710 N.W.2d 131 (S.D. 2006), 23492, Benson v. State

Docket Nº:23492.
Citation:710 N.W.2d 131, 2006 SD 8
Opinion Judge:[1.] MEIERHENRY, Justice and GILBERTSON, Chief Justice.
Party Name:Robert BENSON, Judith Benson, Jeff Messmer, and Tricia Messmer, Plaintiffs and Appellees, v. STATE of South Dakota, M. Michael Rounds, in his official capacity as Governor of the State of South Dakota; Larry Long, in his official capacity as Attorney General of the State of South Dakota; South Dakota Department of Game, Fish & Parks; and John Coope
Attorney:Christopher D. Dohrer of Richardson, Wyly, Wise, Sauck & Hieb. LLP, Aberdeen, South Dakota, J. Scott Detamore, Joseph F. Becker, William Perry Pendley, Mountain States Legal Foundation, Lakewood, Colorado, Attorneys for plaintiffs and appellees., Lawrence E. Long, Attorney General, Craig M. Eichs...
Case Date:January 24, 2006
Court:Supreme Court of South Dakota
 
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710 N.W.2d 131 (S.D. 2006)

2006 SD 8

Robert BENSON, Judith Benson, Jeff Messmer, and Tricia Messmer, Plaintiffs and Appellees,

v.

STATE of South Dakota, M. Michael Rounds, in his official capacity as Governor of the State of South Dakota; Larry Long, in his official capacity as Attorney General of the State of South Dakota; South Dakota Department of Game, Fish & Parks; and John Cooper, in his official capacity as Secretary of the South Dakota Department of Game, Fish & Parks, Defendants and Appellants.

No. 23492.

Supreme Court of South Dakota

January 24, 2006

ARGUED ON AUGUST 31, 2005

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT TRIPP COUNTY, SOUTH DAKOTA HONORABLE KATHLEEN F. TRANDAHL Judge.

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CHRISTOPHER D. DOHRER of Richardson, Wyly, Wise, Sauck & Hieb. LLP Aberdeen, South Dakota; J. SCOTT DETAMORE JOSEPH F. BECKER WILLIAM PERRY PENDLEY Mountain States Legal Foundation Lakewood, Colorado Attorneys for plaintiffs and appellees.

LAWRENCE E. LONG Attorney General CRAIG M. EICHSTADT ROBERT E. MAYER Deputy Attorneys General Pierre, South Dakota Attorneys for defendants and appellants.

[¶ 1.] MEIERHENRY, Justice and GILBERTSON, Chief Justice

[¶ 2.] Justice Judith K. Meierhenry delivers the opinion of the Court on Issue 1, which holds that the circuit court had jurisdiction to consider this action.

[¶ 3.] Justice Judith K. Meierhenry delivers the opinion of the Court on Issue 2, which holds that Landowners have standing to challenge the statute at issue.

[¶ 4.] Chief Justice David Gilbertson delivers the opinion of the Court on Issue 3, which holds that the challenged statute does not constitute a compensable taking under the United States Constitution or the South Dakota Constitution.

[¶ 5.] MEIERHENRY, Justice, writing for the Court on Issues 1 and 2.

[¶ 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.

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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:

For purposes of this section, hunting on highways or other public rights-of-way includes:

(1) The shooting at or taking by legal methods of small game, except mourning dove, that are located within the boundaries of the highway or public right-of-way;

(2) The 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.

If subdivision (2) of this section is declared by an advisory opinion or adjudication of the South Dakota Supreme Court to be a taking of private property requiring compensation, subdivision (2) is void.

SDCL 41-9-1.1.

[¶ 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

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and the State filed cross motions for summary judgment. The circuit court granted summary judgment in favor of Landowners. On appeal, the State raises the following issues:

ISSUES

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.

2. Whether Landowners lack standing to challenge criminal prohibitions under which they are not threatened.

3. Whether the circuit court erred when it held that 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.

DECISION

[¶ 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 US 123, 28 SCt 441, 52 LEd 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 SD 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,

Where a state or an agency thereof acting in a sovereign capacity takes or damages private property for public use without exercising the power of eminent domain, it cannot evade the constitutional provision which guarantees the right to compensation but will be obligated to pay the same as if it had proceeded under that power. The constitution should bind officers and agents of the state and the state should not by indirect action be permitted to violate it. It expects and demands compliance by its citizens and they have the correlative right to expect that from the state.

79 SD at 65-66, 108 N.W.2d at 204 (citations omitted).

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