onto private land to conduct compliance checks in “open fields” only when they have visible evidence that hunting or fishing is actually occurring. Compliance checks provide a critically important deterrent to anyone who might consider violating the wildlife laws of the state. Without the ability to make personal contact with a hunter or angler in the field, it would be all but impossible for a conservation officer to know if that person had the proper license, was abiding by the bag limits, or was adhering to the numerous other restrictions enacted to protect and manage wildlife for the citizens of our state [Emmett J. Keyser, Asst. Director, Field Operations, "Compliance Checks Critical to Wildlife Conservation," South Dakota Game Fish & Parks].

So if we require conservation officers to get landowner permission, will we reduce the effectiveness of compliance checks? Some landowners would surely deny game wardens entry, and their land could then become free-fire zones for those (few, I hope) unlicensed, unscrupulous hunters.

I wonder if there's an analogy to sobriety checkpoints. I'm not fond of checkpoints, but I understand the argument that we're on public roads, driving's a privilege, etc. In enforcing hunting laws and protecting wildlife, game wardens have a tougher job than the highway patrol. The activity the HP is monitoring takes place on public roads (if you want to drive drunk and back into a tree in your own yard, well, I guess that's your business). The public resources GF&P is charged to protect are distributed across private land.

HB 1067 will bring up some useful discussion of private property rights and the Open Fields Doctrine. What do you think? Does the need to manage wildlife for the benefit of all who enjoy hunting and fishing outweigh private property rights? Weigh in here and with your legislators!


  1. Actually Corey if you read SDCL 32-23-1 carefully, notice how it does not specify that you have to be on a highway to be in a violation of that law. In other words, you can get a DUI anywhere, even on private property.

    Most of the other laws in chapter 32 do specify that you have to be on a highway, but drunk driving is the exception to the rule.

  2. The Fourth Amendment to the U.S. Constitution covers this.

    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    DUI checkpoints and GF&P checks violate the "probable cause" clause. (Say that five times fast!)

    Jason Bjorklund

  3. Jason,

    The United States Supreme Court in Michigan Dept. of State Police v. Sitz ruled that sobriety checkpoints were constitutional.

    The court felt that a properly conducted checkpoint was constitutional since drunk drivers posed a serious risk to the general public. If I remember correctly, the court did acklowledge the 4th amendment issue, however felt the slight infringment of a short stop outweighed the reasonable suspicion needed for a regular stop.

    The 4th amendment has been so ripped apart by the courts that it's true definition in today's world changes daily.

  4. Steve Sibson1/15/2010 12:50 PM


    It is through the Supreme Court that FDR implemented the Constitutional Revolution of 1937. The Supreme Court has been destroying the Constitution since that time. And you have given us an example of that. Thank you.

  5. "...driving's a privilege"

    The State will have us think that driving is a privilege, like a lot of activities that gives us some power over our own lives. Driving is a right. It's just not one that we've fought hard enough to claim. Sorry if this is off topic. It just popped out at me and made me sick a little.

    Dave Rislov

  6. Landowners and other private individuals and organizations have done more for conservation than any state entity could ever do. Why do we need to grant conservation officers extraordinary authority to trespass when private citizens are ensuring abundant wildlife in a civil way that respects the rights of others?

    Dave Rislov

  7. "Landowners and other private individuals and organizations have done more for conservation than any state entity could ever do. Why do we need to grant conservation officers extraordinary authority to trespass when private citizens are ensuring abundant wildlife in a civil way that respects the rights of others?" That is the biggest bunch of bs I've ever heard. Without controls people rape the land, and those that care don't mind reasonable regulation.

  8. This comment has been removed by the author.

  9. Dave I agree with you. If there is no suspicion, no one should have the right to invade private land.

    I don't think landowners are any more guilty of "raping the land" than the government is. And those who really do care about conservation might also really care about their privacy.

  10. Curious, Mark: HP can't set up a sobriety checkpoint on my driveway, can they? Or at the beer party I host out in the pasture?

  11. Cory,

    I would assume that would be correct for the checkpoint. I have never heard of a Law Enforcement agency trying a checkpoint on private land, and if they did, I would assume the court would find it invalid, unless for whatever reason whoever owned the land authorized it. And even then I don't think it would get too far in court.

    (Sorry for the overuse of my assumptions, I learned that you can never be certain how a judge will rule!)

    However, like I said in my first comment, you do not have to be on a public highway to be arrested for DUI.

    Private parking lots, trailer courts, and even your driveway are all fair game for 32-23-1.

    Example, a drunk driver runs into another car in a business parking lot. This did not happen on a public roadway, however with the wording of the law, the person us subject to arrest.

  12. K,

    I disagree with your comment about the government raping the land.

    Living close to Yellowstone and Grand Teton National Parks, I think the government does an excellent job of preserving those areas.

    Sibby will now call me a commie, but without the government preserving Yellowstone, and other National Parks, what would happen to those areas?

  13. Interesting, Mark! So suppose I get Gerry Lange's permission to tear around in his pasture with my Jeep. A deputy sheriff drives by and sees me four-wheeling out in the middle of the section. Can the deputy enter the pasture, ask to see my license, and smell my breath?

  14. Cory,

    Many things have to be answered before a straight answer to the question, but I'll try my best to fill in the blanks.

    According to Hester v. United States, police can go on private land via the open field doctrine. The court felt that there is no expectation of privacy in an open field.

    However, if you are in a vehicle, you do have an expectation of privacy, so police would need reasonable suspicion that criminal activity is afoot before they stop you four wheeling.

    If they can establish reasonable suspicion on your activities, they can stop you. Once you are stopped, then they can investigate your drinking and driving if they have reason to do so.

    When you read the 4th Amendment (look above at Jason's comment) it says "...in their persons, houses, papers, and effects, against unreasonable searches and seizures." It does not cover land and open fields, which was clarified in the Hester case.

  15. Mark,

    Without the government, we would probably not have beautiful places like Yellowstone. I agree with you on that. But government-owned land continues to go up for sale, making those gems like Yellowstone very rare.

  16. That's an interesting distinction, Mark. The courts say if I drive my Jeep out to the middle of a field, I have an expectation of privacy. But if I hike (or, I presume, ride my mountain bike) to the same spot, I do not have an expectation of privacy. So asserting my rights appaers to depend, in this case, on my ability to procure a vehicle.

    Would the same principle apply to hunters: can GF&P only conduct a compliance check if the hunters who have driven into a field get out of their truck?

  17. John,

    "Without controls people rape the land..."

    Is that what landowners in SD do with their land? I guess you could argue that farmers "plant their seed" without the consent of the land. But all that raping sure produces a lot of food.

  18. Cory,

    According to SDCL 41-15-6, law enforcement can stop and conduct a search.

    "Inspection and counting of birds, animals, and fish to be permitted by person in possession--Stopping of motor vehicle or other conveyance for inspection. Any person who possesses any game bird, animal, or fish shall, upon the request of any person authorized to enforce the game and fish laws of the state, permit the inspection and count of the birds, animals, or fish. Any motor vehicle, pickup camper, camper, or any conveyance attached thereto, may be stopped for such an inspection and count by any uniformed law enforcement officer."

    Now I'm sure this law has been challenged in court, but must have been held up by the courts.

    It appears to me that if you have a pheasant or a fish in your car, you have just given up your 4th amendment rights according to the South Dakota legislature.

  19. Those seeking mass production rip out shelter belts, overgraze, tile every inch allowable, farm the ditches, over-fertilize. They are not stewards of the land as many farmers see themselves, yet the pressures of "keeping up" push many to pursue more extreme measures than they would ever do if conservation practices were enforced and created a level playing field.

    If you don't believe me, watch a movie about the depression (wind storms, erosion, mass devaluation). Or does history not repeat itself? Or is global warming just a myth?

  20. Since when has overgrazing and soil erosion maximized production for farmers? Producers are aware of the problems these things pose, and those who fail to take action to stop them do so to their own detriment.

    But you're right. Landowners often put production above conservation and don't always do all that they can to protect game, but my point is that they do more than any number of officers from GF&P can. So, it's better to let landowners make sure hunters aren't taking too much, and let them call up GF&P if they see a problem.

  21. Mark,

    You do an excellent job of parrotting the law. On that I commend you.

    When the Supreme Court gets one more Justice that believes that firearm ownership is a state right, and not an individual right... will that change the spirit of the law? No.

    There is right... there is wrong... and there will always be those that say what is wrong is right and vice versa.

    A search, without reasonable suspicion that a crime has been committed... and without a warrant stating what is to be searched and what fruits are expected of that search... is wrong.

    Most police searches I have seen, violate the "elephant in an envelope" clause. They use whatever authority their position entitles them to, to push a search far beyond what is prescribed by law. Probabale cause and reasonable suspicion clauses are often our first and only preemptive line of defense against abusive officers.

    Regardless of what courts or corrupt officers say, we must always remember, and fight for, the spirit of the law.

    Jason Bjorklund


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